The National Council of Provinces (NCOP) Permanent Delegate laid out all of the objectives of and intentions behind the Customary Initiation Bill (CIB).
The Department provided a brief introduction to the Bill, including the key contributors and its role in the processing of the Bill. The presentation contents included the: Introduction; Policy and Bill; Bill objectives; Bill content; consultations; financial implications and conclusion.
The Department of Traditional Affairs said that the customary practice of initiation had unfortunately been subject to abuse. In many instances it resulted in the death of initiates, while numerous initiates suffered serious bodily harm. One of the main reasons for this unfortunate situation was the ineffective regulation of initiation schools. Although there were existing national and provincial laws that addressed certain critical aspects of initiation, the application thereof was limited. There was currently no national law that dealt with the customary practice of initiation comprehensively.
The Department had been involved in extensive research relating to initiation which resulted in the development of a policy that was submitted to Cabinet in 2012. The Bill was subsequently drafted on 21 June 2017; Cabinet approved that it be published in the Government Gazette for public comments. The Bill was refined based on the comments received and was approved by Cabinet for tabling in Parliament on 28 February 2018. The Bill was needed to protect but also regulate the customary practice of initiation uniformly across the country.
The Bill was discussed at the National Assembly briefings and in virtual briefings as well. There was only one key issue in the CIB that was raised – the one referred to in Clause 28 regarding the minimum age of 16. It may be that in future the Children’s Act would be amended to come down to the age up for discussion, which was the age of 12 – following the necessary processes. Currently, the COVID-19 regulations published in the Government Gazette had the total prohibition on initiation for as long as the National State of Disaster was in place. Therefore, initiation was not allowed in any province. In the case referred to, those people were in contravention of the COVID-19 regulations.
Members asked if the Bill would not compromise the sacredness of the practice itself in any way. Is it not at odds with the right for persons to enjoy their culture? In other traditions, it was practice for many generations to take an initiate to the place of initiation without him knowing, but certain elders who had performed the custom would be aware. They also asked if bush mobile hospitals were not a better option. At times, it was not only the parent, principal or caregiver that did not want to leave or go to hospital, but rather the initiate who wanted to go to hospital because they understood what the cultural implications would be.
Members enquired if the initiation seasons could possibly overlap with the academic school term. Is the obligation on the parent to ensure that the school is registered?
The Committee took resolutions in terms of the public participation process and following stages while considering Covid-19 regulations. In the Bill there would be a negotiating and final mandate. The Committee would follow the template as had already been done by the Committee on Social Development and Members would also consider how they could engage the Children’s Commissioner. The Committee would engage from the regional aspect and also look at specific local newspapers. Members would get a date regarding the timeframes.
The Chairperson welcomed Members, as well as all guests in attendance. The Committee would receive a briefing from the Department on the Customary Initiation Bill (CIB).
Mr Isaac Sileku (DA, Western Cape), Permanent Delegate, NCOP, said that the objective of the CIB was to protect, promote and regulate initiation, to provide acceptable norms and standards, and to provide for structures at national and provincial level with the view to ensure that initiation took place in a controlled and safe environment. A further objective was to provide for the protection of life and the prevention of any abuse as had been seen on the news. It became an excitement when a young boy went to initiation school but as, soon as they left their homes, the worry to the family became whether their son would come back or alive or if there would not be any abuse taking place at the particular school. The CIB objective was also to provide clarity on the various roles and functions of the key role players in customary initiation. One would find that there were indeed people in the sector who, for many years, performed the initiation themselves. However, what was seen these days, due to unemployment and poverty, was a younger generation of people that wanted to be the surgeons themselves without having had any experience. The result led to many deaths in these initiation schools. Another result was that those who were supposed to look after the initiates were not actually fulfilling their responsibility of making sure that nothing happened to these boys and that they were actually given whatever they should be given and whatever advice they were to be given.
The last objective was to make provision for the effective regulation of initiation schools. In some instances it would be found that some people did not get consent from their families. One would get a call that a man named Isaac Sileku (for example) was there after the surgeon had performed his duty, and the parents would be surprised. There would be nothing for the parents to do as the work would already have been performed. So, the parents would just have to hope for the best in that the boy would come back home safe and would have to look around and ensure that all the things he needed were there when he came back. The CIB was also to make sure that all of the deaths being read about in the papers or seen in the news are minimised and that these boys are taken care of. Lost lives were becoming an issue in the country and the legislative arm of the country could not allow such things to happen – this was what the CIB was trying to address. The CIB was not trying to change what was currently happening but was trying to make sure that whatever was happening at the initiation schools and that all those who had certain roles and responsibilities to perform performed them with the intent and purpose of making sure that there were no lives lost.
