Children’s Amendment Bill: adoption, with Deputy Minister

Social Development

06 July 2022
Chairperson: Ms N Mvana (ANC)
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Meeting Summary


Committee Report on Children’s Amendment Bill

The Committee approved the 16 clauses it retained in the Children’s Amendment Bill [B18B-2020] with Committee amendments. The DA, FF+, ACDP and EFF objected to the B-Bill.

The Committee Report on the Bill with the following headings was adopted:
• Context and background;
• Parliamentary process;
• Key decisions made in the process;
• Expression of minority views;
• Additional proposals;
• Recommendation.

The report reflected the Committee’s approach to consider the foster care-related clauses, and to technically reject the other ± 100 clauses which would be put into a Committee Bill. The minority views were reported in the Committee Report and an amendment was made to note these views as coming from the "minority parties" as a whole.

A Member made a point for the record, but not for debate clarifying that a walkout by some Members on 25 May 2022 was because there was no consensus on the agreement the Committee had already reached on which surviving clauses would go into this B-Bill and not specifically due to section 21. Another point was that during the extensive public participation, clause 10 amending section 21 received substantial public input and widespread support. A majority, including the Department, supported that clause.

When Parliament opens for the third term in early August, the National Assembly will schedule a debate for the second reading of the Bill. Thereafter, the Bill will go to the National Council of Provinces to start its six-week cycle to consider the Bill.

Meeting report

The Chairperson noted that the scheduled 5 July meeting had been postponed to 6 July 2022. The Deputy Minister would not be making opening remarks but closing remarks instead. Making opening remarks would be a conflict of interest. She thanked everyone present. Winter was upon everyone. Load-shedding was upon everyone, but all would overcome and survive at the end of the day.

Ms Henrietta Bogopane-Zulu, Deputy Minister of Social Development, gave an apology as she had to leave for a doctor’s appointment at 11:00.

The Chairperson said that the Bill was a working document, and in her closing remarks, the Deputy Minister would tell the Committee where it had missed the target. She asked the Deputy Minister to inform the Committee before she left the meeting. She noted that Ms van der Merwe of the IFP had tendered an apology as she was attending a caucus workshop, but her views (as part of the minority views) were incorporated into the Committee Report on the Bill.

Mr Khumbula Ndaba, Acting Deputy Director-General: Legal, Governance and Risk, Department of Social Development (DSD) noted that the Minister was unable to join the meeting and the Director-General was at a funeral in the Eastern Cape.

Consideration and adoption of the B-Bill of Children’s Amendment Bill [B18 – 2020]
The Chairperson said the Committee would consider and adopt the 16 clauses of the B-Bill clause-by-clause and the revised Memorandum on the Objects of the Bill. The Committee was still going to deal with 100-odd clauses in the second phase of amending the Children’s Act.

Adv Nathi Mjenxane, Parliamentary Legal Advisor, took the Committee through the B-Bill. He noted that when reading, one would exclude the words in square brackets – those were the words being removed, while the underlined words were being inserted.

Clause 1: Amending section 1 of Act 38 of 2005, as amended by s3 of Act 41 of 2007, s48 of Act 7 of 2013, s1 of Act 17 of 2016 and section 1 of Act 18 of 2016
The Committee agreed to the clause.

Clause 2: Amending section 24 of Act 38 of 2005
The Committee agreed to the clause.

Clause 3: Amending section 45 of Act 38 of 2005
The Committee agreed to the clause.

Clause 4: Amending section 105 of Act 38 of 2005, as inserted by s.5 of Act 41 of 2007
The Committee agreed to the clause.

Clause 5: Amending section 142 of Act 38 of 2005, as amended by s.6 of Act 41 of 2007
The Committee agreed to the clause.

Clause 6: Amending section 150 of Act 38 of 2005, as amended by s.5 of Act 17 of 2016
The Committee agreed to the clause.

Clause 7: Amending section 155 of Act 38 of 2005, as amended by s.7 of Act 17 of 2016
The Committee agreed to the clause.

Clause 8: Amending section 156 of Act 38 of 2005, as amended by s.9 of Act 41 of 2007
The Committee agreed to the clause.

Clause 9: Amending section 157 of Act 38 of 2005
The Committee agreed to the clause.

Clause 10: Amending section 159 of Act 38 of 2005, as amended by s.8 of Act 17 of 2016
The Committee agreed to the clause.

