A summary of this committee meeting is not yet available.
SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
23 May 2005
CHILDREN’S BILL: DELIBERATIONS
Documents handed out
Chapter 5: Children’s Courts
Amended Clause 4: Implementation of Act and Clause 11: Children with disability or chronic illness
Chapter 7: Protection of Children
Chapter 9: Children in Need of Care and Protection
Children's Bill [(B70-2003) Reintroduced]
A delegation from the Department of Justice presented Chapter 5 on Children’s Courts. The issue of accessibility was raised several times, with the Committee noting that High Court applications were beyond the reach of most of the population. It was imperative therefore for authority over simple guardianship matters to be devolved down to the lower courts. The Department of Justice noted the discussions, but referred to the ongoing review of the court system, and asked the Committee to await its outcome.
The role of traditional leaders and their training in Children’s Bill matters was also raised. The Department of Justice deferred this discussion as well, citing ongoing research into the role of traditional leaders. A Bill addressing the issue was due to be placed before Parliament soon.
Particular attention was paid throughout the Chapter to the issues of access for children with disabilities, and the special needs that might arise, such as relay interpreters and appropriate facilities. Provision was also made for the removal of a perpetrator from the home, and this was discussed at length, with some Members expressing the concern that it might have the unintended consequence of precipitating family killings.
The Department of Social Development presented amendments to Clauses 4 and 11, as discussed in previous meetings. These were agreed to by the Committee.
Part 2 of Chapter 7 on the National Child Protection Register was discussed at length, particularly a proposal to make the listing of perpetrators under Part B retrospective, for a period of five years before the Act became law. It was felt that this would provide an additional safeguard against perpetrators already employed in childcare institutions, including schools and churches. This would have an impact on an employee’s conditions of employment, but, since that employee had a duty to disclose the listing of his name on the Register, s/he could be found guilty of misconduct if s/he did not do so. A provision was introduced to compel employers to check the Register for the names of current employees, as well as prospective employees. The Committee noted that rapists particularly tended to be serial offenders.
The Department of Justice was represented by Ms K Shabalala (Chief Director: Protection of Rights of Vulnerable Groups), Ms P Moodley, Ms C Kok and Mr R Skosana (Senior Legal Administrative Officer).
Mr M Masutha (ANC) was concerned that, during the Cape Town Convention Centre workshop, a Commissioner had remarked that magistrates were not happy about the Bill consultation and generally felt there was no need for a new law. Hopefully Justice would, in the course of their presentations, clear the air about the issue of buy-in from magistrates into this process, because without them this Bill would never ‘make it’.
Ms Shabalala addressed some earlier concerns and questions. The point was frequently made that the Department always came with the excuse that it was still waiting for Family Courts, but each and every magistrate’s court in the country had a Family Court, as it catered for divorce, maintenance and children's courts. The Department had been waiting for legislation, as the Judicial Matters Amendment Bill had only been passed in February, but they were now allowed to appoint presiding officers. There had also not been a budget from the Treasury, but they were now working on refining the model. All courts were functioning, but the Department wanted them to specialise, and to have properly trained staff members, and would be introducing paralegals instead of other clusters. They hoped to attract paralegals in the future and, in order to build capacity, these people would be given a lot of training. A learnership had already been introduced, and training would be given on alternative dispute resolution mechanisms and counselling skills. It was also envisaged to appoint maintenance officers who would be legally trained to give substantive legal advice. This was in process, and the Department had actually selected and identified hotspots throughout the country, because it had been felt that rural areas and townships had been neglected in the pilot sites. The intention was to introduce the same standards of service as far as possible.
Another issue that was frequently raised was that of guardianship, and the fact that it had not been given to the rest of the courts in the country. Since the new Minister had come on board she had been working on the transformation of the judiciary, the review of the justice system, and with other departments, in particular the Department of Social Development, the Police, Correctional Services and the Department of Education. This jurisdiction was a very sore point as it went together with the question of a single judiciary, and the Minister had met with some of the programme managers on Sunday to address the issue. A structure had been devised to assist, as if a regional court president had to report to the Chief Justice, then the lower courts would have to do the same. There would be a chief magistrate in charge of family matters and would be responsible for looking after family matters, including children’s courts and so on. The responsibility would also be cascaded down so that the function was given the prominence it deserved. There would also be a chief magistrate in charge of civil proceedings and one in charge of criminal proceedings. It was not easy and would also entail a change in legislation. Unfortunately it was totally out of the hands of the Department and in the hands of the Minister.
