The Committee had previously agreed to amend the introduced Bill in order to address the concerns raised in the North Gauteng High Court Order. The Committee took a decision that all of those clauses which did not relate to foster care would be kept in abeyance for a second amendment process.
The Legal Advisor presented to the Committee the twelve affected clauses that will respond adequately to the judgement. They highlighted the proposed amendments and indicated that they did not in any way extend the subject matter of the Bill, and therefore there was no need for the Committee to seek the permission of the Assembly.
A Member asked if the definition of ‘orphan’ could be included in clause 1 of the Bill as well as the parental rights and responsibilities of unmarried fathers in terms of section 21 of the Act. A Member asked that discussion take place around clause 1(e) of the Bill as the public submission had far-reaching implications if enacted. It was highlighted that if section 24 of the Act was not amended, the jurisdiction to deal with guardianship would remain in the courts’ power. Concern was raised about the implementation of foster care orders, the expiry thereof and the implications on the South African Social Security Agency Foster Care Grant. Members expressed concern about the situation on the ground, given the proposed timeframes and the ability of caregivers to reach court to get temporary safe care orders. The lack of resources, particularly the number of social workers, was raised as an issue that needed to be dealt with separately in engagements with the Department.
Following discussion, the Committee agreed to include clause 21 of the introduced Bill. This meant that 13 clauses – from the original Bill – will survive.
The Chairperson made brief opening remarks welcoming those in attendance in-person at the Taj Hotel and those attending virtually. She noted that this was the last day to finalise the Bill, according to the North Gauteng High Court Judgement.
Mr Linton Mchunu, Acting Director-General (DG), Department of Social Development (DSD), communicated the apologies of both the Minister and Deputy Minister.
Matrix on the Foster Care Comprehensive Legal Solution Clauses
Adv Luyanda Mtshotshisa, Specialist: Legislative Drafting and Review, DSD, made brief introductory remarks. He took the Committee through the latest matrix of the Department’s responses to various proposals made by the public.
The matrix presented outlined the clauses in terms of what communities had said during the public hearings. The clauses were in line with the Foster Care North Gauteng High Court Order.
Clause 1(a): Definition of ‘Abandoned Child’
The first comment was on clause 1(a) of the Bill, where there was a need to insert or amend the definition of an ‘abandoned child’ to fit in with section 150(1)(a) of the Act so that it fell within the context of a child in need of care and protection. The Department indicated that it had agreed with the proposal made by the public on this.
Clause 1(e): Definition of ‘Caregiver’
The Department agreed that the definition of ‘caregiver’ needed to be amended to include a person that was assigned the care of a child in a registered cluster foster care scheme. It needed to include the issue of grandparents or adult siblings that might be staying with a particular child.
Clause 1(h): Cluster Foster Care Scheme’
There was a proposal to amend the definition of ‘cluster foster care scheme.’ The Department disagreed with the proposal as the proposal suggested that local offices be established in the implementation of the provision. Normally legislation would not be concerned with operational matters. The issue of the district and local offices was already catered for in the ‘entire’ legislation in terms of the delegation of powers. Members of the Executive Council (MECs) and the Head of Departments (HoDs) were given the power to delegate power to any official in the Department. This meant that the district offices and the local offices could have that kind of power.
Clause 24: Jurisdiction of Magistrates Courts
There was a proposal relating to the extension of the jurisdiction of the magistrates’ courts. The jurisdiction of the children’s courts needed to be extended in order to cater for issues of guardianship. The rationale for this particular provision was to amend the jurisdiction of the courts. The issue of guardianship needed to be taken into account; thus paragraph 45(bA) would be inserted as well as paragraph 45(1)(bA).
Clause 56: Quality assurance process for evaluation of child protection services
The Department agreed to the amendment of section 105 of the Act by providing that the Department needed to ensure that a quality assurance process was conducted in the manner and at the intervals as prescribed in respect of all child protection services contemplated in this section of the Act. It was suggested that section 105(4) should read that the designated child protection services, social workers (social work practitioners) in their service, of a child and youth care centre and a municipality to be exempted from (b), (v) and (vi) because the basic function of a social worker at a child and youth care centre was to be responsible for the care of the child.
Clause 83: Children’s Court
Clause 83 sought to amend section 155 of the Act by effecting consequential amendments. There was a proposal that section 155(1) of the Act read that ‘a children’s court must decide the question of whether upon notification of referral to the children’s court of a child who was the subject of proceedings…’ The Department supported this.