Briefing on Customary Initiation Bill (CIB) [B7B-2018]
Dr Rinaldi Bester, Chief Director: Policy and Legislation, Department of Traditional Affairs, provided a brief introduction to the CIB in terms of its key contributors and their contribution, and made some concluding comments.
Mr Abram Sithole, Secretary and Chief Executive Officer, National House of Traditional Leaders, presented the CIB. The presentation contents included: Introduction; Policy and Bill; CIB objectives; CIB content; consultations; financial implications and the conclusion.
Mr Sithole reckoned that the customary practice of initiation had unfortunately been subject to abuse. In many instances it resulted in the death of initiates, while numerous initiates suffered serious bodily harm. One of the main reasons for this unfortunate situation was the ineffective regulation of initiation schools. Although there were existing national and provincial laws that addressed certain critical aspects of initiation, the application thereof was limited. There was currently no national law that dealt with the customary practice of initiation comprehensively.
Over the past few years, the Department was involved in extensive research relating to initiation. This resulted in the development of a policy which was submitted to Cabinet in 2012. Cabinet requested the Department to conduct further research. This resulted in a revised policy which was submitted to Cabinet in April 2015. Cabinet approved that the revised policy be published in the Government Gazette for public comments. After further refinement following the comments received, Cabinet considered the Policy on the Customary Practice of Initiation in South Africa in August 2015 and again in April 2016 when it was approved. Cabinet also directed that the Department draft legislation based on the principles contained in the approved policy. The CIB was therefore drafted on 21 June 2017; Cabinet approved that the CIB be published in the Government Gazette for public comments. The Bill was refined based on the comments received and was approved by Cabinet for tabling in Parliament on 28 February 2018.
The objectives of the CIB were: (a) To protect, promote and regulate initiation and for this purpose to provide acceptable norms and standards; and provide for structures at national and provincial levels with a view to ensure that initiation takes place in a controlled and safe environment. (b) To provide for the protection of life and the prevention of any abuse. (c) To provide clarity on the various responsibilities, roles and functions of the key role-players in customary initiation. (d) To make provision for the effective regulation of initiation schools.
The CIB consisted of five chapters. Chapter one dealt with matters relating to interpretation (definitions); application (all initiates, irrespective of gender or age); objectives (protection of life); prohibitions (National Child Protection Register and National Register for Sex Offenders); and guiding principles (Bill of Rights). Chapter two dealt with oversight and coordinating structures. Provision was made for a National Initiation Oversight Committee (NIOC) consisting of not more than 11 persons representing: the National House of Traditional Leaders; CRL Rights Commission; the Department; SAPS; Department of Health (DOH); Department of Women; NPA; Interim Traditional Health Practitioners Council (THPC); and if deemed necessary, not more than two experts in anthropology/customs/customary law. Other clauses contained provisions relating to: the chairperson and deputy chairperson; disqualifications; vacancies; meetings; and administrative and financial support. Provision was made for Provincial Initiation Coordinating Committees (PICCs). Technical support teams: A PICC may establish a technical support team consisting of representatives of various departments including the provincial departments responsible for health, social development, and arts and culture, to name a few. They may also co-opt persons from national departments/institutions such as Justice, Health and the NPA and perform the functions as may be delegated to it by the PICC.
Chapter three dealt with responsibilities, roles and functions of the government, house of traditional leaders, traditional leaders, principals and care-givers, parents or legal or customary guardians, traditional surgeons, medical practitioners, SAPS and the NPA. Chapter four dealt with initiation schools. Initiation schools must be registered if they complied with prescribed criteria. Registration would only be valid for a specific initiation season; in certain instances, must obtain permission of landowner to hold initiation school on such land. Initiation seasons may not interfere or overlap with official school terms. Clause 28 dealt with consent, prohibitions, age and circumcision. No initiate may be assaulted or abused under the guise of discipline. Principals must ensure that water and sanitation needs were catered for. Death of an initiate must immediately be reported by principal and investigated SAPS. Chapter five dealt with general matters such as: allowances and expenditure – only relates to optional members of NIOC; offences; appeals: against decisions of NIOC and PICCs; regulations; monitoring of implementation of Act by the Department and provinces; and provincial peculiarities.
