Children’s Amendment Bill: clause-by-clause deliberations

Social Development

01 April 2022
Chairperson: Ms N Mvana (ANC)
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Meeting Summary


DSD: Responses to Submissions

In this virtual meeting, the Committee began clause-by-clause deliberations on the Children’s Amendment Bill. Although the Committee had received extensive and broad public feedback on the Bill, it intended to focus on making the amendments that were necessary for compliance with the court order which had necessitated the Bill.

The Committee deliberated on clauses 1 to 14. In each case, Members were guided primarily by the public submissions and especially by those with which the Department had expressed agreement. The Committee agreed to make various minor changes and additions to the definitions in clause 1, all suggested by the public and endorsed by the Department. This included the rejection of all provisions related to early childhood development, which was now a function of the Department of Basic Education. Clause 5 would be amended to specify that marriage of children under the age of 18 was prohibited. The Committee also agreed to amend clauses 4, 10, 12, and 13 as suggested at the public hearings, although the precise form of those amendments would be decided in consultation with the Department. All other clauses were agreed upon, although the Committee flagged some clauses for further discussion at a later stage – especially clause 14, which dealt with applications regarded as inter-country adoptions, and the definition of “genital mutilation,” which Members worried might encroach on religious and cultural practices.

The Committee’s deliberations were ultimately cut short by Members’ persistent concern that the Department’s responses to public submissions had not been organised in an accessible way. Members were worried that, given the length of the Bill and responses, they would accidentally omit to consider certain amendments recommended by the Department. Members also expressed frustration at the difficulty of conducting deliberations on a virtual platform. The Committee agreed that it would resume deliberations during the parliamentary recess, by which time the Department should have re-organised its responses for Members’ easy reference.

Meeting report

The Chairperson said that the Committee had hoped to meet in person for deliberations on the Children’s Amendment Bill, but that had not been possible. Also, the Deputy Minister was still unwell and was therefore absent from the meeting – the Committee hoped she would get well soon.

The Committee noted apologies from the Minister, who was attending the Early Childhood Development function shift handover ceremony in Pretoria.

The Chairperson appealed to Members for a focused and efficient discussion on the Bill. The Bill was a response to a court judgement, and the court had denied both the Committee’s requests for extensions. It could not make a third request of this kind.  

Legal advice on the amendment process
Mr Nathi Mjenxane, Parliamentary Legal Adviser, Constitutional and Legal Services Office, provided an overview of the background to the Children’s Amendment Bill. Parliament was not undertaking this legislation of its own volition – in Centre for Child Law v Minister of Social Development, the Gauteng High Court had directed Parliament to amend the Children’s Act in specific ways. The essence of the court’s judgement was that the Act had to make extensive provision for the regulation or management of foster care. Because the Committee was responding to a court judgement, there was a firm deadline and the legislative process was necessarily truncated.

However, as required by the Constitution, the Committee had engaged in extensive public consultation. Other matters of public interest had arisen from public submissions, including various contentious issues. These might call for further amendments to the Act, but dealing with them in the current Bill would require more time than the Committee had been granted by the court. As the Chairperson had mentioned, the court had already declined two applications requesting an extension of the deadline. In adjudicating the second application, the court had appropriated the right to oversee and receive regular updates on the amendment process. The Committee had decided at an early stage that this Bill would focus on complying with the court judgement, and that it would not deal with other contentious issues outside the scope of the judgement. The Committee should guard against the possibility of being “derailed” by other, broader aspects of the regulation of children’s affairs.

The Chairperson said that the Committee appreciated the reminder. For now, to meet its deadline, the Committee had to focus on foster care, as instructed by the court. That did not mean that it could not address other matters through other amendments to the Act at a later stage.

Children’s Amendment Bill [B18-2020]: clause-by-clause deliberations

Clause 1 and discussion of the Committee process

Mr Mjenxane reminded Members that their deliberations should be informed by the Bill, by the report on the public participation process, and by the responses of the Department of Social Development (DSD) to the public submissions. The Committee could propose changes to the Bill, which would be included in the A-version.

Initiating the clause-by-clause deliberations, he read clause 1 aloud in its entirety.

Ms B Masango (DA) asked how the Committee would handle the proposals that had emerged from public submissions and with which DSD agreed. When would those be incorporated into the Bill? Should Members themselves raise those proposals for inclusion?

