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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE AND JOINT MONITORING COMMITTEE ON IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF CHILDREN, YOUTH AND DISABLED PERSONS
17 May 2005
CHILDREN’S BILL: DELIBERATIONS
Documents handed out
Children's Bill [(B70-2003) Reintroduced]
Amended Bill: May 2005
Children’s Bill hearings report: 26 January 2005
Report on Workshop on the Children’s Bill: 12 and 13 April 2005
Impact of the Children’s Bill on common and customary law
The Committee started its consideration of the proposed amendments to the Children’s Bill. Officials from the Department of Social Development and the drafting team introduced the amended clauses. Members expressed particular concern that the promotion of family life and the best interest of the child be emphasised throughout the Bill. The issue of the Bill’s relationship with common and traditional law was noted. The Department of Justice and Constitutional Development would be addressing the Committee the following Monday. An intersectoral co-ordination mechanism was provided for, and this was flagged for further attention.
It was agreed that the provisions for children with disabilities and children with chronic illness would be separated, in accordance with national policy. The issue of male circumcision and the right of a child to refuse it was debated and flagged for further attention. Many Members felt that it was discriminatory and represented an attack on African culture.
The Chairperson reminded the Committee that no more presentations would be entertained. He welcomed Mr J Sibanyone (ANC) from the Justice and Constitutional Development Portfolio Committee.
Dr M Mabetoa (Chief Director: Child, Youth and Family, Department of Social Development) introduced the amendments, saying that consideration had been given to the recommendations by the Committee. The Department had held a series of meetings with the drafters, and she noted the need to allocate a specific day to engage with the Department of Justice and Constitutional Development on Chapter 4. It was agreed that the Committee would discuss Chapter 4 in its meeting on Monday, 23 May 2005.
Ms R van Zyl (South African Law Reform Commission [SALRC]) explained that subclause 2 (a) had been inserted to include the Constitutional rights of children. The words of the Constitution relating to children and the rights of children had been used.
Subclause 2(b) had been amended by the insertion of "psychological", as agreed at a previous Committee meeting.
Subclause 2(d) had been inserted in accordance with the emphasis suggested by the Committee.
Mr M Masutha (ANC) expressed concern at the sequencing of the Objects, suggesting that 2(a)(i) should not be at the top of the list. The Section 75 Bill focused primarily on the rights and responsibilities of parents, and the promotion of family life would set the correct tone for the Bill. There was an historical perception that Social Development and social workers were there to take children from their parents if they were felt to be unfit. It was understandable to want to put the Constitutional rights first, but the wording set the wrong tone. International obligations should also be brought in immediately after the Constitutional obligations. The suggested sequence was the family, Constitutional imperatives, international obligations, and then the rest of the Clause.
Ms van Zyl confirmed that this would renumber (d) to (a), (a) to (b), (g) to (c), and the rest would follow in their current sequences.
Dr Mabetoa suggested that (e) seemed a repetition of (a)(iii) and that it be deleted. Mr M Waters (DA) agreed that repetition was undesirable, but said that (a)(iii) was a much shorter provision and that it could not just be eliminated.
Ms van Zyl proposed that (e) be amended to delete what was contained in (a)(iii), thus reading "to protect children from discrimination, exploitation and any other physical and moral harm or hazards". This was agreed.
Mr Masutha noted that this Clause had not been changed, and asked how it was proposed to give clarity on the relationship between the Bill and common and customary law. The Bill should have pronounced itself on this.
Mr P du Preez (Legal Advisor, Department of Social Development) observed that the drafters had only received Professor Himonga’s submission that morning, but that it seemed to comment specifically on Chapters 8 and 12.
Mr Masutha referred to the submission’s argument about the relationship between legislation and common law, and suggested the Bill should make it equally clear in this Clause what would happen if common law conflicted with legislation, or to specify exactly what would prevail in specific instances. The Bill should provide a broad basis for this, and the drafters needed to consider the question.