Clause 11: Amending section 160 of Act 38 of 2005
The Committee agreed to the clause.

Clause 12: Amending section 183 of Act 38 of 2005, as inserted by s.10 of Act 41 of 2007
The Committee agreed to the clause.

Clause 13: Amending section 185 of Act 38 of 2005, as inserted by s.10 of Act 41 of 2007
The Committee agreed to the clause.

Clause 14: Amending section 186 of Act 38 of 2005, as inserted by s.10 of Act 41 of 2007
The Committee agreed to the clause.

Clause 15: Amending section 312 of Act 38 of 2005
The Committee agreed to the clause.

Clause 16: Short title and commencement
Adv Mjenxane noted that the date would change to reflect the correct year in which the Bill was passed. The date change would be made by the editors. In response to the Chairperson asking for clarity, he explained that the Amendment Act would reflect this year, 2022, which was the year in which it was passed. That was the date it would have on publication.

The Committee agreed to the clause.

Long title
The Committee agreed to the changes to the long title.

Memorandum on the Objects
Adv Mjenxane noted that this had been updated to reflect the amendments.

The Committee agreed to the changes to the Memorandum.

Whole Bill
The majority of the Committee agreed to the Bill.

Ms A Abrahams (DA) objected to the B-Bill.

Ms T Breedt (FF+) objected to the B-Bill.

Ms M Sukers (ACDP) objected to the B-Bill.

Ms P Marais (EFF) objected to the B-Bill.

Committee Report on Children’s Amendment Bill
Ms Yolisa Khanye, Committee Content Advisor, presented the Committee Report.

1. Context and background
This Bill emanates from litigation by the Centre for Child Law v the Minister of Social Development (DSD), the South African Social Security Agency (SASSA) and others at the North Gauteng High Court in 2011. The litigation was as a result of a high backlog in the processing of foster care orders which led to the lapsing of 299 076 orders. The Court ruled that the Minister of Social Department should introduce in Parliament a comprehensive legal solution to the challenges in the foster care system. This would be done by amending the Children’s Act (No. 38 of 2005) and the Social Assistance Act (No. 13 of 2014). The Court set a deadline of 12 December 2012. It was however, extended to 2017, 2019, 2020 and to 2022 due to department delays in implementing the Court’s deliverables. The Children’s Amendment Bill was finally tabled in Parliament in August 2020. The Bill is comprehensive in that it does not focus on clauses only on foster care but also addresses gaps that had been identified in the implementation of the Act.

The Bill seeks to amend the Children's Act, 2005:
- to amend and insert certain definitions;
- to provide for children’s right to privacy and protection of information;
- to further provide for the rights of unmarried fathers;
- to extend the children's court jurisdiction;
- to further provide for funding of early childhood development programmes;
- to further provide for designation and functions for Registrar of National Child Protection Register;
- to further provide for care of abandoned or orphaned children and additional matters regulated;
- to further provide for rules relating to care and protection proceedings;
- to further provide for medical testing of children in need of care and protection or adoption;
- to provide for additional matters relating to children in alternative care;
- to further provide for matters relating to adoption and inter-country adoption;
- to further provide for the hearing of child abduction matters;
- to further provide for matters relating to surrogate motherhood;
- and to provide for matters connected therewith.

2. Parliamentary process
During the public hearings process, all nine provinces were visited. It was highlighted that the public hearings were suspended in July 2021 due to Covid-19 lockdown travel restrictions. The hearings resumed in August, but were again suspended in September 2021 due to a House resolution to allow Members to go on recess to prepare for primary local elections. The public hearings resumed on 5 November 2021, and went on until 10 December 2021 (see document).

3. Key decisions made in the process
On 05 March 2021, a legal opinion was presented and advised that the contested part in the Bill (all Early Childhood Development [ECD] related clauses) be removed, consulted with SALGA and published separately as a second amendment to this current process. This entailed that the current process must continue as scheduled without the contested provisions. Mr Mjenxane, Parliamentary Legal Advisor concurred with the opinion to reject amendments on Early Childhood Development to allow further consultation with SALGA.

The Committee agreed with the legal opinion from the DSD, Office of the Chief State Law Advisor and Parliamentary Legal Advisor to remove clauses dealing with ECD and continue with processing of the Bill so that it could meet the Court order deadline. It also requested the technical team consisting of representatives from SALGA, DSD and the Department of Basic Education to prepare a presentation to the Committee with a list of ECD clauses to be rejected and to indicate whether such clauses would have an impact on the provision dealing with comprehensive legal solution on foster care backlog. The Committee was advised of the imminent (1 April 2022) ECD function shift from DSD to the Department of Basic Education. The implications of that was the Committee would not be prudent to legislate for a function that it would not conduct oversight over.

