Children’s Amendment Bill: DHA & DoJ & CD input on issues raised during public hearings, with Deputy Minister of Home Affairs

Meeting report

The Chairperson welcomed Members as well as presenters from the Department of Home Affairs (DHA) and the Department of Justice and Constitutional Development (DoJ&CD).

All meeting participants present introduced themselves.

Department of Home Affairs (DHA) Briefing: Deputy Minister input

Mr Njabulo Nzuza, Deputy Minister of Home Affairs, said that the presentation is presented to address questions raised in the public hearings and the Children’s Amendment Act.

The DHA is responsible for not only issuing documents but issuing them to those legally deserving.

There is a belief that a child born in South Africa automatically qualifies for citizenship. This is not necessarily the case. An individual inherits South African citizenship from one of their parents.

Deputy Minister Nzuza told the Committee that Home Affairs is currently in the process of changing marriage policies. These are going through Committees of Cabinet for final approval and consideration. These policies will formally make child marriage illegal.

Home Affairs is constantly having meetings to address the issue of long queues.

The Home Affairs appointment system is up and running but is still currently on pilot.

DHA response to Children’s Amendment Bill

Mr Thomas Sigama, Deputy Director-General: Civic Services, DHA, delivered the presentation.

Issues raised during public hearings on the Children’s Amendment Bill were as follows:

Unmarried fathers not allowed to register their children

The Department is currently accepting applications made by unmarried fathers without the consent of the mothers. The Department, in view of the judgment, is currently effecting the necessary changes to the Births and Deaths Registration Act, 1992.

 

Prohibition of child marriages or children being allowed to marry

The Department is currently in the process of developing a Marriage Policy. In this regard the Policy advocates for prohibition of child marriages in line with South Africa’s international obligations.

The Policy development process is at an advanced stage and the White Paper is envisaged to be published within the 2022/2023 financial year.

Expensive paternity tests (DNA), which are not affordable to many fathers, especially those unemployed

Where the birth is registered after 30-days, conclusive proof of paternity may be required. This is dependent on the circumstances of a particular case and where there is doubt.

Parents are urged to register their children within 30 days of birth to avoid difficulty.

Undocumented South African and non-South African children

The Department, together with Department of Basic Education in particular specific schools, assist the parents to obtain the necessary visas to enable the child to continue with schooling.

Where a child is found to be in need of care, as contemplated in the Children’s Act, the Department refers such a child to the Department of Social Development

Delays in certifying adoption applications

The process to be followed when noting adoption is as follows:

-The adoptive parents are expected to visit the office to submit the application documents, i.e. adoption order, report by the Social Worker, etc

-The turnaround time for finalising the application and noting the adoption is six to eight weeks

-Reasons for the delay include but not limited to the following: incomplete documents from adoptive parents; verification of submitted documents and retrieval of original birth registration records

An end to the association of international adoptions to human trafficking

The Department’s processes, in relation to registering adoptions, are based on the adoptive parents submitting the adoption order, as well as the Adoption Registrar, Department of Social Development.

Any delays on the part of DSD, affects the timeous registration of such orders.

Long queues and inefficiencies at Home Affairs offices

Long enduring queues emanating from high client volumes caused by front office space, unstable systems (networks and applications), inefficient work flow process and uncoordinated communication strategies that lead to unsatisfied clients which contribute to negative publicity denting the image of the Department.

The following factors further exacerbate the problem;

-Capacity challenges,

-Inefficient management of queues,

-Concurrent running of the manual and automated systems (Smart card, passport and BMD),

-Uneven distributions of offices based on demographics

-Misinformation on the discontinuation of green barcoded IDs

-Poor signage in offices

-Lack of floor management

The Department has had engagements with SITA as outlined below:

-Network downtime – some of the disconnected sites were attended to and resolved. However, there is a need for incidents that are categorised as Force Majeur to be spelt out upfront.

-Go to Market Strategy for Access Link – The implementation of a strategy wherein DHA has access to a localised pool of pre-approved service providers wherein a procurement of a connectivity service can be expedited without the onerous procurement processes has long been awaited by DHA. SITA’s promise to implement in early 2022/23 will be closely monitored and reported upon.

-Upgrade and maintenance of the dilapidated network equipment (routers and switches)

-Upgrade of SITA Switching Centres

-Expansion of SITA Core Network in order to reduce regional network outages

-Exploring alternative services and service providers... e.g. mobile and fibre optics where appropriate.

The Department through provinces identified high volume offices without office managers and came up with various options to strengthen leadership capability in an effort to assist clients.