Mr D Stock (ANC) moved that the Committee should focus on the issues raised by the high court. This was in line with the Chairperson’s opening remarks and Mr Mjenxane’s advice. Considering other issues would require more time from the Committee and would therefore delay the Bill’s progress.

Ms A Motaung (ANC) agreed.

The Chairperson said that Mr Stock’s comment should answer Ms Masango’s question.

Ms Masango replied that the answer to her question remained unclear.

The Chairperson said that the Committee would focus first on the amendments that responded to the court judgement. It could consider other proposals later.

Mr Mjenxane reiterated that the public submissions and DSD responses should be considered alongside the current version of the Bill. They should inform the Committee’s work, but were not binding on the Committee – at this stage, the Committee owned the Bill. The Committee was, therefore, free to decide whether and how it wished to incorporate the public’s proposals, including those which DSD agreed with. The Committee could incorporate such proposals now, or it could decide to focus only on the court-mandated amendments.

Ms L Arries (EFF) said that it was extremely difficult to do clause-by-clause deliberations in a virtual meeting. She was concerned that the Committee would not do justice to the Bill.

The Chairperson said that everybody had hoped the meeting would take place in person, but that had been impossible, due to circumstances outside the Committee’s control. Meeting venues were not available. As she had said earlier, the Committee could not request an extension again. The Committee would not manage to do justice to all proposals in the current Bill, but it had to ensure that it complied with the court order. She appealed for patience from Members.

Ms J Manganye (ANC) said that the Committee should not rush the process. Members had to read the clauses word-by-word as Mr Mjenxane went through them.

Ms A Abrahams (DA) said that Ms Masango’s question had not been answered clearly. She illustrated the question with an example. DSD concurred with a public submission by Mr Van Niekerk and suggested that, if the Committee agreed, a new definition of “informal caregiver” could be inserted in clause 1 (see page 2 of DSD responses). Should that proposal be incorporated into the Bill now? If not, at what stage would the Committee consider it? She agreed with Ms Arries that virtual deliberations were very challenging.

Mr Mjenxane replied that the Committee should consider the public proposals and DSD responses during its deliberations. It needed to decide whether the proposals would be reflected in the A-version of the Bill. However, the Committee was also aware of the danger of derailing the process through debates about contentious issues that were irrelevant to the court order. The Committee had therefore decided to disregard some of the proposals at this stage. Those proposals could be held in abeyance and considered at a later stage.

Ms Masango said that she agreed with clause 1 of the Bill, but only if it took into account the public proposals with which DSD agreed. For example, the Consortium for Refugees and Migrants in South Africa had suggested that the definition of “adoption service” in clause 1(b) should be amended to include counselling of caregivers, as well as of parents and guardians (see page 1). Some children were cared for by caregivers who might want to adopt them. DSD agreed with this proposal, as did she. She thought that the proposal should be reflected in clause 1(b) of the Bill. Was this an appropriate time for her to raise that proposal? She would like for the Committee to conduct its deliberations in this fashion, though she was aware that it was under time constraints.

The Chairperson joked that she was glad that Ms Masango had understood the correct approach after hearing it explained several times.

Mr Mjenxane said that the Committee now had to decide whether it agreed that clause 1(b) should be amended as proposed by Ms Masango.

The Chairperson said that, as Ms Masango had implied, the Committee agreed with the proposal because DSD agreed with it.

Ms Masango said that there were many public proposals that DSD agreed with – she had only mentioned one of them. Did the Committee have to consider each of those separately, and read each of them into the record? What about the public proposals that DSD had not agreed with? How, exactly, did the Committee empower the legal advisers to draft the A-version with all the amendments it wanted?

Mr Mjenxane replied that the DSD responses did not bind the Committee, even in cases where DSD agreed with a public submission. If there were public submissions that the Committee itself agreed with, Members could simply express that, and the legal advisers would include relevant provisions in the A-version. Members could tell him what they wanted the Bill to achieve, and the legal office would draft provisions accordingly. Sometimes the provisions would not be identical to the public proposals or DSD recommendations, because the drafting had to consider legal technicalities and practicalities. In short, there was no need to read submissions and responses into the record formally. However, if Members wished, he could read the public proposals and DSD responses after reading each clause. 

The Chairperson noted that the Committee would also have to consider later versions of this Bill. The current version was a “draft of a draft.” Given Mr Mjenxane’s response, how did the Committee wish to proceed with clause 1?