Ms van Zyl observed that customary law and traditional courts were under discussion in the Department of Justice and Constitutional Development. Professor Himonga’s submission seemed to be a good legal opinion and it would be advisable for the Department of Social Development to consult with the Department of Justice on how to deal with the issue. Clause 8 of the original Bill had been taken out of the amended version, as it was now redundant. The drafters would have to look at how to deal with issues of customary law. One of the reasons that the issue was not addressed in the Bill was the process of review with the Department of Justice. The drafters would revert to the Committee on the issue.
Mr Masutha emphasised that this issue impacted the Bill as a whole. He took the point that legislation took precedence over common law, and felt that the same would apply to customary law. In any case, it would depend on which was more in line with the Constitution. There should be a guideline in the same way as there was a guideline in relation to other laws, along the lines of resolution in terms of the Constitution. In terms of application, both customary and common law should be applied along the principles established by the Bill. This should be a standard, not just something applied in instances of conflict. The Bill was trying to promote a new mindset.
The Chair suggested the drafters consider and reflect on the issue and come up with something to assist in making the Bill more practical. It was flagged for the first debate with the Department of Justice on Monday, 23 May.
Clause 4(2) had been amended, as the state was a huge organisation. The new wording was more specific, and tied in with the new Clause 5. The change was commended.
A completely new Clause 5 had been inserted. One of the reasons that NGOs had strongly supported the former National Policy Framework (NPF) was that they had felt it should be something that obliged various government departments to co-ordinate their efforts. It had been decided that the NPF should not be included in the Bill. There was Constitutional Court case law indicating that policy was not implementable as legislation. The new Clause 5 was an attempt to cover intersectoral implementation of the Bill.
The Chairperson expressed approval of the new Clause, but pointed out that "spheres" should be included in Clause 4(2). This was agreed.
Ms H Bogopane-Zulu (ANC) remarked that she felt the wording was too vague to achieve the strategies, particularly since co-ordination was one of South Africa’s weaknesses in relation to children’s issues according to feedback from the United Nations.
Dr Mabetoa replied that the previous Bill had contained only one strategy, the NPF. This amendment suggested strategies, and this was a simpler way of doing things, as there were a variety of strategies, for example early childhood development. It might have to be translated into a comprehensive policy but strategies were necessary and intersectoral.
Mr L Nzimande (ANC) suggested that it related to levels, and that local government was definitely not up to the mark. In the context of the Clause, he felt the use of "strategies" was correct. Co-ordination was needed since this Bill could not supersede all other legislation.
Ms Bogopane-Zulu asked why the Bill was developing something that had been done already. The National Programme of Action (NPA) had a monitoring function, and also monitored and co-ordinated at provincial level, and it was situated at a high level. As the Clause currently read, this would just enhance the NPA.
The Chairperson suggested the Clause be flagged until consensus was reached, as the ANC had not really discussed the issue. The Bill was enabling and should give a broad leeway, but the ANC would decide this at study group level. Mr Nzimande’s remarks were important. The Intergovernmental Relations Bill would also have a bearing on the issue.
Mr Masutha expressed the concern that in an attempt to improve on the existing Clause, the drafters might not have fully applied their minds to the debate. The Law Reform Commission draft had sought to create a super policy framework, and Cabinet had rejected this. One of the reasons for this was that some aspects went deeper to the character of a Constitutional democracy, where the question of allocation of resources was a policy decision. The need for an integrated and co-ordinated approach to the implementation of policy was not at issue, and there was a need to look at the way in which administrators integrated their efforts so that they were not working at cross-purposes. This Clause addressed that. The difficulty was that the new Clause alluded to giving effect to Clause 4(2). It was necessary to find a formula to affirm the principle of co-ordination in the implementation of policies as they existed, and not confined to this Bill. Departments needed to integrate their plans and administrative tools.
Dr Mabetoa remarked that the Clause did not cover the broad implementation of services to children but was limited to the Bill. This required rewording.
Mr Masutha said that it was a problem that, if one looked at Clause 3, this addressed other laws in relation to the Bill, so was trying to push towards cohesion in the law. If that principle was lost and the mechanism was limited to the Bill, the opportunity to co-ordinate was lost.
The Chairperson noted that the Clause had been flagged and hoped that consensus would have been reached by the following week.
There had been an objection to this Clause when it was originally discussed, as it could be prescriptive in relation to the passing of legislation in future. The original Clause 6(1)(a) had thus been removed, and the rest of the Clause renumbered.