The Department looked at strengthening leadership capacity with the prioritisation of certain posts based on the approved business case by National Treasury.

Front office space not purpose built hence mobile units were configured to serve as collection counters outside high volume offices. In some provinces, there are dedicated offices used for collections (e.g. EC: Mthatha, GP: Randburg, LP: Polokwane and WC: Wynberg).

Officials at live capture offices to occupy maximum counters when offices are opened for services in the morning.

Offices to open earlier than operational hours to service learners, elderly and people with disabilities.

Queues are separated according to products when clients visit offices.

Currently, the Department has 100 mobile units.  Two of the mobile units are dysfunctional leaving the department with 98 mobile units.

Additional ten mobile units have been procured to increase the footprint in the department.  The plan is to have all ten mobile units delivered before end of this financial year.

As part of the outreach programmes, mobile units are being deployed to far flung areas to deliver services to the public.

The booking system has been piloted to eight of the 24 offices identified by civic services for the financial year 2021/22. The remaining 16 sites will be piloted by 31 March 2022.

Currently there are 28 bank branches which are operational and available to service clients requiring DHA services.

Discussion

The Chairperson thanked the Department for the presentation. The Committee was asked whether it wishes to proceed onto the next presentation or whether it would like to directly go onto discussing responses.

Ms L Arries (EFF) asked to address the presentation before moving on to the next one.

Ms L van der Merwe (IFP) seconded.

Ms Arries said that when a group of children visited Parliament for the public hearings, there was a particular child born and raised in South Africa who went to school in South Africa and received South African social grants. All her relatives had passed away. Once she turned 18 she was cut off from all Governmental support and despite living in South Africa all her life, she was not allowed to apply for an Identification Document (ID). How does the Department plan to address these kinds of cases? These children know no other home but South Africa.

There are 180 000 Zimbabweans that face deportation. Many of these Zimbabweans have children born and raised in South Africa. What happens to these children if their parents are deported?

Concerning the adoption of children from outside the borders of South Africa, what if the children are unhappy with their adoptive parents? Will they forfeit their South African citizenship?

Ms Arries told the Committee that the Home Affairs office in Nelspruit was described on record as “pathetic”. People are struggling to obtain basic documentation. This has been reported to the Minister of Home Affairs office. The Manager of the Nelspruit office has consistently been unwilling to assist, going so far as to call himself untouchable.

High numbers of undocumented children live in the provinces that border other countries. How does the Department plan to strengthen its services specifically in these provinces?

A same-sex couple brought a case to the Pretoria High Court which resulted in a ground-breaking judgment. In the case where parents have made use of artificial insemination, are both biological parents automatically granted legal parental rights?

Ms B Masango (DA) thanked the DHA for the presentation, which has made clear that there are more challenges present than successes and solutions.

The North Gauteng High Court judgement should be expedited so that the foster care crisis can be dealt with.

The DHA seems to have done everything in its power to ensure that operations are in place in accordance with the laws and regulations in South Africa, but establishing operations on the ground is another story.

There are adoptive parents who have to wait up to three years for a birth certificate to be issued, despite a turnaround time that is supposed to be six to eight weeks. This is problematic because birth certificates are an absolute necessity for foster care orders and adoption.

Ms Masango pointed out that the DHA is trying to use the Bill to facilitate processes, but the challenges outlined in the presentation are so overwhelming that when it comes to putting the Bill into action many more challenges remain. As a result, the foster care crisis will not be averted. The adoption process has been made longer and harder.

Is the DHA’s presentation based on the issues raised during the Provincial hearings, the National hearings or both?

Has the Department referred to the Amendment Bill to see what sections relate to the DHA and its role in the facilitation of the foster care system in South Africa?

Ms van der Merwe said that while the DHA say it is currently implementing the court judgements pertaining to fathers being able to register their baby’s birth, this does not stand to be the case on the ground. In the [Portfolio Committee on Home Affairs] meeting in the previous week, Mr A Roos (DA) said that he himself was unable to register his daughter’s birth, even though he was registering within the first thirty days. This particular Home Affairs office was not aware of such a policy. Fathers who wish to register their child’s birth are told to complete a paternity test as a default response in all such cases. The Con Court specifically said that imposing paternity tests creates unacceptable barriers. Has the DHA issued a directive to officials informing them of this court judgment and explaining how they can practically implement it? If so, can the Committee be furnished with this directive? Requiring unmarried fathers to complete a paternity test when they would need to pay upwards of R2 000 for the test imposes an unacceptable barrier.

There was talk of the Department supplying free paternity tests – is this the case?