When nobody responded, the Chairperson guessed that Members were still concerned.

Ms Manganye said that Members were not concerned, but were busy “juggling” the documents in order to cross-reference the Bill with the public submissions.

The Chairperson observed that some Members were currently in transit and might not have the documents easily accessible – they were at a disadvantage.

Ms Masango suggested that, in the case of clause 1, the Committee should consider each definition separately.

Mr Mjenxane agreed to read each of the definitions again separately.

Clause 1(b): Amendment of the definition of “adoption service”

Ms Masango said that, as she had mentioned earlier, clause 1(b) should be amended to include counselling of caregivers.

The Chairperson agreed with the clause. She thought it was critical that the clause included guardians as well as parents.

Ms Motaung also agreed with the clause.

Clause 1(c): Amendment of the definition of “after-care”; and definition of “caregiver”

The Chairperson said that she had been a foster-care mother and had experienced some of the situations covered by the Bill. She, therefore, thought it was important not to rush the Committee’s deliberations, especially since some Members were not familiar with the process of adopting bills.

Ms Masango was confused about the notation used in the DSD responses. In the DSD document, clause 1(c) apparently referred to the definition of “abandoned child,” not the definition of “after-care” (see page 7). She was therefore not on the same page as the rest of the Committee.

Mr Mjenxane clarified that Ms Masango was referring to a submission on sub-clause 1(a)(c). The Committee had already adopted clause 1(a).

The Chairperson said that clause 1(c) reflected the fact that social auxiliary workers and social service practitioners were sometimes responsible for monitoring the progress of a child’s developmental adjustment.

Mr Stock suggested that clause 1(c) should be amended to read “has no knowledge as to the whereabouts of the parent, guardian or caregiver and such information cannot be ascertained by the relevant authorities.” It should also reflect, “(2) A child found in the following circumstances may be [a child in need of care and protection] at risk and [must] may be referred for [investigation] initial screening by a social service practitioner in the prescribed manner” (see page 7-8).

The Chairperson said that the difference between “must” and “may” had been discussed in the past. DSD had explained that the word “may” was appropriate to allow flexibility in implementation, for example, to accommodate resource constraints.

Ms Masango said that there was a proposal from Mr Van Niekerk, supported by DSD, to insert provisions in clause 1 to define “caregiver” and “informal caregiver” (see page 2). That definition would not be in clause 1(c), but she wanted to ensure that the Committee did not overlook the proposal. Generally, she wondered if there was a way that Members could be supported in cross-referencing the DSD responses and the Bill, to ensure that the Committee did not overlook any proposals.

Ms Lisa Naidoo, Senior State Law Adviser, Office of the Chief State Law Advisor, replied that the proposed definitions would be new insertions into the Bill. They could be added to the A-version if the Committee agreed.

Ms Lindiwe Ntsabo, Committee Secretary, had consulted the person who had drafted the Bill, and he agreed with Ms Naidoo’s advice. The Committee could include the definitions as new insertions. 

Mr Mjenxane said that the Committee could decide. If Members wanted the amendment made, they should express that to him. However, amendments were subject to National Assembly Rule 286(4) – if the amendments extended the subject matter of the Bill, then the Committee would have to seek permission from the House to do so.

Ms G Opperman (DA) agreed with DSD’s recommendation to insert a definition of “caregiver” as “a person assigned care of a child within a registered cluster foster care scheme” (see page 2). However, how widespread were cluster foster care schemes? She wondered whether this was practical. For example, where she was, in rural Northern Cape, one might have to travel large distances to register as a cluster foster care scheme.

The Chairperson agreed that it might be impractical in some areas of the country.

Ms Abrahams agreed with DSD’s recommendation to insert a definition of “informal caregiver.” She also agreed with the Bill’s definition of “after-care” in clause (1)(c).

Clause 1(d): Amendment of the definition of “care”

Mr Mjenxane said that clause 1(d) amended the definition of “care” to remove the word “suitable” from the phrase “a suitable place to live.”

Ms Manganye agreed with the clause. “Suitable” was subjective.

Ms Abrahams said that the dictionary definition of “suitable” was “right or appropriate for a particular person, purpose, or situation.” If sub-clause 1(d)(i) read merely “a place to live,” then anybody could easily fulfil that provision. In that case, sub-clause 1(d)(ii) – which required the provision of “living conditions that are conducive to the child’s health, well-being and development” – became very important. She wanted reassurance that sub-clause 1(d)(ii) would apply. A cardboard box qualified as “a place to live,” but it should not qualify as care.