In respect of the issue of customary law and the role of traditional leaders in the issue of children’s matters and children’s courts it was noted that traditional leaders had been in the process since 2002. The Law Commission had started a process of going round the country to each province. Ms Shabalala had personally been responsible for workshops in KwaZulu-Natal, consulting with traditional leaders, magistrates and commissioners. Workshops had covered gender equality and other issues in discussion in the Committee. A full report had been tabled, and the Law Reform Commission report published. A Bill outlining the functions of traditional leaders had been established. These had been tabled before the previous Minister, and it was now the function of the Department to track what had happened to that Bill and to brief the current Minister. The Deputy Director-General of Justice was working in close consultation with traditional leaders on issues of the appointment of commissioners of oath and so on. The Department of Justice was going out to do training. This process would follow after the Bill as well as the report had been considered by the Minister and placed before Parliament. It might not be true that the report had provided for the role of traditional leaders, but the Bill itself made provision for the role of traditional leaders where a Commissioner ordered an investigation should be held or a forum convened where issues could be dealt with in the community. The whole issue had been dealt with extensively and it would not be possible to "reinvent the wheel". Once the matter had been tabled before the Minister, there should be a consultative forum where results would be tabled. It was a process in which all the stakeholders were involved. The Bill would outline the exact powers of the traditional leaders.
The comments of the Commissioner attending the workshop had been distressing because the Department had worked closely with one of the structures of the magistrates, the Lower Court Management Committee (LCMC). Within their own structures the magistrates also had a committee that looked closely at issues pertaining to children’s courts. Guidelines for Commissioners of Child Welfare were being developed to ensure uniformity. There was another small committee that dealt with domestic violence and maintenance. Magistrates were fully represented by their own structures. Commissioners of Child Welfare were actively involved in the LCMC; so all responses were a result of the consultative process with Commissioners of Child Welfare.
Ms Moodley remarked that when the Law Commission was in the drafting process, it had consulted with all parties. She had been acting as a family court magistrate at that stage and had been part of the committee that had drafted this Chapter. She had not been the only one on the team at the time, and there had been further consultations after the drafting of the Chapter. It was unfortunate if some people felt excluded.
Mr Masutha replied that, on the issue of traditional courts, he appreciated the fact that the process would clarify the relationship. The issue arose in the Bill in two ways. Unlike the existing Child Care Act, which basically created a parallel system of law relating to children, parallel or alongside common law and customary law, this Bill departed from that approach to some extent. While it did not repeal and substitute the common law in its entirety, the Bill did make certain alterations, specifically relating to common law. In addition, some aspects of statutory and common law had been integrated. There was, however, still no clarity on the Bill’s attitude to customary law and its institutions. These would obviously continue, but it was not entirely clear where synergies should be created, or where the two systems should be kept apart. The Office of the Master of the High Court had spoken to the Committee a few months previously on the provision in the Administration of Estates Act where, for example, placement of children in the form of adoption and other systems under customary law was given recognition. In other words, the placement of a child in terms of customary law would be recognised for purposes of the Act. In essence, there was a need at some point to get clarity as to whether this Bill needed to create any synergies between the way in which it dealt with issues on children and the way in which customary law dealt with it. This Bill expressly abolished certain customary practices, but this was its only explicit relationship.
In terms of the institutions, he appreciated that the Department was still working on the issue, but where chiefs of customary courts made certain rulings relating to children, there was a question as to whether the Bill should make any reference to instances of that nature. It was uncertain whether the Committee should simply assume that the existing arrangements, where in some instances the local magistrate would authenticate the decisions of the traditional leaders, would continue, pending a new dispensation.
Ms R van Zyl said that, when the drafters had been working, they had found in the Zulu code of law that a magistrate could make rulings in respect of guardianship, and asked whether this Bill would be repealing that provision.
Ms Shabalala replied that the Bill had been drafted after consultations with traditional leaders and magistrates. It had taken cognisance of all codes, because various provinces had various codes. In the report itself, the codes used by the various provinces had been outlined. The provision would definitely come out of that particular Bill. It was not felt necessary to bring it into this Bill as all the issues had been catered for.
In respect of linkages, where a provision stated "after consultation", nothing would prevent a person from bringing in traditional leaders, and no magistrate would refuse a ruling by a traditional leader. Evidence could be led to that effect to make magistrates take cognisance of those decisions.
Mr B Solo (ANC) mentioned the case of his sister in Soweto, who had recently had to go to the Supreme Court on issues of children. How would she know about the Black Administration Act provisions that recognised such arrangements? It was essential to have a Bill that would be simple for people who cared for children and that would make it easy for them to follow the processes holistically. The Bill, with all its different concepts of laws should be looked at carefully and be reflected in the Children’s Bill to make it simple, so that the best interests of the children were considered. The concept of integration should be taken very seriously.
