Children’s Amendment Bill: Committee amendments consideration

Social Development

22 June 2022
Chairperson: Ms N Mvana (ANC)
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Meeting Summary

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In this meeting, the Parliamentary Legal Advisor presented the A-list of the Committee's proposed amendments. However, at the end of this meeting, the Committee deferred the adoption of the A-list to 24 June 2022. This was within its timeframe to adopt the Bill on 29 June when the proposed amendments would be incorporated into the B-version for voting.

The Parliamentary Legal Advisor noted that the Portfolio Committee had previously taken the decision that all clauses which did not relate to foster care parenting would be kept in abeyance for a second amendment bill process in the form of a Committee Bill. Therefore this was a technical rejection. It did not mean that all the work by the Committee on those clauses was completely rejected. Those clauses would be suspended for this amendment period whilst the Committee focused on foster care parenting in line with the North Gauteng High Court decision. However, all work done by the Committee on the Bill, including the extensive public consultation, would inform what the Committee would include when it initiated a Committee Bill.

Sections 21 and 24 were contested. Some Committee members felt that if the Committee did not include section 21, it would exacerbate the foster care crisis, because it would not allow unmarried fathers to care for their children. That would lead to the opposite of what the Committee was trying to achieve in the Bill, which was the court imperative given to the Committee to alleviate the foster care crisis. Section 24 dealt with which courts could hear guardianship applications. Some Members felt that the Committee needed to ensure that the Bill did not contradict itself on the Children’s Court being able to hear guardianship applications – this was in section 24, section 45(1), and sections 45(3)(a) and 45(3)(b). It was suggested to delete “to the High Court” and insert “to the Children’s Court or High Court, as contemplated in section 45(3)(a)”.

Members also made proposals on how wording in clause 24 could be changed, especially as it related to section 45. It was suggested that the legal advisors remove the words “of an orphaned or abandoned child”. It would then read: “guardianship as contemplated in section 24” so that the Children’s Court’s jurisdiction to hear guardianship applications was not limited to orphaned or abandoned children only, and it could hear all guardianship applications.

Members asked for clarity on the new clauses. On clause 86(2A): Would the South African Social Security Agency (SASSA) still have the legal authority to pay the foster care grant after November 2022, when the High Court order ended and the foster care grant expired? On new clause 160: This was not tabled in the Bill originally, so consultation was not done. Why was that inserted?

The State Law Advisor clarified that section 21 had been through extensive public comments, and it was an area of contention. That was why section 21 needed precise and extensive redrafting. When such redrafting was extensive, it needed to go back for public consultation. It thus would need to be included in the Committee Bill.

Proposed amendments would be brought to the Committee on section 24 to the 24 June 2022 meeting as well as clause 24 amending section 45.

Meeting report

Opening Remarks
The Chairperson noted Youth Month and said the Portfolio Committee on Social Development had a responsibility to honour the youth, and be cautious of what was happening in one’s surroundings. There was gender-based violence (GBV), children were being killed and being kidnapped. If that could stop with immediate effect, then the country would be very happy. The Committee wished all children to be safe but people outside were being “animals” and were not comforting children. She encouraged the Committee not to give up; the Committee needed to do its best with activities such as awareness campaigns in the areas where Members lived.

Mr Khumbula Ndaba, Acting Deputy Director-General: Legal, Governance and Risk in the Department of Social Development (DSD apologised for the absence of the Minister and Deputy Minister, who were out of the country on business. The Director-General was in the Presidential Coordinating Council meeting but would join the meeting at a later stage.

The Chairperson noted that the Committee was at the stage of the A-list for the Children’s Amendment Bill. After the Committee had finalised the A-list, the legal advisors would tell the Committee the plan for moving to the B-version. The legal advisors would also tell it how the Committee would go about moving to other clauses that it had not managed to finalise in the current phase.

Second A-List for Children’s Amendment Bill [B18-2020]
The legal advisors present were Adv Nathi Mjenxane, Parliamentary Legal Advisor; Adv Luyanda Mtshotshisa, DSD Specialist: Legislative Drafting and Review; and Adv Lisa Naidoo, Senior State Law Advisor.

Ms Lindiwe Ntsabo, Committee Secretary, noted that the Parliamentary Legal Advisor was guiding the process as the matter was no longer in the hands of the Department. At this stage, the Department played a minimal role as far as advice was concerned.

Adv Mjenxane said that Parliament's Constitutional and Legal Services Office (CLSO) had been advising the Committee on amendments from when the Bill was introduced and during public consultations. On public consultation and the Chairperson’s introductory remarks on the decision the Committee had taken on the Bill. The first decision that the Committee took was to remove the early childhood development (ECD) clauses in the Bill, as the function was migrated to the Department of Basic Education (DBE). That was the first proposed amendment the Committee made to the Bill. The second proposed amendment by the Committee was to focus on those clauses that would provide for comprehensive foster care parenting, in line with the North Gauteng High Court decision.

On both decisions, the Committee asked for legal advice. CLSO provided legal support but the decision on what was to happen to the Bill was the decision of the Committee. This was in line with the Constitution and the Rules of Parliament, specifically that legal advisors did not make decisions; it was the Committee itself that made decisions.

The Committee had made the decision that the clauses not relating to foster care parenting were going to be “technically rejected”. The term “technically rejected” referred to a technical legislation drafting mechanism of effecting the Committee’s decision on the Bill. Rejection of that must not be misunderstood, or understood to mean that all of the work which had happened in the Committee on those clauses was completely rejected. The decision of the Committee was the rest of the clauses not relating directly to foster care parenting were to be kept in abeyance. These clauses would be suspended for this amendment period whilst the Committee focused on foster care parenting in line with the North Gauteng High Court decision. However, all work done by the Committee on the Bill, including the extensive public consultation, would inform what the Committee did with the Bill. This would include initiating a Committee Bill which was in line with the power vested in the Committee by the Constitution as well as the National Assembly Rules.

The Committee had decided that it would take the clauses as discussed by Members and put those in the Committee Bill, which would be considered by the Committee. The NA Rules provided extensively for the process of the Committee Bill. Rule 273 stated that the Committee must seek the permission of the National Assembly in terms of Rule 268(1) to table a Committee Bill. When the Speaker gave that authority, the Committee Bill would contain all the clauses which did not form part of foster care parenting in the current amendment process. The Committee Bill would be put on the order paper as soon as the authority to do so had been granted by the Speaker. The Bill would then be tabled before the Committee, the Committee would consult again on the Bill, possibly not as far and wide as it already did. It had that input already from the public, which was in the form of a matrix which was currently before the Committee. All of that information would inform the Committee process when it was considering the Committee Bill. That process was provided for in the Constitution and the NA Rules. If Members wished, he could refer to specific parts of the Constitution and the Rules which allowed the Committee to amend the Bill in this manner.

On the A-list: The A-list was a technical term for drafting purposes, and it was an instruction to legal advisors to list the Committee amendments. The Committee amendments were those amendments (through its deliberations and decision-making) which it directed legal drafters to effect technically and bring back to the Committee to consider if the drafting reflected the Committee’s decision. The decision on whether the A-list reflected the decisions of the Committee would be decided by the Committee today.

