Children’s Amendment Bill: consideration and adoption of A-list

Social Development

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


In this meeting, the Parliamentary Legal Advisor presented a redrafted version of the A-list of the Committee's proposed amendments. Decisions about Sections 21 and 24 had been settled on in the previous meeting. However, due to an incorrect draft presented to the Committee, it had agreed to defer the consideration and adoption of the rest of the A-list until today. In the previous week, the Committee had agreed that Members' proposals on the A-list could be forwarded to the drafting team.

The Committee resisted deliberating on Members' proposals once the Parliamentary Legal Advisor had presented as it was suggested that the drafters had considered those and decided against them. It was pointed out that the proposals were for the Committee to deliberate on and make decisions on - not the drafters.

After many vigorous arguments about the importance of listening to experts on children’s rights and organisations that dealt with foster care challenges daily on the ground, it was agreed to listen to Members' proposals but not about Sections 21 and 24.

Section 150 that spoke to a “child in need of care and protection” was raised in several Members' proposals. Section 150(1)(a) was seen as the gateway to foster care for orphaned children in the care of relatives. It should be amended to reflect the DSD National Child Care and Protection Policy that orphans in the care of family members are not in need of statutory care and protection and do not need to go through the foster care system but may apply for a grant. The wording in the Bill should mirror the policy which was not the case.

Section 159 was also raised and a proposal for a transitional clause allowing for a three-year period within which to extend foster care grants until the foster care grant crisis had been resolved.

These suggestions were not accepted and the Department provided its reasoning.

The Committee formally adopted the A-list as presented with no changes. Next week it would deliberate on the B-Bill which incorporated the Committee amendments into the introduced Bill as well as adopt the Committee report on the Bill.

Meeting report

Opening Remarks
The Chairperson, Ms N Mvana (ANC), welcomed the meeting with a prayer. Due to the situation with the electricity, she wished the meeting to proceed without delay. It was expected that there would be no glitches because of the load-shedding schedule. She did not expect the meeting to take long.

She remarked that in the Eastern Cape, a very sad event had happened: The lives of children and youth had been lost during Youth Month, which was unfortunate. The Committee wished to pass sympathy and condolences to the parents. It was a sad story that needed Members as parents to keep an eye on their kids. This was with an understanding that for those parents who lost their children, it did not mean that they did not keep an eye on their children and look at those things happening in communities. It was just unfortunate that there would be a situation where parents go to sleep early, and children escaped, and parents did not know their whereabouts. It was [IsiXhosa 22:49-22:53, YouTube audio].

Throughout the meeting, Committee Members expressed their condolences to the families who had experienced loss.

Ms B Masango (DA) joined the Chairperson in expressing condolences to the families and loved ones of the children who died in the Eastern Cape. Members were with those families, and with the communities where that happened, in their prayers and thoughts. It was devastating to hear that sad news.

Ms M Sukers (ACDP) joined in the sentiment expressed over the tragedy in the Eastern Cape. Members wished to extend condolences to the region, the families, the friends and everyone affected by it.

Mr D Stock (ANC) joined his colleagues in expressing the same sentiments on the tragedy in the Eastern Cape. Members send their condolences to the bereaved families, as well as to those affected by the tragedy.

Ms P Marais (EFF) sent condolences to the families of the children and youths who lost their lives in the Eastern Cape. Members were also parents and could imagine what it was like to lose a child in circumstances like that.

Ms K Bilankulu (ANC) conveyed condolences to the families affected by the tragedy in the Eastern Cape in the early hours of Sunday. As women, as mothers, Members felt very bad about the incident. South Africa had been robbed. “May their souls rest in perfect peace”.

Ms J Manganye (ANC) spoke in Setswana [ 00:59:57-00:01:15] about the tragedy. She wished to put the parents of those students in prayers. She encouraged others to pray for their children and for themselves.

The Chairperson hoped that everyone in the meeting would be able to deal with the Bill that the Committee was faced with, and ultimately reach a consensus in the end.

The apologies were read out. The Minister and Deputy Minister for the Department of Social Development (DSD) sent apologies. The Minister was attending an urgent meeting with the South African Social Security Agency (SASSA) and the South African Post Office (SAPO), and the Deputy Minister was on an official visit in New York.

Acting Director-General Opening Remarks
Mr Linton Mchunu, DSD Acting Director-General (ADG), said the Minister would try to join the meeting later, as she had an urgent meeting including with the Minister of Communications. It was hoped that the A-list would be finalised in today’s meeting and the matter of the amendments would be closed.

He wanted to highlight the risk of not moving forward and finding closure on the Amendment Bill process. The Department did not know which direction the court would take, but he assumed that if the Committee did not close on the comprehensive legal solution to foster care, then “we may find ourselves in a very difficult situation”. He hoped that the Committee would try and finalise everything that day, and that the Department receive the wisdom of Members, so that any matters that the court may raise against the Department and Parliament would be avoided on the Children’s Amendment Bill.

He was concerned about the legal implications that may befall the Department and Parliament should progress not be made on that.

Explanation from Committee Secretary
The Chairperson apologised for the incorrect A-list presented at the previous week’s meeting.

Ms Lindiwe Ntsabo, Committee Secretary, explained (in addition to the text message explanation sent after the 22 June meeting that the printers, Creda, typeset the A-list in the format of a bill. When the service provider responds to Parliament, it does not communicate directly with Ms Ntsabo but with the Secretariat’s manager. Normally, Creda gave the proofs on time, but on that particular day, it gave the proofs only on the morning of the meeting. She had to ask her manager to forward this. The manager sent the proofs, and she assumed that it was the latest version and forwarded those to Members. However, the proofs she sent were not the latest proofs. The correct document had been sent to the Members after the meeting. She apologised for the confusion. The typesetting was an external process beyond her control. If the document had been sent directly to her, she would have been able to pick up the error.

She then explained the way forward. Members would be deliberating on and adopting the A-list. If the Members agreed on the A-list, the Committee would look at the B-version (the B-Bill) to cross-reference whether what was in the A-list appeared in the B-version. The B-version is the one that would be adopted by the House. The next step after adopting the A-list and the B-version would be the Committee adopting the Committee report on the Bill, which would outline the process from the introduction and referral of the Bill, the public hearings, and all the steps that the Committee undertook to the final adoption of the A-list and the B-Bill. In cases where Members were not agreeing on certain clauses, National Assembly Rule 288(3)(f) allowed the expression of minority views. If there was no consensus, the areas where there was no consensus would be reflected in the Committee Report. The Committee would recommend to the House in the second reading of the Bill, to then adopt the Committee report after the debate. The Bill would be subsequently referred to the National Council of Provinces (NCOP) to kick-start its own process. The sooner the NA Committee concluded the process, this would provide enough opportunity for the NCOP to start its own process.