Since the CIB was based on the principles of the approved policy, it was important note the extensive consultations that took place during the development of the policy – see paragraph 4.1 of the Memorandum on the Objects of the CIB. In May and July 2016, the Bill was referred for comments to the National House of Traditional Leaders who in turn referred it to all provincial houses of traditional leaders; in the case of the Western Cape Province, to the Office of the Director-General; in the case of all other provinces, to all provincial departments responsible for traditional affairs, health, social development and policing/safety and security (a total of 32 provincial departments); and the Financial and Fiscal Commission. The Bill was also referred for comments to 13 national departments and four Chapter nine institutions. Comments were received from five national departments, seven provincial departments, one provincial house, the NHTL, the NPA, SAPS and one Chapter nine institution. In June 2017, Cabinet approved that the Bill be published in the Government Gazette for public comment. The Bill was published in Gazette No. 40978 of 14 July 2017 and the closing date for comments was 14 August 2017. Comments were received from various institutions.
The majority of members of the envisaged NIOC and PICCs would be government officials, public office bearers or members of institutions referred to in Chapter nine of the Constitution. Since they already receive salaries, there would be no additional remuneration related expenditure in this regard. In the case of the possible additional members to the NIOC (not more than two persons), the Minister (after consultation with the Minister of Finance) may determine allowances provided those persons were not officials or public office bearers. The Department and respective provincial departments would have to make provision for the travel and accommodation expenditure related to the work of the members of the NIOC and PICCs during initiation seasons.
The Bill dealt with matters relating to culture and traditional leadership (listed in the Constitution as functional areas of concurrent national and provincial legislative competencies). The Bill was needed to protect but also regulate the customary practice of initiation uniformly across the country. The National Assembly concluded the Second Reading Debate on the Bill on 04 December 2018. The NCOP Select Committee on Cooperative Governance and Traditional Affairs (CoGTA) received a briefing on the Bill on o4 February 2020.
The CIB was discussed at the National Assembly Provincial Legislature briefings and in virtual briefings as well. There was only one key issue in the CIB that was raised – the one referred to in Clause 28 regarding the minimum age of 16. This age restriction was in line with the Children’s Act. There were lengthy discussions in Parliament about the possibility of changing this particular provision but the CIB could not go against the Children’s Act. People had been talking to the State Law Advisors and Department of Social Development (DSD). The Portfolio Committee on CoGTA also had a discussion with their counterpart Portfolio Committee on Social Development. It may be that in future the Children’s Act would be amended to come down to the age up for discussion, which was the age of 12. As this was the only real comment raised in public hearings, once it was explained to the public they would understand why the CIB could not go against the age of 16.
Currently, the COVID-19 regulations published in the Government Gazette had the total prohibition on initiation for as long as the National State of Disaster was in place. Therefore, initiation was not allowed in any province. In the case referred to, those people were in contravention of the COVID-19 regulations. In Section one of the CIB there were a number of definitions that referred to the definition in the Traditional Leadership and Governance Framework Act (TLGFA). The TLGFA was the current national law dealing with traditional leadership but in November 2019 the President accented to the new Act, being the Traditional and Khoisan Leadership Act (TKLA). The TKLA had not yet commenced but the Department already drafted Committee amendments that would be presented to the Select Committee to change those definitions. Two sets had been drafted: one for in case the TKLA commences before the CIB would be adopted by Parliament and another version for in case the CIB did not commence.
The Chairperson said that the comment from Provincial Legal Services would be deferred to a later time; this was due to various departments that needed to be consulted directly after the briefing.
Ms L Botha (DA) sought clarity on the Chairperson’s comment on the provincial response. How would this affect the timeline in terms of the current presentation? Concerning the establishment of the council, local government was not a role player in that council. Why not?
What are the provisions made for whistle-blowers in regard to the Committee? Concerning the comment around sexual offenders and the Sexual Offender’s Register, is this register up to date?
How far has the engagement between the Department of Basic Education (DBE) gone in regard to not overlapping with the initiation season or school with the formal academic year?
The Chairperson responded to Ms Botha’s question on provincial legal services, saying that the permanent delegate, Mr Sileku, would remain with the Committee for the entire sitting as he would be able to provide further input on the timelines as the Committee had not received it directly from the NCOP as yet. The Committee would deal with this later in its resolutions.