Clause 92: Registration of designated child protection organisations
He noted that it was important to include this clause, despite there being no proposals from stakeholders on it. He noted that the reasons for inclusion had been extensively discussed in previous meetings.
Clause 94: Supervision Services
Clause 94 of the Bill sought to amend section 186 of the Act, by providing that a children’s court may deem it necessary to order further supervision services despite the provisions of section 159(1)(a) of the Act. The Department did not support the view of amending this clause. The whole foster care system needed to be monitored to ensure compliance and no backlog moving forward. This clause would be retained
Adv Mtshotshisa flighted the proposed Bill to the Committee. He provided a brief overview of the clauses that would amend various sections of the Act, specifically in terms of the 12 proposed amendments to meet the North Gauteng High Court Judgement. This was the same version of the Bill that had been tabled.
Parliamentary Legal Services
Adv Nathi Mjenxane, Parliamentary Legal Advisor, stated that what was presented to the Committee, was what the B version of the Bill would look like. Members were presented with the 12 clauses which had been agreed on. The Parliamentary Legal Advisors were requested to work with the State Law Legal Advisors. Parliamentary Legal Services had responded to the Committee’s request to look at which clauses would specifically address the concerns raised in the North Gauteng High Court Order. It was agreed that the 12 clauses presented in the meeting would respond adequately to the judgement. The 12 clauses did not in any way extend the subject matter of the Bill, and therefore there was no need for the Committee to seek the permission of the Assembly or the House, as it would if the 12 amendments extended the subject matter. These 12 clauses did not change the classification of the Bill, in which case the Committee would have had to go and consult the join-tagging mechanism on the change of classification. Those were the key issues considered by Parliamentary Legal Services.
He stated that he would outline the steps that needed to be followed going forward. The process was informed by Section 57 of the Constitution and National Assembly Rule 167, which gave effect to Section 57 of the Constitution. The Committee made the decision that it wanted to take the Bill, as introduced, and amend it so that it only provided for foster care in response to the North Gauteng High Court Judgement. The other issues would be kept in abeyance for a separate process. The next step was for the Committee to deliberate on the 12 clauses to determine if the 12 clauses were satisfactory to the Committee and properly captured the Committee’s decision on the North Gauteng High Court Judgement.
After the deliberations, the Legal Advisors would look into how to assist the Committee in capturing any amendments, to the 12 clauses. An A-list could be written up. The A-list was a list of Committee amendments. The list presented by the Department formed the Committee’s A-list. The Committee needed to decide if those 12 amendments suited it, and if it responded to the North Gauteng High Court judgement, as directed. Thereafter the Parliamentary Legal Services would draw up a formal A-list to be presented to the Committee. Once the A-list was accepted, the Committee would then take the next step to finalise the B version of the Bill. The final B version would become the Act. A Committee report would be compiled to capture everything that took place relating to the Bill by the Committee. That report would then be attached to the Bill and taken to the House. That involved the publishing of the Bill, as well as the report in the Announcements, Tablings and Committee Reports (ATC). Subsequently, there would be a second reading – this s when the Bill is debated in the House together with the report. The Bill would then be referred to the National Council of Provinces.
Adv Lisa Naidoo, Senior State Law Advisor, stated that she was in agreement with everything outlined by the Parliamentary Legal Advisor. She, together with Parliamentary Legal Services had worked together with the Department to formulate the 12 clauses. The State Law Advisors Office and the Parliamentary Law Advisors Office needed to ensure that when the Bill was being processed, it was constitutionally sound, in terms of procedure and substance. These clauses had already gone through vigorous public consultation. That constitutional requirement had already been met. The procedure was constitutionally acceptable.
The Chairperson stated that the Parliamentary Legal Services and State Law Advisors Office did sterling work in meeting and agreeing on the way that should be followed.
Ms Masango asked if the following definitions could be included, the definition of ‘orphan’ in clause 1 of the Bill, the parental rights and responsibilities of unmarried fathers to section 21 of the Act, and the third being the devolving of the jurisdiction to children. These were directly relevant to foster care and part of the comprehensive legal solution.
Mr D Stock (ANC) agreed with Ms Masango. The 12 clauses were sound and related directly to foster care. The work that was done by the stakeholders and the Department was welcomed and he agreed with the amendments proposed in the Bill. It was good progress.