Adv Mjenxane presented the draft A-list:

Clause 1
(a) On page 2, in line 15, after “has” to insert “, if applicable,”.
(b) On page 2, from line 19 to omit definition of “adoption service”.
(c) On page 3, from line 7 to omit definition of “after care”.
(d) On page 3, from line 16 to omit definition of “care”.
(e) On page 3, from line 23 to omit definition of “care giver”.
(f) On page 3, from line 24 to omit definition of “circumcision”.
(g) On page 3, from line 27 to omit definition of “clerk of the court”.
(i) On page 3, from line 37 to omit definition of “divorce court”.
(j) On page 3, from line 38 to omit definition of “early childhood development centre”.
(k) On page 3, from line 43 to omit definition of “early childhood development service”.
(l) On page 3 from line 50 to omit definition of “family counsellor”.
(m) On page 3 from 55 line to omit definition of “genital mutilation”.
(n) On page 4 from line 1 to omit definition of “intercountry adoption”.
(o) On page 4, from line 8 to omit definition of “midwife”.
(p) On page 4, from line 11 to omit definition of “nurse”.
(r) On page 4, from line 16 to omit definition of “party”.
(s) On page 4, from line 21 to omit definition of “regional court”.
(t) On page 4, from line 24 to omit definition of “separated migrant child”.
(u) On page 4, from line 30 to omit definition of “sexual abuse”.
(v) On page 4, from line 34 to omit definition of “social service practitioner”.
(x) On page 4, from line 42 to omit definition of “temporary safe care”.
(y) On page 4, from line 51 to omit definition of “unaccompanied migrant child”.
(z) On page 4, from line 57 to omit substitution of “subsection 4”.

Adv Mjenxane said the A-list reflected the decision of the Committee to reduce the Bill to those clauses that were focused on foster care parenting. Therefore, clause 2, which said “clause rejected”, was one of the clauses that would form the Committee Bill. The same would apply to clause 3 and for each clause that stated “clause rejected” (see document for rejected clauses.)

Where the A-list skipped a clause, it meant that the clause would be taken directly from the Bill as introduced and into as is into the B-version.

The Chairperson asked Adv Mjenxane to repeat his points on the clauses that were rejected.

Adv Mjenxane replied that CLSO had used the word “rejected” technically; it was a legislative term. The clauses which had been rejected were the ones that would be kept in abeyance. If CLSO did not have clause 24 on the A-list, for example, it meant that it was a surviving clause. It would be those clauses relating to foster care parenting. Such clauses would be reflected in the B-Bill. The B-Bill would incorporate the proposed amendments that the Committee had made, as well as the surviving clauses in the Bill as introduced.

Clause 56
This was one of the clauses that formed part of foster care parenting. CLSO then considered the public input on that clause and the Department’s response to the public input, and the deliberations of the Committee. The redrafted clause would now be clause 2 of the list of amendments:

Clause 2: New clause
Amendment of section 105 of Act 38 of 2005, as inserted by section 5 of Act 41 of 2007

“2” Section 105 of the principal Act is hereby amended by the insertion after subsection (5) of the following subsection:
‘‘(6) The Department must, as prescribed, develop and conduct a quality assurance process for the evaluation of-
(a) child protection services; and
(b) child protection organisations as contemplated in section 107.’’.

On clause 77, which was not in the A-list document
Clause 77 would form part of the B-Bill, and was a surviving clause. Clause 77 was not amended, therefore it was taken directly from the Bill as introduced.

On clauses 82 to 84, which were not in the A-list document
Clauses 82 to 84 would be taken directly from the Bill as introduced and go into the B-version as is. Those clauses relate to foster care parenting.

Clause 85
1. In line 50, after “is” to omit “less than”.
2. In line 50, after “age” to insert “or less”.

Clause 86
This clause was redrafted to incorporate the public input and the Department response. It was collapsed and became clause 3.

Clause 3: New clause
Amendment of section 159 of Act 38 of 2005, as amended by section 8 of Act 17 of 2016
“3” Section 159 of the principal Act is hereby amended by the insertion after subsection (2) of the following subsections:

‘‘2A. A court may extend an alternative care order that has lapsed or make an interim order for a period not exceeding six months on good cause shown.’’.

“2B. “Notwithstanding the amendment to section 150(1)(a), an order placing an orphaned or abandoned child in foster care with a family member in terms of section 156 before or on the date of this Amendment Act, may be extended by the court in terms of section 159(2) or section 186(2).”.

Clause 4: New clause
CLSO was putting this clause before Members so that they could reflect on it. It was a consequential amendment. This consequential amendment was on section 160 of the Act. Section 160 did not form part of the Amendment Bill. It was allowed by drafting convention that as a consequence of consideration of drafting, that one looked for the best way to capture an amendment. CLSO (as technical drafters), after consultation and considering public input, decided that the best way to amend section 160 was that the quality assurance procedure be best provided for in the regulations. The regulations would expand how the quality assurance process was going to be undertaken. This was in line with drafting conventions which said that one may not provide a detailed process or procedure in the principal Act. In the principal Act, one provided for the principle, and then the operationalisation of that principle in detail was provided for in the regulations, which was a delegated power. The Children's Act was designed in such a manner that each of the chapters in the Act had a power to make regulations to operationalise that chapter.

On the quality assurance procedure, the power to make regulations in that chapter was in section 160. The reason CLSO proposed that as a form of giving effect to public input, which the Department also agreed to, was that in section 160, it would add a new provision. Section 160 provided for the power to make regulations for the relevant chapter. Thus, CLSO proposed that it would put in a new version of (cA), which read as follows:

On page 34, after line 6 to insert the following

“4” “(cA) the procedure, form and manner that a social service practitioner must follow when assessing, screening, investigating, referring to the relevant authority and placing a child who is in need of care and protection.”.

This proposed amendment was a consequential amendment. It did not extend the application of the legislation, or extend the application of the Bill. It just provided for proper operationalisation of the chapter that was relevant to the quality assurance procedure in foster care parenting.

New Long Title
The new long title read as follows:
To amend the Children’s Act, 2005, so as to amend and insert certain definitions; to extend the children’s court jurisdiction; to further provide for the care of abandoned or orphaned children and additional matters that may be regulated; to provide for additional matters relating to children in alternative care; and to provide for matters connected therewith.

In closing, Adv Mjenxane noted that he had worked quite closely with the State Law Advisor, Adv Lisa Naidoo, as well as Adv Luyanda Mtshotshisa of the DSD, as technical drafters. They decisions and deliberations of the Committee, the public input and the responses of the Department (as reflected in the matrix) was taken into consideration.

Discussion
The Chairperson asked if Adv Mjenxane was saying that Members had to consider section 160, did it mean that it would be kept in abeyance and dealt with in the next phase, or did Members have to deal with it now?

Adv Mjenxane explained that the clause was directly related to foster care parenting and  forms part of the Committee amendments. It was to be considered together with the clauses listed in the draft A-list.

The Chairperson observed that there were a lot of clauses that the Committee had not dealt with but the process also assisted it in putting the Children’s Amendment Bill in two phases.

Adv Naidoo emphasised that the A-list was a working document and that the ultimate decision lay with the Committee. The document was meant to be deliberated on, and it could be changed. Certain clauses could be subtracted. That was entirely in the hands of the Committee.

Ms B Masango (DA) raised clauses she believed the Committee should consider not rejecting. For example, she objected to the rejection of clause 10 amending section 21. This clause needed to be included as there was a proposed amendment agreed to by DSD in response to the public submissions. The proposed amendment was particularly important for maternal orphans in the care of unmarried fathers. She asked the Committee to reconsider the rejection of that clause, even though it was not going to be completely rejected, but instead put in abeyance for the Committee Bill. She believed that that proposed amendment was particularly important for maternal orphans in the care of unmarried fathers.

Ms Masango also wanted clause 24 amending section 45 to be included in the A-list because section 45 said that only the High Court could hear guardianship applications. It had been amended to give the Children’s Court jurisdiction to hear guardianship application. She asked why the necessary amendment was not being made to section 45 of the Act.