Ms A Bans (ANC) commented on the presentation which referred to the matter of a guide which did not have legal powers. While this guide did not have legal powers, what was currently being done? A further comment she made was on the legal delegate that was absent. She suggested that perhaps the Committee should consider bringing in the Children’s Commissioner which was there for matters like this.
Mr M Kama (ANC) noted that when listening to the presentation, the intent of the CIB was to take the practice back to what it was in the past, where there were no deaths. Being involved in many of these discussions, others even argued contrary – saying that government’s over involvement with the practice had, to some extent, compromised the practice itself, which was supposed to be sacred and performed according to one’s culture. He added that, when the Department was explaining the list of names, he had seen ‘abductions’. Does the CIB compromise the sacredness of the practice itself in any way? Is it not at odds with the right for persons to enjoy their culture? In other traditions, it was practice for many generations to take an initiate to the place of initiation without him knowing, but certain elders who had performed the custom would be aware.
Concerning the hospitals, would bush mobile hospitals not be a better option? At times, it was not only the parent, principal or caregiver that did not want to leave or go to hospital, but rather the initiate who wanted to go to hospital because they understood what the cultural implications would be. In some cultures initiation was viewed as a process of moving from a particular stage in your life to adulthood. That would, in turn, affect how you would be viewed and the respect given to you because there was life after the initiation school.
Lastly, he sought clarity on the initiation seasons relative to the academic school term. He reckoned that an initiate, who was not a school-going person, perhaps by virtue of being beyond the school-going age or having matriculated, would perhaps want to go to an initiation not in the defined seasons, but would want to go some time in the middle of year as was practiced in the past.
Ms R Windvogel (DA) asked about the payments to initiation schools. Initiation schools asked people for huge amounts of money – especially the traditional leaders. How would this be regulated? Does the CIB include a minimum or maximum amount that the initiation school is allowed to ask to do the job?
Mr G Brinkhuis (Al Jama-ah) said that the Al Jama-ah fully supported the CIB. He asked that no time be wasted and that the CIB be enacted under the Constitution.
The Chairperson referred to the CIB providing financial and administrative support to the NIOC and PICC. The Department mentioned that if it was a government employee it would not be compensated. Was there a number to it, in that the board or these committees will have x amount of officials and non-officials? Is there any link to the PFMA in terms of financial assistance or support that would have been given?
He was glad that the Department talked about the engagement with the SAPS. Is the Department able to share any further information with regard to the comments that they had received from SAPS in terms of the comments that the Department had made about being under supervision and that SAPS would be investigating any contraventions in the CIB?
Regarding the initiation schools, is the obligation on the parent to ensure that the school is registered? How would one navigate if the school is attempting to be unscrupulous in order to get initiates? Who does the burden lie on in terms of who is responsible to check if the school is indeed registered?
The Department’s Response
Mr Sithole started by indicating that local government was involved in the initiation. In the presentation it was said that even in the Western Cape, there was a stage when the Department requested the Western Cape Metropolitan Council to intervene by providing water services to the initiation school because the initiation school did not have water. When looking at Clause 16, it made provision for this.
He was not certain about whistleblowers, but said that they were not provided for. What was critical was that the CIB provided for a hotline. A hotline was a line that anybody could use to report whatever situation was not correct or find out if there was an initiation school, whether registered or not. If somebody was not aware of an initiation school that was taking place, that person may use the hotline established by the national structure so that they could check if the initiation school was registered and under whom it was registered. That person could report anything that was not going right at the initiation school without using his or her name.
On the issue of the DBE period not overlapping he said that there were a number of challenges with this. In Mpumalanga, their initiation period was two months, which was a serious challenge for that school. In Limpopo, their initiation period was four weeks. In the province one would see two different communities – both the Ndebele and Pedi communities – which had two different winter periods. When going further down Mpumalanga, one would find those who had four month periods. All of this was being looked at, and the best was to use the school calendar as most of the initiates who attended initiate school were school-going children. Very few of those who attended initiation school fell outside of the DBE issue. This was why, in 2020, irrespective of Covid-19 protocols, the issue of winter initiation was suspended because the DBE said that winter holidays would be a week or two and it was not practical to have initiation over two weeks. Initiation was hence suspended and adequately regulated in this regard.
He responded on the legal power of the guide. As was indicated, there was no national legislation currently. There was only a Bill which was before the NCOP and was currently being discussed by the WCPP. This was the Bill that would ensure the guideline prepared was adopted by the national initiation structure, which would be established by the CIB once it is passed into law and the guide would then have legal power. Currently, it did not have legal power as it was a generic guide that set out requirements for a sound initiation school. The Department was working with the PICCs or task teams to ensure that the guide would be put into operation.
