Proposed Children’s Amendment Bill: Legal Services on drafting of the Committee Bill
17 May 2023
Chairperson: Ms N Mvana (ANC)
In a virtual meeting, the Committee was briefed by a senior parliamentary legal advisor on the legislative process to draft a Committee Bill on the Children’s Amendment Bill.
The presentation highlighted the risk that the Committee might not have the time to introduce a Committee Bill before the 6th Parliament ended, and that it may be referred to the 7th Parliament only as part of a legacy report.
In May 2022, the Committee decided to reject certain clauses in the Children’s Amendment Bill [B18 – 2020], with the intention that it would do justice to the process by proceeding with a Committee Bill. It was informed that its decision to reject certain clauses in the Children’s Amendment Bill meant that those clauses were taken “off Parliament’s radar,” and a Committee Bill would be a new legislative process, irrespective of the previous work the Committee had done on the Children’s Amendment Bill. It seemed as if the Committee had not been appropriately advised on the implications of rejecting certain clauses of the Children’s Amendment Bill.
An EFF Member said that the legal advisors should have been mindful of the advice they had given to the Committee at the beginning of this process.
A DA Member felt that the rights of children had been “lost in the process of amending the Children’s Act,” and reminded the Committee of its constitutional obligation to protect vulnerable children.
The Chairperson said that the Committee would dedicate the first 30 minutes of its next meeting to deciding whether it would proceed with a Committee Bill or not.
Parliamentary Legal Services on the drafting of Committee Bill on Children’s Amendment Bill
Adv Charmaine van der Merwe, Senior Parliamentary Legal Advisor, Legislative Drafting Unit, took the Committee through a presentation on the development and legislative process of a Committee Bill. The presentation highlighted the following:
• The importance of a well-developed policy document;
• The time needed to develop a Committee Bill;
• The legislative process.
She informed the Committee that although it had worked very hard on the Children’s Amendment Bill, a Committee Bill would be a new process.
If the Committee decides to include all the clauses (multiple themes), it must accept the risk that the Bill may only go through to the 7th Parliament as part of a legacy report.
The Constitutional and Legal Services Office (CLSO) had recommended that the Committee choose one or two themes, and proceed only with that as a Committee Bill.
(See presentation for details)
Ms L Arries (EFF) asked why the Committee had not been previously advised about the implications of how it decided to proceed with the Children’s Amendment Bill. A new process would have further financial implications and time constraints. It might be impossible for the Committee to push through the Committee Bill before the 6th Parliament ended. She believed that the legal advisors should have been mindful of the advice they had given the Committee at the beginning of this process.
Ms L van der Merwe (IFP) said it was a very important presentation. The Committee would have to go back to the drawing board. She believed that the reason why the Committee had decided to proceed with a Committee Bill was to do justice to the process and to ensure that all voices were included – for example, the voices of fathers who wanted their rights to be recognised. The reality was that the Committee might not have enough time to finish this process.
She understood that if the Committee did not pass the Committee Bill in this term, it would lapse, and there was an opportunity for the Bill to be reintroduced in the new term of Parliament. She asked for clarity on whether the Bill could be revived in the 7th Parliament.
Mr D Stock (ANC) appreciated the comprehensive presentation, which clarified many issues. He said the question was whether the Committee had the time to develop the Committee Bill in its remaining term of office.
He was concerned about the time needed to develop a Committee Bill, particularly the time it would take to draft it and consider contentious issues. It would be a lengthy process before the Committee introduced the Bill. Another concern was that if the Committee did not introduce the Committee Bill in this 6th Parliament, it would only go through to the 7th Parliament as part of its legacy report. Should the new Committee in the 7th Parliament also decide to do a Committee Bill on the Children’s Amendment Bill, it would have to start the entire legislative process from scratch, amplifying the cost implications.
He asked which of the 126 clauses the Department considered necessary to be included in the Committee Bill, because the Department was the implementer of the legislation.
He said that the Committee must decide on the approach it would take. It did not seem as if it had the luxury of time to introduce and pass this legislation.
The Chairperson agreed that the Committee was faced with a tough decision.
Ms J Manganye (ANC) said that the Committee had found itself in this position because of the legal advice it received. A lot of state resources had gone into this process, but the Committee was not able to do justice to what it intended to do. The Committee intended to address the gaps in the Children’s Amendment Bill.