Ms L Arries (EFF) was concerned about section 160. With the shortage of social workers that South Africa was facing, that amendment could force relatives who cared for children to be assessed by a social worker before they could apply for the Child Support Grant (CSG) Top-Up . It could also hinder the comprehensive legal solution to the foster care crisis. That was due to South Africa having a shortage of social workers. For section 160 to be implemented, what would the Committee do about the shortage of social workers? It would make it impossible for the DSD to implement the CSG Top-Up. South Africa had approximately 700 000 orphans.

Ms A Abrahams (DA) asked about the clause 1 definitions. In the tabled Bill, some of the definitions (such as “inter-country”, “sexual abuse” and “separate migrant child”) were introduced as substituting, replacing, or redefining definitions. The Committee was now deleting some of the definitions. Why had the Committee now completely deleted some of those?

She agreed with Ms Masango on section 21. She was not going to get into her questions on the surviving clauses, although she did have many.

On section 160: Are all of those not already existing in South Africa’s child care and protection policy? Was the policy vague so that the Committee was not putting that into the Act?

On social workers and capacity: That was to do with operational requirements. She knew that Members needed to keep operational requirements in mind for when they were creating legislation. There was a need for social workers, but the legislation almost needed to be separated from what the operational needs were. Operational needs would have to be implemented at a later stage. This was the law in a perfect society, where South Africa had all the social workers required, because that was what it needed. Operationally, South Africa had to look at increasing social workers.

Ms L van der Merwe (IFP) supported what other Members had said on section 21. She hoped that Members could find each other on that topic. She was saying that as the task before the Committee was to solve the foster care crisis. If the Committee did not consider section 21, it would exacerbate the foster care crisis, because it would not allow unmarried fathers to care for their children. That would lead to the opposite of what the Committee was trying to achieve in the Bill, which was a court imperative given to the Committee to alleviate the crisis.

She also felt that the Committee needed to consider section 150 which concerned the gateway to foster care for orphan children. She did not recall discussions on that being held by the Committee.

She agreed with Ms Masango on clause 24 amending section 45 that the Committee needed to ensure that the Bill did not contradict itself on the Children’s Court being able to hear guardianship applications.

She did not think that (cA) needed to be inserted into section 160 as (d) already gave the Minister a general power to regulate anything in the chapter, and that should be sufficient to give the Minister the authority to make delegated amendments.

Ms G Opperman (DA) asked for clarity on the new clauses. She referred to clause 86 amending section 159 by adding 2A: "A court may extend an alternative care order that has lapsed or make an interim order for a period not exceeding six months on good cause shown". Would the South African Social Security Agency (SASSA) still have the legal authority to pay the foster care grant after November 2022, when the High Court order ended? What would happen to poverty-stricken families during that period when the Foster Care Grant (FCG) expired? Back pay meant nothing to a hungry child.

She asked for an in-depth discussion on section 151(a) – how would it protect orphans who were already in foster care?

On the new clause 4 amending section 160: This was not tabled in the original Bill so consultation was not done. Why was that inserted if it had not been consulted on or included in the original Bill?

If section 159(2A) would not prevent the FCG from lapsing, why did the Department see it as part of the legal solution?

Ms M Sukers (ACDP) asked that clause 24 amending section 45 be approved, subject to section 45(1)(bA) being amended by the removal of the words “orphaned or abandoned”, so that the Children’s Court’s jurisdiction to hear guardianship applications was not limited to orphaned or abandoned children only, and it could hear all guardianship applications. She proposed that clause 24 would then read: “guardianship of a child, as contemplated in section 24”. This would ensure that the Bill does not contradict itself in section 45(1), versus section 45(3)(a) and 45(3)(b). Currently the Bill contradicts itself, as it says “limited jurisdiction” in section 45(1) and then “full jurisdiction” in section 45(3)(a) and 45(3)(b).

She supported what her colleagues said about section 21, which dealt with vulnerable children, and specifically the rights of unmarried fathers. She thought that it was very important for the Committee to consider the public submissions. It was also important not to put more children in foster care that did not need it, but could instead receive care from one of the parents.

Mr D Stock (ANC) mentioned a “misleading” article in the Daily Maverick. He was of the view that the article was misleading society, and misrepresented the deliberations of the Committee on the Children’s Amendment Bill. As a Member of the Committee, he wanted to officially distance himself from that article, because it did not represent the collective deliberations of the Committee. It was just one Member, who decided “desperately” to put out her side of the story. He rejected that article with contempt. The article was “gutter journalism” in the sense that only one side of the story had been presented. A journalist who followed the principle of balanced reporting would know that they were supposed to give the other side of the story. He did not see comments from the Committee Secretariat refuting or agreeing with the issues raised in the article. He also did not see any comment from the legal advisor. The legal advisors were people who were “very critical” of the work of the Committee, and were advising it from a legal point of view. He was very disappointed with that article. The article also referred to “ANC members” and “the ANC contingent”. Mr Stock was representing the ANC in the Committee, but he did not agree with being called a “ member of the ANC contingent in the Portfolio Committee”. Committee Members were free to refer to him as a Member of the ANC representing the ANC in the Portfolio Committee, but he did not agree with being called a member of the ANC contingent in the Portfolio Committee. What the article also failed to raise was that opposition Members who, after they lost the debate in the meeting on the inclusion of section 21 to be part of the surviving clauses, left the meeting. This included Members who were only coming now because there was a particular interest that they carried, or wanted to put forward. Those Members “stomped out of the meeting”, and the article did not say anything about that. The article also did not reflect on the those rejected clauses forming part of the second Amendment Bill and the third Amendment Bill, including section 21.

Members were politicians who served on the Portfolio Committee. Sometimes it was important for Members to remind each other about the NA Rules. The rules allowed the Committee to sit when it formed a quorum, and then to take decisions when there was a quorum in the meeting. The quorum of the meeting was determined by a 50% plus one majority of Committee members. It did not mean that after the meeting formed a quorum, and there were deliberations in the Committee, that it was supposed to take decisions. There were Members who felt that their issue was not finding expression, then they decided for whatever reason to walk out of the meeting. It was not then the case that the Committee must stop its work because certain Members had left the meeting. Whether one felt aggrieved that one’s issue had been left out and decided to leave the meeting, one must understand that the meeting would continue in one’s absence if there was a quorum. That particular quorum would carry through the business of the Committee. He did not want to respond in the group where the article was shared, but it was for the Committee to clarify itself moving forward. The Committee was now at the A-list stage. Members had come to the meeting today and wanted to derail things again, instead of considering the A-list where it was now. The Committee had taken decisions, and were now being presented with the A-list. There were still people who wanted to “drag the Committee back” to where it was when those people walked out of that meeting.

On section 21: He supported the issue raised by Fathers 4 Justice for the inclusion of section 21, which dealt with custodianship of children. He said that those issues raised by Fathers 4 Justice affected him personally: He was a father, he was married, and he had a child “out of wedlock”, whom he was taking care of. He was also sympathetic as a father to those issues that were being raised by Fathers 4 Justice. He observed that Members went to different public hearings throughout the country. Besides the issues raised by Fathers 4 Justice, which was canvassed properly by the Committee, there were also a number of stakeholders that had raised section 21. For example, when Members went to the Eastern Cape, there was the cultural aspect of the inclusion of section 21 in the Bill. If one had a child with somebody else, then in order to get custody of that particular child – in terms of the culture – one is supposed to pay what is called “damages”. There were a number of cultural connotations that the Committee needed to consider. Adv Mjenxane made it very clear in the meeting, and a legal advisor had explained the concept of “rejection” to the Committee from time to time. The Committee was not saying that it was rejecting or throwing out the issue raised by Fathers 4 Justice. There needed to be consultation with the House of Traditional Leaders as well (considering the issues of different cultures); with the Department of Justice and Constitutional Development (DoJ&CD) on custody; and having to look at court judgements on the custody of children. There were a number of public participation processes that the Committee needed to consider before just including section 21.