He understood the comments which said that government might be getting too involved in the initiation, therefore compromising the culture. He agreed that people might say this, but at the same time it was the concern of government to have initiation schools which became a death sentence to young people. Government was concerned about initiation schools through which amputations had taken place, as well as initiation schools that left people no longer normal because they had been extremely abused at the initiation school. Government engaged traditional leaders and the Congress of Traditional Leaders of South Africa (Contralesa). Contralesa initially said that initiation could not be regulated because this was their practice. However, if the practice was not run properly or has changed to become a death sentence to people, it was the duty of government to intervene. Therefore, government was intervening now. As it intervened, Contralesa agreed to work with government on the issue of initiation to ensure that the CIB did not talk about the sacredness of the culture. The CIB would not talk about anything happening in the culture, what was taught in the initiation school or how it was taught; the CIB spoke generically. For example, even if someone were to currently ask him what he had been taught in his initiation he would not tell as those who had undergone initiation were taught to keep it a secret. Initiates were taught to keep what they learn at the initiation school a secret and it could not be used anywhere else except at the initiation school. This was why the information had to be passed on to the next regiment that followed. Initiation school was about regiment and forming regiments so that regiment A could go to war while regiment B stayed at home, etc. The Department did not think that it was compromising anything in terms of the CIB; when it crafted the CIB, it was very careful because it was in frequent consultation with the NHTL and Chairperson’s Forum of the Provincial House of Traditional Leaders. The Department tried its level best to guard against anything that may compromise the sacredness of the culture, but it could not compromise the health and livelihood of potential initiates.
Bush hospitals were a better option but had certain limitations, if they were unable to assist the initiate and for the Department to save lives. This was why the Department engaged with the DOH to make provision for certain wards to be strictly selected for initiates so that those initiates who the bush hospital was unable to take care of could be taken to that ward. For a potential initiate to ultimately go to hospital was a situation which the Department did not necessarily like. The Department was aware of the connotation that the attendance of hospitals would have on the person, but as parents and as government there was a responsibility to send children back home alive. There were social issues where initiates might say that another initiate went to hospital and was not man enough to withstand the difficulties of initiation. However, this was what someone who had not lost a child at an initiation school would say. Losing a child who was 18 years old was not a good thing. This was why the Department was saying that if the bush hospital could not handle the health challenges facing the initiate, the initiate must go to hospital and secured hospital wards must be made available.
In terms of who must ensure that the initiation schools were registered, it was the responsibility of the parent as a parent should not send their child to an initiation school that they do not know. This was why the Department said that traditional leaders, as custodians of culture, must keep a register of all registered initiation schools in their offices. If their offices were far – for example, where a traditional leader had 15 villages – each village had a headman or headwoman in whose office all registered initiation schools within the area of jurisdiction of that traditional leader must be kept. The municipality or local government of the area concerned must have a list of all registered initiation schools. The applications to initiation schools would be done prior to the initiation season. Those people to whom permission might have been given should know at least a few weeks before the initiation school started and the list would be made available. It was therefore the responsibility of the parent to ensure that they do not send their child to a slaughterhouse, but to a properly registered initiation school that met all of the relevant criteria.
Dr Bester referred to the question concerning local government, to which the particular clause relevant to the Western Cape was Clause 11(3)(c). The whistle-blower’s hotline was Clause 9(1)(b)(v). In terms of the sexual offenders, the CIB referred to two particular registers: the National Child Protection Register which was provided for in the Children’s Act and administered by the DSD, as well as the National Register for Sex Offenders that was referred to in the Criminal Law (Sexual Offences and Related Matters) Amendment Act. The Department did not manage or control any of these registers. However, the way in which the Department understood it during consultations with the particular departments was that there was a relationship between the DSD and the Department of Justice so that every time that there was a court case where a person was declared as a sexual offender, the information would be given to the units responsible for updating the registers. The Department trusted that the registers were regularly updated. However, the Department did not have control over the registers and only referred to them in the CIB, saying that no person whose name was listed in the registers may be involved with initiations in any way.