Ms Opperman agreed with Ms Abrahams.

Ms Masango also agreed. One could leave a child to live anywhere and satisfy 1(d)(i). 1(d)(i) did not have meaning if it stood alone.

Ms Naidoo said that suitability was subjective in South Africa. Some people thought that children needed their own bedrooms, while others thought that a one-bedroom house was suitable. That was why DSD had opted to remove the word from the definition. Parliamentary legal services had of course vetted the Bill for constitutionality and practicality. However, sub-clause 1(d)(i) was indeed read with 1(d)(ii).

Ms Manganye agreed with Ms Naidoo’s interpretation.

The Chairperson said that sub-clauses 1(d)(ii) and 1(d)(iii), taken together, effectively required “suitable” living conditions for the child, even though the word “suitable” would be removed from the clause. 

Ms Manganye added that different things were considered suitable in different contexts. Something that was considered suitable in a township or rural area would not meet the standards for suitability in urban areas.

The Chairperson thought that the amendment in clause 1(d) did not detract from the Act – in removing the word “suitable,” it did not take away anything important. She would prefer Members to reach consensus on this clause without having to vote on it.

Ms Manganye agreed.

The Chairperson reminded Members that the Committee would engage with later versions of the Bill, too. It would look at this provision again then and, in the meantime, Members could get advice, read dictionaries, and get to the bottom of the meaning of this clause.

Clause 1(e): Amendment of the definition of “caregiver”

Ms Naidoo explained that clause 1(e) removed the paragraph which explicitly included “the person at the head of a shelter” under the definition of “caregiver.”

Ms Abrahams agreed with the clause. She thought that persons at the head of shelters were covered indirectly by other elements of the definition, specifically paragraph (d).

The Chairperson agreed that the amendment did not really change the meaning of the definition.

Clause 1(h): Amendment to the definition of “cluster foster care scheme”

Ms Abrahams said that she agreed with the proposal, supported by DSD, to define caregivers under cluster foster care schemes (see page 2).

The Chairperson said that the Committee had already discussed and agreed to that proposal.

Clauses 1(j) and 1(k): Amendments to ECD definitions

Some Members expressed agreement with clauses 1(j) and 1(k), but Ms Ntsabo reminded them that the Committee had agreed that the Bill should not deal with ECD matters. The clauses should therefore be rejected.

Ms Manganye and Ms Masango agreed.

The Chairperson suggested that the clauses should be “referred” to the Department of Basic Education (DBE), not strictly “rejected.”

Ms Ntsabo explained that, as a terminological matter, the Committee either rejected or accepted clauses in the draft.

Mr Mjenxane said that the Committee had agreed from the outset that it should not be distracted by ECD matters, given that ECD functions were migrating to DBE. In principle, that had been a decision to reject all clauses dealing with ECD. In the current meeting, the Committee had to formalise that decision by rejecting each of the relevant clauses.

Ms Naidoo added that DBE would incorporate the definitions into a later amendment bill.

Members agreed to reject clauses 1(j) and 1(k).

Clause 1(m): Amendment of the definition of “genital mutilation”

Ms Masango was willing to agree only tentatively with clause 1(m).

The Chairperson was also concerned. The clause might affect cultural practices – for example, the circumcision of infants by some groups of white people.  

Ms Naidoo read the definition of “genital mutilation” currently in the Act, highlighting that the Bill’s definition was much broader and included male as well as female children. This clause was also linked to clause 1(f), which removed the definition of “circumcision.” However, she understood Members’ concerns about religious and cultural practices.

Ms Masango thought that public submissions, including input by the Western Cape DBE, had dealt with clause 1(m). She could not currently find the relevant submissions, but she thought it was important to consider them.

The Chairperson asked whether the Committee could return to this clause later.

Mr Mjenxane said that it could. The Committee would have to adopt each clause.

Clause 1(o): Amendment of the definition of “midwife”

Ms Abrahams asked for clarification about the definition of “midwife” currently in the Act.

Ms Naidoo explained that there was a drafting note under the definition, which was what was confusing Ms Abrahams. The drafting notes were not actually part of the definitions. Clause 1(o) of the Bill was a technical amendment, updating the definition to refer to more recent legislation. 