Ms Sukers fully accepted the apology by the Secretary. She observed that there were proposals made on 22 June 2022 that had not been included. For the sake of time and efficiency, she asked if those proposals could be shown onscreen so the Committee could see them. She appreciated what the Department said, but the Committee also had a responsibility to consider every proposal and apply its mind to each proposal. It would make the process much easier, and it would make it efficient and democratic at the same time. The Committee needed to apply its mind to what had been presented by every Member so the whole Committee could see them and vote on them.

Consideration of A-list of Children’s Amendment Bill
Adv Nathi Mjenxane, Parliamentary Legal Advisor, presented the most recent version of the A-list. From the outset, he wanted to remind Members that the process the Committee was dealing with was set out in NA Rule 286(4)(k). The rule read as follows:
(4) The committee —
(k) may recommend approval or rejection of the Bill or present with its report an amended Bill or a redraft of the Bill, provided that in the case of a redraft the subject of the Bill has not been extended without the permission of the Assembly as contemplated in paragraphs (b) and (c).

The Committee was amending the legislation through the A-list. The A-list was the instructions from the Members on how to amend the Bill as introduced. That had been captured in the record of the previous Committee meeting. What went into the A-list were those clauses which had been agreed to by Members. In the last meeting, it was agreed that Members could send proposed drafting to capture the views of the Committee on the amendments to the Constitutional and Legal Services Office (CLSO). The Members who had sent proposed amendments were Ms L van der Merwe (IFP), Ms B Masango (DA), Ms A Abrahams (DA) and Ms Sukers. He thanked Members who had assisted CLSO with the proposed drafts, and appreciated the depths of the amendments that CLSO was making. CLSO had, to the best of its drafting ability, captured the amendments sent to it by Members, particularly those proposals which Members agreed would be included in the A-list.

There were, however, proposals from Members on matters which, in record it had, had not been agreed to for inclusion in the A-list. Such matters came in the form of proposals. He specifically mentioned clause 10 amending section 21 of the Act. CLSO records showed that it had not been agreed to for inclusion into the A-list, and therefore, CLSO omitted it from the A-list for today. Members proposed compromises on what was discussed in the Committee, and had versions that they wanted to see going into the A-list. But for the process, CLSO was not able to include those specific proposals, as they were not agreed to. CLSO would be guided by the Chairperson on whether she would prefer that Members put on screen the proposals that were not agreed to, so that Members could discuss, deliberate and agree on those matters before CLSO could include them in the A-list. There were also proposals from Members which had policy implications. The Department, which had purview and control over policy matters, had developed a response document on proposals.DSD would present these responses to Members’ proposals with policy implications.

He would read out the redrafted A-list, which would reflect which amendments CLSO was able to capture within the agreed-to list of amendments as typeset by Creda Printers (see document).

Clause 1
This excluded the definitions, in line with the Committee’s decision to focus on the comprehensive legal solution for foster care. The excluded definitions would be reflected in the B-version of the Bill which would be later to Members.

New clause: Clause 2
This was a new clause as instructed by Members. This amendment was not part of the Bill as introduced. It was a consequential amendment that resulted from deliberations. This amendment came through as a result of submissions by Members. Clause 2 would be amending section 24 of the principal Act.

CLSO had added the underlined words “extended the jurisdiction” in line with the Committee’s instruction. The Children’s Court as well now had the authority to extend, in line with that provision. It does not extend the subject matter of the Bill, and so did not need the permission of the National Assembly. It was merely a consequential clause meant to align the legislation.

Ms L van der Merwe (IFP) asked if the Chairperson wanted Members to comment on the clauses now, or wait until the end of the presentation. She wanted to make an editing suggestion.

The Chairperson said that CLSO would first finish its presentation.

Adv Mjenxane said that CLSO would be indebted to Members’ comments and would note them. It would improve the work that it had already done where it was needed.

Clause 2
This clause was rejected. This means it would be kept in abeyance and form part of those clauses that were going into the Committee Bill, in line with the decision of the Committee.

Clause 3 to 23
These clauses were rejected and would go into the Committee Bill.

(See document for the rest of the rejected clauses)

Clause 24
The Committee had given the drafters the instruction to delete those words.

Clause 56 amending section 105
The Committee had given the instruction to reject the clause and replace it with a new clause.

Clause 82
This clause was amended by the Committee.

Clause 85
This clause omitted ‘‘less than’’ and after ‘‘age’’ inserted ‘‘or less’’.

Clause 86 amending section 159
CLSO had received a proposal from Members to include a timeframe of three years. The proposal had policy implications, which the Department would speak to.

Clause 146
A new clause was proposed which took care of the matter discussed by the Committee. CLSO was advised that this matter would be best accommodated in section 160 as a consequential amendment, providing that the matters that are regulated by subsection (b) would be provided for in the regulations. Therefore, the drafting team proposed that section as a new inclusion, specifically an amendment to section 160, which dealt with the power to make regulations. The new clause 146 provided a new (cA) in section 160.

This was not part of the Bill as introduced but it was a consequential amendment. This clause was also based on public comments received.

Long title
This had to be amended and aligned based on the Committee’s decision to reject those clauses not directly related to foster care. The new long title read as follows:

Memorandum on the Objects
CLSO had made amendments to the Memorandum to reflect the changes made in the A-list.

DSD response to Members proposals with policy implications
Adv Luyanda Mtshotshisa, DSD Specialist: Legislative Drafting, spoke to the issues Members had commented on which had policy implications.