Subclause (2)(a) had been reworded because the original Chapters 2 and 3 had been combined.
Subclause (2)(e) had been inserted to recognise the child’s right to play and to leisure. This tied in with the African Charter.
Subclause (6) had been amended according to a proposed change agreed to by the Committee. It had been felt that the focus needed to be on informing the child.
Ms Bogopane-Zulu suggested that subclause (2)(d) should be reworded to include discrimination on the grounds of disability.
Ms van Zyl replied that the Clause referred to the best interests of the child as contained in Clause 7, and that there was also a specific Clause on disabilities later in Chapter 2.
Mr M Gamede (ANC) asked why issues of disability were included in general principles as he felt they should be in the Objects of the Act.
Ms van Zyl replied that the Constitution as such did not refer to disability in children’s rights, and the Objects of the Act contained the Child Rights chapter. The child rights section of the Constitution referred to the paramountcy of the best interests of the child, and the Bill contained this in Clause 9. The Bill had also set out a standard when determining the best interest (Clause 7), and, to ensure that disability was given due consideration, this had been included in Clause 7. Disabled children were still children, and should not be dissociated. A new Clause 11 had also been included to cover disability and chronic illness.
The Chairperson emphasised the need to see all children first as children. This was confirmed by Ms W Direko (ANC), who suggested it would otherwise be discriminatory.
Ms Bogopane-Zulu remarked that there had been a policy decision by Government that disability should not be linked to chronic illness. If gender was specifically mentioned as a form of discrimination, disability should be mentioned as well. In reality, disabled children were not seen first as children.
Ms van Zyl replied that the drafters had worked according to input from organisations in the disability sector, but that she was willing to amend the Bill to separate disability and chronic illness. The Clause on gender referred to was Clause 7(1)(g).
The Chairperson flagged the issue and asked the drafters to prepare choices for the Committee. A decision on mentioning disability would be taken when the draft was presented.
Mr Masutha asked for clarity on whether the Bill sought to amend the common law principle that said the child was the property of the unmarried mother. If Clause 6(3) applied from birth, it would indirectly amend the common law.
Ms van Zyl replied that this was specifically aimed at the maternal preference rule.
Ms M Magazi (ANC) asked how the question of a child born out of wedlock and the child of a marriage impacted on the rights of children. It was important to first see the child as a child with full rights. It also went to the question of whether the child belonged to the mother.
Mr Masutha remarked that his question had been essentially technical, not dealing with the principle itself. It was a question of the point at which the principle came into force. When a dispute arose, the best interests of the child were considered. The issue was whether it was only at that point that the provision applied, or whether it was an automatic principle. Common law sought to prevent a situation where there was uncertainly at the birth of a child. The question was whether the Committee wanted to change this, or continue but say that it would change when the father returned or came forward.
Ms Bogopane-Zulu reminded Members of the need to keep a clear and open mind. Men had been criminalized for a long time, and there was a need to create an environment to counter history, so that it was not taken into the future. Parents must be made part of the lives of their children.
Ms Direko said that in her experience some men were criminals who disappeared and did not take responsibility for their children, then realised at a late stage that they were biological fathers. The mother should be protected, generally speaking.
Dr Mabetoa said that it had been an oversight by the Department not to align this with Chapter 5, and that it would be redrafted.
Ms van Zyl noted that Clauses 19, 20 and 21 dealt with the rights of fathers, and proposed that it be dealt with there. The Chairperson flagged the issue.
Mr K Morwamoche (ANC) said that there was a need to check all issues, because the father’s contributions might have been rejected. The Chairperson remarked that there were also questions of culture and common practice.
Ms Direko expressed concern that the Department had missed the issue. Ms van Zyl pointed out that it had not been omitted but added later in the Bill.
Subclause (1)(f) was amended to omit "tribe".
Subclause (1)(i) had been inserted, and would be separated in accordance with the agreement on the separation of disability and chronic illness.
The previous Chapters 2 and 3 had been combined into Chapter 2, so the heading for Chapter 3 had been removed. Clause 8(1) had been amended accordingly, to refer to the "Act" rather than the "Chapter".