With a high prevalence of teenage pregnancies in South Africa, why does the DHA not allow mothers who are not old enough to have an ID to register their baby’s birth using their own birth certificate? The same thirteen-digit number on their birth certificate will eventually form part of their ID number.

With regards to orphaned and abandoned children, under what circumstances can a relative apply for the late registration of a child’s birth? What section of the Act would this decision be based on?

Does the DHA really recognise the immigration crisis currently being faced? In the Provinces that the Committee visited, all the issues being raised had to do with Home Affairs, such as long queues and non-responsive offices. In all of these provinces, there was an outcry about undocumented children. In most cases next to the border, undocumented children come from illegal foreign nationals. These children are not in school and are not being supervised. They are left to roam the streets. The DHA says that the parents must come forward to be documented, but in most cases, they do not qualify for documentation and thus their children do not either. Notifying the country of birth of the illegal migrant is not a solution to such a crisis. There needs to be a plan to address illegal migration and undocumented migrants. What is the Department's plan?

In support of Ms Arries on the issue of the Nelspruit office, Ms Van Der Merwe said for the better part of a year a South African has been trying to get birth certificates for his children, and he has only ever been met with hostility and unhelpfulness at this branch.

How many banks currently offer Home Affairs services?

Mr D Stock (ANC) agreed with the DHA having more challenges than solutions.

In the case of a child who was born from two Foreign Nationals, does the child qualify for foster care grants and protection from The Children’s Act? And in the case of a child born from a South African and a foreign national?

Can the DHA substantiate the practicality of a child’s birth needing to be registered within a thirty-day period? In provinces where rural living is prevalent, considerable travel and transport are required to register the birth. Hospitals and clinics that do not have registration facilities make travel and transport even more problematic. In the public hearings, a number of people came forward to say that they did not have the budget to make trips to give birth as well as to register the birth within a thirty-day period. How should people approach navigating such issues? What happens in the instances where the hospital or clinic does not have the facilities to register births?

Referring back to the child mentioned by Ms Arries, in one of the closed sessions a child spoke of being born to two Foreign Nationals. She was a recipient of the foster care grant up until she reached eighteen. She could not register to get an ID and no longer qualified to get government services. Is such a child considered a South African citizen up until they reach the age of eighteen, and thereafter no longer considered one?

Ms G Opperman (DA) noted that the overarching theme in the North West was undocumented orphans. How does the DHA handle the many orphan learners in the North West, considering that they are on the platinum belt, where a lot of border-crossing occurs?

Is it possible for the Department to assist Judiciary leaders in the Moses Kotane Local Municipality with documentation for orphans? Are there any programmes already in place that could assist the Judiciary leaders?

In Maquassi Hills, North West, residents have said that illegal Foreign Nationals exacerbate the problem of undocumented children and that the borders need tightening. Are there any plans in place for a corroborated approach with sister Departments to address this issue?

In December 2020, Ms Lindiwe Zulu, Minister, Department of Social Development launched a R90 million programme called Children on the Move to assist undocumented minors in South Africa. How many of the almost a million minor and refugee children have been helped with documentation using this programme?

A theme that came up a lot through the public hearings was that without a birth certificate children do not have access to school or child-support grants. However, in December 2019 the Makhanda High Court upheld that all children within the boundaries of South Africa have a right to education and that no child may be blocked from accessing school on the grounds of documentation. Clause 15 of the Admission Policy for Ordinary Public Schools 1998 was found Unconstitutional. What is the Department doing in its capacity to implement the law on this front?

Ms A Abrahams (DA) shared other Members’ sentiments that the presentation does not reflect what is happening on the ground.

In Bushbuck region, Mpumalanga locals spoke of the time when the Home Affairs mobile units were on site but were always offline. The mobile unit would not return for quite some time thereafter.

All the challenges that Home Affairs are facing, including internal capacity and network challenges, are infringing on the rights of children in South Africa. What is the Department's relationship with Early Childhood Development (ECD) Forums, if any? It was discovered during the public hearings that ECD Principles and ECD Forums have a lot of undocumented children under their care. Is there consultation with the ECD at a Provincial or District level to mitigate this issue?

In supplying matriculants with IDs through schools, if there are over 23 000 public schools in South Africa and Home Affairs already has capacity challenges, how is it possible to accommodate specific schools? How fast is each school run-through? Which particular schools do Home Affairs provide services for? Why do certain schools get visits and not all schools?

Concerning the closed hearing with children and the many public hearings, there were a number of issues that directly concerned Home Affairs. Has the information of specific cases been handed over by the Social Development Committee to Home Affairs? Is Home Affairs taking up these cases?