Mr Masutha observed that he was aware that Justice had not really prepared for this question in this context. One of the intentions of the Children’s Bill was to create mechanisms that were simpler and more cost effective for access to justice, including less formal kinds of interventions, so that people did not necessarily have to go to court. Where the issue arose out of customary law, would the institutions created here, both formal and informal have the jurisdiction and competence to resolve them? At this stage, he understood that traditional courts were in place and that the Constitution recognised them. There might be questions of clarity on jurisdiction and competence. Traditional courts were competent to deal with included areas of family law with which this Bill was concerned. The Bill made no mention of customary law processes or systems or institutions as a first port of call in the event of disputes arising out of customary law. The Committee needed to be assured that whatever existed at present would be able to integrate with arrangements sought to be created under this Bill related to children. If there was a family dispute, for example when people were married under customary law, that law required the children to be left with someone specific. The Children’s Bill anticipated a situation where gender should not be a sole consideration in resolving disputes. There was no clarity as to how the issue should be resolved, either according to the principles of the Bill or the principles of customary law. Would the magistrate, if the matter went to him, recognise the arrangement made by the traditional court or simply put it aside and completely apply the Bill? This should be considered further by the Department of Justice. In reality, the Bill was the driver in terms of childcare law from now on, and thus was the anchoring point in terms of family law, especially those relating to children and everything else would have to "synergise". The issue had still not been adequately resolved.
Ms Shabalala remarked that the issues mentioned by Mr Solo were close to her heart and she felt that the Department had been overtaken by events. It did not make sense for ordinary people to take such issues to the High Court, and with the rate of HIV/AIDS, it was unaffordable. There would be a workshop in Pretoria on 25 May, emanating from the gender directorate. It had been determined that, if people married a second or third spouse, they would have to draw up a contract. These issues should be prioritised and placed before the Minister, as the matters should be dealt with at least at regional level. Services should be accessible to people at all times and at a very low cost. The matter would be taken forward, as would the issue of estates. She took Mr Masutha’s comments about synergies, and suggested a provision in the Children’s Bill to say that if a matter had been decided by a traditional court, ordinary courts would have to take cognisance of it. The Department would look at the inclusion of this provision. The role played by traditional leaders could not be ignored.
Ms W Direko (ANC) expressed concern about traditional courts, quoting a case not affecting children, but involving a woman who had been separated from her husband for many years. She had died, and had been in the mortuary for six weeks because her in-laws had insisted that she be buried according to African custom. The matter had been taken to the traditional court, which had decided in their favour. She had to be buried by her in-laws, and her mother was helpless. The in-laws did not have the means to bury her, and insisted the mother bury her at the in-laws’ village. The law needed to protect women against this injustice. It was critically important to have clarity on powers or the direction to be taken when there was this kind of situation.
Mr Masutha remarked that, over the years in which they had researched the Bill, the Law Commission had done much work in respect of its relationship with common law. He felt it should be acknowledged that very little work had been done in the area of family law under customary law and how it related. At the time the Law Commission had also been investigating traditional courts and this process could have tapped into that. The Committee needed to highlight areas that needed more attention. Amendments would have to be made to the Bill, either by way of future amendments or when new legislation was introduced on traditional leaders. One of the objectives of the Bill was to eliminate the gap where children fell through the cracks and where different systems had different values. It was hoped that the Bill would address so-called forum shopping. The Committee should flag the issue in its report when it passed the Bill.
Ms van Zyl reminded the Committee that the Department had suggested to the Department of Justice that, because the whole court system was under review, problems with the high prevalence of orphans, and the high cost and time involved in High Court cases, it should be possible that when a child had no-one and family members wanted to make application for guardianship for sake of legal certainty, such an application should be devolved down to the children’s court, while serious cases to have guardianship removed should remain with the High Court.
Mr Masutha asked for an answer that day, as one of the most contentious issues in discussion had been the arguments for the retention of guardianship at the High Court level.
Ms Shabalala replied that it was part of the process of reviewing the whole justice system. The Act was looking at giving responsibilities to lower courts but this would not take the form of taking them to district magistrates per se. For each regional court, there would be a magistrate dealing with divorce matters, and this was the start of taking civil jurisdiction and family court jurisdiction to magistrate's courts. Each province would have the responsibility to deal with such matters. It had to be fast tracked because people were suffering. The Department was pushing the issue, but it had to be the Minister’s decision. When she returned to the office, she would draft a memo to request a meeting to sensitise the Minister about the issue.