Clause 86 amending section 159
Members had proposed the extension of foster care orders for a three-year period from the date of commencement of the Act. This was so that children would not be left destitute once the court order lapsed. The Department disagreed with that proposal. This was because the transitional period it had taken into account was the period of six months, as contemplated in section 48 of the Children’s Act. Section 48 had not been part of the amendments. The timeframe for the extension of the lapsed foster care orders was contemplated in that particular provision. One would be extending the extent of the Bill if one was going to go the route of a three-year period. Apart from the social worker’s responsibility to submit reports for recommendation of extension of the alternative care order, Children's Courts themselves had a responsibility to monitor the orders in terms of section 65 of the Act. That would be initiated by the Children’s Court, and the social worker could also approach the Children’s Court on good cause shown to have the order extended for a period of six months, pending the submission of the comprehensive report. As he indicated, that was already catered for in section 48 of the Act. Section 159 must be read together with section 48 of the Act. Section 48 was not part of the current amendments. Nor was section 65 which talked to the monitoring of the orders before they actually come to an end. The alternative care order should be issued within the period in which the previous order was due to lapse, in conjunction with the section 48 provision, to prevent the order from lapsing, or resulting in the Foster Care Grant (FCG) lapsing. As a result, the proposal was not accepted.

Section 160
On the wording that must be excluded for orphans that were in the care of family members, the Department indicated that it would not be correct because the whole concept that was being introduced in section 160(cA), spoke about investigation as to the status, i.e. investigation, assessment and screening of a child. The investigation was going to determine if the child was in need of care and protection. It could not be automatic that because the child was in the care of family members, that child was not in need of care and protection. It would be the result of the investigation, assessment and screening as contemplated in the proposed inclusion of section 160(cA).

Ms L van der Merwe (IFP) noted an error in the proposed amendment to section 24 in the A-list. The phrase “of the child of the applicant” should read “of the child to the applicant” which currently read: “Any person having an interest in the care, well-being and development of a child may apply to the High Court or Children’s Court for an order granting guardianship of the child of the applicant”.

She had listened to what the Committee Secretary said about having a minority report, so she did not think that the Committee would delve into Section 24 again, which it had moved past. She asked if the Committee Secretary would include some of the discussion Members had on wanting to include clause 10 that amended section 21 in the minority report.

On the explanations given by the Department, it would have been helpful if the Members’ submissions that were sent to the legal advisors could have been put on the screen. The Department was arguing against the Members’ proposal yet the proposal was not shown in the meeting so that Members could debate the issue. The Committee could not just get the Department’s opinion on the proposal but not see the proposal. Could Members’ suggestions be put on the screen, read through, then debated whether to include or not? The Bill was in the Committee and its suggestions should be taken into consideration.

Ms Masango repeated the request for the proposals to be shown on screen, because for her, that said the Committee was deliberating. Adv Mjenxane said that all the proposals were received and the reason they were not in the amended A-list was because they were not agreed to. She was of the view that the agreeing and not agreeing would have happened if there was a deliberation, and not merely stating that the proposals were not included. She did not want to obstruct or delay the Bill. She was all for it, for the reasons given by the Chairperson, Mr Stock, and Adv Mtshotshisa. She supported colleagues who asked for the proposals to be shown on-screen, so Members knew that the proposals were shown in the meeting, deliberated on, and properly excluded (or included) after some kind of deliberation. She also supported the approach of the minority report. When that process ensued, one would be able to provide the information for that report.

Ms A Abrahams (DA) asked about the time frames for section 159(2)(b). The Department referred to the time frames in section 48. She had gone to the principal Act, and could not see those time frames. She asked for section 48 to be shown on-screen and for the Acting DG to comment on the clauses that DSD said gave effect to policy changes. Perhaps he could give the Committee a practical example of those policy changes and how those would be effected, especially before and after the Child Support Grant (CSG) Top-Up, and the actual implications of that.

On section 150: She did not feel that the Committee had given adequate deliberation to that. In a previous Committee meeting, she had suggested that “able and suitable” be replaced with “and is not in care of a family member”. She agreed that the proposals be shown on-screen and working through the proposals methodically.

[Ms Abrahams wrote in the chat box: SASSA will not be able to pay FCGs to children with expired court orders after the High Court order ends in November 2022. And the s159(2A) amendment does not help in any way. The backlog is still going to be with us from December onwards. There will be about 10 000 orders expiring every month and social workers will not be able to get them to Children’s Court in time to use s159(2A). Can the ADG please explain how s159(2A) and (2B) without time frames will assist the FCG backlog?]

Ms Sukers seconded the request that the proposals be shown on-screen, so that the Committee could see what they were. In doing so, the Committee was following due process in the deliberations. One of her proposals had to do with the “somewhat contentious” section 21 amended by clause 10. She wished to motivate her reason for the proposal. The concerns expressed by Members about adopting the amendment of section 21 at this stage had motivated a compromise approach for the Committee to adopt only the section 21 certificate process, and not the amendments proposed to section 21. The reasons for those were so that the certificate process would help unmarried fathers who were caring for maternal orphans to obtain the proof they needed when they approached the Department of Home Affairs (DHA) to register the childbirth. One of the key concerns Members had heard, especially at the public hearings in Gauteng, was to do with undocumented children and the reasons for that. The certificate process would help unmarried fathers who were caring for maternal orphans to obtain the proof they needed when they approached the DHA to register the child’s birth. It would be helpful if the proposal was shown on-screen, so that Members could see it.

A child needed a parent's assistance to obtain their identification document (ID). During the National Health Insurance (NHI) hearings, for instance, Members heard that there were 500 000 undocumented children. Her proposal was a compromise approach that dealt with that. The proposal contained recommendations from a number of children’s rights non-government organisations (NGOs), that dealt with the challenges faced by maternal orphans on the ground every day.

She wanted to stress what Ms Masango said that all Members were committed to concluding the Bill. But it had to be with the understanding that Members must apply their minds as a Committee, and that Members doing proper deliberations would show that Parliament was doing its work.

Mr Stock prefaced his viewpoint by saying: Every time the Committee came to a meeting, it looked as if Members wanted to rehash some of the discussions that already took place where decisions were taken in previous meetings. The Committee had taken a decision on section 21, starting with the physical meeting in Cape Town, and in a number of virtual meetings. It had decided that section 21 needed a vigorous consultation process, because the Committee could not consider only one view or one stakeholder. Section 21 dealt with the certificate process “in a nutshell”. The Committee had taken a decision to exclude the clause amending section 21 as a technically rejected clause according to the Committee's adopted approach to the introduced Bill. The Committee was of the view that section 21 was a critical issue, as it had been raised by a number of stakeholders in the public hearings. Clause 10 amending section 21 would be considered as part of the Second Amendment Bill in the form of a Committee Bill. The Committee had been very clear on this throughout the meetings.