Is Home Affairs able to resume their service of going out to communities on request? The service was halted due to COVID-19, but it would specifically be helpful for the young people who wish to apply for their smart ID and would not be able to miss school waiting at Home Affairs. If this service is once again being done, who is the person of contact in Cape Town?

Ms A Hlongo (ANC) asked how South African parents can register the birth of their children, if their ID gets stolen or cancelled?

There are a number of challenges that parents face in having to register the birth of a child within thirty days, especially those living in rural areas. Could the Department look into the possibility of extending the thirty days?

What is the Department's view on the proposal to make paternity tests free or more affordable?

Ms P Marais (EFF) said that in Bloemfontein there is a massive problem in that all Home Affairs office queues are extremely long and all the mobile offices are always offline.

Home Affairs is one Department that the whole of the Free State is struggling with due to the constant migration of people.

There are many cases of children who have one parent from South Africa and the other from Lesotho. The parents have trouble registering the child and so never get a birth certificate. The children can get through school, but they are prohibited from enrolling in University without a birth certificate. Another problem in this situation is that an unmarried couple like this could not afford a paternity test and thus could not apply for social grants.

There is a case of eight orphans in one farm school. The principal, who knows the family and their history well, is trying to get birth certificates for them but is having a lot of trouble from Home Affairs. How can the Department help obtain these birth certificates?

An issue with allowing fathers to register the birth of their children is that many fathers want the child to have his surname and so register the child without the mother’s knowledge.

There was a case of a mother taking a child to another province without the father’s knowledge. When the father went to Social Development for assistance, he was told that the mother has all of the rights.

The thirty-day registration of birth proves to be very challenging for many that live on farms. Many mothers from farms who give birth in the hospital do not have a birth certificate. The child will not get a birth certificate as a result. What can the Department do to assist with the issues that people in rural areas face?

One is not able to get a death certificate for a foreign national – how can this problem be mitigated?

There may be 98 mobile offices, but they do not achieve anything if they are always offline.

Ms J Manganye (ANC) echoed what had already been said.

In the North West, many South African men have married foreigners, meaning that the father is responsible for registering the birth of a child. As has already been stated, fathers are turned away from Home Affairs when they ask to register their child. Although it may be a child’s right to receive an education, these children are kicked out of school after three years as a result of not having a birth certificate. The child is then excluded from writing matric examinations or attending university. What the DHA has presented as fact in the presentation is not reflected in the Home Affairs offices. How is the Department going to ensure that the points of the presentation are reflected on the ground?

There are serious challenges for the children of non-South African mothers as many are not mentally stable. This came up in the public hearings.

Referring back to the child at the public hearings mentioned by Ms Arries and Mr Stock, Ms Manganye said that she does not even know her surname due to the passing of both her parents at a young age, and she is left undocumented at the age of eighteen and stuck without any options.

Echoing Ms van der Merwe, she said that the provinces along the borders are overwhelmed with undocumented immigrants. The border urgently needs to be strengthened.

The Chairperson requested that all meeting participants have their full names displayed over Zoom. If participants do not comply with this request in the future, they will be rejected from admission to the online meeting.

Ms K Bilankulu (ANC) addressed the issue of children born from two South African parents out of wedlock. What happens if the child bears the father's surname and the mother wishes to travel with the child or vice versa? Would they need consent from the other parent? Is there a way for one of the parents to be able to travel with the child without that consent?

On the issue of the dysfunction of Home Affairs, why do the offices not have clear channels for communication so that community members are aware of an office experiencing a certain issue? There are certain challenges that Home Affairs might not be in control of like load shedding or systems being offline, but offices can optimise their functionality simply by communicating this information timeously. This can be disseminated via radio or the local municipality. People have been known to stand in Home Affairs queues for days or even a week without being made aware of the office experiencing an issue.

In border provinces like Limpopo, there are a lot of foreign nationals, some of who have been living permanently in South Africa for decades. They have children born in South Africa who have already finished school. How long should a foreign national be a resident of South Africa before they can be granted citizenship?

There are cases of women coming from neighbouring countries to give birth in South Africa, making the child eligible for a South African birth certificate. The mother returns with the child to the home country, but they return to South Africa monthly for benefits. What can the Department do to monitor the situation?

There are foreign nationals who have been living in South Africa for years and still get access to medical treatment and education even though they are not properly documented. South African citizens suffer as a result of strained resources. What can the Department and government do to manage these issues?