The original Clause 8 had been the same as the current Clause 3, and had thus been omitted.
The original clause had been separated into two subclauses for clarity.
Mr J Kollapen (Human Rights Commission) had pointed out that "proceedings" and "matter" were not necessarily the same, and "proceedings" had been omitted.
Ms Bogopane-Zulu asked who would determine whether the child was capable of participating meaningfully.
Ms van Zyl replied that this was a new issue, and linked to the reference to sufficient age, maturity and stage of development.
Dr Mabetoa asked whether the Committee would prefer the issue to be clarified. Ms Bogopane-Zulu suggested it be qualified or cross-referenced, as it was too open as it stood. An English-speaking judge might not consider a Xhosa-speaking child capable, for example. Ms Direko felt that it should not be left to the personal interpretation of the presiding officer.
Dr Mabetoa agreed that it would be changed. Ms van Zyl pointed out that where the Bill referred to input from children in other Clauses, it used the formulation of age, maturity and stage of development and suggested that be used here. The issue of languages was dealt with by a specific Clause in that Chapter.
Ms Bogopane-Zulu pointed out that not all issues would take place in a court situation.
Ms S Rajbally (MF) asked what would happen to a child that was not capable but wanted to participate.
The Chairperson suggested the Department re-visit the issue, and flagged it.
The original Clause 11 had been removed in its entirety, and replaced with a completely new Clause. Concerns had been expressed about children with disabilities and chronic illness. Since these children required special consideration, it had been decided to mention them specifically. Suggestions had been made during the workshop process and the drafters had worked more or less along those lines.
The Chairperson noted that disabilities and chronic illness was linked in this Clause and asked whether the drafters saw them as separate issues.
Mr Nzimande said that he felt it had been agreed that they were two different categories and that they would be separated. What was practically envisaged by the provision for special care in Clause 11(1)(b)? He suggested it be amended to read "appropriate care".
Ms J Tshivhase (ANC) said that it sometimes happened that children were engaged in cultural practices, but not by choice, and asked whether this was covered. The Chairperson noted that this was dealt with in Clause 12.
Mr Gamede suggested that Clauses 11(1)(b) and (c) fitted together as care was a support service.
Ms Bogopane-Zulu said that the idea had been to re-emphasise issues that led to the exclusion of children with disabilities. Some of the Clause needed re-drafting, as cognisance had not been taken of previous discussions. Clause 11(1)(a) was already covered. There needed to be recognition of the special needs of children with disability, and Clause 11(1)(a) should be about creating an enabling environment. The provision on special care in Clause 11(1)(b) was also too vague, and should recognise that special care was not necessarily the way to go. Clause 11(1)(c) needed to be reworded, as resources had previously been committed to the provision of support services. Subclause 2 needed careful consideration when disability and chronic illness were separated out, as social, cultural or religious practices related more to children with disabilities, and medical practices related more to children with chronic illness.
Ms Weber noted that there had been no reference to the rights of refugees and unaccompanied foreign children.
Ms van Zyl replied that Mr Masutha had highlighted the question of whether the Department was able to offer a full range of services to these children. It was intended to take immigrant and refugee children out of the general principles and put them in the chapter on children in need of care and protection, as this was how they had been defined in the Lindela case. The Chairperson requested the Department to distribute copies of the judgement to Members, and confirmed the need to separate provisions for children with disabilities from children with chronic illness.
Ms van Zyl confirmed that Clause 11(1)(a) would be amended, and that (b) would be amended to replace "special" with "appropriate".
The Chairperson requested that "and religious" be included in subclause 2. This was agreed.
Clause 12 (3)
Subclause 3 prohibited the genital mutilation or circumcision of female children for any reason.
Subclause 4 was a new insertion, prohibiting virginity testing for any reason.
Subclause 5 was a proposal for debate. It was a sensitive and problematic area. The issue of unhygienic conditions had been removed, as this was the field of the Department of Health, which was working on a policy for this.
Subclause 6 was a new provision in respect of recourse for a male child subjected to circumcision against his will.
Mr Nzimande asked whether it would be possible to reword the subclause to make it gender neutral, in view of equality legislation.