The Committee agreed that instead of looking at everything in the Bill, it would consider only certain clauses in this amendment period. Members were also aware that the Department approached the court for an extension. The Department had to ask the court for an extension multiple times. The Committee had agreed to consider only the foster care clauses. When it was done with the foster care clauses, via a Committee Bill that would be presented to the Committee, it would then consider the other clauses.

Ms van der Merwe made a point of order. Mr Stock referred to an article which many Members had not read, and he was attacking opposition Members. Opposition Members did not understand the implications of what he was saying. Members came to the meeting in good faith, and the Committee was “a family”. All had one goal, which was to protect the rights of children. For Mr Stock to say that opposition Members wanted to derail the Committee’s work was very unfair. It was a “complete onslaught” on Members who were supposed to be a family. Opposition Members did not know what article Mr Stock was referring to. For Members who decided to walk out of the meeting, it was their right to do so, because Members had felt that they had consensus on a particular issue. Members were back in today’s meeting to debate issues which Members felt were very important to the rights of children. It was very hurtful to be attacked by a colleague.

On section 21: Mr Stock had his views. But she also wanted to point out that section 21 was rejected by Fathers 4 Justice. The organisation did not want section 21. It was not that the Committee was bringing forth an issue for Fathers 4 Justice, it was bringing forth an issue which Members thought would solve the foster care crisis.

Ms van der Merwe wanted to put on record her grievance with Mr Stock saying that opposition Members were this and that. Members were “part of a Social Development family”, and a Committee which must do work in the interest of vulnerable children. She did not think that what Mr Stock said was fair to Members.

The Chairperson wanted to give an opportunity to Members who had not yet spoken. Mr Stock was addressing the article in the Daily Maverick. She did not want to open up the remarks to talk about the articles in the media. She also regarded the Committee as a family.

Ms T Breedt (FF+) agreed with Ms van der Merwe. She took exception to what was insinuated about her by Mr Stock, specifically that she was only in the meetings for political gain, and that she only attended meetings when it was for political gain or to prove a point by the opposition. She was not part of the public hearings because she was not an official Committee member. She did attend most meetings when it did not clash with her primary Portfolio Committee. At the end of the day, she wanted to, as part of the Social Development family, be there for the children of South Africa, because it was as important to her as it was to the other Members. She felt that Mr Stock was the one who had derailed the meeting, who was taking the Committee back, and (with all due respect) not the Members who walked out of the meeting.

She appreciated what the State Law Advisor said in acknowledging that the A-list was a working document, and much needed to be done. After the foster care process, the other sections needed to be included, because she thought that the Committee needed to look at the Act holistically, even though that was not necessarily requested of it.

She wanted to second Ms Masango and Ms Abrahams when they referred to section 21. The rights of unmarried fathers needed to be taken into account due to the immense pressure that South Africa’s foster care system was under such as the lack of social workers.

Ms Sukers proposed that there be an amendment to clause 24 on abandoned and orphaned children to ensure that it did not contradict section 45(3)(a) and 45(3)(b). She felt that was a good proposal, and she wanted to second it on record.

The Chairperson wanted to give further directions. Members had agreed that section 21 be put in abeyance. Members would come back to section 21, because it had to do a thorough consultation. Members even suggested that there needed to be consultation with the House of Traditional Leaders as there was a cultural aspect to section 21. The Committee was not going to consult by going around to provinces. The Committee had previously discussed at length what was in section 21 and if it dealt with foster care. Whatever section 21 dealt with, it needed a thorough consultation. It did not mean that the Committee had thrown section 21 “into a dustbin”. She requested the meeting proceed with the legal advisors’ responses to Members’ concerns.

She observed that when Members decided to leave a meeting, it was their right to do so. But it was “unprofessional”. She encouraged Members to continue with the meeting. The question of section 21 had been answered “time and again”, but it did not mean that the Committee could not repeat what was said, according to the advice that it got from the legal advisors.

State Law Advisor response
Adv Lisa Naidoo responded to questions. She started with clause 24, which was the amendment to section 45 in the Bill as introduced. She addressed the insertion after 45(1)(b) of "guardianship of an orphaned or abandoned child as contemplated in section 24". Members have indicated an alternative wording. Adv Mtshotshisa had educated Adv Naidoo on the correct terminology. Rather than saying “orphaned or abandoned”, he proposed that “a child in need of care” was used. She was in agreement that that would not be a drastic change, and would be acceptable in terms of drafting standards, if the Committee agreed to the change in that wording.

Another question related to section 24 of the Act and the cross-referencing. The reason the Office of the Chief State Law Advisor (OCSLA) did not change section 24 to refer to section 45 was because the new (3A) in section 45 said: “The High Court and children’s court have concurrent jurisdiction over the guardianship of a child as contemplated in section 24 of this Act.” As OCSLA had inserted “as contemplated in section 24”, it would mean that when one read section 24, it was applicable to not only the High Court, but also the Children’s Court.

Adv Naidoo emphasised that the A-list was a working document, and the decision ultimately lay with the Committee. Should the Committee decide that the State Law Advisor’s Office must amend section 24 to provide greater clarity or ease of reference in the Bill, that was not a drafting impediment, and there was no obstacle for it to do that.

On the new clause 4 amending section 160: Section 160 dealt with the making of regulations. A Member raised the point that section 160(d) was an all-encompassing provision. Adv Naidoo agreed – the Department could use that to make regulations. Whenever departments made regulations and referred to an all-encompassing clause, regulations needed to come from an enabling provision. However, it was better if it was explicitly stated. Once again, this was the decision of the Committee.  

With section 160, the legal advisors had considered the public comments on clause 83 amending section 155 which very strongly recommended that there be a quality assurance process. The comments wanted to insert that procedure in section 155. In terms of drafting practice, the legal advisors were guided by the drafting manual Thornton’s Legislative Drafting which said that like provisions must be under the specific headings. Thus, anything dealing with regulations was best placed under the clause dealing with regulations. Instead of inserting it under section 155, it was decided, in terms of drafting practice, to add the new section 160(cA).

On clause 10 amending section 21, if the Committee wanted to agree on it going into the Bill as introduced, it would be acceptable as it had been vetted by OCSLA  as constitutional. However, the public comments on section 21 were valid and needed to be considered further. This was of such a substantive nature that whatever amendments were drafted, the clause needed to go to public comment again, and it was going to the House of Traditional Leaders. That was procedurally and constitutionally sound. If the legal advisers redrafted that clause and inserted substantive amendments which had not gone through that consultation process, then the constitutionality of that entire clause would be compromised. She had looked at the public comments and the comments were not only about section 21 but also about chapter 3 on parental responsibilities. When the legal advisors dealt with the Committee Bill, they would have the power to go further than section 21, and look at section 18, 19, 20 and 21.

The Chairperson was glad that Adv Naidoo reiterated the point about section 21, so Members could understand why the Committee as a whole was saying that it would not include section 21 for now until it had done consultation. This consultation would avoid the processing of the Bill being compromised. The Committee would still deal with section 21 in the Committee Bill. It had requested the legal advisors to inform it of the plan going forward. There were many clauses that the Committee needed to deal with. Adv Naidoo had also  responded about section 45 on guardianship and the term “orphaned or abandoned child” as well as about section 160.