Ms Manganye asked how it is acceptable for foreign nationals to get birth certificates.

Ms van der Merwe asked whether the DHA has a joint protocol with the Department of Social Development (DSD) outlining the roles and responsibilities of respective officials with regards to late registrations of orphans and abandoned children? If the protocol exists could the Committee be furnished with it?

The Chairperson invited the DHA to answer the questions it is immediately able to, but it is welcome to provide written answers in due course. The Department is encouraged to rather answer questions in writing than to respond on the spot without careful consideration.

The South African Broadcasting Service (SABC) interviewed the Chairperson when the public hearings were taking place. The SABC asked how undocumented children are dealt with. It was later broadcasted that the Chairperson for the DSD Portfolio Committee said that Foreign National children will get benefits in South Africa. However, it is not the responsibility of the DSD to issue documents to children; this is the responsibility of the DHA. As long as an individual has been issued with a document from Home Affairs, the DSD is free to grant benefits. There is a Social Development subsidy that grants benefit according to the number count of children.

Could the DHA not prioritise allocating mobile offices to the largest townships first? The offices in these townships are not able to accommodate the capacity of residents. As a result, there are always long queues and people have to wake up at 3am and stand in the queue until opening time at 8am.

Lesotho made a request to the Department of Water and Sanitation that the South Africa/Lesotho border be dissolved. Such an issue does not only belong to one Department. It is an integrated issue that needs to be deeply considered by all parties.

Ms van der Merwe reiterated that as Ms Manganye had said, foreign nationals are taking advantage of social assistance by only coming to South Africa one day a month to collect their grants.

Response from the Department of Home Affairs

Deputy Minister Nzuza confirmed that all questions had been noted.

Ms Tampane Sefanyetso, Acting Deputy Director-General: Human Resource Management & Development, DHA, said that she did not pick up any questions that related to her domain.

Mr Sigama said that there are similar cases to the one Ms Arries described about the child who does not know her country of birth. A court order was given to the DHA that required Home Affairs to recognise such children in South Africa and assist them with the identification process. The child will need to visit the nearest Home Affairs office to lodge an application that will determine an outcome. Part of the process includes verifying that the child has never visited an alleged country. If deserving, citizenship will be granted.

What has been raised about the Nelspruit office has been noted. All documentation that substantiates the claims should be furnished so that the specific cases can be addressed.

On the issue of delayed birth certificate delivery for adoptive parents, it must be noted that most of these applications are incomplete. The parents are then contacted for further information; however, they are usually non-responsive. Additionally, most Home Affairs records are in paper form, making the verification of documents at times a lengthy process. The records are currently going through a process of digitisation that will speed up this kind of verification. A budget has just been granted for a massive drive of digitisation to be initiated. There is very careful consideration given to adoptive parent cases. Apologies are made for such delays, but the drawn-out verification of documents occurs so that only deserving cases are recognised by the national registry and issued documentation.

Home Affairs received the court order stating that imposing paternity tests creates unacceptable barriers and this has been circulated to all Home Affairs offices. The Department is now also ensuring that updates are made to the Standard Operating Procedures (SOPs) as well as initiating training for officials, which is currently taking place in KwaZulu-Natal. The officials will thereafter move across the country to ensure that procedures relating to the reviewed SOPs are in operation. The Department will check with its legal services to see if the directive is ready for circulation.

When parents visit Home Affairs within thirty days of the birth of a child, no additional documentation is requested. All parents need to be alerted that they should register the child at the first opportunity they have to ensure no future challenges.

Regarding the parents who do not have the opportunity to register the birth of their child within the first thirty days of birth due to living in rural and farming communities, the next level of action would be to make contact with Home Affairs to indicate the reasons as to why registration could not occur within the thirty-day period. Three committees facilitate this process, the first that considers children between the age of 31 days and up to one year old, while the second considers children from one year up to fourteen years old. The third manages those who are fifteen years old and over. Those falling into the third category are required to sit for an interview to review supporting information. If all fails and information is insufficient, then a paternity test might be necessary. The paternity test is only ever a last resort.

If a child is born in South Africa and has one South African parent, then the child is automatically considered a South African citizen, as long as the documentation provided is verified.

28 banks are currently linked to Home Affairs and rendering Home Affairs services. During the pilot phase, the majority were situated in Gauteng and the Western Cape, but the pilot has officially been extended to other provinces. There are plans to extend the service even further.

On the need for transport to get parents to register their child’s birth within the thirty-day period, perhaps this is a problem best solved by working closely with other Departments. Stakeholder Forums exist wherein individuals at various Governmental levels can point the Department to areas where services are required.