She believed it would be a tedious process to introduce the Committee Bill and that the 7th Parliament would decide to deal with it.
Ms P Marais (EFF) recalled that the opposition parties had been “put in a corner” and had walked out in protest on 25 May 2022, while the Committee deliberated on the clauses to be included in the Children’s Amendment Bill. The opposition parties were made to look like villains when they tried to do the right thing. She was glad that the Committee was back to rectifying this process.
She said that the Members were from different political parties, but they all had the same thing in common, which was to bring about change in their communities. She urged the Committee not to just accept and follow one position, because the smaller opposition parties also had proper ideas on how to do things.
Ms B Masango (DA) said that the Committee had been given the impression that its work would not be wasted if it proceeded with a Committee Bill, but the Committee had now been advised that it must start the legislative process from scratch and reduce the number of themes to be part of the Committee Bill. She questioned why the Committee had not previously been given this advice, because it would have informed the decision on how to deal with very important issues that were excluded in the Children’s Amendment Bill.
She asked if the Committee would have another chance to address the remaining clauses of the Children’s Amendment Bill if it addressed only a few issues in the Committee Bill.
She felt that the presentation had been eye-opening and empowering. It concerned her that the Committee had assured the public that the Children’s Amendment Bill would be prioritised, but it seemed as if it might not be able to conclude this legislative process in this 6th Parliament.
Ms A Abrahams (DA) said that the minutes of this meeting should clearly capture that the Members felt misled by the previous legal advice, particularly on the timeframes to proceed with a Committee Bill.
She suggested that the Committee look at its calendar to establish whether it was possible to proceed with a Committee Bill, and not just assume it was not possible. She asked that the Committee be given a clear timeline so that it could make an informed decision on whether it was practical to proceed with a Committee Bill.
She noted the concerns about cost duplication, but the other side of the Committee Bill was the children, especially the vulnerable children of this country. She said that it was the experience that children were not the priority for this Parliament – they were always last on the priority list. Here again, they were lost in the process of amending the Children’s Act.
She reminded her colleagues of some of the issues that they had spoken about, such as the National Child Protection Register, children in institutions waiting to be adopted, abandoned children and babies, and baby-saver boxes. She said that one would be traumatised by the amount of Google alerts in this country, where babies were found in sanitary bins and rivers, et cetera.
She said that while the Committee had to be practical, it also had an obligation and a duty to protect vulnerable children. In her opinion, the Committee was failing at that.
Ms K Bilankulu (ANC) said that the meeting should not be a time for blaming, where one Member points a finger at another. The Committee received legal advice while processing the Children’s Amendment Bill. Today’s presentation showed that it would need time to do the process anew.
She asked if it was a wise decision for the Committee to proceed with the Committee Bill, or if it should rather be handed to the 7th Parliament as part of the legacy report. She felt that the Committee had been betrayed by the legal advice it had received, because it had been of the view that it was on the right track, particularly considering all the money spent on public hearings.
The Chairperson asked Adv van der Merwe to clarify if the process of a Committee Bill was a completely new process, and did not relate to the foster care-related clauses that the Committee had dealt with as a response to the North Gauteng high court judgment. She was concerned that it was too late for the Committee to deal with the 126 clauses, and that it might be left for the 7th Parliament. She reminded the Committee that the process would still need to go through public hearings.
Legal advisor's response
Adv Van der Merwe referred to the Chairperson’s question and said that a high court order against the Department affected certain clauses in the Children’s Amendment Bill [B18 - 2020].
She informed the Chairperson that she did not feel comfortable about the advice another parliamentary legal advisor gave the Committee. She would report this to the Chief Parliamentary Legal Advisor. The Committee should have been advised of the other option to separate the Bill into two – by redrafting one and proceeding with the other.
Instead, the Committee decided to reject certain clauses in the Children’s Amendment Bill [B18 - 2020]. By rejecting those clauses, the Committee had taken those clauses totally off Parliament’s radar. The rejected clauses no longer existed, to use parliamentary speech. The Bill that was passed had spoken to several issues, specifically addressing the high court order. The Bill had been assented to and was now the Children’s Amendment Act 17 of 2022.