Mr Masutha confirmed that the issue would not be factored into the Bill immediately. The Committee could allude in their report that the Department of Justice was investigating the matter, and would be responsible for introducing an amendment to the Bill to introduce the new concept of family courts.
Chapter 5: Children’s Courts
Part 1: Establishment, status and jurisdiction
Clause 42: Children’s courts and presiding officers
Subclause (3) had been inserted, as there were no magistrates in certain areas. Every magistrate at the head of a court was a Commissioner for Child Welfare, so that, in one man stations, the magistrate would perform that function.
Subclause (8)(c) was amended to ensure that courts would be user friendly and cater for all vulnerable groups.
Subclause (11) had been inserted to provide for the qualifications of presiding officers of children’s courts.
Mr M Waters (DA) remarked that he was sure that all new courts were disabled friendly, but asked what was happening about old courts, for example to make them wheelchair-friendly, and what timeframe was in place for the process.
Mr Masutha remarked that he was pleased at the allusion to accessibility for children with disabilities. He had recently been approached by an organisation for children with disabilities to inspect the magistrate’s court in Nigel. He had discovered that the lift had not worked for the last eight months, and that the lift itself was outside the public area behind a high security access door. People had assumed that the court did not have a lift because members of the public had never seen it. All courts were on the first floor of the building. This showed that facilities were there but sometimes either not working or inaccessible.
Ms Shabalala replied that ramps were provided with new buildings. It was also the policy of the Department to ensure that ramps were provided where renovation programmes were under way. This issue would also be brought to the attention of the new general manager for each facility. It also tied in with the question of the lift. The administration of courts at the court level was now assigned to court managers, who were supposed to look at issues of resources and facilities such as air-conditioning and lifts. This was still a new concept and most managers had not yet reached that level. The matter would be brought to the attention of the general manager, who would visit the court and ensure that repairs were made. If the problem related to the lift, the budget was at the national office, and therefore with the general manager.
Ms Direko noted that Nigel had been fortunate to have had Mr Masutha. She suggested that send circulars to provincial heads of department with a series of questions, so that when feedback was received from the provinces, the Department would have an idea of what needed to be done where and how.
Mr Solo asked what qualifications a general manager would have, and whether the answer might be a change of mind.
Ms Shabalala replied that she had taken Ms Direko’s point to send a circular to all provinces. Her programme was embarking on a project where hotspots were identified, but other areas visited as well. Victim support was another area of intervention, as each court should have proper waiting rooms and consultation rooms. The issue also involved the maintenance of facilities. She would write to regional managers requesting them to take care of these issues. The court management system was relatively new, and had started in 2003 with the restructuring process. In the past, the administration of courts had been done by magistrates. With the separation of powers, court managers were now being appointed, and these people did not need to be magistrates. Each court was required to have a handyman, able to identify leaking taps, air-conditioning problems and so forth, and each court had a day-to-day allocation of R3 000 and R5 000 for bigger courts, so there was no need to live with broken windows, etc. The Department was trying to develop these kinds of managers. The post needed to be elevated and would have to be advertised to attract the right people to perform the function.
Ms S Rajbally (MF) referred to the need for presiding officers to have linguistic skills and asked how many kinds of languages would be required to fulfil these qualifications.
Ms W Newhoudt-Druchen (ANC) said that this referred not only to sign language skills, but, for example a person who only spoke Afrikaans would not understand a Xhosa speaker with minimal experience in court. People in court needed Zulu and Xhosa for example. What would happen in rape cases with very small children that required very skilled interpreters and definitely a sign language interpreter? This might not be provided for at the court, would there be a contact list? Access to the disabled referred not only to disability, but that other needs would also need to be provided for.
Ms Shabalala replied that there were language services, but that it was unfortunately not possible to provide all languages at each court. There were institutions with people with a number of languages, and interpreters were stationed in every court and there was a register of specialist interpreters at each court. The magistrate would be able to call on someone, especially if it was known beforehand that one of persons appearing needed a sign language interpreter.
Ms Rajbally asked for clarity on the question, asking if the requirement for linguistic skills would fall away from the presiding officer because there was an interpreter.
Ms Moodley agreed to omit the requirement for linguistic skills.
Mr Masutha referred to the allusion to regulations in subclause (11)(2)(a), and asked whether these referred to the regulations under this Act or regulations to be made under the Magistrate’s Court Act. If the regulation was to be in the Children’s Act, the current regulations did not address them. The Department of Social Development would have to take its cue from the Department of Justice, as they were the principals when it came to magistrates.