Ms J Manganye (ANC) stated that the team had done good work. The previous time had been confusing. She reiterated that the Committee had agreed that it would amend the clauses that directly dealt with foster care. The others would be considered when a second amendment took place.
Ms L van der Merwe (IFP) made a few suggestions largely in support of what Ms Masango had raised. She highlighted that the definition of an ‘orphan child,’ had not been included. She asked that the Committee consider re-including it. She suggested a discussion needed to take place around clause 1(e) of the Bill and the submission by Mr van Niekerk. That submission had wide-ranging implications. The Committee should consider rejecting clause 1(e) of the Bill as it could always be deferred to the second bill process, as public comment was needed on that proposal. She agreed that the Committee needed to look at section 21 of the Act, all the submissions had agreed with it, but it was not included in the matrix presented. It was important because many abandoned and orphaned children lived with unmarried fathers – that amendment would help in preventing children from ending up in foster care. That was an important section that should be re-looked at for inclusion. Section 24 of the Act dealt with the jurisdiction to deal with guardianship, if this was not amended, the jurisdiction would remain in the courts’ hands/power.
Adv Mtshotshisa stated that there were many clauses in the ‘bigger’ Bill that the Department felt may form part of the North Gauteng High Court Judgement, however, the team had looked at those clauses that were closely linked to the Judgement. This was not dismissive of the fact that some of the clauses were not included. The definition of an ‘orphan’ was not included, not because the Department felt it was not linked but because the more closely linked amendments were proposed. If the Committee felt differently, this version was not cast in stone. An ‘orphan’ was already defined in the principal legislation, and orphans were already included when it came to matters of foster care. It was simply that the definition of ‘orphan’ was being extended to include an orphan where there was only one parent involved. The current definition spoke of the two parents – but there were those who only had one parent in their lives. If the Committee wanted this to be included, the Department was not opposed to that. There were many clauses that could be said to be closely linked to foster care, but the degree of ‘closeness’ to the Judgement was what had been focused on.
He clarified that the amendment of clause 24 of the Bill was included in the matrix. The comments made by Ms Stock and Ms van der Merwe were noted. The issue of section 21 of the Act, was that the closer the unmarried fathers were to their children, the greater the possibility that the children would not be part of the foster care system. This matter required further interrogation as it sometimes involved the courts. Fathers could not automatically have that kind of right. It depended on if the father was fit and proper as a parent. Fathers were not automatically given custody for various reasons.
Ms G Opperman (DA) asked about the amendment of section 159 of the Act. In terms of the Judgement, there needed to be a long-term solution for foster care as a mechanism for managing foster care orders. In terms of clause 86, when the Committee received the matrix, it was very ‘high-level,’ and then the explanations were very ‘high-level.’ She asked for a summary or clarification of what clause 86 would change. The Committee came together to amend the legislation so that the lives of people on the ground could change for the better. Clause 86 would not prevent SASSA from stopping payments on the foster care grant. It would not prevent the expiration of the foster care grant. It would still need to be reinstated and it would still need to be back-paid. It would still lapse, and it would not be uninterrupted. What would the clause actually change? It seemed everything would stay the same for the person on the ground.
The Chairperson stated that Ms Opperman had reminded her of clause 49 of the Bill, where there was a timeframe for the court judgement of 90 days. The problem with that is that it took so long for a social worker or court judgment to finalise the issue, to place a child etc.
Adv Mtshotshisa stated that there had been reluctance in the application of section 48 of the Act, in terms of extending the foster care orders. Section 48 of the Act already provides for a situation where the courts might extend the order for a period of six months. The power was already there. This amendment sought to amend section 159 by providing that a court may extend a court order that had lapsed or create an interim court order. It needed to be read together with the existence of section 48 of the Act. There had been that miss-application of the two clauses. When it came to the extension for a six-month period -it was already catered for in the broader legislation. By modifying it and bringing in section 159(2), notwithstanding the amendment to section 150(a) an order placing an orphaned or abandoned child in foster care before or on the date of this amendment, may be extended by the court order in terms of section 1259(2) or (3) of the Act.
Ms Neliswa Cekiso, National Director: Child Protection, DSD, stated that it had been a struggle to ensure that the presiding officers were implementing section 148 of the Act. No child would lose the child support grant or not have a valid court order to be in the foster care system if the presiding officers extended the order proposed. It was one of the areas that put pressure on the social workers if there was no extension taking place.