On section 24, the Committee decided to defer the adoption of the A-list to today's meeting so that all Members could apply their minds, and also get an opinion from CLSO, DSD and the State Law Advisor. Based on the presentation by Adv Mjenxane, he saw that section 24 was amended. Members had been allowed to send their proposals to the technical drafting team. He did not think sending such proposals was an automatic right of Members. If a Member had sent a proposed amendment to the drafting team, the drafters would then consider policy imperatives and a number of other issues, such as court judgements. The drafting team might not agree with including that proposed amendment in the A-list. There were Members who want to include all proposed amendments that were brought up. He was “totally opposed” to that view, because Members needed to persuade each other in the meeting, and if they disagreed, then they would do so respectfully. There were Members who believed that their views were not captured if not included. Such views could be captured and included in a minority report.

He agreed that the Bill process had not been an easy task for the Committee. The Committee had gone “from pillar to post”, and had a number of meetings. There were also a number of legal aspects in the Bill that needed to be considered. He appreciated the work of all those assisting the Committee. He knew it had not been an easy task – the Committee kept on going back. He was of the view that the A-list today represented the collective view of the Committee's overall deliberations. It also represented, in a nutshell, the work towards the implementation of a comprehensive legal solution for foster care, in line with the North Gauteng High Court. He appreciated the apology from the Committee Secretary for what happened the previous week.

Mr Stock formally moved for the adoption of the A-list. He proposed that all the different views that had not been captured and all the rejected clauses be put into the Committee Bill to be considered by the Committee. Members who differed on the amendments needed to have those views captured in a minority report.

Ms Sukers addressed the issue of fathers. Fathers kept writing to Members to say that fathers had not been included in the Bill. On section 150(1)(a), civil society organisations (CSOs) wanted to ensure that orphans in the care of relatives were not automatically considered in need of state care and protection but were rather assisted with an accessible grant. CSOs stated that there was a backlog and social workers were stressed because of that. The Committee still needed to look at that point and decide what to do about it.

Organisations were also concerned about the omission of the amendment of section 24. She heard what Mr Stock was saying, but Members had been asked to put submissions in writing, and they did that. The Committee was supposed to look at the submissions. For him to disregard the submissions given by the Members was not correct. Members knew that there was a time frame, but it seemed as if Mr Stock wanted to “bulldoze everything through”. Members wanted the amendment to section 24 to be discussed, and to be thorough, because the Committee could not go back to the Children’s Amendment Bill again. All stakeholders needed to ensure that the Committee was implementing a proper Bill, because there were a lot of concerns out there about the Children’s Amendment Bill.

Members needed to look at what was best for the society out there, and not just what was the best for the Committee. The Committee could not say that it was going to revise that Bill again. It needed to look at everything that was done during the process, where it went to all the provinces. People wrote in to the Committee to state their concerns and the Committee needed to listen to all those factors. It was not correct to make it seem as if other people’s concerns were not important. She disagreed with what Mr Stock said earlier. The Committee had to look at matters conclusively, because there was not going to be another Children’s Amendment Bill after that. The Committee had to ensure that everyone was happy with that Bill.

Ms Bilankulu thanked the parliamentary legal advisor for the good work presented in the form of the A-list. To her, the A-list presentation was straightforward. She was “frustrated to be part of this Committee”. Instead of doing what was expected, it was “debating every day”, or “pushing each other” and if a certain Member said something, then another Member would oppose it. If that was the culture of the Committee, then she was in the wrong Portfolio Committee altogether.

The Committee’s agreement was to let Members send their submissions to the legal advisors. At this meeting, it was for the Committee to check if the submissions formed part of the A-list. She did not think the submissions touched on the A-list presented by the legal advisors. Her understanding was that if something she had submitted was omitted, she would say that particular item was missing from a clause, and ask if certain changes could be done to that clause. However, the situation of flagging everything seemed like certain people wanted to derail the Committee. If one Member asked the Committee to adopt the A-list, it did not mean that Member wanted to rush it or not do what was expected of them. The interest of all Members was to see the Children’s Amendment Bill adopted. The interests of the Committee were the interests of children, not the Members or their political parties. Could Members not try to come a little bit closer to each other, and try to get the solution to adopt the A-list?

She proposed that if Members were not going to agree to adopt the A-list, then she requested that the future meeting during recess not be held during the day or on a Wednesday. Members did have things to do on a Wednesday.

[Ms Abrahams wrote in the chat box: Please flight section 48 which the Advocate said speaks to time frames. Because I do not find timeframes in the Principal Act. Also for the ADG to speak about ‘before’ and ‘after’ screening and how it will practically affect the CSG Top-Up. And why in s150 the words ‘suitable and able’ are so important when it’s covered in s150(1)(b)-(j). I propose it reads: “and is not in the care of a family member”.]

Ms Manganye appreciated the work done by CLSO, the Department and the State Law Advisor. She had been part of the deliberations and she felt that what Members had said was on the A-list. The Members had said that the clauses that were not in the A-list should go into a Committee Bill. A clause to amend section 24 was not something the Committee was agreeing to and Members had sought advice from DSD. To be in the Committee was about working together. The Committee could not see everything in the same way. But at the end of the day, the Committee needed to come up with a solution. A solution did not rely on one person. All needed to focus on the Bill. She was happy to have reached the Bill’s current stage. She blamed the Fifth Parliament for it brought the Committee to where it was today with the Bill and the court orders.

Ms Manganye said the Committee must not behave as though it was rushing. The Committee was not rushing, because it had spent a lot of time deliberating. Those who wanted to add to the A-list were given time to send their proposals. That was why section 24 was put on the table during deliberations in the previous meeting, after which it adjourned the meeting due to difficulties beyond the Committee’s control about the incorrect draft of the A-list.

Section 21 affects her because she had boys. In the public hearings, the AmaKhosi said not to rush things in a “Western way”. The AmaKhosi urged the Committee to hear what they were saying as members of the community. The Committee heard from Fathers 4 Justice as well. The Committee had said at that time that it needed to give time to that issue, so it should fall under the Committee Bill. The Committee would balance the various concerns that fathers had raised with the concerns about culture. South Africa had many different cultures, so everybody needed to be given fair hearing. The Committee was not saying it would put the Bill “in a dustbin”. She encouraged the Committee to focus and put certain matters in abeyance and deliberate them when the time came in the context of the Committee Bill. If there was something the Committee did not agree on, that could go in the report.