Mr N Godi (PAC) suggested that subsections (1) and (2) implied that, over and above the normal criminal and other cases that came to magistrates, they would also have to deal with cases relating to children as defined in the Bill. These magistrates would, especially in the rural areas, be one and the same person for the time being. To what extent would this affect cases involving children, taking into account existing caseloads? In most instances, cases involving children were both urgent and sensitive.
Ms Shabalala replied that each head of court was a Commissioner for Child Welfare, and would not normally do criminal matters, except in very small courts. The Department was mindful of the fact that children should not have to wait all day. The family court model envisaged specialisation, so that at any given moment, that Commissioner should be available. This also related to the selection of magistrates, as they should be people with commitment and passion to deal with the matters.
Ms Moodley noted that the Children’s Bill dealt specifically with children in need of care while the Child Justice Bill dealt with children in custody.
Ms H Weber (DA) asked who was responsible for, and who attended to, non-nationals.
Ms Moodley replied that a child was a child and that non-nationals would be included in the care and protection Chapter specifically. As far as the court was concerned, if a child spoke a foreign language, that child had to be cared for and heard.
Mr Waters referred to the new qualifications, and asked whether any magistrate currently had knowledge of child and family law and court procedures. If they did not, what would happen when the Bill was enacted?
Ms Shabalala replied that each and every magistrate was a legal practitioner and all had the qualifications mentioned in the Bill.
Ms H Bogopane-Zulu (ANC) said there were practical challenges in terms of the development of sign language. Some deaf people did not understand registered sign language interpreters.
Ms Newhoudt-Druchen explained that there was a South African sign language, and it should be made official. Some deaf children had never gone to schools for the deaf, or been exposed to sign language, and a child would use sign language in a different way from the adult deaf community. Sign language interpreters should recognise that they could ask a deaf person to accompany them to court. That person would then become a relay interpreter, who might be able to use gestures and have answers relayed via the deaf person. The deaf child would then relay her feelings to the relay interpreter. Some judges did not want this and this presented difficulties. It was important to explain why an interpreter might need a deaf person to assist with relay interpreting.
Mr Masutha suggested that (d) was tied to the introduction to clause 8, which talked about the courtroom which presupposed arrangements in the room itself which would include accessibility and accessibility from a physical environmental point of view, as distinct from the processes and arrangements necessary for the proceedings themselves to be accessible. Some of the things that needed to be done were systemic issues within the justice system. It was of concern that a magistrate, who saw this clause, knowing very little about disability issues, might immediately assume that if there was a ramp in the court, it had been covered. A deaf child that arrived would then be a problem. This appeared to provide a mini checklist, and should perhaps not be confined to the courtroom but should include proceedings. In addition, under (d), it might be beneficial to give examples of the kind of things meant, given that this was not necessarily familiar to everyone. This would make the Act itself a lot more accessible. These could be put in regulations, but as much guidance as possible should be put in the law itself without necessarily overloading it. There was a move to tighten the regulation of subordinate legislation, as regulations were not as accessible as Acts.
Ms Shabalala indicated that she related to issues raised in the sense that as a prosecutor she had had the experience of having a victim of crime who was deaf. She had gone to great lengths arranging a sign language interpreter, only to find that when the interpreter arrived, the person was not educated in sign language itself, and had to resort to gesture language. It was essential to inform the language services section to draft a circular specifically on this issue so that, in the register, there would be a list of sign language interpreters and relay interpreters, and possibly also to subpoena an assistant to assist witnesses when they testified. These two provisions would be built into the Act itself.
Clause 45: Matters children’s courts may adjudicate
Subclause 45(1)(i) had been amended to include a reference to the Hague Convention on International Adoption.
Subclause 45(3) now alluded to the process to confer jurisdiction on magistrate’s courts.
Subclause 45(5) was inserted.
Ms M Magazi asked whether South Africa still had a Black Administration Act.
Ms Skosana replied that the legislation still existed, but that to a large extent, its provisions had been repealed, substantially amended and repealed. Most had been overtaken by events and eventually the Black Administration Act would not be on the statute books.
Mr Solo disagreed with Mr Masutha’s earlier suggestion that the issue of jurisdiction over guardianship be flagged and put in the report, suggesting that the Department and drafters give careful consideration to some way of devolving this to the lower courts. It excluded a large number of people confronted by the problem, both in rural, peri-urban and urban areas. Guardianship should be devolved, and should not be the complete jurisdiction of the high court and divorce courts.