Ms Opperman appreciated the explanation. On the ground, while the care grant had lapsed, people were waiting up to 90 days. People were suffering during those 90 days, what would this amendment do? Amendments were there to change lives for the better. In the meantime, somebody had to take care of that child. How would lives be changed on the ground?
The Chairperson stated that she was also concerned about the 90 days.
Ms P Marais (EFF) stated that social workers brought kids to foster care, without clothing or anything, as the child was taken away from their parents. She outlined a specific case and highlighted the lack of support. What could one do in the meantime, while one was waiting for the 90 days to expire? People were asking these questions on the ground.
Ms Cekiso stated that she needed to clarify the timeframes. For temporary safe care, it was six months. This prevented the over-stay of children in temporary safe care. Permanent placement included foster care, child and youth care centre or adoption pending the finalisation of the case. The 90 days being spoken about, were likely the 90 days dedicated to the investigation of those placements that were not yet finalised. Section 155 of the Act made that provision. Social workers had 90 days to investigate and finalise the reports so that courts could make a decision about if a child was in need of care and protection so that the child could be in foster care or in child and youth care centres. In some instances, if a child was in temporary safe care, a child would move into an adoption setting, if it was an adoption that was pending finalisation. When a child was in temporary safe care, one could always approach the court; the court could review the court order and extend it, if one was awaiting an unabridged birth certificate, for example. The determination of there being no parent available and placement in alternative care had to be made. When one was in temporary safe care, there was a temporary safe care fee, to take care of the child.
The Chairperson stated that her concern was that children were placed during the 90 days while the case was still being investigated. She asked to understand the implications of this. A person might not have the means to take care of the kid, but see the situation the kid was in, that the kid was vulnerable in a place.
Ms Cekiso stated that there was a provision that the child must be with that caregiver during that 90-day period. That was why she preferred to talk about six months, as the child could be in safe care for six months. A child that was in need of care and protection should be in a court-ordered placement to protect against anything that could happen to that child. There was a provision that the person looking after the child received a temporary safe care fee so that the children’s needs could be provided for. This provision was specifically to ensure that no child stayed under someone’s care without a court order so that a child could not just be picked up by anyone. As long as the person was approved as a ‘temporary safe care person’ it was acceptable. It was unconstitutional to place a child without a temporary safe care court order. Social workers were the ones putting the child into the person’s temporary safe care. The following day one needed to go to court to get the temporary safe care order, otherwise, anything could happen to that child, who was placed without a temporary court order.
Ms Manganye stated that the Committee needed to visit the South African Social Security Agency (SASSA) and DSD. On the ground in constituencies, she was always doing that. The answers provided covered her questions.
Ms Opperman stated that she was still not happy with the answer provided. She suggested one consider the lived reality and experience on the ground. She highlighted the issue of getting a court order the following day. She highlighted that many people were unemployed, did not have transport and many towns did not have a walk-in SASSA office. Many people would not get there the next day, given the distances of many SASSA offices from rural towns, for example. How would the Department assist with such issues?
Ms A Abrahams (DA) stated that she was happy this discussion was taking place. If the court order expired, the question was if the child would still receive the foster care grant. That was the central question. With an expired court order – was the social worker still obligated to go and follow up on that child. With the expired court order, where was the safety net for that child? The reality was that it was longer than six months. One could not talk about ‘on the ground,’ if there were no resources in the courts. There was a lack of resources in the number of social workers. Right now, she realised the Committee was busy with a legislation conversation. The Committee was going to have a big challenge if it sat and matched legislation to resources when everything was under-resourced, to begin with. That was the difficulty.
She suggested that the Committee start with the first clause it wanted to amend – so that the less complex ones could be ticked off and the Committee could come back to the ones that required more discussion. This discussion on the expiry issue could go on for a very long time.
The Chairperson highlighted the issue of the insufficient number of social workers. She suggested the issue be parked until there was a departmental meeting. These problems existed across the country.
Ms Masango stated that there were two stages, the one where the child was being moved from the street, and the other the expiry of the court order, as highlighted by Ms Abrahams. It was due to the backlog - if the clauses took care of that, it needed to be clarified. The backlog that still existed needed to be resolved in a permanent way. If it did not, it would just extend it.
Ms Manganye stated that at a lower level, she was still repeating herself. There needed to be awareness about the information, otherwise, children would suffer. The resources were not included in the Bill, when the Department came before the Committee, a separate discussion needed to take place.