Many undocumented orphans are catered for by social workers and other assistance bodies who channel the children’s cases to Home Affairs to assess their existing documentation. A team is then assigned to assist with the child’s registration. The DHA relies on the DSD for reports on undocumented orphans so that they can be registered.

There are about a hundred Home Affairs mobile units spread across the Provinces. Stakeholder Forums and other advisories indicate what regions are most in need of the mobile units. A mapping programme for the year’s mobile unit placements is then drafted. This programme is consolidated by the Department. There are specific mobile units that are set aside to aid disaster areas when they occur. The hundred mobile units are admittedly not enough, but gradually when the necessary budget is received services can be extended.

The Department is working closely with the Department of Education to provide learners with documentation.

The other concerns will be addressed in writing.

Mr Tommy Makhode, Director-General, DHA, said that there is work underway with the help of the Department of Public Works and Infrastructure to raise security along the borderline. In March, the Department will work on six of the larger border posts.

Home Affairs have advertised 200 positions for border management authorities. The Department hopes that border management can one day be a separate department.

Suggestions concerning the request of mobile units for particular communities have been noted. The mobile unit programme will be shared with the Committee.

The Department acknowledges the importance of developing stand-alone projects for different issues. There are several successful initiatives in progress that prove this point. The Department wishes to prove its progress for different projects the next time it attends a Committee meeting.

Many improvements have been made to the East London office, including redesigning the work floor.

There are infrastructure improvement initiatives, for which 15 offices are currently registered.

The Department is working with the United Nations High Commissioner for Refugees (UNHCR) on an initiative that works with embassies.

Deputy Minister Nzuza extended the Department’s commitment to the Committee. The pain experienced by citizens concerning Home Affairs’ issues is also felt by the Department.

The vital areas of improvement are information technology and infrastructure. The Department is hard at work to make these improvements.

Mobile units should not be used as permanent solutions to communities but rather to provide temporary relief. They are aimed to mainly service rural and hard-to-reach areas. They have been proving successful for coverage of schools especially. By the end of last year, there were only a thousand children who did not have birth certificates, most of them children of Foreign Nationals.

There are foreign national children attending school as a result of the court judgement that all children in South Africa have the right to education.

Firm and decisive treatment must be made to address the issue of the immigration crisis. If an individual does not qualify for citizenship, Home Affairs should not be expected to pave ways to citizenship. Someone either qualifies or they do not. Illegal immigration should be discouraged.

On the 180 000 Zimbabweans facing deportations, the issue involves the Zimbabwean Special Permit that gives people 12 months to arrange alternative visas. The dispensation for the Special Permit has been constantly extended, which could not continue.

The issue of paternity tests is of great importance to this Committee. The Department considers them to be a last resort for proving paternity. They exist as a means of internal control to prevent fraudulence.

Children can be registered after the thirty-day period. However, it is easier for all parties if the child is registered within that period.

The Department continues to open birth registration facilities in hospitals.

The Chairperson thanked and excused the DHA.

Briefing by Department of Justice and Constitutional Development

Those present from the DSD and the DoJ&CD were asked to introduce themselves.

Ms Isabella Sekwana, Acting Deputy Director-General: Social Welfare Services, Department of Social Development, apologised on behalf of the officials who did not introduce themselves at the start of the meeting, however, ten officials from the DSD had been present since the start.

The Chairperson said that the members were specifically asked to introduce themselves at the start of the meeting.

Adv Petunia Seabi-Mathope, Chief Family Advocate, Department of Justice and Constitutional Development, was introduced to the Committee.

Adv Praise Kambula, Chief Director: Promotion of the rights of vulnerable groups, Department of Justice and Constitutional Development, was introduced. She heads the unit responsible for the implementation of legislation that relates to the protection of rights of women, children, the elderly and people with disabilities.

Dr Charmain Badenhorst, Director: Child Justice and Family Law, Department of Justice and Constitutional Development, was also introduced.

Department of Justice and Constitutional Development response to Children’s Amendment Bill

Adv Seabi-Mathope said that the DoJ&CD is present to address questions contained in the letter dated 17 February 2022. Due to the Judiciary not being part of the Department of Justice, the presentation will focus only on the areas that pertain to the Department.

Question 1: The judiciary (Magistrates and Family Advocates), SAPS and Social Workers are biased against biological fathers in custody/divorce/separation cases. 

- The Family Advocates’ enquiry seeks to establish what is best for the child.

- The question of the Family Advocate being biased against one or other party to the proceedings/parent/caregiver does not arise nor does the process as well as professional ethics leave room for bias open.