She fully appreciated the work the Committee had done to ensure the wellbeing of children should come to fruition. If the Committee did not finish, she suggested not having another week day meeting. Some Members were in rural areas, and struggling with network. She suggested meeting on a Saturday. On Saturday, one could go to the municipality office to use the network. She appealed to Members that if they felt that their issue had not been covered, then they could suggest changes. Everyone in the Committee was important. Members could not do it alone, but together, with everyone working toward finalising the Bill, it would take the Committee forward. When the Committee dealt with things together, then things happened. She wished all Members good luck in dealing with whatever was remaining.

Ms A Hlongo (ANC) said that Ms Manganye had covered her. She asked the Chairperson to direct the Committee. The submissions had to be referred to the legal team for it to advise the Committee. Today, the legal team advised the Committee based on the proposals submitted. The Committee had dealt with section 21 and had taken the decision that it would form part of the Committee Bill. It had come back to that matter when it should be deliberating the A-list. Once the Committee took a decision, could it stick to that decision?

Ms Masango noted Adv Mjenxane's remark that he would be indebted to hear Members’ comments on his A-list presentation. However, when Members made comments, it was made to sound as if they were being obstructive to the process. Members had only asked for deliberations. Deliberations involved showing the proposals on-screen so they could deliberate on the proposals. The time taken up now would have been the time Members would have been showing proposals. The Chairperson and the parliamentary legal advisor should advise if it was against parliament rules and the law to deliberate on the proposals, then put the A-list before the Committee and approve or not approve it. She did not know why deliberations were looked at so negatively. The proposals Members had sent needed to be shown so the rest of the Committee could see the proposals, and then deliberate. She was very concerned about the adversarial way the process was going. Members did not come to the meeting to hear the A-list presentation and then adopt it. The agenda said “consideration”. Members were asking for the proposals to be considered by deliberating on them. It would be better to “go home” since the A-list had been dealt with. The drafters were not the Committee. The drafters were there to hear what the Committee said, then draft and come back to the Committee who were the people who must deliberate – not the drafters.

She did not understand why the Committee was doing what it was doing. The Committee should do what the parliament rules said: deliberate on the Bill, then agree or disagree, and adopt the A-list. She was very concerned there was some division in the Committee. The Committee she knew had not been like that until then. She asked the Chairperson for direction. If the Chairperson said Members were not to consider the proposals for a particular reason and referred to a rule that stated that, she would understand. She pleaded with the Chairperson to take Members on board so they knew exactly what should or should not happen. This was the last chance the Committee had for the Bill before it.

Ms Sukers felt that Members were misunderstanding one another. Parts of Ms Masango, Ms Bilankulu and Ms Manganye's comments were aligned – which was that Members deliberate. On 22 June, the State Law advisor said to the Committee that the A-list “is a working document”. It was upon that that the deliberations had ensued. Section 21 was “problematic” but let section 21 not bring anxiety to Members. The reason some Members referred back to 22 June was to have deliberations respected and honoured. It decided that Members' proposals should be forwarded to the legal advisors – not for them to approve the proposals, since the legal advisors were not the Committee. The legal advisors were not supposed to decide what went in or out. That process Members were to engage on today but it seemed that there were opposing positions.

Ms Sukers pleaded for a reset of the Committee. All should have the opportunity to see what was being proposed, to say no, and for it to go into the minority report. That was the process of deliberation as guided by the State Law Advisor last week.

It was very concerning that the message today was that the Committee must “rubberstamp” whatever was before it. Ms Sukers cautioned that the Committee must be very careful not to bring a rubberstamp into a committee meeting of Parliament because it raised very serious concerns. In the last five years, certainly, Members had seen what that had caused in South Africa. She urged Members to be considerate of one another. She was not stating that something had to be adopted, nor putting anything on the table that warranted being adversarial. She only said that the process had to be what it agreed to on 22 June which was (1) the A-list was a working document and (2) Members send the proposals. Those proposals needed to be considered by the Committee. It was not for the legal advisors to decide for the Committee.

The Committee “had never deliberated on” section 150 or section 159. It only got up to section 24 last week. Members were misunderstanding each other if they saw the process as adversarial. Ms Masango had asked certain questions, and those needed to be answered. She urged Members to understand one another, and honour the process before the Committee.

The Chairperson said the Committee Secretary had outlined the process at the outset. She would repeat it as the meeting was “going backwards and forwards”. All the clauses the Committee had not agreed on would be highlighted in the Committee report. The A-list was a working document, as Adv Lisa Naidoo, Senior State Law Advisor, had mentioned, and which Ms Sukers pointed out. All Members agreed on that, which was why the Committee was having today’s meeting. Members needed to say if they agreed or disagreed with what had been proposed.

In a previous meeting, the Committee agreed that clause 10 amending section 21 would be put in abeyance. Some Members disagreed but the Committee was not throwing away clause 10. The Committee even said that the time frame for finalising the Committee Bill would be three months.

On section 24, the only item the Committee did not agree on was including "Children’s Court". Ms van der Merwe had asked for a word edit which was accepted. The Committee was done with sections 21 and 24.

There was now a suggestion to show Members' proposals on-screen. For whom was the Committee showing those proposals as Members had been given those submissions?

Sections 150 and 159 were never agreed upon as pointed out by Ms Sukers. Could the Committee request the drafters to show those sections on-screen.

The Chairperson said what was “strange” to her was that day by day, Members were adding new items that they had not talked about in prior meetings. That really “frustrated” her.

On the section which talked to orphans, she was not sure about that, because the Department had explained what that section meant. Ms Abrahams had asked the Acting DG to explain the conflict between the policies. The Committee requested the drafters assist in correlating the policies. Members had said that the drafters were not decision-makers. Both Members and drafters were aware of that. The drafters knew the ultimate decisions must be by the Committee, which the Committee was doing. Ms Abrahams had raised the matter of the six-month expiry period in the Zoom chat box. Adv Mtshotshisa had explained that in an earlier meeting. The Committee would again request him to give that explanation. It was explained that there were administration aspects and implementation aspects. The Committee separated those aspects, because it could see that social worker shortages would not be part of the foster care amendments in the current Bill, but it was something that the Committee would have to deal with. It would deal with that to avoid the delay and backlog the Department was encountering. The Department had promised the Committee that it would deal with that. It would be fine if the Acting DG explained that in the meeting.