Ms van der Merwe asked for clarity about what would happen if a child’s foster care grant, or the foster care order expired. The Act did not allow for SASSA to pay if the foster care grant had expired. This amendment only allowed for the extension of an expired court order retrospectively. That would not satisfy the requirements of social assistance for continued payment.
Adv Mjenxane stated that the proposed amendments to section 159 of the Act were to ensure that there was no lapsing of the court order. It basically reaffirmed what was contained in section 48 of the Act, where the presiding officers were able to extend the court order, to ensure that there was no lapsing of the foster care child grant. Once the extension took place, there would not be any lapsing.
The Chairperson stated that it seemed to be clear that there would be no lapsing after the Bill was passed.
Adv Mjenxane stated that the guidance needed from the Committee was around the 12 proposed amendments, as it would inform the A-list. Then the Committee would need to go through the Bill, as introduced to deal with the other processes that related to the 12 amendments. This could be done by going clause by clause. The Committee could go clause by clause, page by page or chapter by chapter.
Mr Stock stated that from his understanding the exercise that the Committee had embarked upon, was to allow the legal advisors to report to the Committee on the 12 proposed amendments. The Committee was not rejecting the other areas. There would be a separate process dealing with the issues that came out of the public participation process. Should the 12 clauses not be tabled by the Committee? Clause by clause surely only related to the 12 clauses?
Ms Manganye stated that the Committee would only deal with the clauses relating to foster care to address the issue of the High Court. This was addressing issues that should have been addressed by the Fifth Administration.
Ms Abrahams stated that her understanding was that the Committee would deal clause by clause with the 12 amendments. She suggested that the Committee consider the points raised in section 21, about unmarried fathers. She noted that it was not automatic that unmarried fathers got children. When the Committee travelled to provinces, Fathers for Justice were at all public hearings. Fathers were in tears over their rights as unmarried fathers. She suggested section 21 of the Act be included with the 12 proposed amendments.
Ms van der Merwe agreed with the Chairperson that the Committee conduct clause by clause deliberations of the 12 clauses. This was a Committee process. As much as the Committee wanted to accept the 12 clauses, it also wanted to include or amend clauses. She suggested the Committee consider including sections 21 as well as 24 and the definition of ‘orphan.’ These were not problematic nor controversial. These could be included if the Committee was in agreement. She proposed that the definition of ‘orphan’ be included, as this was critical to foster care.
The Chairperson asked if, when the proposed amendments were submitted to the National Council of Provinces, the Committee was expected to submit all of them. The Committee had previously agreed that it would first deal with the High Court Order’s relevant clauses. She suggested that the other issues be parked.
Ms Masango stated that the Committee needed to decide on the three options proposed. She suggested the Committee adopt a chapter-by-chapter approach so that the main matters in each chapter could be highlighted.
Ms Manganye stated that the Committee must not forget the Fathers for Justice. She agreed with the proposal. It needed to address the issues once and for all.
Ms M Sukers (ACDP) asked what approach was being taken.
Ms L Arries (EFF) agreed with the previous speakers. There needed to be a balance, and all stakeholders need to be taken into account. She stated that the foster care clauses the Committee was looking at, dealt directly with parental responsibility. She asked how ‘social fathers would be included in terms of the amendment.
Adv Mtshotshisa stated that some of these issues could not be acted upon because further investigation/research was needed on them.
Ms Masango stated that her take on the section 21 matter was that the Bill before the Committee contained section 21. She proposed that the Committee consider what was tabled and published. Fathers for Justice asked for more than what was included but were not in principle opposed to what was contained in section 21 of the Act.
Mr Stock stated that the issues of Fathers for Justice were not being disregarded. He reiterated what the Legal Advisors had put forward. The issues raised in the public hearings required further investigation. He suggested the Committee go through the 12 relevant clauses. In the next meeting, the Committee could consider the outstanding matters.
Ms van der Merwe heard what Mr Stock had said. She suggested new issues were not being brought up nor were the issues purely about Fathers for Justice. Sections 21 and 24 were contained in the original Bill. There was broad consensus, it came to the Committee from the Department. It was going to be dealt with in the original Bill. There was nothing contentious.