Question 2: Family Advocates or Divorce Courts use divorce and custody processes/expenses to enrich themselves.

- Family Advocates are employed by the DoJ&CD and do not stand to draw fees from individual cases. To conduct themselves otherwise would constitute both a criminal offence and a breach of the Departmental code of conduct. Any such conduct should be reported to the relevant authorities.

Question 3: Long delays in the application and renewal of foster care orders

- The judiciary and the DSD are better placed to provide the diagnostic explanations for the reasons of postponement captured in the system and any further details relating to this matter since they are the key drivers in the management of court processes that may impact the finalisation of these matters.

Question 4: Inputs regarding Children’s Courts

Discussion

Ms Masango had questions relating to the Children’s Amendment Bill.

There were comments made during the National public hearing where it was said that the children’s court should be able to deal with all issues relating to children so that there are no children’s cases that go to the High Court. There is no express law that protects the identity of children in the High Court. The High Court also has extra expenses. Individuals during the public hearings described instances where children’s names and identities were published when their cases went to the high court. This relates to ss6 and 74 in the Bill.

One would have thought that the Department would have touched upon s21A, which talks about the process for unmarried fathers to be expanded to include instances where the mother is dead or absent.

While the letter dated 17 February 2022 cast parameters on the scope of the Department’s presentation, one would have thought the Department would have addressed the Bill.

Ms Manganye said that in the case of a child’s custody belonging to one parent, why should the other parent have to pay for a social worker to accompany them to see the child? This case was described in the public hearings. Are parents forbidden to see their children without having to pay a fee in such a case?

Ms Abrahams asked what does the Department’s family advocate capacity look like in relation to case load and backlogs. If family advocates do not charge a fee, then people’s use of the services will be greater as a result. Members of the public complain about exorbitant legal and psychological fees for their cases, but this is only relevant in the case of private legal counsel. The recommendation was the standardisation of legal fees, but the Government is not able to influence private economies. With this in mind, what are the Department's capacity challenges?

As it relates to the DSD, it is a specialised social worker that has to deal with the cases mentioned in the presentation. What is the capacity of these specialised social workers? They have to also ensure the implementation of a parenting plan. This puts a lot of pressure on social workers.

The Committee cannot see further than the template that was given from the Integrated Case Management System (ICMS). What are the circumstances around the further reason for postponement and further investigation that is at 43%? Is it because social workers have not done enough leg work? This draws back to the capacity of social workers. Could the DSD unpack the information found on ICMS management to understand where the hiccups are situated in terms of backlogs?

Can the Committee be provided with an updated status report on the foster care backlogs per Province? Last year the Committee got regular status reports. It has been a while since a status update has been received.

Ms Opperman said that in 92% of cases of the Germiston public hearings, the mother automatically got custody. How often do fathers get full custody?

Apologies were made if any questions relate to the judiciary.

There was as a plight for proper investigation, accountability and repercussions for false accusations and perjury in terms of custody dispute cases. What are the Department’s views on this?

It is strongly argued on the ground that parental alienation is child abuse. What are the Department’s views on this?

One can only be 18 years old before utilising parental rights. In the meantime, the legal guardian’s consent is needed for adoption. What about teen mothers who wish to give up their babies for adoption?

Ms Marais said that there was a grandmother from Rustenburg who has one daughter and two grandchildren. The grandchildren went to the father, but they never came back. The grandmother went to look for them and could not find them. The daughter, the mother of the two children, is chronically ill. Despite going to the police and Social Development, no one is assisting the grandmother. What is the next step that can be taken? What can the grandmother do?

The Chairperson said that there is a new clause in the Bill that relates to the responsibility of fathers. Many fathers are unhappy with it.

In terms of the court order that went to the mother who is depressed because of abuse, what can she do to access her child?

The Department was asked to respond and if necessary, responses can be made later in writing.

Responses from the Department of Justice and Constitutional Development

Adv Seabi-Mathope said that the Department was not made privy to the issues of the public hearings. It was only asked to respond to the issues listed in the letter dated 17 February 2022. However, responses to the other concerns will be made at an opportune time in writing.

As it currently stands, s453 in the Act limits guardianship applications to only the High Court and divorce court. High court applications are known to be intricate and expensive as far as legal representatives go, but the charging of fees is regulated by the Legal Practice Council (LPC).

Section 6 of the Divorce Act protects against the publication of any information that reveals the identity of a child. There is a Con Court case that has sought to further protect children in this regard.