Parliamentary Legal Advisor response
Adv Mjenxane replied about the definitions. The deletion of some of the definitions were as a consequence of the Committee’s decision to focus only on foster care parenting. In the legal advisors’ drafting, they felt that those clauses which had been listed on the A-list as “rejected” would be kept in abeyance, and would not necessarily form part of the current amendment process, because such clauses were not directly related to foster care parenting. The surviving clauses in the definitions were those directed by Members to include as clauses that fell within foster care parenting. Those definitions would be reflected more clearly in the B-version.

Questions on SASSA were operational questions which the Department was best-placed to respond to. The shortage of social workers would also be best dealt with by the Department.

Adv Mjenxane stated that in considering the A-list, legal support was ready to give effect to the decisions and instructions of the Committee on what needed to be amended. Its role would be to take instructions on which way the Committee decided to go for clauses 21, 24 and so on.

In response to the Chair asking about the contradictory clauses in section 45, Adv Mjenxane said that Adv Naidoo had answered this.

The Chairperson asked for a response on the lapsing of the FCG. The Department needed to repeat its explanation of what would happen.

Department legal specialist response
Adv Mtshotshisa replied on the lapsing of the FCG that the Department relied on the court order, and also the finalisation of the Bill. The challenge was if the Bill was not finalised by 30 November 2022. The court order would come to an end on 30 November 2022. The sooner the Bill got finalised, the better for the payment of the FCG. DSD relied on the Committee to finalise the Bill. There was also a six-month period that DSD indicated in the Bill itself, which stated that a lapsed FCG would be entertained for not more than six months. Beyond that, there would be a challenge in implementing the FCG.

Further discussion
Ms Abrahams raised clause 86 amending section 159: Why was it that 159(2B) made mention of “before or on the date of this Amendment Act”, but (2A) did not reference the date as a time frame principle.

She turned to clause 82 amending section 150.
82. Section 150 of the principal Act is hereby amended—
(a) by the substitution in subsection (1) for paragraph (a) of the following paragraph:
‘‘(a) has been abandoned or orphaned and [does not have the ability to
support himself or herself and such inability is readily apparent]
has no parent, guardian, family member or care-giver who is able and suitable to care for that child;’’;
(b) by the deletion of the word ‘‘or’’ at the end of subsection (1)(h);
(c) by the substitution in subsection (1) for paragraph (i) of the following paragraph:
‘‘(i) is being maltreated, abused, deliberately neglected or degraded by a parent, a care-giver, a person who has parental responsibilities and rights or a family member of the child or by a person [under] in whose [control] care the child is;’’; and
(d) by the insertion after paragraph (i) of the following paragraphs:
‘‘(j) is an unaccompanied migrant child from another country;
(k) is a victim of trafficking; or
(l) has been sold by a parent, care-giver or guardian.’’.

Her question was on 150(1)(k) about a victim of trafficking that would then need to be placed and was classified as a child in need of care and protection. What would happen if the child was trafficked and there was a parent and it was not negligence on part of the parent? Would that mean that even a child had a parent or guardian, if it was kidnapped for purposes of trafficking, would the child still be in need of care and protection? Her understanding of clause 82 was that the child would not go back to the parent once found.

On section 21, the legal advisors stated that this section needed more consultation so it should be in the second Bill. Practically and realistically, what time frames was the Committee looking at to complete that? Would it still be in the Sixth Term of Parliament, keeping in mind that it was heading into an election year in 2024?

Ms Abrahams noted that the Chairperson had allowed Mr Stock to bring in the topic of the article. She was personally concerned about the insinuations made. Members of Parliament know that when Members disagree with a journalist, they do not bring it to a Committee meeting; instead they write a rebuttal to that journalist. She was concerned that the topic was even allowed to be discussed. She was also concerned about the aspersions and the insinuations made by Mr Stock about other Members.

The Chairperson said that the legal advisors would give the Committee the plan for the Committee Bill process. In the previous meeting, the Committee requested at least three months for consultation. Such consultation could not be going on and on. The consultation and second Bill needed to be within the current Committee’s term, so it could not abandon that.

Ms van der Merwe asked for clarity. Orphans in the care of family members were not in need of care and protection. But the Amendment Bill said something different. Was the Committee then saying that all grandmothers with orphans must go to the High Court to get guardianship? If that was the case, to which court would these grandmothers have to go to get guardianship? If the Committee went with the suggested wording of section 45(1), then grandparents would have to go to the High Court. That scenario would be highly problematic.

Ms J Manganye (ANC) said Adv Naidoo had covered her questions. Ms Manganye added that even in the previous meeting, she alluded to the need to take other people’s culture into account.

Ms Masango acknowledged Adv Naidoo’s responses to Members' questions on particular clauses. The Chairperson was “adamant” that those questions had been answered, and she agreed. But perhaps Members needed to be pardoned for not understanding the explanations given. Earlier, section 21 and the need for proper consultation, especially with the House of Traditional Leaders, was mentioned, along with the need to take care of culture. Perhaps the reason Members still wanted that section to be included was due to the extensive public hearings consultation and DSD’s own agreement on the inclusion of section 21. In the principal Act, section 21(1)(b) states: “if he, regardless of whether he has lived or is living with the biological mother— (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child's father or pays damages in terms of customary law". She strongly believed that there had previously been extensive consultation, and that the principal Act itself recognised that extensive consultation in terms of culture. In the principal Act, that aspect was taken care of.

Ms Masango noted that Adv Mtshotshisa had said that the lapsing of the FCG court order would be taken care of by the six-month extension after November 2022 and by the Bill being enacted. At least in her view, there was a situation where the extension of the FCG was indeed granted, but there was the backlog not being alleviated, because after the passing of the Bill into an Act, it did not enable the expired foster care orders to be paid. There would still be no payment. There would still be children who were not getting an FCG. She was not saying that this aspect had to be taken care of immediately, but in the near future drafters needed to accommodate that aspect. The FCG brought things to where they were now, where there was a backlog of over 300 000 FCGs.

Ms Masango was not going to venture into what Mr Stock said in today’s meeting. She believed that his assertion that opposition Members were derailing things was [audio cut off 02:23:58].

Ms Sukers followed Ms Masango in not venturing into what Mr Stock had said. That morning, she came to the meeting with the idea that the Committee needed to work together and at speed but also with efficiency, on issues pertaining to vulnerable children. All Members had the same aim. She reiterated what the State Law Advisor had said that this was a "working document" that the Committee needed to deliberate on, and it was within that context that the Committee needed to look at the Bill. For that reason, she wanted to reiterate the importance of section 21 and section 24. Those sections were important as the Committee was looking at children in the foster care system, and it was looking at how to make it easier for relatives or guardians to care for orphans if such carers needed to go to a Children’s Court in terms of jurisdiction. There was also the capacity of parents to look after their children so that the burden on the foster care system was lessened. The deliberations were specifically on how did those sections impact vulnerable children who were in need of care. It was the Committee's job to apply its mind to that. It was her understanding from what the State Law Advisor said in response to her points on section 24, and the seconding of her proposal by Ms Breedt, that there was no issue for that to be included as part of the amendments.