The Chairperson agreed that even with those issues the Committee disagreed on, it would be stated in a minority report. The submissions from Members would be put in a report. It was not as though those proposals would be thrown out.

Ms Marais had said that Fathers 4 Justice were writing to Members time and again about clause 10 amending section 21. It also frustrated her to hear about that. The Committee said that it need not be pushed by any stakeholder, but instead put its mind towards the Bill. That clause would be put in abeyance; it was not being thrown out completely.

Legal Advisor responses
Adv Mjenxane replied that questions about Section 159 on the six-month timeframe for lapsing foster care grants were addressed in Adv Mtshotshisa’s document on policy issues. On the amendment about section 150, CLSO had effected it; it appeared in the B-version of the Bill.

Adv Luyanda Mtshotshisa, DSD Specialist: Legislative Drafting and Review, asked for section 48 of the Act to be screened. He replied to the question by Ms Abrahams about section 48 and the time frame the Department referred to. If one read section 48, especially section 48(1)(b), it read as follows:

“(1) A children’s court may, in addition to the orders it is empowered to make in terms of this Act–
(b) extend withdraw, suspend, vary or monitor any of its orders[.]”

To understand what that meant, one needed to apply a [unclear 01:37:29] approach to interpretation, because when one looked at section 48(1)(b), it did not say how much time magistrates would have to extend or vary an order, for example. To understand the six-month period and where it came from, one needed to read section 48 together with section 159 in the Act. It was not advisable to read just the one provision of the Act, because there was interrelatedness in the provisions of the legislation, and that was how legislation was crafted.

When one read section 159(1), it indicated that an order made by a Children’s Court (in terms of section 156) “(a) lapses on expiry of–
(i) two years from the date the order was made;
(ii) such shorter period for which the order was made; and
(b) may be extended by a children’s court for a period of not more than two years at a time”.

Section 159 was talking to the powers that had been given to the magistrates (in relation to orders). That had to be understood in that context. Section 159 indicated that an order should not be extended by a period of more than two years, because in any event, the original order was for a period of two years. Anything from one month to 23 months would be less than two years. Six months fell within that category. That was how magistrates had implemented that provision; by extending the court orders that had lapsed. The magistrates had powers to extend orders for a period of six months. One would see that in section 48, the six-month period was not mentioned and a time period had not been mentioned at all. But the provision in section 159(1)(b) said that a court order may be extended for a period of not more than two years, meaning that in this particular instance, any period less than two years could be decided upon by the magistrate. That was how magistrates had interpreted that in the past. This was why the Department rejected the proposed period of three years. If the Department were to go for a period of three years, it would have meant that it should have also taken into account amending section 48.

Adv Mtshotshisa talked about the interrelationship between the Foster Care Grant (FCG) and the amendment that had been made to the Social Assistance Act. There was already implementation of the payment of the Top-Up Grant to children who were orphaned. If the child had both death certificates, then the child would get the grant. If the child had only one death certificate (for example, if the other parent was nowhere to be found), then an affidavit was required. The clause in the Social Assistance Act that talked about paternal or maternal orphanage was not yet brought into operation. However, the Child Support Grant Top-Up was already being paid.

The Child Protection Policy referred to by Ms Abrahams was already in existence. That was why DSD was now bringing the provisions of the Child Protection Policy into the Children’s Act by amending section 160 by adding (cA), so as to speak about issues of investigation, assessment and screening. The investigation the Department was referring to was the one that checked if the child was indeed an orphan by the production of the death certificate. The policy was already in existence as approved by Cabinet. There was not going to be a new policy. The payment of the Top-Up Grant was already happening. The provisions in the Bill would not delay anything.

Committee Members Written Submissions on the A-list
Ms Abrahams proposal
The proposal was shown on-screen.

Section 150: Ms Abrahams noted that the part about family members had already been accepted. She had heard Adv Mtshotshisa’s explanation, but she still did not understand how the one Act could say “before screening”, yet the regulations said “after screening” for the Child Support Grant Top-Up. How could the Act and the regulations contradict each other, yet Adv Mtshotshisa said it would have no effect? She also suggested that the phrase “able and suitable” in section 150 should be removed, and replaced with “not in the care of a family member”.

The Chairperson confirmed what Ms Abrahams was requesting – rather than use “able and suitable”, one of the two must be inserted.

Ms Abrahams corrected her to say that “able and suitable” should be removed and replaced with “not in the care of a family member”.

Section 159: Ms Abrahams had heard what Adv Mtshotshisa had explained about that section but there seemed to be a communication challenge. That was why she had asked if the Acting DG could try to explain it using a practical example. She was not asking to change the six-month period in the Act. She was proposing a transitional clause of a three-year period for the foster care crisis only. The three-year period was not permanent but only to help the foster care crisis. In a previous meeting, Adv Lisa Naidoo referred to the Social Assistance Act where it spoke to a FCG lapsing. However, in that Act, there was no provision about the lapsing of grants and how children would be protected. That was why she had asked for her comments to be responded to in writing, because she was not understanding the way Adv Mtshotshisa was explaining it.

Proposal by Ms Masango
In response to the Chairperson asking Ms Masango to exclude sections 21 and 24 from her presentation, Ms Masango agreed adding that between Ms Abrahams’s proposal and her own, she was covered.

The Chairperson asked Members to cover proposals that had not already covered by others.

Proposal by Ms van der Merwe
Ms van der Merwe said that her points were covered. The Chairperson said that the Committee had dealt with sections 21 and 24 and sections 150 and 159 had been covered by Ms Abrahams.

Proposal by Ms Sukers
Ms Sukers proposed amendments to clause 82 amending section 150 on “child in need of care and protection”. She then read out her proposal:

Section 150(1)(a) is the gateway to foster care for orphaned children in the care of relatives. It should be amended to reflect DSD’s new policy that the majority of orphans in the care of family members are not in need of statutory care and protection and do not need to go through the foster care system.