On 25 May 2022, the Committee considered the Bill clause by clause and was in agreement with most of the clauses except for clause 10 amending section 21. The majority Members maintained that the Committee will only deal with this clause as part of the Second Amendment Bill. This clause received substantial public inputs that need an extensive public participation process which could possibly also have to include consultation with the House of Traditional Leaders and the Department of Justice and Constitutional Development. It was decided that clause 10 will not be considered in the current process.

The minority Members objected and stated that the Committee had agreed to include clause 10 in its previous meeting. They questioned the exclusion of clause 10 with the motivation that giving effect to this clause will have an impact on the foster care system in that it will lessen the pressure on the system as biological fathers will have access to their children. The meeting could not reach a consensus whether an agreement was made or not on the inclusion of clause 10 at it its previous meeting, as a result the following Members left the meeting:
• Ms Bridget Masango
• Ms Alexandra Abrahams
• Ms Marie Sukers
• Ms Gizella Opperman
• Ms Tammy Breedt
• Ms Laetitia Arries
• Ms Liezl van der Merwe

Ms Khanye added that in a later meeting, Members had asked that the minutes of the meeting on 25 May 2022 should be amended, and specify the Members whose names she had just read left the meeting, so they were not part of the resolutions of that meeting.

Consequently, the minority Members rejected the minutes of 18 May and 25 May 2022 as not being a true reflection of what transpired at those meetings (see document).

4. Expression of minority views
Ms Lindiwe Ntsabo, Committee Secretary, asked for advice on the inclusion of the FF+ views which Ms Breedt had submitted. The minority views submitted to the Secretariat were reflected as well as minority views that transpired during Committee proceedings. With the FF+, Ms Ntsabo needed to check as Ms Breedt was not a permanent or alternative committee member, but any Member of the National Assembly could attend any meeting and participate. She wanted to check if, in terms of party composition, whether the Secretariat could reflect that in the report, since Ms Breedt was not a Committee member.

The Chairperson instructed Ms Ntsabo to seek advice on the matter of how Ms Breedt’s views should be reflected in the Committee Report on the Bill.

The minority views that political parties had submitted dealt with proposals for:
• Clause 10 amending section 21 of the Act
• Clause 82 amending section 150(1) of the Act
• Clause 86 amending section 159(2A) of the Act.

5. Additional Proposals
5.1 Clause 10 amending Section 21

Members of the minority parties submitted a proposal for clause 10 which was not effected:

‘s21 (1A) A family advocate or a children’s court may, in the prescribed manner, issue a certificate confirming that the biological father has automatically acquired full parental responsibilities and rights in terms of subsection (1)(a) or (1)(b) on application from—
(a) the mother and biological father jointly;
(b) the biological father, after reaching an agreement during the mediation process referred to in subsection (3); or
(c) the biological father, if—
(i) in terms of subsection (3), he referred the matter for mediation and the mother, after receiving such notice of mediation, unreasonably refused to attend the mediation, or
(ii) the mother is deceased or has abandoned the child
; and
(iii) the biological father has shown to the satisfaction of the family advocate or the children’s court that he has automatically acquired full parental responsibilities and rights in terms of subsection (1)(a) or (1)(b).

(1B) If the child’s mother is deceased or has abandoned the child and the child’s father is
not the child’s primary caregiver; the family advocate or children’s court should hear representations  from the child’s primary caregiver and the child, before making a finding on the section 21A certificate; and where applicable, should assist the father and primary caregiver to complete a parenting rights and responsibility agreement in terms of section 22.

5.2  Clause 82 amending Section 150(1)
Members of the minority parties submitted a proposal for clause 82 which was not effected:

The Bill should 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). For instance, an orphan who has been living with their granny for the past 10 years should rather be referred to SASSA to obtain the CSG Top-Up and then assisted by the Children’s Court to obtain legal guardianship. This approach recognises the principles of ‘attachment theory’ – ie 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 responsibilities and rights in which case other subsections of Section 150(1) apply].