Ms Abrahams returned to clause 86 amending section 159 because she was still unclear. She gave the following scenario: A child’s foster care order expired on 1 March 2023, and the social worker relied on the new section 159(2A). The social worker then does not take the case to court to get the order extended, because she knows she can go at a later stage because of this new clause. But the Social Assistance Act said that SASSA could only pay the FCG if the court order was valid. SASSA would then stop the grant on 1 March 2023. Her question to the DSD was why did it think that 159(2A) would prevent the FCG from being stopped? SASSA was being audited all the time. The only reason SASSA was not being negatively audited was because “the High Court was protecting SASSA from getting a bad audit”. But once the court order expired in November 2022, SASSA would have to stop the grants that had expired. What happens then? Perhaps the Department could use this practical scenario and explain what would happen in November when the court order expired, and how new section 159(2A) was going to aid in that scenario.

Adv Mtshotshisa replied that the court would automatically extend the lapsed order for a period of not longer than six months. Those provisions needed to be read together with the Social Assistance Amendment Act. There was no conflict between those two Acts that must be read together, with the provision detailing how the matter would be handled. The understanding was that the court order would expire on 30 November 2022.

On what would happen to the backlog cases that had not been dealt with, the court would give an extension of six months, so that there could be a continuation of the payment of grants. That must be read together with the legislation already in existence, in line with section 48 of the Children’s Act. The provision on the extension of grants needs to be read together with section 48 which granted the presiding officers powers to extend the grants for six months, together with what the Social Assistance Amendment Act said.

Adv Naidoo responded to clause 82 amending section 150 on child who was a victim of trafficking. Section 150(1) of the principal Act stated: “A child is in need of care and protection if, the child– (k) is a victim of trafficking”. If clause 82 was read together with the Act, the instances where a child would be considered a child in need of care and protection were listed. The three additions added to the list were: “is an unaccompanied migrant child from another country; is a victim of trafficking; or has been sold by a parent, care-giver or guardian.”

On the Committee Bill: The rules of Parliament state how Committee Bills are to be dealt with. Practically and realistically, the Office of the Chief State Law Advisor could not answer the question on the time frame for the Committee Bill because it cannot direct the Committee on time frames. That was squarely on the Committee in terms of the rules of Parliament.

Adv Naidoo agreed that section 21 already had gone through extensive public comment. It had been through extensive public comment and it was an area of contention. That was why section 21 needed precise redrafting. The Committee was not taking section 21 as it was introduced. The Committee was dealing with the public comments. The section needed extensive redrafting. When such redrafting was extensive, once the section was drafted, it needed to go back for public consultation. This was because there might be a group who would want to comment on the precise wording as redrafted.

Ms van der Merwe repeated her question: Orphans in care of family members were not in need of care and protection. But the section 45 amendment now said that those family members (such as grandparents) must go to a court to get guardianship. Which court should grandparents go to? If the Committee went with the suggested wording of section 45, grandparents would have to go to the High Court.

Adv Naidoo replied that in the Clause 24 amendment to section 45, the "High Court and children’s court have concurrent jurisdiction over the guardianship of a child as contemplated in section 24 of the Children’s Act". She repeated her point: The insertion of the new 45(3A) said that the High Court and the children’s court have concurrent jurisdiction over the guardianship of a child, as contemplated in section 24 of the Children’s Act. That would cover anyone, because section 24 went on to say “any person” (which included a grandparent, a friend or a neighbour) “having an interest in the care, wellbeing and development of the child may apply to the High Court for an order granting guardianship of the child to the applicant”. Since the High Court and the Children’s Court have concurrent jurisdiction, “as contemplated in section 24” would now include reference to the Children’s Court. If that was still a concern, the legal advisors could, as the Committee decided, make reference specifically in section 24 to the new section 45(3A). That would link the two provisions and not cause any confusion.

Ms van der Merwe made a proposal: The Committee should make it so that section 24, 45(1), 45(3A) and 45(3B) all said the same thing. In other words, that guardianship cases can be heard by Children’s Courts and the High Court, as per section 23.

Ms Sukers agreed with Ms van der Merwe.

Adv Mjenxane replied that this was possible from a drafting perspective. It appeared that it would be beneficial for the extension of the jurisdiction, and much cheaper for people who were going to use those structures. The process in the High Court was expensive and onerous.

The Chairperson said that if that was the case, then Members had to go to the adoption of the A-list. She asked if she could get a mover for the adoption of the A-list.

Ms Sukers said that Adv Naidoo did not hear her question. Ms Sukers had requested that clause 24 be approved but subject to section 45(1)(bA) being amended without the words “orphaned or abandoned” so that it was not limited only to orphaned or abandoned children, but that the Children’s Court could hear all guardianship applications. She asked if the legal advisors could advise if that section needed to be amended as well so the Children’s Court would be able to hear all cases, and not only those of children orphaned or abandoned.

Adv Naidoo read out what the proposal was so that all Members could consider it. In clause 24 amending section 45:

Amendment of section 45 of Act 38 of 2005

24. Section 45 of the principal Act is hereby amended—
(a) by the insertion in subsection (1) after paragraph (b) of the following paragraph:
‘‘(bA) guardianship of an orphaned or abandoned child as contemplated in section 24’’.

Adv Naidoo asked if it would be acceptable for the legal advisors to amend (bA) to read: “guardianship, as contemplated in section 24” and removed the words “of an orphaned or abandoned child”. Then it would be linked to section 24.  

She read out section 24:
24. Assignment of guardianship by order of court
“(1) Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant”.

Then the legal advisors would have to amend section 24 to read: “Any person having an interest in the care, well-being and development of a child may apply to the Children’s Court or High Court, as contemplated in section 45(3A) for an order granting guardianship of the child to the applicant”. If that was what the Committee decided, the legal advisors could amend section 24 accordingly.

Adv Naidoo repeated the suggestion for section 24 as requested by Ms Abrahams.

The Chairperson told Adv Mjenxane that Members wanted him to repeat what he had said. They wanted to make sure that they understood him. Adv Naidoo had explained section 24, and put forward suggested changes to the Members.

Adv Mjenxane said that the legal advisors would amend the A-list based on the Members’ input. It was ultimately the Committee’s decision. If the Committee adopted the A-list today with the amendments to that clause, the legal advisors would go back and amend it. Then at the next Committee meeting, the legal advisors would present a draft A-list that was a reflection of the Members’ input. It would then go to the B-version.

Ms Masango asked if the process that was leading the Committee to approving the A-list had taken care of each and every clause Members had raised today. For example, in section 150(1)(a), she was proposing that the Committee use the wording “orphaned or abandoned and not in the care of a family member”. She wanted to know if the Committee would say that it had heard what was proposed but it did not think it was going to be possible. And then the Committee could go to section 160, for example, and say that it heard the proposal but it did not think it was going to be acceptable, or that it was going to be changed, or the Committee could consider that. She felt that items might fall between the cracks unless the legal advisors listed the proposals raised today and the legal advisors’ response to those, so that the Committee based its approval of the A-list on the responses to Members’ proposals.

Adv Mjenxane said that the current A-list was the legal advisors’ attempt to give effect to the Committee’s discussions. The A-list also reflected an attempt by the legal advisors to go about giving effect to the proposed amendments by the Committee. There had been discussion by Members on a number of specific sections such as sections 21 and 24, as well as amendments to section 160. In order to go further in the amendment process, the legal advisors needed to be given a decision by the Committee on the issues of contention such as if section 21 must form part of the amendments or not. The same would apply to the proposed amendment to section 155. The Committee had instructed the drafters to effect an amendment to section 24. The legal advisors would need a decision from the Committee on the other clauses.

The Chairperson said that the Committee had dealt with section 21, and it was done with that section. The Committee said that it was not throwing away section 21, but it still needed more consultation. It even mentioned the fact that it had to deal with section 21 during the Sixth Term. Dealing with section 21 must not be prolonged.