Mr Masutha appreciated that Justice was making it clear that they were not devolving guardianship pending the establishment of family courts, but suggested that the list of matters that were the exclusive jurisdiction of the high court be re-investigated. Subclause (3) was taking all the powers in respect of the Bill away from children’s courts. Adoption orders were effectively removed, and foster care placement, placement in children’s homes related precisely to what was contained there. He also wanted to inform Justice that the Committee had made the observation the previous Friday that the distinction between custody and care, was artificial, especially given the fact that recent judgements suggested that custody was a de facto situation, not necessarily a de iure situation. When someone looked after a child, they had custody of that child. It had been decided to collapse the two concepts. Effectively the children’s court did not have authority to deal with guardianship but certainly had the competence to deal with custody in terms of the new Bill, and the drafters should advise the Committee if the Bill provided differently at this stage.
Ms Moodley replied that Mr Masutha was correct and that subclause (3)(b) had been in an original version of Bill and added in error. That would come out, but the rest of the subclause was in the version of the Bill before the Committee and there had been no requests for amendments to that.
Mr Masutha replied that it was problematic in a number of respects. How had the list been arrived at? Some of the provisions in (1) seemed more complex than those in (3). The issue addressed in (d) pertained to care placements, and was within the power of the children’s courts. The Minister of Social Development could also grant leave in terms of the Child Care Act for a child placed under foster care to leave the country with foster parents for a holiday, for example. Inter-country adoptions had also been devolved to magistrate’s courts, working closely with the central authority. There were clearly glaring errors as even custody, guardianship and access in respect of inter-country situations would fall within the jurisdiction of the magistrate’s court if his reading was correct. A clause had been agreed to elsewhere, saying that those matters would be dealt with as if they were inter-country adoption proceedings. Given that some of the Master’s functions had been devolved to officials in magistrate courts, this seemed to signify the need to devolve. In fact, magistrates dealt with issues of guardianship under customary laws at present. These provisions held back persons married under dispensations other than customary law. Justice should revert to the Committee with an amendment at a later stage.
Mr K Morwamoche (ANC) said that many issues had been raised about the powers of traditional courts, but the Bill acted as if traditional courts did not exist. How many powers fell within the jurisdiction of the traditional courts that were being sidelined by the Bill?
Ms Shabalala referred again to the process conducted by the Law Commission in relation to the role of traditional leaders and customary law, and issues of children’s matters and children’s courts were also dealt with there. The Commission had gone to each province and traditional leaders, magistrates and all stakeholders had been involved. As result, the Law Reform Commission had drafted its report, and the Bill outlining the powers and responsibilities of traditional leaders with regard to these matters. These documents had been placed before the previous Minister, and now needed to be raised with the new Minister. It would not be necessary to include them here as the process had also taken into account the various customary law practices of people in the country, as well as the Black Administration Act, because it also mentioned sections of the Act that had been repealed.
Mr Godi reiterated the call for Justice to revisit subclauses 45(3) and (1), taking account of the need to make judicial processes more accessible.
Ms Moodley recalled that at the last presentation, there had not actually been a clause-by-clause reading of the courts chapter. The Department would be guided by the Members in respect of the provisions of Clause 45 in particular.
Mr Solo observed that guardianship would have to be devolved, and suggested the Department be given sufficient time to structure the provisions in such a way that they were in line with the principle that justice should be accessible to all.
Mr Masutha noted that the Committee had given itself until Monday and suggested that some of the issues could be further clarified before Monday. Alternatively some of the matters would have to be deferred, and it was hoped that Justice would not take another five years to come back to the Committee.
Clause 46: Orders children’s courts may make
Subclause 46(j) had been amended to align the cross-reference.
Mr Masutha proposed that the Department be sent back to review, and that the Committee should not be confined to what the Department had identified as needing amendment. Where the Committee felt that certain issues needed attention, this should be done. He asked whether an audit had been done to check the synergy of Clauses 45 and 46, as issues decided in terms of Clause 45 might have implications for Clause 46.
Ms Shabalala requested an opportunity to revisit Clause 45 and then check it against Clause 46. There would definitely be some contradictions.
The motion was supported, and it was to include subclauses 43 and 44 as well.
Clause 47: Referral of children to children’s courts by other courts
Subclause (2) had been substantially reworded.
Mr Godi confirmed that this referred to the abuse or neglect in respect of any child of any of the parties.
Clause 50: Investigations
Subclauses (1)(a) and (3)(a) had been amended to correct cross-references. Subclause (4)(d) was a new provision.
Mr Godi asked whether this meant removing the father if it was the father who was suspected of abusing the child.
Ms Moodley replied that there had been a discussion at the last Committee meeting and Members had agreed that it was sometimes very traumatic to remove a child from the household and that it might be better to include a provision where the perpetrator was removed. It was also in line with the provisions of the Domestic Violence Act.