Clause 1(t): Insertion of the definition of “separated migrant child”

Ms Masango proposed that clause 1(t) should be amended to reflect a proposal raised by the Centre for Child Law and supported by DSD. The phrase “who is not a citizen of the Republic” should be removed and replaced with “who is from a foreign country” (see page 19).

Mr Mjenxane was confused by the instruction to remove a phrase since clause 1(t) was an insertion – there was nothing currently in the Act to remove.

Ms Masango clarified that the phrase “who is not a citizen of the Republic” would be removed from the Bill, and replaced with “who is from a foreign country.”

The Chairperson asked how these two phrases differed in meaning.

Mr Mjenxane replied that, according to the Centre for Child Law, the current definition, insofar as it referred to citizenship, did not comply with the United Nations Convention on the Rights of the Child. DSD agreed with that submission.

The Chairperson commented that it was a very technical matter.

Mr Mjenxane pointed out that it was helpful to limit the possibility of confusion, and therefore the possibility of litigation, by ensuring that it was clear that the legislation complied with international law. 

Clause 1(w): Deletion of the definition of “social service professional”

Ms Abrahams asked why clause 1(w) sought to remove the definition of “social service professional.”

Ms Naidoo replied that the Bill referred to “social service practitioners,” a term defined under clause 1(v). The definition of “social service professional” was therefore superfluous.

Members agreed with the clause.

Clause 1(y): Insertion of the definition of “unaccompanied migrant child”

Ms Masango asked what the difference was between an “unaccompanied migrant child” and a “separated migrant child.”

Ms Abrahams asked whether the Committee should not amend this definition in the same way that it had amended the definition of “separated migrant child” in clause 1(t).

Ms Masango said that Ms Abraham’s question was the root of her question. Unaccompanied migrant children and separated migrant children were in similar situations.

Mr Mjenxane agreed that clause 1(y) should be amended in the same way as clause 1(t). The same justification applied in both cases. 

Overall clause 1: Definitions (section 1)

The Committee considered clauses 1(a), 1(f), 1(g), 1(i), 1(l), 1(n), 1(p), 1(q), 1(r), 1(s), 1(u), 1(v), 1(x), and 1(z) without discussion and without any Members expressing objections.

Mr Mjenxane said that the Committee should now formally adopt clause 1 in its entirety, with the amendments that Members had discussed to some of the sub-clauses.

Ms Ntsabo said that the Centre for Child Law had recommended, and DSD had agreed, that clause 1 should also insert a definition of “child parents” (see page 18). However, she did not want to derail the Committee’s deliberations – this proposal could be considered at a later stage instead.

Mr Stock said that he had been planning to move for the adoption of clause 1, but he thought that the Centre for Child Law’s proposal should be considered before he did so.

Ms Manganye agreed with the proposal.

Ms Masango said that the Committee had also neglected to consider the proposal about clause 1(a)(c) (see page 7). DSD had agreed with the Centre for Child Law and Professor Skelton’s proposal in that regard, and she thought that it should be reflected in the Bill.

The Chairperson said that the Committee had dealt with the proposal to amend clause 1(a)(c).

Mr Mjenxane said that the Committee had not actually agreed to the proposal. It had agreed to clause 1(a) without considering that proposal. If the Committee agreed, he would include it in the A-version.

The Chairperson said that the Committee agreed.

Mr Stock moved for the adoption of clause 1 with the Committee’s proposed amendments.

However, Ms Abrahams pointed out that the Committee had also omitted to consider the proposal for clause 1(x). DSD agreed that the definition of “temporary safe care” should be amended to include hospitals and medical facilities, as well as police and prison cells (see page 18-19). She thought that should be included. More generally, the Committee needed to think about how it was going to incorporate the public proposals into its deliberations on the Bill. She did not think that the Committee could provide a blanket endorsement of all the public proposals which DSD had supported, but it was difficult for the Committee to deal with each of them separately, and it was accidentally skipping a lot of the recommendations outlined in the DSD document. 

Ms Manganye agreed that the Committee could not provide a blanket endorsement. She thought that the Committee would discuss the public proposals and DSD recommendations later when it came back to the Bill in a future meeting.

The Chairperson thought that when considering each of the other clauses, the Committee needed to refer to the relevant section of the DSD document alongside the clause. However, it was too late to do that for clause 1, so she agreed with Ms Manganye that the Committee should come back later to the DSD recommendations for amendments to clause 1. The Committee should move to clause 2.