Ms A Johaar (State Law Advisor) replied that Section 15 of the Constitution gave freedom of religion, so prohibiting all circumcision might be infringing this right.
Ms van Zyl pointed out that circumcision was one of the instances where biology made a distinction between genders. Female circumcision was very different from male circumcision, which was not a serious medical trauma and was widely recognised. Female circumcision and genital mutilation were banned internationally and were actively propagated against by the United Nations. It involved removing organs, and South Africa was completely in line with international trends to ban it; therefore it had to be banning of female circumcision and female genital mutilation. It was impossible to be gender neutral.
Ms Tshivhase reminded the Committee that there was no biological reason for female circumcision. It was agreed that the subclause would remain.
Ms Rajbally asked what would happen if a child were old enough to give consent, and whether this also applied to males. Ms Bogopane-Zulu replied that the Bill addressed only children. Dr Mabetoa confirmed that the legislation covered only children under the age of 18 years, and that subclause (3) did not apply to males.
In respect of subclause 4, Dr Mabetoa reminded the Committee that Members had taken a very strong stand on the issue at the workshop. Ms Bogopane-Zulu requested that it be flagged, pending the debate on the age of consent for sexual intercourse. This issue might also have to be revisited depending on the outcome. This was noted.
In respect of subclause 5, Ms Bogopane-Zulu felt that "refuse" was too strong and impractical. "The right not to be circumcised" would be more helpful as the provision also regulated relationships between parents and children.
Mr Nzimande concurred, and said that most circumcisions were undertaken within the collective. He supported Ms Bogopane-Zulu’s proposed wording.
Ms Direko noted that it had become a trend to abduct children for circumcision, and they needed protection.
Ms P Moodley (Department of Justice) replied that it was a matter of drafting. The right to be circumcised emanated from the Constitution, and the drafters had given the child the right to choose.
Mr Sibanyoni supported the use of "choose" rather than "refuse".
Ms Magazi referred to the Jewish practice of infant circumcision and asked what happened in this instance, since the parent gave consent.
Ms Rajbally remarked that it linked to the choice on termination of pregnancy. In the Hindu faith, the genitals of either sex could not be interfered with. It should be left to the choice of the person.
Mr S Kholwane (ANC) asked what happened when people did it without religious or cultural reasons.
Mr M Diko (UDM) observed that the drafters needed to be very careful on this issue. If the law stated that a child could refuse, it might be felt that only African culture was being attacked.
A Member remarked that in her culture, most young boys chose to be circumcised and celebrated the event.
Ms Bogopane-Zulu asked whether the punitive measures would include doctors in hospitals, not just African men, and asked for clarity on what would happen if a boy was circumcised as a boy, and decided at 16 that he was not happy about it. Dr Mabetoa replied that the Clause was meant for older children.
Mr Diko was concerned that the legislation appeared simply to attack the African culture, and said that the child of eight-days-old should also be protected.
Ms Rajbally suggested defining male child and age.
Mr Gamede remarked that the purpose of the Bill was to protect the child and the definition of the Bill meant that everyone should be treated equally.
Ms Johaar said that Section 31 and the religious Section of the Constitution prevented legislation from prohibiting something like that. Circumcision could not be removed completely.
Ms Direko felt that very emphatic legislation was needed to protect young people from being abducted.
A representative from the Department of Justice said that at the end of the day, the courts would look at the intention of the legislation, and what evil was being addressed. It was not the intention to attack the culture of circumcision. The issue was the abduction of people for circumcision, and the Department’s formulation was more suitable.
Ms Rajbally suggested that the drafters check that the provision was in line with the Constitution. Ms van Zyl confirmed that there was no specific mention of circumcision in the Constitution.
The Chairperson recommended the acceptance of "refuse".
This Clause had been broadened, with the addition of subclauses (b) and (c). The Department had also felt it might need to include treatment in 13(a).
It had been found that Clause 15 and Clause 53 had not been in agreement. The Clause had been reworked to streamline it, and the new clause would be checked with the State Law Advisor.
The Chairperson flagged Clause 15 pending any issues arising from the consultation with the State Law Advisor.
The meeting was adjourned.