Ms Bogopane-Zulu remarked that, if it was compared with the Domestic Violence Act, as someone working in the network of violence against women, she felt it was not being implemented. If a woman were abused, the woman would go to the shelter. The reality was the problem of ensuring that the perpetrator was removed.
Ms Shabalala admitted that these pieces of legislation were not being implemented in a uniform manner, and that the Department was facilitating workshops to address the problem. In one part of the country, the Act was implemented to the letter; in another not at all. Magistrates were independent, but the Department of Justice were facilitating these things.
Ms Bogopane-Zulu remarked that one challenge was interdepartmental implementation – sometimes police would do one thing, courts another, Social Services another, so this should be harmonised and the South African Police Service (SAPS) brought in, as they were usually first on the scene, with Justice coming in later in the picture.
Mr Godi noted that he had been absent when the issue was originally discussed. It was essential to look at practical aspects – if a man was removed from the house, and his wife and children left there, they might need another form of protection. Family killings might be an unintended consequence. There was an element of choice, and it was important that the Bill not create more harm than good.
Mr Morwamoche concurred and asked how the owner of the property could be removed. The only solution was to take him to court so that he could be sentenced and punished.
Mr Waters said that in the past, if the child was abused in the home, the child had been removed, and asked why their lives should be disrupted.
Ms Moodley stated that, at the instance of the SAPS, a Clause had been inserted in Chapter 10 (Clause 153) providing for written notice to the alleged offender. She was happy to remove it from Clause 50 if that was the agreement.
Dr Mabetoa (Chief Director: Child, Youth and Family, Department of Social Development) pointed out that the Clause had been inserted because a number of children were killed by the perpetrator, for example after a rape was reported. To remove evidence, the perpetrator removed the child. If there was a likelihood of this, the perpetrator must be removed from the house and community to await trial.
Ms Bogopane-Zulu tried to align the discussion with the other processes that were happening. Children were being sexually abused in schools as well and the Department of Education was implementing different processes. Once the child reported a rape, the teacher was not automatically removed. The Department wanted to do its own investigation, and the teacher continued to teach. This should influence that, because there were a number of cases where teachers had raped and abused children, and the Council of Teachers had not even suspended the teacher. Removal meant everywhere in this provision. This had serious implications, and there should be a way of influencing all other existing different processes, such as those for nurses, teachers and the police.
Mr Godi felt that in a family setting, the concern was more on protecting the abused than the abuser. What did removal mean? Unless removal meant imprisonment, it was meaningless.
Mr Solo suggested enriching the Clause from the statements made. A mechanism should be devised to enforce the provision and ensure that the child was protected. If one looked at what was happening in practical terms, one would have to see what was being implemented. Drastic action was needed, including a mechanism to remove the perpetrators. In Katlehong some years ago, all the players were prepared to protect the child, but the perpetrator waited for the child on her way home from school. It was essential to be realistic and he cited a case in the Meyerton constituency where a child was subjected to continuous abuse by the perpetrators.
Mr Masutha observed that this was a noble idea, but that it was too simplistic to just throw in a paragraph. One concern was the need to cross-reference the Domestic Violence Act. There was also a possibility that the magistrate might have additional powers in Clause 48(1)(b), the granting of interdicts and auxiliary relief. The formulation of the paragraph should be addressed. Was it opening up jurisdiction ad infinitum or confined self only to Clause 45(1) matters?
With regard to Clause 50, he asked whether it referred to investigations arising out of the Bill, as in the current Act (either entry with or without a warrant), because opening paragraph (1) spoke of the children’s court making an order. It seemed as if throughout all processes flowed from an order that had been made. Investigations were not usually the result of orders, but of warrants which social workers or policemen were able to obtain or, in emergency situations, they could actually enter without a warrant.
In addition to looking at the orders as a result of a warrant (as opposed to investigations without a court order), had provisions for a child in need of care and protection and interventions, been looked at?
Ms Rajbally suggested that this be looked at very broadly and recommended that the paragraph remain. If the victim was removed and placed in a place of care, some kind of support would be given to that victim, why could the same not happen at home?
Ms van Zyl replied that many of the matters raised by Mr Masutha would be dealt with under the chapter on children in need of care and protection. The authority to remove a child without a warrant, by court order, and to remove a perpetrator, were all covered in the Clause on the protection of children in Chapter 9. She would ensure that all processes in the Chapter linked up to the processes under the courts chapter, but they were not exclusive processes. The provisions on the removal of children to an extent complemented the other Chapter on the protection of children, and she would ensure that there were linkages there. Under current legislation, social workers or police were only authorised to remove a child, not the perpetrator, and thus the police had proposed a new clause to allow them to issue written notice to remove a person. This also stated that the person should appear before the court within 24 hours to provide reasons why he or she should be allowed to return home. The court could then make an order to support the original order, or make an order to say that he should maintain his family regardless. She undertook to ensure that the two Chapters linked up and that there were no gaps.