5.3  Clause 86 amending Section 159
Members of minority parties submitted a proposal for clause 86 which was not effected:

“(2A) For three years from the date of commencement of this Act, in relation to orphaned or abandoned children in foster care with family members, a court may extend an order that has lapsed or make an interim extension of an order for a period not exceeding six months, on good cause shown and if such an extension will be in the best interests of the child.”

6. Recommendation
The Portfolio Committee on Social Development recommends that the House adopts this report and approves the second reading of the Children’s Amendment Bill [B18B - 2020].

Mr Stock appreciated the comprehensive report including the amount of work done in the consolidation of the report. He thanked the legal team and the support team within the Committee, for the work they had done on the Bill.

The Bill process was not easy. It was a lengthy process, and the Committee had to pause and reconvene. The Committee had its own issues as well. Having looked at the report, he was of the view that the report covered the comprehensive deliberations of the Committee. It also covered all of the Committee’s views, including those that had a different view. The report represented a comprehensive, collegial perspective of what transpired in the Committee. Therefore, he formally moved for the adoption of the report as a true reflection of what happened in the Committee on the Children’s Amendment Bill, from where it began up to the end of the process. The report also reflected the Committee’s approach to considering the foster care-related clauses, the A-list, the B-Bill, and putting the technically rejected clauses into a Committee Bill.

Ms Motaung appreciated the report. She thanked the officials and support staff involved with the Bill. She seconded adopting the report.

Ms L van der Merwe (IFP) agreed with the Members who spoke before her. The Committee had walked a long road together. Members agreed and disagreed at times. It was imperative that the Committee thank its support staff for the report, and the legal advisors.

She made submissions for the record, but not for debate. The Committee Report on page 6 read: “It was also the proposal, and it was agreed that the process would start afresh at the next meeting”. What she recalled was that Ms Masango pointed out that the Committee was working from old documents. The Committee had agreed that it would restart the process in order to work from the updated and corrected documents. The Committee did not say that it would start the process afresh. The Committee had agreed to section 21, as amended by clause 10. It did not agree that it would negate or rewind the process to start again.

The report also read that: Section 21 [as amended by clause 10] received substantial public inputs that needed extensive public participation”. The point she raised was that that clause received widespread support. More than 90% of people, including the DSD, supported that clause as tabled.

When one spoke about opposition Members walking out, it was her reflection that Members did not walk out because of section 21, but because there was a dispute about what the Committee had agreed on. Members could not find each other on the agreement that had been made in a previous meeting. When consensus was not reached, Members walked out in protest. She wanted to clarify those points, so that they could be recorded for official purposes.

The Chairperson was pleased that Ms van der Merwe’s points were for noting and amendments.

Ms Masango could not agree more with colleagues who spoke about how well the report was written, and how much work was put into getting the final product. She accepted the explanation given by the Content Advisor on not being able to put all the details into the report. She thanked the staff for the whole process. She agreed with Ms van der Merwe that the agreement among Committee members to include clause 10 amending section 21 as a surviving clause was not accurately stated in the report. What she said in that meeting was the Parliamentary Legal Advisor was reading from the tabled Bill with no amendments that had been effected up to that point. That was not the reason to go back on what the Committee had agreed on as surviving clauses, especially clauses amending sections 21 and 24. She wanted that to be on record, while not negating the work done in putting the report together.

Ms Masango commented on the minority views. When the Committee agreed that there was going to be a minority report, Members went away to write a minority report to represent the views of the opposition parties as a whole, as those were matters Members kept raising during the deliberations on the Bill. The Committee Secretary and the Content Advisor alerted her that the NA Rules did not allow for a minority report, but the rules allowed including the minority views in the Committee Report. What she did not mention was the reason there was no party name (such as the DA) in the report she wrote. This was because it was representing the opposition parties. She did not know to what extent this explanation would go to take out the names of the parties, and just say “the opposition parties” or “minority parties”. She was confident that she was saying that on behalf of her colleagues in the opposition parties as a whole.

In closing, she thanked the Chairperson for “driving this ship”, and her colleagues, with all the disagreements, which she believed were the hallmark of any democratic process.

The Chairperson agreed that it was not an easy task. She thanked Ms Masango for understanding. Amendments would be made to the report, and it would be easy to correct it. If she understood correctly, Ms Masango was asking that the report state “ minority parties”, instead of naming individual parties. The report could be amended.

Ms Khanye clarified that submissions were received from Ms van der Merwe, Ms Sukers and Ms Masango. Was the Chairperson saying that she should write “opposition parties” instead of mentioning the names of the parties?