Ms Sukers stated that she wanted to add to what Ms van der Merwe had said. There was a very important aspect to be considered, which was the social impact of the legislation and what the legislation sought to address. The three clauses materially dealt with the circumstances of children. It went back to the weighting of the matter. She disagreed with Mr Stock about the Committee simply chasing toward a deadline versus including the material impact of the children that the legislation sought to positively impact. The implication of parental rights was very important. It materially impacted the children and State, in terms of what the State was responsible for.
Ms Abrahams stated that she was in support of what Ms van der Merwe had said. In the interest of taking the meeting forward, she asked that a vote take place.
Adv Mtshotshisa agreed that there were many other clauses in the Bill dealing with foster care. If the Committee agreed now to include section 21, then the commentary around that clause needed to be discussed, so that an informed decision was taken about accepting section 21 as it stood or with modifications, based on what the public had said. He was not sure how long it would take to discuss the commentary received. The other would be to accept the section 21 amendments, as they were in the Bill that was advertised for public comments. The challenge with that was that it meant the public input would be completely disregarded. It would not be doing good service to the amendment.
Adv Mjenxane stated that the decision to include more clauses was a matter to be decided by the Committee after due deliberation. The public input in relation to each of the clauses needed to be considered by the Committee, this was the guiding legal principle. The Committee needed to demonstrate that it had applied its mind to the information before it and make a decision.
Adv Naidoo stated that she was in agreement with the Parliamentary Legal Advisor, it was ultimately the Committee’s decision, however, when it came to public comments on section 21 and other sections, the Committee and the Department were not bound by the public comments. It simply needed to show that it had meaningfully engaged with the comments and considered them equally. The policy of the department and executive needed to remain intact.
The Chairperson noted the opinions of the Committee members.
Ms van der Merwe noted that the matrix said that 90 percent of submissions supported the amendment of section 21. If 90 percent of the public supported section 21, she did not understand what the issue was.
Ms Arries agreed with Ms van der Merwe.
The Chairperson asked if the Committee could agree to take section 21 as it was introduced. Section 21 and 24 were included. The Committee rescinded its decision of saying 12 clauses had been looked at. The Committee was now adding the inclusion of sections 21 and 24.
Ms Abrahams stated that her understanding was that section 24 was already part of the 12 clauses highlighted by the Department. The other one was Ms van der Merwe’s question about the definition of orphan.
Mr Stock was glad that the Committee reached a decision through consensus.
Ms Sukers requested that when the Committee spoke about a specific section, as it deliberated, it be shown on the screen so that all members were on the same page. In this way, it could be assured that consensus was reached.
Adv Mjenxane stated that the Committee was amending the Bill as introduced and had taken a decision, in terms of the National Assembly Rules, which allowed the Committee to determine its own arrangements. The Committee took a decision that all of those clauses which did not relate to foster care would be kept in abeyance for a second amendment process or would use other legislation to deal with the other aspects. All the public input on those clauses would be kept in abeyance until the process could be followed. The Committee had decided to come up with 12 clauses on the Bill, which had now changed to 13 clauses. Only 13 clauses would survive from this Bill. The various approaches had been outlined. It had been decided that the Committee would go chapter by chapter.
Vote on Clauses of the Bill
Chapter 1: clauses 1(a), (e), (h) and (q) of the Bill
In chapter one, a chapter that dealt with definitions amongst others, the decision of the Committee in this regard, was that this chapter would be rejected and the only surviving clauses would be clauses 1(a), (e), (h) and (q). He asked that the Committee vote on this.
Ms Masango stated that clause 1(e) of the Bill spoke to Mr van Niekerk’s submission – she proposed that this be rejected on the basis that it was not in the Bill as introduced and it had not been subjected to public hearings or public participation. It had wide-ranging implications. She proposed that the clause be rejected.
Ms van der Merwe supported Ms Masango that clause 1(e) of the Bill be rejected, as it had far-ranging implications and was not subjected to public consultation. It could be resuscitated in the second amendment bill.
Mr Stock agreed with Ms Masango and Ms van der Merwe.
Ms van der Merwe asked for clarity about if clause (1)(q) was being included as it was tabled in the original Bill.
The Chairperson confirmed that this was correct.
Adv Mjenxane stated that the essence of the Committee’s decision was that the rest of the clauses were then kept in abeyance.
Clause 24 of the Bill
Adv Mjenxane introduced the clause. He stated that this was a surviving clause that Members had decided should be extrapolated from the Bill and form part of the 12 surviving clauses. He asked that the Committee assists in making a decision on that.