DSD’s National Child Care and Protection Policy 2019, as approved by Cabinet, reads as follows:
“A Child in Need of Care and Protection is a child who is deprived of care as defined in this Policy, who is at risk of such deprivation, or who requires protection from violence, abuse, harm, neglect or exploitation. The following children are recognised as being in need of care and protection, noting that such children are not limited to those listed here but include any child who meets the following criteria:
• A child that has been abandoned or orphaned and is not in the care of a family member (as defined in this Policy);
• Lives or works on the streets or begs for a living;
• Displays behaviour that cannot be controlled by a parent or caregiver;
• Is addicted to dependence-producing substances and is without support to obtain treatment;
• Has been exploited or lives in circumstances that expose him or her to exploitation;
• Lives in or is exposed to circumstances that could seriously harm his or her physical, mental or social well-being;
• May be at risk if returned to a parent or caregiver as there is reason to believe he or she will live in or be exposed to circumstances that could seriously harm his or her physical, mental or social well-being;
• Is in a state of physical or mental neglect;
• Is being maltreated, abused, deliberately neglected and exploited by a parent, a caregiver, a person who has parental responsibilities and rights, a family member of the child, or a person in whose care the child is;
• Is an unaccompanied migrant child from another country; or
• Is a victim of trafficking;
• Has been sold by any person, a parent, caregiver or guardian.”

The wording in the Bill should mirror the wording finally decided on in this policy after many years of consultation. However, this is not the case in clause 82 amending section 150(1)(a).

Proposal 1: The tabled Bill currently reads that “a child is in need of care and protection if the child has been abandoned or orphaned, and has no parent, guardian, family member or caregiver who is able and suitable to care for such a child”. The proposal was to replace the words parent, guardian, family member or caregiver” with the single term “family member”. The term “family member” was already defined in section 1 to include the other parent, or any other person who has parental responsibility in respect of the child (e.g. a legal guardian); a grandparent, aunt, uncle, sibling or cousin, or any other person with whom the child has developed a psychological attachment which resembles a family relationship. There is therefore no need for the wording in the tabled Bill to specifically say “has no parent, guardian, family member or caregiver”. The inclusive and already defined concept “family member” should rather be used in the Bill.

Proposal 2: Replace the words “has no…family member who is able and suitable to care for that child” with “is not in the care of a family member”. It is important that the Act is clear that orphaned children who are already in the care of a family member are not considered in need of statutory care and protection (i.e. in need of foster care). Imagine an orphan who has been living with their grandmother for the past ten years. They should rather be referred to SASSA to obtain the CSG Top-Up and then assisted by the Children’s Court to obtain legal guardianship.

Ms Sukers noted that Ms Abrahams had mentioned that point before.

Ms Sukers went on to say: The DSD Child Care and Protection Policy recognises the principles of “attachment theory” and therefore uses the phrase “orphaned or abandoned and not in care of a family member”. (Here, “attachment theory” refers to the fact that an existing and established bond of attachment between a child and caregiver is recognised as a family relationship that does not require the state to supervise or assess the suitability of the caregiver [unless someone has alleged abuse or neglect, or there is a family dispute about who has parental responsibility rights, in which case other subsections of section 150(1) apply].) Those were the words that the Bill should also use. It would match the DSD policy, and would be in keeping with the public submissions made by child rights organisations and child welfare organisations.

Adv Mjenxane said that the Department response to Ms Abrahams's submission had been presented by Adv Mtshotshisa. Ms Abrahams had then wanted to hear what the Acting DG had to say about the practical implementation of what the Department had pronounced on, which was a policy issue. As a drafter, he would take instructions from Members’ deliberations, and then craft a clause, if that was the instruction from Members.

The Chairperson asked the Acting DDG to respond.

Mr Khumbula Ndaba, Acting Deputy Director-General: Legal, Governance and Risk, DSD, replied that the Acting DG had joined another meeting. He asked Adv Mtshotshisa to respond.

Adv Mtshotshisa replied that what Ms Sukers presented was correct. However, it must be understood section 160 was amended to include (cA) as a drafting mechanism the Department had opted for vis a vis the amendment of section 150 itself. What was required there was to have regulations so DSD could spell out how things would happen, in what way, and in what form. He understood Members’ concerns. The manner in which that had to be taken care of was in the regulations.

With "before screening" and "after screening", the scenarios were different. There were scenarios that were automatic, where a child was in need of care and protection. But there were issues where those matters had to be investigated, hence section 160(cA). This proposed amendment would spell out how that would unfold in the long run. DSD had opted to amend section 160 instead of section 150. One could see in the Department matrix of responses that what Ms Sukers was referring to was an input DSD had accepted and agreed to take care of, as contemplated in sections 150 and section 159. All those issues about "being in need of care and protection" had come up strongly from the Members, and those had been taken care of in the regulations.

Ordinarily, regulations as subordinate legislation can be developed only once the President has assented to and signed the Bill into law. Due to the court order time constraints, DSD had been developing draft regulations to be one step ahead in the development of the Bill. Then once the President signed the Bill into law, DSD would not have to waste time developing the regulations. It would just need to spend a month after that to finalise the draft regulations it had ready.

The Chairperson understood the rationale for section 160(cA) instead of sections 150 and 159.

The Chairperson said she had tried to give everyone an opportunity to speak about certain amendments. Prior to the deliberations, the Committee had just heard, there was a proposal from Mr Stock to adopt the A-list. There was still the B-version to come to the Committee, which it also had to consider. She asked for a seconder for the adoption of the report. She emphasised that all Members’ deliberations, discussions and proposals would reflect in the Committee report.

Ms Sukers asked why did the Bill contradict the DSD National Child Care and Protection Policy? Why was the Bill not aligned to the policy? She said to Adv Mtshotshisa that the section 160 proposed amendment was not requested by the Committee. Why not make section 150(1)(a) the same as the policy?

Adv Mtshotshisa confirmed that section 160(cA) was not suggested by the Committee. It was a consequential drafting outcome. Having looked at the stakeholder submissions on sections 150 and 159, the understanding was that the concerns raised talked to investigation, assessment and screening. Those proposals fit more into the regulations as they were procedural in nature. One could not have both sections 150 and 159 talking about the same issues. The drafting team decided that there should be a new insertion in section 160 due to the proposals made on sections 150 and 159. In the same context was the new inclusion of the definition of “social service practitioner” which was not there initially. This was due to the comments DSD received and it felt there was a point there. It could still include that definition of “social service practitioner”, in the same context as it included the definition of an “orphan”. It was something that was normal in legislative drafting as a consequential amendment.