Regarding the DBE and school terms, the DBE was consulted since the policy was started in 2011. There was a Traditional Leadership Indaba in 2013 which former Minister Richard Baloyi arranged on behalf of CoGTA. All the parties who were involved and present at the Indaba, including the DBE and traditional leaders, agreed that the terms could not overlap. The principal who envisaged to have initiation schools in a particular season would have to take note of the school calendar before they finalised their initiation season. At the moment, if there were any abductions, kidnappings or other criminal offences taking place, the provisions of the Criminal Procedure Act would still apply and people could still be charged in terms of those particular laws.
The challenge at the moment was that a lot of people spoke about illegal initiation schools but, as previously reported to the public, for something to be illegal it had to be legalised in some way or another. As there was currently no national legislation regulating initiation schools, it was very difficult to talk about an illegal school. During consultations with SAPS, the police said that one of their biggest challenges was that they were called out to a particular initiation school and told that it was “illegal” but when they get there they actually did not know what to charge the particular principal, surgeon or caregiver, etc. with – other than perhaps kidnapping or abduction. This was simply because there was not really any legislation regulating initiation schools. Around the secretiveness and sacredness of initiation aspects, Clause 15(1)(i) said that while it was required for a principal of a school to inform the PICC of the curriculum of the school, this did not include the actual details thereof. This clause specifically stated that any practice or activity that was secret and sacred did not have to be disclosed at all. However, the principal of the school must give assurance that any secret and sacred practice would not be illegal practices, e.g. taking drugs.
Regarding bush hospitals, Clause 21(7) stated that the principal of a school must make provision for an area at the initiation school. This would obviously be away from the public eye but there must be a specific area where sick children could be attended to. For example, if a child fell sick they must be put in that particular area and the principal, caregiver or surgeon may then call for medical assistance in instances where it may not be possible to rush a child to hospital or where it was not that serious.
In terms of payment, Clause 18(3) it stated that a Minister, after consultations, may determine the fees to be paid. There were three kinds of fees to be paid: fees to be paid by a prospective initiate to a principal for attending the school, fees to be paid by the principal to the PICC for the registration of such school, and fees to be paid by the parents or legal or customary guardian for the services of a medical practitioner during initiation – e.g. where a medical practitioner was requested to perform male circumcision during male initiation. Some of the medical fees must be determined in consultation with the Minister of Health. The idea was to avoid the case of people overcharging. The Department was aware of instances in one of the provinces where it was reported that children were abducted or kidnapped and taken to initiation schools without the parents knowing that they were there. Someone would then knock on the parents’ door and say that they must be R1000 or R2000, and a week later this person would come again and demand more money for the continued participation of the child. By determining and standardising the fees, it also criminalised those people who went beyond that.
He then clarified the financial administrative support. All of the members of the NIOC and PICC were government officials, public office bearers, or members of Chapter nine institutions; this meant that they did receive salaries. In the case of all of these people, the only national and provincial expenditure would be for travel and subsistence if they had to go out and inspect a school, etc. There were also awareness campaigns that must be conducted, which may have a financial implication depending on how much of an awareness campaign was run and how wide it was. For example, a PICC awareness campaign would only be run in the province. It was only in the case of the expert members of the NIOC where there may be allowances applicable, and they could not be more than two members. This was not a concern for the province but for national parliament to pay those allowances to the two members once it had been determined.
Follow-up questions and comments
Mr Kama appreciated the importance of saving lives as he appreciated the rights of person to enjoy their culture. He was worried about the unintended consequences, as in the case of hospitals, but the responses had been sufficient. The concerns were that the serious social connotations linked to the initiates going to hospital and the death that was trying to be avoided by the policy might also conflict in some communities. Where in the CIB was it provided for the general public or those performing customary initiations to report abuse or deviations from the said functions – whether on the part of the national or provincial committees? The presentation mentioned that one could not go and monitor or regulate an initiation school without having gone through the said initiation. If there was a necessary arrest that must be made, this referred to those SAPS members who went to the particular initiation school to make the arrest as to ensure the secretiveness and sacredness of the initiation itself.
The Chairperson had an additional follow-up question regarding the registration of the surgeons. Could the Department speak more to this? Are they registered with the NIOC? Are they registered with the Traditional Health Practitioners Act (THPA)? Is this not duplication?
Mr Sileku mentioned a question raised by some Members in the NCOP during their briefing. The NCOP was worried about the medical practitioners coming into the initiation schools, and they were very glad to hear Mr Sithole’s response. If a medical doctor had not been into an initiation school and took their chance by going to the school themselves without having gone to the school, the chances of coming back were limited because what they want to do they must know as they must have been there before. This was a very sacred practice and there were always people who were chancers, inquisitive and who want to know what was happening in the initiation school. One would find such instances where someone who was a doctor but has never went to an initiation school yet would apply to assist. A doctor who had never been to an initiation school would be advised not to go close to the school because there would be consequences.