The Chairperson noted that Adv Naidoo had responded to section 24. The Committee also wanted Adv Mjenxane's input. Adv Naidoo was not against how the Committee wanted to amend it.

Adv Mjenxane replied that he would work with his colleagues who had been part of the Committee’s discussions in giving effect to the Committee’s amendments on section 24.

Ms Masango formally proposed that in section 150(1)(a), the Committee needed to change the wording to read: “orphaned or abandoned and not in the care of the family”.

Ms Abrahams wanted to reword section 150 in a different way. She would take guidance on whether she should submit her proposal in writing. Her suggested wording read as follows: “that has been abandoned or orphaned and has no parent or guardian, and is not in care of a family member, as defined in section 1”.

She asked for a time frame for section 159(2A) as (2B) mentioned a time frame but (2A) did not.

Mr Stock said that the Committee had already spent time discussing the various sections, and whether or not they should be amended, because there were different interpretations and different understandings of the wording. He proposed that Members note Ms Masango’s proposal on section 24, and that Members did not agree to it for now.

He wanted to clarify his words carefully: Now that there were different proposals, or different interpretations, it was difficult for Members to come to a conclusion and say if they agreed or disagreed. He suggested that the proposals be given to the Members so that all could apply their mind to what the insertions were in Bill, and to what Ms Masango was proposing.

Perhaps in the next meeting, Members could start with section 24, based on the proposal that was made. Otherwise, Members would rush into agreeing or not agreeing on something. The proposals could be taken as food for thought, and Members could consider those, and then look at them at the next meeting. The Members would then get clarity on section 24, and finalise it.

Mr Stock then moved to propose the adoption of the A-list with all the amendments that were done, with the exception of section 24. Members could consider section 24 in the next meeting.

Ms Manganye seconded Mr Stock. She felt that the Committee could not take a decision without going through section 24. She supported dealing with section 24 in the next meeting.

Ms Hlongo agreed with Mr Stock that the proposed amendment in section 24 be dealt with at the next meeting as he had alluded that Committee members needed to consult about section 24 before it engaged on it. She seconded Mr Stock in moving for the adoption of the proposed amendments, except for section 24.

Ms Sukers asked about the section 24 amendment. Was Mr Stock saying that section 24 as she had proposed and seconded by Ms Breedt, and then clarified by the State Law Advisor, would be part of the excluded clauses? Was he also saying that only what was initially presented in the A-list would be adopted by the Committee? That took the Committee right back to saying that regardless of the deliberations today, the Committee needed to conclude and adopt what was presented. All deliberations made were then ignored.

The Chairperson said that she was in a dilemma. She wanted advice from Adv Mjenxane again, and to at least finalise a decision on section 24.

The Chairperson noted that there were two views: 1. The Committee could adopt the A-list with amendments. 2. The Committee put section 24 aside and look at it later to take a decision on it. [IsiXhosa 03:15:46-03:16:00]. The Committee would know that at least deliberations could continue, and things could be discussed again.

Adv Mjenxane said that section 24 was possible to do when adopting the rest of the clauses. [unclear 03:16:38-03:16:43] The legal advisors would draft the Members’ proposals and present them to the Committee, together with the B-version, with the rest of the accepted amendments. The legal advisors would have discussions with Members on the proposed amendments in the next meeting when it considered the B-version. The legal advisors would include section 24 if Members agreed that it would form part of the accepted amendments.

The Chairperson suggested that Members could wait for the next meeting, and that would be an opportunity to look at the redrafting that the legal advisors would be doing. She suggested that the Committee adopt the A-list as it had been put forward, but also get a redraft and the B-list.

Ms Masango agreed with the drafters going and considering what Members had raised today, and then responding if anything could be done. The drafters would then come back with comments and recommended drafting. On that basis, the Committee could have a full A-list that needed to be approved by Members. She did not know if Members could approve the A-list today and the drafters "still go away and do other things”. She was not sure if that was procedurally sound.

The Committee could state that section 21, 24, 160, 150, 159, and other sections Members mentioned, be considered by the drafters to advise on. The drafters could then bring the A-list back to the Committee, the Committee would then look at that. On that basis, one could say that the A-list had been deliberated on, and advised on by the legal advisors. Members would then be able to make a decision, and the process would be taken from there.

The Chairperson asked if the Committee could step away from that item, and then come back and adopt the A-list. She asked the Committee Secretary if it was right to adopt it in the next meeting.

Ms Lindiwe Ntsabo, the Committee Secretary, said that the Committee was going in the right direction by deferring the adoption, now that a number of issues were raised on the A-list. That would be proper, so that by the time the Committee saw the A-list, there would be a B-version to cross-reference what the Committee agreed on, and to check it appeared in the B-version. The Committee had targeted 1 July to complete the processing of the Bill. The Committee could meet on 24 June to adopt the A-list, so that it would be within its time frame to finalise the Bill on Wednesday 29 June 2022.

The Chairperson reminded Members that next week was recess. It had requested a special slot to work on the Bill. The Committee had to apply to have meetings outside of the usual time period, because the process was “dragging on”. It was not going to ask for extensions again from the High Court. It would be an embarrassment to the Committee not to finish the Bill during its term. The Committee had to finish it during the Sixth Term.

The Committee would defer the adoption of the A-list to Friday 24 June 2022.

Adoption of Minutes
25 May 2022
Ms Abrahams said there needed to be a clause in the minutes stating which Members left the meeting. The reason was the minutes as they were would be misleading. For example, she was minuted as being in attendance, but she did not partake in the resolutions in the minutes. Therefore it  gave the incorrect impression that she was in agreement with the resolutions. That was misleading. It was not a true reflection of what happened, because she was not there. She insisted that there needed to be a paragraph before the resolutions to state which Members had left the meeting and were not part of the resolutions. That would then be a true reflection of the meeting.

The Committee Secretary confirmed that there was no paragraph noting which Members had left. Ms Abrahams proposal was that the names of the Members who left needed to be in the body of the minutes, before the resolutions.

Ms Manganye said that she would then move for the adoption of the minutes with the amendment that certain Members left before the resolutions.

Ms Sukers pointed to “Committee deliberations” and said that certain comments were not reflected in the minutes. She remembered clearly that the points of contention which were her points as well were that the Committee needed to apply its mind and deliberate on the real impact of the legislation it was working on. She made an assertion that the Committee was not doing that. This included section 21 and its impact on children that went into foster care, and the impact on the foster care system of keeping children in foster care who did not need it. In the 25 May meeting, there were other Members who made objections; the Members who left, left for a reason. It was because those Members felt that the Committee was not deliberating on the practical implication of omitting the sections under discussion. The biggest issue was the contentious point around sections 21 and 24, as per the previous meeting.

The Chairperson said that the Committee was not going to re-write the minutes. The Committee had taken note of needing to list Members who left the meeting. The minutes would then be corrected. The Committee would cover in the minutes the Members who left the meeting.

Ms Sukers wished for her objection to be noted. She was not opening a discussion or rewriting the minutes. The principle of “why” the Members walked out was important, and it needed to be noted. The Committee could not rewrite what happened. The reason the Members were protesting in the manner they did should be noted.

Mr Stock agreed that the Committee would not rewrite the minutes, and that it was not opening up discussions by presenting the minutes. The Chairperson had raised a fundamental point. It needed to become a cornerstone of the Committee’s engagement when it dealt with minutes. He wanted to emphasise that point because Members would lose debates, and when Members lost debates, then they left meetings, and would then come to open debates in the minutes. He did not think it was fair to open debates in the minutes.