The clauses rejected by the Committee to proceed urgently with the others were the 126 clauses that the Committee were advised could be part of a Committee Bill. The Committee would have to do the process anew, irrespective of the fact that it had consulted on those clauses before.
The Chairperson asked Adv Van der Merwe to repeat whether she meant that the Committee had already dealt with the clauses in response to the high court order, and that the 126 clauses would be part of the Committee Bill as a new process.
Ms Arries said that it was very disturbing to hear that the Committee had not been appropriately advised. She informed the Chairperson that her responsibility was to further report to the Chief Parliamentary Legal Advisor. It could not be that it was the month of May, which was Child Protection Month, but the Committee was sitting with a Children’s Amendment Bill that was in a mess.
The Chairperson said that she first wanted Adv van der Merwe to confirm that the Committee had already dealt with the clauses emanating from the high court order, and that the Committee Bill would deal with the 126 clauses.
Ms Van der Merwe said that Adv van der Merwe did say that she would report the matter to the Chief Parliamentary Legal Advisor. Another issue was that the reason why the Committee had decided to reject certain clauses in the Children’s Amendment Bill, was because it intended to proceed with a Committee Bill to do justice to the issues that were raised in public hearings. However, the Committee had now been informed that because it was advised to reject certain clauses, those clauses had fallen off the parliamentary radar and had no standing. This meant that the Committee had wasted resources to conduct public hearings, because the Committee would need to start the process afresh. If the Committee knew that rejecting the clauses would mean they had no further standing, and that it would have to start the process afresh, none of its Members would have agreed to reject those clauses. She suggested that the Committee should be advised on the recourse against the bad legal advice it had received.
The Chairperson reminded Members that the Committee decided to first address the clauses that emanated from the high court order to meet the deadline, and then deal with the other 126 clauses through another process.
Mr Stock agreed with Ms Bilankulu’s comment that the Members should not shift blame by pointing fingers at one another. He appealed to Members not to create the impression that there was a problem with the legal advice that had been given, because the process that the Committee had taken was very clear. He said that the legal advice had assisted the Committee in meeting the court deadline of the foster care-related clauses. The Committee would consider the clauses that it had rejected in the form of a Committee Bill.
He appreciated the elaborate presentation by Adv van der Merwe. He noted that it might not be possible for the Committee to consider all of the 126 clauses, particularly considering the remaining time for the 6th Parliament.
He said that it did not sit well with him that Adv van der Merwe had spoken badly about her own colleague, by saying that the advice that was previously given to the Committee was wrong and that it would be reported. He suggested that the Committee take a fair approach by inviting all the legal advisors it had since the beginning of this process, and make an informed decision.
He urged that the Members should not play politics with the lives of ordinary people. It was the responsibility of Parliament to ensure that children's rights were protected, and fathers' rights were recognised. Parliament must ensure that it protects the rights of all South Africans, especially the children.
Ms Manganye agreed that the Committee had decided to deal with the high court order amendments with immediate effect. She further agreed with Mr Stock's comments about the legal advice that the Committee had received. She questioned why Adv Van der Merwe had not assisted the legal advisor who had previously advised the Committee. She said that the Committee had come a long way in the Children’s Amendment Bill process. The Members had different views, but the majority view remained. All in all, the Members worked together irrespective of their different views.
She said that the Committee must decide on how it would proceed, because it would be too much for the Committee to consider 126 clauses in the form of a Committee Bill.
Ms Arries said that Adv Van der Merwe had informed the Committee that it had been wrongly advised. It was the Committee's right to refer back to its recordings and listen to the advice given. She felt that some Members were attacking Adv Van der Merwe for telling the truth -- that the previous legal advice was wrong. She requested that the Committee refer back to its recordings to make a decision as to whether the legal advice it had been given was wrong, or not.
Ms Abrahams thanked the Chairperson for allowing the Members to speak freely in this meeting. She said it was necessary to point out contradictions, especially if a Member had said that other Members must not point blame at one another, but then proceed to point blame at Adv Van der Merwe. It was not right to point the blame at the legal advisor that was currently on the platform. The Committee was responsible for pointing out the facts, which were reflected in the minutes.