The Department’s Response
Mr Sithole provided clarity on persons who had not undergone initiation but wanted to go to the initiation school and render certain services. He explained that there was a code that one needed to know in order to access an initiation school. Even if you went to an initiation school of Sotho origin wanting to access an initiation school of Ndebele origin, there would be a code required of you to know and say in order for those people would be able to determine whether you had undergone initiation or not. Chances were very slim that a person could just wake up one morning and say that they wanted to go and see what was happening. People did take these chances and there were a number of them who went and came back when the initiation season ended because they had gone there with an inquisitive idea and would find out what was done there by them being part of the initiation school. The process was very sacred and when one went there they had to be prepared to go there with their whole heart.
Dr Bester referred to his name having been mentioned in Mr Sithole’s part of the presentation which spoke of the false consent forms. He assured Members that he would never falsify a form to try and get into an initiation school.
Regarding the registration of traditional surgeons, the CIB did make provision or it. The reason was in Clause 4(1) but was an interim arrangement. Currently, although the THPA made provision for the registration of traditional surgeons and traditional health practitioners; it also made provision for a THPC. Some of the provisions had not been put in place when the CIB was drafted. The Department realised that to apply the provisions of the CIB when it became law – e.g., on traditional surgeons they had to be registered in some or another. It was thus included in the CIB as a temporary measure, with the consent of the COH under the Clause 4(1) interim arrangements. The clause also stated that once those particular provisions came into full operation, the registration required with the PICC would no longer be applicable.
In terms of the medical practitioners going to initiation schools, Clause 24(2) stated that a medical practitioner could not just show up to the initiation schools as they must be invited. If a principal invited a medical practitioner to come and perform certain tasks at the initiation school, then the intention was that it would be done in the area that must be made available.
The Chairperson thanked the Department and all officials that were present for availing themselves. The extensiveness of the presentation was highly appreciated. In terms of the resolutions that the Committee would be taking after, he asked that the Department to make itself available for any public participation process, if any, within the Covid-19 regulations.
The Department was excused from the meeting.
The Chairperson reiterated that provincial legal services would now aim to provide their opinion and views via the public participation process. The Committee was to move on to the resolutions in terms of the public participation process and the next stages, but also to get input from the Mr Sileku regarding the timeframes. In the CIB there would be a negotiating and final mandate.
Ms Botha sought clarity with regards to the stance of the provincial department. Would this have an influence on the negotiating and final mandate time?
Mr Ben Daza, Senior Procedural Officer, responded saying that it would be appreciated for the provincial Department to provide an input. He noticed in that the Department also gave its input in its presentation. Normally, the input of the National Department helped the provincial one in crafting its negotiating mandate. In the negotiating mandate it had to be indicated whether the CIB was supported or not. There was also a third option to support the CIB and also propose amendments. The next stage was for the Committee to decide on the public participation process, making it very important for the Committee to apply its mind on this process considering Covid-19. Most of the problems when it came to legislation had come from NCOP legislation. There were a lot of eyes watching the public participation process of legislatures when it came to the public.
Ms Botha referred to the stakeholder comments that Mr Sithole had spoken about. Could the Committee request the comments that had been received so that the Committee could go through it? She requested that Mr Daza guide the Committee in terms of where they were at in the Covid-19 disaster period. What would a good practice be for the public hearings that would have to be embarked on?
The Chairperson asked Mr Daza to elaborate on the steps that had been taken by the Portfolio Committee on Social Development towards amending the Children’s Act. Has there been progress made on the public hearing processes for the proposed amendments?
Mr Sileku said that unfortunately the Committee was in unprecedented times that were hindering optimal public participation. The next step that would have followed in normal circumstances would have been that the provincial department would have advertised, it would go for public participation, and there would perhaps be contact. Unfortunately, times were no longer the same. What had been done at the NCOP, in their own public participation, was to call for written submissions by advertising and providing a certain timeline. Whoever wanted to provide a particular comment would comment. If needs be, the province could also have virtual representation to those who had interest in the CIB. Since the CIB dealt with initiation specifically, he did not know how the province would deal with communities like Khayelitsha and Beaufort West, where the practice was actually taking place and with all of the Covid-19 restrictions. It was up to the province and officials to guide the province in terms of what would provide maximum input so that when the Committee had to deal with whether it supported or rejected the CIB in terms of their mandate, it would have applied its mind and given all stakeholders affected by the CIB and opportunity to raise their views. As soon as the Committee was done with their public participation, the NCOP would engage in their public participation. The NCOP would also approve its own programme in dealing with the CIB before the constituency week, which would be from 04 August 2020.