The Committee would include the proposal by Ms Abrahams on Members who left before the resolution was taken. It also needed to put in the minutes that Members who remained did not know the reasons those Members left the meeting. After a few minutes, Ms Abrahams came back to the meeting and requested the Chairperson’s audience, and then raised her objection. She was not raising an objection on behalf of the group; she was raising it in her own personal capacity as a Committee member. As it stood, Members who remained did not know why those who left did so.

Mr Stock seconded the proposal for the adoption of the minutes.

Ms Masango registered her objection to the minutes. She did not want to open a discussion, other than to say that it was “very interesting” that Mr Stock kept saying that when Members lost debates, they left the meeting. Yet at the same time, he did not know why Members left. The minutes said that "discussions ensued". But when it came to the deliberations, the minutes did not reflect what happened. This was the first time that she had questioned the minutes of a Committee meeting in eight years. It was “very interesting” that the issues started when the Members left the meeting, and nothing before then. It was unfair, and “very irregular” that Members were recorded as leaving the meeting because they “lost a debate” (in the words of Mr Stock). Members did not “lose a debate”. Members were being forced to expunge an entire section of the minutes of the previous meeting. To this day, the 25 May 2022 minutes were not a reflection of what happened in the meeting. She strongly objected to the minutes, and she wanted that to be recorded.

Ms Breedt thought that the Members were clear on the reasons they left the meeting. She asked to register her objection to the minutes as not a true reflection of what happened.

Ms Arries asked to note her objection to the minutes as EFF representative as the minutes were not a true reflection of what transpired in the meeting.

Ms van der Merwe registered her objection to the minutes as not being a true reflection of what transpired in the meeting. She did not appreciate the “confrontational stance” that Mr Stock kept on advancing in the meeting. It was very clear that Members left because they felt that they were not finding each other on the clauses the Committee had agreed to prior to 25 May. Members’ walking out was in protest of that, and it was their democratic right to do so. 

Ms K Bilankulu (ANC) said that Members were in the meeting when it began. The Members then left. She did not want to get into why they left, since the Member did not indicate their reason for leaving on that day, except for Ms Abrahams. After leaving the meeting, the Committee proceeded because there was still a quorum. Therefore the minutes of 25 May 2022 would be adopted by the Members who still formed a quorum that day. She might agree adding that Members recused themselves in moving for the adoption and seconding of the minutes of 25 May 2022. She supported adopting the minutes.

Ms Arries clarified that on 25 May 2022, she indicated she would leave the meeting but she was muted on the virtual platform.

The Chairperson said the minutes were adopted by Ms Manganye and seconded by Mr Stock. She asked Members to pass the 25 May minutes.

Ms Abrahams said that she could not pass it because Mr Stock made special reference to her. The Chairperson said that the Committee could not rewrite minutes and it could not rewrite history. In today's very meeting, Mr Stock rewrote her own history and her own actions. She did not leave the room and come back. She was still in the meeting when she spoke to the Chairperson. She thought that the Committee was “setting very dangerous precedents”, where Committee members could say what other Members said in their absence, and then rewrite what Members physically did in meetings. She took strong exception to another Member saying something that she did not do. She had made suggestions, and it did not have to go that way, but Mr Stock “had made the meeting go that way”. Despite the amendment, she would still object to those minutes as not being a true reflection of the meeting. Mr Stock could not rewrite her history while she was still in the room and on the virtual platform. It was totally unacceptable.

1 June 2022
Ms van der Merwe noted that the minutes stated that "Ms van der Merwe said that the Committee had to restart". She wanted to raise an objection. The words she used were “we will have to restart the process”…

Mr Stock interrupted to raise a point of order.

Ms van der Merwe tried to complete her sentence, but was interrupted again. She stated that if this was the way Mr Stock would treat other Members, then she would refer the matter to her Chief Whip. She appealed to the Chairperson to protect Members, and characterised Mr Stock’s behaviour as “bullying”.

Mr Stock denied Ms van der Merwe’s characterisation of his behaviour.

Ms van der Merwe managed to state that when she referred to restarting the process, it was when the Committee realised it was working from an old document.

The Chairperson said that Members were disregarding her role as the Chairperson. She asked all Members to avoid speaking at the same time. She asked Members to respect the meeting, to respect her, and to respect themselves.

Ms van der Merwe stated that she would put her point of clarification in writing. She would refer  to the Chief Whip that Mr Stock had not allowed other Members to give clarification on issues. The way Mr Stock was treating other Members was not how Members should be treating each other. Members never disrespected Mr Stock and they did not treat him with contempt. Ms van der Merwe therefore objected to that set of minutes.

Mr Stock wanted to raise a point of order. If a Member was out of order, he felt that the rules of Parliament allowed him to raise a point of order in terms of procedure By doing so, he was not bullying anyone. The point of order he was raising was that in the minutes, it was captured that Ms van der Merwe was not part of that meeting.

Ms van der Merwe replied that she was part of that meeting until 11:00.

The Chairperson said that Members knew that they needed to respect one another, the way she respected them. Members needed to respect the Chairperson in the same way. When she called on Members to stop what they were doing, they must at least respect her. She would not allow things to continue in that way.

Ms Sukers thought that the Committee needed to resolve that matter. It depended on the maturity that Members would display. The issues raised in the minutes were on the clauses. There was a reason each Member had a position on that. The most important was the impact of the clauses on children in foster care. If the Committee retained the issue around what the differences of opinion were, then the Committee would be able to be harmonised again. The Committee could not allow that Members not feel heard. That was what was coming out in today's meeting.

She fully agreed that Members needed to respect the Chairperson. The Committee needed to reset the way that it did things. But it could not allow for Members not to be heard. Ms van der Merwe had raised a substantive issue. It was not substantive because it was a political matter. It was substantive because it dealt with the parliamentary process, and it dealt with the most vulnerable constituency, specifically children. She urged Members to come together on those two points, so that people did not react “politically or unilaterally” to suppress the voices of other Members. She felt that it was a really important point, otherwise things were really going to go off the rails. Members needed to understand that it was a democratic process. Every single voice that was part of the committee needed to be recognised.

Ms Breedt seconded what Ms Sukers said. She observed that Ms van der Merwe wanted to provide clarity. She was sure that the Chairperson would agree that minutes of committees could be detrimental in court cases, and could play roles that went larger than Parliament, and larger than the Committee. She strongly agreed with Ms Sukers that when a Member objected to something as not being a true reflection of what that Member said, the Committee should allow that Member to speak. She agreed with the Chairperson that things needed to be harnessed to ensure that the Committee did not become a “full-blown circus”.

Ms Hlongo was present at the 1 June 2022 meeting and she wanted to adopt that set of minutes.

Ms Arries said that she was in the meeting on 1 June 2022. The Chairperson had asked the Committee to accept the minutes that were in front of it, but the way that Mr Stock was treating Members was not fair. Mr Stock needed to understand that it was Members’ right to differ. Members needed to be respected. Mr Stock also needed to understand that he was the Whip of the ruling party, and not the Whip of the opposition parties; that needed to be respected. Just because he was the only male in the Committee, it did not mean that he could bully female counterparts in the meeting.

The Chairperson did not want to go backwards. She stated that the Committee had noted the concerns of Members. The objections to the minutes would be noted.

Ms Manganye seconded Ms Hlongo’s proposal to adopt the minutes.

3 June 2022
The minutes were adopted.

In closing, the Chairperson said it was not easy. She did not want to make mention of the eight years which Ms Masango mentioned in relation to raising an objection to an earlier set of minutes. She hoped that the disharmony in the Committee would stop. People were free to discuss and deliberate in the time that they were given to speak.

The meeting was adjourned.

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