The Chairperson confirmed that Ms Masango suggested “minority parties” which was fine with her.

Ms Sukers said that her comments were covered by Ms Masango. She wanted to amplify the thanks to Ms Ntsabo, Ms Khanye and the support staff. The staff had tried to capture the details of what happened during the Bill process in the report. She supported what Ms Masango said. She thanked her fellow Committee members for an “interesting journey”. She hoped that what the Committee learned as it listened to the submissions on the Bill would assist it to deliberate effectively and deal with the rest of the Bill.

Ms Marais thanked the Chairperson, the Members, and everyone who was part of the process. She agreed it was a process, and the Committee sometimes had its difficulties and was at loggerheads. But at the end of the day, it was for the best of the communities out there. As other Members had said, the opposing views came from opposition parties; it would be better to say that so as not to confuse things. Not everyone wrote submissions; a few people wrote in on behalf of the minority parties. The process had taught Members a lot. Each Member had their own views, and came from different political parties. But Members had something in common – they want the best for their communities. For that, she could say thank you to everyone. For her, it was a learning curve, since she was not involved in the process from the beginning. She had learned a lot from everyone. She thanked the Chairperson for everything she had done during that difficult process the Committee went through.

Ms Ntsabo advised that Ms Breedt could participate and her view could be expressed in the report. The only thing she could not do was vote. Ms Breedt was amongst the Members who objected to the exclusion of clause 10, amending section 21. There was a proposal from Ms Masango not to list the minority parties who expressed their views, but instead to put them as “minority parties”. That was allowed because the NA Rules allowed Members to make their own arrangements. The staff would amend the report to note the minority views as coming from the "minority parties". The Secretariat had captured what a political party expressed in its submission. If the minority parties were in agreement that the staff needed to capture the views as coming from all minority parties, then it would do that.

The adopted Committee Report with amendments would appear in the Announcements, Tablings and Committee Reports (ATC). Next term, the House would schedule a debate for the second reading of the Bill where Members would prepare their speeches and debate the Bill. The B-Bill would then be published and be accessible on the parliamentary website. The Bill would then go to the National Council of Provinces (NCOP) to start its six-week cycle to consider the Bill.

The staff appreciated the positive comments. It was not easy for the officials; they had “sleepless nights” not knowing what would happen in the meeting. Ms Ntsabo thanked the Committee for its positive comments about the process.

The Chairperson had wanted the Deputy Minister to make the closing remarks but she was unable to stay until the end of the meeting. But the Committee appreciated her presence.

Ms Abrahams had an internal business matter to air unrelated to the Children’s Amendment Bill. As the Chairperson was aware, stakeholders sent letters to the Committee quite often, where they raised concerns they had. Sometimes when stakeholders were not responded to, they wrote to individual Members. What was the process for those letters to be attended to by the full Committee? These were matters for the entire Committee to look at, and not just individual Members. She was speaking about a 15 June 2022 email and letter from Solidarity which was referred to her individually on 4 July 2022, because there had been no response. She asked for direction on how this stakeholder matter appear on the Committee’s next agenda. She asked if she needed to write to the Committee Secretary to ask for it to appear on the next agenda, noting that the Committee had been consumed with the Children’s Amendment Bill, and could now turn its attention to other matters of concern. Would it be on the next agenda, or did she need to write to Ms Ntsabo and the Chairperson to request that it be on the next agenda?

The Chairperson confirmed that that matter needed to be put on the next agenda. The matter was important, and it was the first time that the Committee had heard about it. She confirmed that the matter could be accommodated in the Committee’s agenda.

The Chairperson thanked everyone. She was short of words to thank everyone. She thanked the Department, the various advisors, and the Members. Looking at how far the Bill had come, Members needed to give themselves a pat on the back. It had not been easy, and Members understood that they had different views. Individual Members had shown the Committee that they were working as a family. She thanked the support staff profusely. Members needed to prepare to debate in the House. Members were free to debate in the same way as recorded in the Committee report. She also thanked all stakeholders who had attended the meetings. She would “never forget” the Bill process. Members were all learning, and as a result, sometimes requested advice from legal advisors and the Committee Secretary.

The Chairperson wished everyone a wonderful constituency week. The following week there would not be a meeting. Next term resumed on 2 August and the Committee would get the programme.

The meeting was adjourned.

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