On the contradiction between “before screening” in the Act and “after screening” in the regulations, the Department did not see it as a contradiction. However, if there was a contradiction, it would be easier for DSD to amend the policy to what it was proposing in the meeting, rather than to amend the legislation. The proposal DSD had fitted “perfectly” with what it wanted to achieve. Some of the policy items could be overtaken by events, in the sense that the policy was approved by Cabinet in 2009. That was almost 13 years ago and it was before this Bill was dealt with. DSD would need to realign the policy at the end of the day. For the moment, the legal team submitted that what it had provided the Committee with was what would enable the Department to move forward comfortably.

Ms Hlongo seconded Mr Stock’s proposal to adopt the A-list. Ms Manganye and Ms Motaung said they also wanted to second the adoption.

Ms Abrahams noted that the A-list had been seconded. She did not hear the Chairperson’s response to the Parliamentary Legal Advisor’s question if he must go back and make the amendments. She asked what the Chairperson’s ruling on that was. Was he going to make further amendments? Was the Chairperson’s resolution that he would not make any changes?

The Chairperson replied that the Committee Secretary had outlined the process. The B-version was still coming, but the legal advisors had explained the process for the A-list. All proposals that came through would be reflected in the B-version.

Mr Linton Mchunu, DSD Acting Director-General, indicated that he had returned to respond to the CSG Top-Up question, but it seemed that the Committee had dealt with that.

The Chairperson replied that the A-list had been adopted. She asked the Committee Secretary what the next agenda item was.

The Committee Secretary replied that the Committee could look at the B-version of the Bill or defer it to another meeting, along with the Committee Report.

The Chairperson said that the Committee did not want meetings to continue into the recess period. The Committee had also been cautioned by that it was currently behind schedule. For people in villages, it was not easy to have evening meetings, such as herself. She could not park her car outside in the evening.

The Committee Secretary replied there were two matters the Committee needed to conclude. (1) It needed to look at the B-version that incorporated the Committee amendments from the A-list and check these were correctly reflected. The Committee needed to agree that what was in the B-version was what it agreed to. (2) The last phase of the process was for the Committee to adopt a report which would be scheduled for a second reading in the House. The B-version of the Bill would be adopted by the House. Then the NCOP could start its legislative process.

Ms van der Merwe said that as far as she understood the work the Committee had done today, it made some adjustments and amendments since the A-list was a working document such as the small editing change that she suggested. She took it that the drafters would have to go back and make those amendments, then present the B-version in the next meeting. As far as she was aware, the B-version was not yet ready for the Committee to consider. There would have to be a final meeting where the Committee considered the B-version and then those who felt that issues had been left out would table those issues for a minority report, so those would be captured.

Ms Abrahams urged the Committee not to make the same mistake as it did the previous week. She asked that Members be given 48 hours to go over the B-version. The Committee would then deliberate on it. The Chairperson said all Members’ contributions would go to the drafting team.

The Chairperson replied that the A-list had been adopted. If Members were not satisfied with what was discussed, it would reflect in the report tabled by the Committee. Members' proposals would not be thrown out. She wanted to hear from Members on the way forward. The advisors explained the legislative process going forward. There could not be a scenario of Members “going backwards and forwards” as she as the Chairperson was under pressure. The current situation with the process was “not supposed to have happened”. The legal advisors had explained why section 160 was being amended instead of sections 150 and 159.

Mr Stock appreciated the manner in which the Chairperson handled the entire process. The Chairperson accommodated Members’ requests to show their proposals on-screen.

He did not want to misinterpret the Chairperson’s summary of the meeting. His understanding was that the A-list as presented by the legal team was adopted. The issues which had not been covered in the A-list from Members’ proposals would be covered in the minority report. The minority report would be covered at a later stage. Issues were not “thrown out of the window”. He proposed that the legal team advise the Committee if it was ready to present the B-version.

The Chairperson thanked Mr Stock for summarising what she had said. Members wanted to explain why they wanted certain items included in the Bill. The A-list had been adopted. She asked the legal team to assist the Committee with the way forward on the Bill process.

Adv Mjenxane said that the next step after the A-list was adopted with the editing amendment proposed by Ms van der Merwe, would be to consider the B-version (or B-Bill). The B-version was the Committee amendments adopted today added to the Bill as introduced. The B-version would have removed all the clauses that were rejected. The rejected clauses would go into the Committee Bill. In the B-version, the Bill would be formalised and be left only with the clauses it had adopted today. The B-version would also highlight the areas that were changed. The legal advisors would amend the Memorandum to reflect only the clauses relevant to the Bill.

The Chairperson reminded Adv Mjenxane that the question was when the B-version would be ready. The Committee had pressure due to holding meetings during recess.

Adv Mjenxane replied that if the Committee would proceed on the basis of the adopted A-list, the legal advisors had the B-version ready. The only item not ready in the B-version was the Memorandum on the Objects. That was the Memorandum to delete the clauses which the Committee had rejected that day. The draft B-version was ready and it had been shared with Members. The B-version could be presented today.

The Chairperson asked about the Memorandum, and Adv Mjenxane confirmed that the Memorandum was outstanding. Otherwise the B-version itself was ready.

The Committee Secretary proposed that the Committee have its last meeting next week, where it consider both the B-version and the Committee report on the Bill. The meeting could be any day the following week as Parliament was in recess. She asked for a suitable day for all Members.

Mr Stock said that having listened to Ms van der Merwe, Ms Abrahams and Adv Mjenxane, he was persuaded that the Committee should reschedule the meeting to the following week. In that way, the Committee would comply with the 48-hour notice period to allow Members enough time to get the documents, peruse those documents, and prepare for the meeting. He suggested hearing from Members about a suitable date.

Ms Bilankulu said that she was occupied the whole of the following week. The Chairperson proposed Monday 4 July. She was aware that the Committee might not get permission to have a meeting on a Monday since it was an organisational day. She also proposed Tuesday 5 July. The Committee Secretary said that Monday would not be approved. Ms Motaung said that Tuesday was fine.

The Chairperson said that the meeting need not be a long one. She asked the legal advisors to prepare the Memorandum for Tuesday 5 July. The Committee had spent the recess dealing with the Bill. Nevertheless, the Committee had tried to accommodate everyone, and it had been patient today so as to listen to Members. She thanked everyone and the meeting was adjourned.

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