Ms Bans emphasised the statement she had made earlier about the Children’s Commissioner. There was an understanding that there was not much as public participation as had been earlier due to Covid-19 and that there was a rare resource of the Children’s Commissioner. The CIB was addressing children, especially when looking at the age of consent being from 16 to 18 years. If the Committee could use this resource, it would help the province to propose within the amendment or CIB itself.
Mr Daza mentioned that Adv Andre Le Roux, Legal Advisor, WCPP, had been brought in to assist the Committee in terms of the important area public participation and that he would be glad if Adv Le Roux could say something. There were a few types of hearings that the Committee could look at. For example, the CSD organised visual hearings. The Committee was also advised to place an advertisement, decide which form it would take and which newspapers it would utilise – obviously calling for rating submissions. Advertisements during Covid-19 had also allowed people to give voice submissions by means of a WhatsApp number that had been provided to deal with the issue. The Committee could also identify stakeholders that could be invited to participate. It was entirely up to the Committee in terms of which way it would conduct its public participation process. The Committee would have to say how it wanted the public participation process done so that it could be taken from there.
Adv Le Roux noted that the Covid-19 lockdown regulations were a unique situation. If the Committee was of the view that the CIB was a bill of interest to the public, which it seemed to be, then the Committee could only be required to do what was practically or reasonably possible. The Committee could not go out and in-person meetings, etc. Mr Daza had already assisted the Committee with options that were practically and reasonably possible.
The Chairperson said that with the input from Mr Daza and considering the fact that the CSD embarked on this process already, he supported the view that this recommendation be followed but added that the Committee should also consider how it could engage the Children’s Commissioner.
Mr Waseem Matthews, Procedural Officer, WCPP, said that the Committee would follow the template as had already been done by the CSD. The advertisement that the CSD had had would be amended and a similar template would be used. There was a specific WhatsApp number that had been allocated to him –each procedural officer had one and had the handset. If there was a meeting, the Committee could therefore receive the WhatsApp voice notes or texts as well. There was an advertisement drafted in place, and it would just be down to the Members in terms of the dates and when they would like it to be advertised through print media. The Committee was to be cognisant of the fact that there were deadlines with different newspapers; they were public and distributed on different days – some daily, weekly, or on weekends. Generally, Members had a good understanding of this because it had been done quite a few times already. In terms of specific stakeholders, if the Department could perhaps be asked for whatever registered organisations were with it then the advertisement could be sent to the specific institutions. However, this was down to the Committee. Whatever resolution the Committee made, and whether they wanted it sent to specific stakeholders, could be done.
Ms Botha referred to how the Committee had just been guided. The Committee now needed to set a timeline, decide on what newspapers it would use for the advertisement, and whether it would be using the radio for the advertisement.
The Chairperson said that the Committee could potentially seek to conclude it at present or between the current time and Friday afternoon if Members allowed. If there was any specific newspaper or radio station that Members wanted the Committee to add, then himself or Mr Matthews could attend to it and communicate via email. Are Members happy with this or did Members want to conclude and have the discussion at present?
Mr Bosman asked if it was easier for the Committee to conclude now. If it was, he suggested that the Committee use a regional approach by trying to get it into as many regional newspapers as possible and getting this done in three official languages. He also suggested that the Committee use Vukani.
Ms Botha agreed with Mr Bosman.
Mr Sileku suggested that if all municipalities also had local newspapers and community radio stations, this space be ventured into as it would assist the community in terms of comments and inputs.
The Chairperson said that the Committee would engage from the regional aspect so that all the regions could be reached. However, the Committee would also look at specific local newspapers. He trusted that Members found this in order so that the process could be concluded and kickstarted. Members would then get a date from Mr Matthews as well as from Mr Daza regarding the timeframes.
The Committee agreed that this was in order.
The Chairperson reminded the Committee that there was a briefing regarding the recognition of customary marriages the following day at 18h00. This was one of two dates and times that had been received from the NCOP directly – hence it had to be done at 18h00 the next day. The Chairperson thanked everyone for their presence and inputs.
The meeting was adjourned.
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