Mr Stock stated that he agreed that clause 24 of the Bill be included as part of the amendment.
Ms van der Merwe requested clarity about if it was clause or section 24.
Adv Mjenxane stated that it was clause 24. He stated that when the Bill was spoken about, one spoke of ‘clauses.’ One spoke of ‘sections’ when one spoke about the Act.
Ms Manganye agreed with the inclusion.
Ms Masango similarly agreed.
Clause 56 of the Bill
Adv Mjenxane stated that clause 56 of the Bill amended section 105 of the Act.
Mr Stock agreed with the amendment of clause 56 of the Bill.
The Chairperson asked if the Members agreed.
There were general indications from Members of their agreement.
The Chairperson stated that the Committee agreed to amend clause 56 of the Bill.
Clause 77 of the Bill
Adv Mjenxane introduced the clause, which would be amending section 142 of the Act.
Ms Masango asked if the Committee was still getting to section 21.
The Chairperson confirmed that the Committee would still get to that clause.
Ms Masango agreed to the proposal.
Ms Manganye also agreed to the proposal.
Clause 82 of the Bill
Adv Nathi Mjenxane stated that clause 82 of the Bill would amend section 150 of the Act.
Ms Sukers asked if the Committee had dealt with section 21; she asked for clarity if she had understood correctly that the Committee would deal with section 21 later.
Adv Mjenxane replied that it had not been dealt with but would be.
Ms Abrahams asked if this clause was duplicating what was already included, as definitions of abandoned and orphaned children were already there, and this said, ‘no parent, guardian, family member…’ Was this necessary in the clause when it was covered under the definitions?
Adv Mjenxane stated that the repetition of the words did not detract from the meaning of that section. If anything, it facilitated a clearer understanding of the section. It would be a problem if it was detracting from the meaning or creating confusion.
Adv Mtshotshisa agreed. It created better clarity to include it.
Ms Masango stated that what was on the screen was the Bill as it was tabled, it did not contain what was proposed by the Department or the public. She asked if the Committee was agreeing to the correct clause – or if the Committee needed to consider the matrix proposals.
Adv Naidoo stated that this was the formal stage of the Bill, where the Committee considered inputs. The matrix should be considered, to see if there were comments that the Committee or the Department agreed on. It was important to contrast the two documents.
Adv Mjenxane agreed. He made an assumption that Members were already cross-referencing all the materials before them in coming to a decision about if a clause should be amended or survive as it was.
Ms van der Merwe stated that the issue raised by Ms Masango was critical, if the Committee was agreeing to the Bill as tabled, it meant that it was nullifying the entire process of public submissions received. She thought the process might need to begin again to deal with all of the chapters.
Ms Sukers agreed with Ms van der Merwe. The process could not ‘run away’ from the Members. It was important that members were enabled to provide their inputs and apply their minds.
The Chairperson asked for clarity about if the process needed to start afresh.
Adv Mjenxane stated that this decision lay with the Committee. He proposed that the Department introduce each clause and the public proposals made on this so that the Committee could make informed decisions.
Discussion about programme
The Chairperson asked for clarity about the timing of the rest of the meeting, with Members’ commitments and the plenary at 2pm.
Ms van der Merwe proposed that the Committee continue the following Wednesday from the beginning of the clauses.
The Chairperson expressed concern about arranging another in-person meeting. She asked if the meeting could be adjourned until the following week. The following week there was a presentation scheduled for the programme.
Adv Mtshotshisa asked if the Committee could meet the following day and the day thereafter to finalise this.
The Chairperson stated that the Committee could not utilise Thursdays.
The Committee Secretary stated that there were plenaries in the morning the following day. On Friday 20 May 2022, there were plenaries from 10am to 12:15pm. If the Committee met it needed to be from 1pm on Friday, if approved. The following Tuesday, Members of the Committee were serving on other committees, such as Ms Sukers, Ms van der Merwe and Ms A Hlongo (ANC), thus this would be discouraged. The following Wednesday, the plenaries only started at 3pm.
The Chairperson suggested the meeting continue the following Wednesday.
Ms Manganye asked that if the meeting was held the following Wednesday, the meeting needed to start early so that the Committee could complete this.
The Chairperson stated that the meeting would be scheduled from 9am to 2:45pm.
Ms Masango suggested that the meeting take place in-person.
Ms Manganye seconded the proposal to hold the meeting in-person.
The meeting was adjourned.
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