Section 21A of the Children’s Act pertains to fathers of children born out of wedlock. The first part of s21 says that the family advocate or another suitably qualified person should decide whether the father has met the particular criteria listed, taking into account the circumstances of the parties. If the father has met these criteria, he acquires full parental rights and responsibilities. The next step is a determination of how to exercise parental rights and responsibilities. This is where the conflict mainly arises, and where the court needs to be involved. The family advocate will start by attempting to assist the parties with a parenting plan. Should the family advocate not be successful, they are issued with a certificate of outcome so that the matter is rechanneled to the children’s court. The Children’s Court will automatically know that mediation was attempted. It is a section that is not yet applicable to mothers, but one that makes provisions for the parental rights and responsibilities of fathers.

In instances where a mother is deceased, s33 and subsequent sections are present to assist children. It is broadly worded so that other interested parties can be conferred parental rights and responsibilities.

The capacity of the office of the family advocate is overstretched. There was a backlog of 3 500 cases when the current financial year commenced. With the end of the financial year in sight, reports indicate that a similar backlog remains. Addressing the backlog is being prioritised in the next financial year. The legislation referred to in the presentation will allow for the appointment of ad hoc practitioners. Money is being set aside and tariffs reviewed to be market-related so that outside practitioners can assist with the backlog. The Department is also increasing opportunities for overtime work to address the backlog.

The Department is hyper-aware that delayed justice can directly harm the children at hand.

Fee standardisation of practitioners is the purview of the LPC.

Those that qualify for the legal aid threshold can be financially assisted with legal fees. Courts also have the capacity to appoint pro bono legal representation.

It should not be assumed that a child’s custody is automatically granted to the mother. Every case is determined by its own merits. Decision-making needs to pass through at least three levels. First, contact is made with the involved parties. Then a family councillor carries out a forensic investigation that is compiled into a report. Then a family advocate makes recommendations based on these findings. Then the case is heard before a court. Here the judicial official can cross-examine witnesses and get to the root of the matter. Each case passes through a number of levels of scrutiny.

The family advocate consults with the parties but does not take statements under oath. The family advocate will take record of the existence of a dispute in facts. The dispute needs to await scrutiny in court. In any one case, three lawyers can be present. Testimony in court happens under oath. This is the point at which perjury can be determined.

Parental alienation is a term one encounters in clinical psychology. Consulted psychologists have indicated that it is difficult to diagnose. It is a term used widely in American family law, but in South Africa, it is a concept that is still elusive.

When social workers look at the developmental needs of a child, the history of care comes into play. A parent not involved in a child’s life would not have established as strong a bond as an involved parent has. When the scales have been tipped in favour of the parent who has historically been hands-on, it is perceived as bias. This is not a case of gender discrimination. There have been determinations made with same-sex parents. The scales will always be tipped in favour of the more involved parent. The other parent tends to perceive this as bias. The Department has declared 2022 the year of the community, focusing on raising awareness for community involvement. Parents are encouraged to be involved in their children’s lives from early on so that should separation or divorce occur, both parents will appear on equal footing. In such a case, equal custodial roles can then be granted.

The Chairperson requested Adv Seabi-Mathope’s contact number so that the Committee can get advice with specific cases.

Ms Manganye echoed the need for assistance from Adv Seabi-Mathope in the future.

Ms Bilankulu echoed the need for assistance from Adv Seabi-Mathope in the future, specifically pertaining to issues of gender-based violence. Legal cases that Committee Members could not assist with will be referred.

It was urged for the Department to answer the unanswered questions raised by Members.

Way forward

Ms Yolisa Khanye, Committee Content Advisor, said that the Committee was supposed to have a briefing with the DSD last week, which would have covered many of the questions put to the DoJ&CD. Had the presentation taken place when it was initially scheduled, the concerns brought up by the Committee for the DoJ&CD would have already been covered by the DSD. It is proposed that the Committee await the 16 Mach 2022 meeting with the DSD for such questions to be addressed. If the DSD is not able to answer the questions, only then should they be redirected to the DoJ&CD.

The Chairperson proposed that the DoJ&CD rather respond to the unanswered questions in writing before the DSD meeting on 16 March 2022 so that the Committee can cover bases with the DoJ&CD first. The DSD will be able to cover any remaining questions in their meeting.

Adv Seabi-Mathope provided her personal contact details.

Adv Kambula provided her personal contact details as an alternative point of contact.

Ms Sekwana said that the DSD is working well with the DoJ&CD and other departments. The DSD has taken note of concerns raised and will submit a response in writing, especially as it relates to foster care.

The meeting was adjourned.