Ms Ntsabo reminded the Chairperson that the Committee needed to formally adopt clause 1.

Ms Abrahams said that she was hesitant to second Mr Stock’s motion for adoption, especially since she had just raised a point about clause 1(x) which had not been acknowledged.

The Chairperson reiterated that the Committee would revisit clause 1(x) when considering a later draft of the Bill. At that later stage, it would make all the necessary corrections and additions. For now, it should adopt clause 1 with the amendments that the Committee had agreed to.

Ms Ntsabo suggested that the Committee staff could prepare a document on all the recommendations that the Committee had omitted to discuss at length. The Committee could then discuss those recommendations when it considered the A-version of the Bill.

The Chairperson agreed.

Ms Abrahams said that, in that case, she supported the motion to adopt clause 1.

Clause 2: General principles (section 6)

Mr Mjenxane reminded Members that they should be consulting the DSD document while considering each clause. On clause 6, public submissions had proposed that the terms “inclusion” and “inclusive programmes” should be defined (see page 24-25). Those definitions would be inserted under clause 1.

Ms Masango and Ms Abrahams agreed with the proposal.

The Chairperson said that the Committee agreed with the proposal. Did it have to formally adopt the proposals it agreed to?

Mr Mjenxane replied that he simply noted when Members agreed to proposals. Those proposals would then be reflected in the A-version of the Bill, for further consideration by the Committee.

The Committee adjourned for a five-minute break.

Clause 3: Children’s right to privacy and protection of personal information (new section 6A)

Mr Mjenxane said that the references to other legislation in clause 3 would have to be checked. The clause mentioned the Protection of Access to Information Act (PAIA) as a 2010 act, but he thought that was incorrect.

Ms Manganye agreed with clause 3, but also agreed that the references should be checked.

Ms Masango thought that there had been a lot of public input on clause 3, but she was unable to find it in the DSD document because the document lacked a clear structure. Could the Committee return to this clause later? For example, one of the concerns – agreed to by DSD – was that section 6A would be insufficient unless accompanied by section 74, but section 74 was removed by another provision of the Bill (see page 104). This had bearing on clause 3, but she did not think she was competent to make any specific proposals for the clause without legal guidance.  

The Chairperson said that the Committee should flag the clause for further discussion later, once Members had read the DSD document in full. The Committee agreed with clause 3 for now.

Mr Mjenxane said that there was no discussion of clause 3 in the DSD document. Clause 3 merely explicitly extended the application of existing legislation to children. However, he would follow up on Ms Masango’s comments and prepare advice for the Committee in that regard.

Ms Abrahams replied that there was discussion of clause 3 in the document. Even if there had not been submissions about clause 3 at the national public hearings, there had been such submissions at the provincial public hearings. All the provincial submissions were included at the back of the DSD document, separately to the national submissions.  

Clause 4: Best interests of child standard (section 7)

Mr Mjenxane said that the Scalabrini Centre had recommended that clause 4 should be expanded to insert provisions stipulating that “the best interests of the child standard is universally applicable to all children regardless of nationality, and the needs of the child in terms of documentation in respect of unaccompanied or separated migrant children.” DSD agreed with this submission (see page 25-26). However, DSD had not made any recommendations about how, exactly, clause 4 should be expanded to accommodate this submission. Presumably, DSD was still conceptualising that matter.

Ms Masango suggested that the Committee should not make a decision on clause 4 until DSD had made a thorough assessment and could provide practical input on how the Bill should be amended.

Ms Manganye agreed.

Clause 5: Application (section 8)

Members agreed to clause 5 without discussion.

Clause 6: Social, cultural and religious practices (section 12)

Mr Mjenxane said that the Women’s Legal Centre recommended that the Bill “should explicitly state that the minimum allowable age of a person to enter marriage is 18 years” (see page 26). DSD agreed but, again, had not suggested any specific amendments to clause 6.

Members agreed with the proposal of the Women’s Legal Centre. 

Mr Mjenxane said that marriage was regulated in separate legislation, handled by the Department of Home Affairs, and the legal age for marriage was quite a contentious issue. He asked the Committee’s indulgence to allow him to consult other legislation to ensure consistency.

Clause 7: Information on health care (section 13)

Members agreed to clause 7 without discussion.

Clause 8: Heading of Part 1 of Chapter 3

Members agreed to clause 8 without discussion.