She repeated her question on whether the Committee had the time to process a Committee Bill. It concerned her that the Committee was always pressed for time. The long constituency period and upcoming national elections were more excuses. She suggested that the Committee should come to a resolution on whether it would decide to proceed with the Committee Bill or not, to avoid wasting another week discussing a matter that could be resolved today.
The Chairperson reiterated that the Committee had decided to deal with the foster care-related clauses that responded to the high court judgment, and to reject certain clauses that would be deferred and dealt with through a Committee Bill. She questioned whether the Committee had the time to consider the 126 clauses in the Committee Bill, or if this process would be referred to the 7th Parliament as part of a legacy report.
She would not report anything regarding the legal advice, because she remembered the Committee's decision at the time.
Legal advisor's response
Adv Van der Merwe confirmed that what was dealt with on the Children’s Amendment Bill [B18 - 2020] were the issues that dealt with the court order, which had been finalised. The presentation had referred to the clauses that had been rejected, and which would either form part of a Committee Bill or not.
She said introducing a Committee Bill was the last step in the Committee’s process, which was why she was concerned. If the Committee did not finish the Bill to the extent that it could introduce it, then the Bill could not be revived in the 7th Parliament, because it was not a Bill yet. It only became a Bill when it was introduced. If the Committee Bill was not introduced in this 6th Parliament, the Committee could mention the work done in its legacy report. If the new Committee in the 7th Parliament decided to do a Committee Bill, it would have to start from scratch.
She referred to questions about the approach and what could be done. She said that the Committee did not have to stare blindly at the Committee Bill, because the Executive had worked on this Bill. In order to advise the Committee, the legal advisors and Executive had started going through the 126 clauses to consider which issues were contentious or not. The Executive was on top of those clauses. She informed the Committee that nothing stopped this Committee from saying to the Executive that it must start the process from the Executive’s side.
She reminded the Committee that Parliament had the disadvantage of rising for elections, and then there was a period where not much would happen unless there was an emergency. Thereafter, it was elections, new Members, new processes and new work coming in, et cetera. All of this counted against Parliament in respect of this Bill, but the Executive did not have those limitations.
If the Executive started with the Bill now, it could continue into the next year and introduce a Bill that was updated and informed by public comment. It was not necessary for the Committee to wait until the 7th Parliament to introduce a Committee Bill. The Committee could request the Executive to do the work and start proceeding with the drafting and legislative process. Therefore, if the Committee did decide not to proceed with a Committee Bill in this 6th Parliament, it could inform the Executive to start working on a Bill to introduce in the 7th Parliament.
She said that it was very difficult to answer the question of whether this Committee could meet the timeframe of introducing the Committee Bill in this 6th Parliament. Considering next year's elections, the Committee probably had about eight to nine months to do the Bill. If the Committee focused on one matter and prioritised the Committee Bill, it might be able to introduce the Bill.
Adv Van der Merwe clarified that she had not blamed any legal advisor. She was disturbed by what the Members had said. As a senior member of the Constitutional and Legal Services Office (CLSO), she would need to inform the Chief Parliamentary Legal Advisor of what had transpired. She confirmed that she did not know what had happened, but she believed that the Committee could have been advised on ways to make this process easier. She could not hear the comments from Members and not do anything about it.
The Chairperson said that the Committee would need to decide whether it would attempt to introduce the Committee Bill in this 6th Parliament, or refer it to the 7th Parliament. She felt that Adv Van der Merwe had clearly advised on the way forward. She reminded the Committee that it would also need to focus on the public hearings for the Older Persons Amendment Bill [11 – 2022].
She suggested that the Committee dedicate the first 30 minutes of the next meeting to decide on the Committee Bill.
Mr Stock seconded the Chairperson’s suggestion.
The Chairperson said that the Members must consider the decision to proceed with a Committee Bill, while also considering the number of months remaining in the 6th Parliament. She thanked the Members and the legal advisors.
The meeting was adjourned.
Mvana, Ms NQ
Abrahams, Ms ALA
Arries, Ms LH
Bilankulu, Ms NK
Hlongo, Ms AS
Manganye, Ms J
Marais, Ms P
Masango, Ms B
Pietersen, Ms M L
Stock, Mr D
van der Merwe, Ms LL
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