Clause 9: Parental responsibilities and rights of mothers (section 19)

Members agreed to clause 9 without discussion.

Clause 10: Parental responsibilities and rights of unmarried fathers (section 21)

Mr Mjenxane said that clause 10 amended section 21 of the Act, primarily to clarify the circumstances under which biological fathers acquired parental responsibilities and rights. There had been a lot of public input on clause 10, and DSD agreed with much of the public input. However, it had not made specific recommendations for how to draft any amendments to clause 10. He suggested that he should engage with DSD about how clause 10 should be amended. He would then include those proposals in the A-version of the Bill.

Ms Manganye agreed. The Committee support staff and Mr Mjenxane could engage DSD to ascertain its position on clause 10 and could return with advice for the Committee.

Clause 13: Assignment of contact and care to interested person (section 23)

The Chairperson asked Mr Mjenxane whether DSD supported any of the amendments that members of the public had proposed to clause 13.  

Mr Mjenxane replied that he was confused by the organisation of the DSD document. He could not find the input on clause 13.

Ms Masango said that the Western Cape DBE proposed, and DSD agreed, that clause 13 should further amend subsection 23(1) to add that grandparents could also apply for “guardianship of the child if it is in the best interests of the child” (see page 341). It was difficult to direct other Members to this proposal because the hard-copy and electronic versions of the DSD document had different page numbers. 

The Chairperson said that the Committee had reached agreement on clause 13.

Mr Mjenxane sought to clarify whether the Committee had agreed that the A-version of the Bill should incorporate DSD’s new recommendations for clause 13, as outlined in the DSD document.

The Chairperson replied that the Committee had indeed agreed to that. 

Clauses 11 and 12: Heading of Part 1A and parental responsibilities and rights agreements (section 22)

Ms Ntsabo pointed out that the Committee had not considered clause 11 before moving to clause 13. 

Ms Masango added that the Committee had considered neither clause 11 nor clause 12.

Mr Mjenxane said that clause 11 had been considered and agreed to – it was just the insertion of a heading. Clause 12 was the clause that had received extensive public comment, but which DSD had not made specific recommendations for. The Committee had agreed that DSD should be consulted while the A-version was being drafted.

Clause 14: Certain applications regarded as inter-country adoption (section 25)

Ms Masango said that the Western Cape DBE had proposed an amendment to section 25(v) under clause 14. DSD had not supported that proposal, but she would like the Committee to consider it.

Ms Manganye agreed, but she did not think that the Committee should consider the proposal in the current meeting.

The Chairperson agreed with Ms Manganye. The Committee would flag clause 14 for further discussion.

Way forward

Mr Mjenxane read clause 15 for Members’ consideration.

Ms Masango said that she agreed with clause 15, but she had a concern that also affected clause 14 and others. Generally, the DSD document appeared to be poorly organised – each clause was discussed in various different places in the document. For example, the Scalabrini Centre had provided comments on clause 14 elsewhere in the document, which Members had not noticed while discussing that clause. She was concerned that the Committee was going to neglect certain proposals because they were not listed in an orderly way in the DSD document. Was there a way that the document could be reformatted, such that it would be easier to cross-reference the document with the Bill? If all the proposals on a given clause were grouped together, that would solve the problem.

The Chairperson asked Mr Mjenxane’s advice on how to proceed. 

Mr Mjenxane was not sure. Perhaps the Committee could ask DSD to reorganise the document. He could discuss it with his counterpart at DSD, though he believed his counterpart was also present in the meeting.

Adv Luyanda Mtshotshisa, Specialist: Legislative Drafting and Review, DSD, said that DSD would reorganise the document over the weekend.

Ms Ntsabo said that the Committee would courier new copies to all Members as soon as DSD sent the updated version. 

Ms Abrahams said that she was finding it extremely difficult to cross-reference the Bill and the DSD document. In light of the decision to reorganise the DSD document, and given that the meeting was scheduled to end in ten minutes, was it worthwhile to proceed with deliberations? She thought that the Committee should adjourn now and wait for the updated document. Deliberations could resume at the Committee’s next meeting, which would be during the parliamentary recess. She added a plea that the Committee’s next meeting should happen in person. Virtual deliberations had been extremely challenging. Some Members had not been able to follow the discussion, and she was finding it difficult to do so.

The Chairperson agreed that the Committee should resume deliberations when it had received the reorganised DSD document.

The meeting was adjourned.  



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