Clause 51: Appeals
The reference in subclause 2 had been amended.
Clause 55: Legal representation of children
Subclause (1) had been amended with the insertion of "in matters where substantial injustice would otherwise result".
Mr Waters asked what would happen if no legal representation was provided, and what constituted minor injustice.
Ms Moodley explained that the insertion brought the provision in line with the Constitution. It was the duty of the Commissioner for Child Welfare to determine whether or not the child would be seriously affected without legal representation.
Ms Rajbally asked where the onus fell for the provision of a legal representative, and about the onus of payment. Did the State provide this legal representation, or did the other party provide it?
Ms Moodley referred to the provision that a child could appoint any representation at his or her own cost. Subclause 55(1) was only in respect of cases where the State would provide the representation. The determination of whether or not the child required legal representation then lay with the presiding officer, as it was provided entirely at the cost of the state.
Mr Godi asked for the meaning of substantial injustice.
Ms Moodley replied that it had been added to bring the provision in line with the Constitution, and meant that the presiding officer in his / her discretion would decide whether that child was in need of representation.
Mr Godi asked how subclauses (1) and (2)(a) were substantively different, suggesting they be collapsed into one subclause.
Ms Moodley replied that Clause 55(1) was an entitlement, whereas subclause (2)(a) was the child’s request that a legal representative be appointed.
Ms Johaar noted that the difference was that the child was entitled to two different things. In subclause (1), the child was entitled to representation per se, and in subclause (2)(a), the child was entitled to request representation but the request could be declined.
Mr Godi asked how subclauses (1) and (3) were substantively different.
Ms Johaar replied that the subclauses provided for the entitlement to legal representation. The provision in subclause (3) related to the court’s declining the child’s request, and its duty to provide its written reasons for this decision. Subclause (3) did not apply to (1), but to (2).
Clause 56: Attendance at proceedings
Ms Bogopane-Zulu noted that changes relating to requests in respect of children with disabilities would also have to be taken care of in this clause, as people would need to attend.
Clause 60: Conduct of proceedings
Subclause (1)(b) had been amended to include "elicit any information from".
Ms I Mars (IFP) asked whether this had been done because ‘cross-examine" was a very legal term. This was confirmed.
Clause 61: Participation of children
Ms Bogopane-Zulu reminded the drafters that a number of concerns had been raised about the use of "meaningfully", and suggested that to ensure the full participation of children with disabilities, "and disability" be inserted in subclause (1)(a). This would bring the provision in line with Clause 11. The aspect of meaningful raised questions of who would determine and at what point, the meaningful participation of the child.
Ms Moodley agreed to capture the essence of the discussions from Ms van Zyl and flagged the issue.
Ms Bogopane-Zulu recommended that, if disability was catered for in subclause (1)(a), the aspect of mentally disabled children should be addressed in subclause (1)(b). An intermediary was provided for in subclause (3)(a) but was not mandatory, and this related to the aspect of the relay sign language interpreter. Most of the time, a magistrate would not find it convenient to do it, and she suggested "may" be changed to "must" in subclause (2).
Mr Waters responded that it was not always necessary to use an intermediary, but agreed that where one was needed, that person should be available. This was not a criminal court, but dealt with civil matters, although this could also be traumatic.
Ms Johaar replied that there would be no problem with a change to "must", because the qualifier was the best interest of the child. The Committee agreed on "must".
Ms Mars noted that she read it to be in the discretion of the court in the first instance, and this discretion could not be removed.
Ms Bogopane-Zulu remarked that it was very easy for the court not to provide an intermediary, because there was always a cost attached. If disabled children were added at the top, it should stipulate "must". Disability issues were not understood and it was easy to push them aside.
Mr Godi noted that the discretion of the court was still sustained, because the court would first determine whether or not it was in the best interests of the child.
Clause 63: Evidence
Clause 63(1) was in the original version of the Bill, was removed and re-inserted on insistence from the NGO sector. The original reason for its deletion was that its provisions were contained in the Evidence Act.
Part 3: Clerks of Children’s Courts
Clause 67: Appointment or designation of clerks of children’s courts
Subclause (2) had been amended to include the Court Manager of a Magistrate’s Court.
Subclause (4) had been inserted to provide for the qualifications of children’s court clerks.
Subclause (5) had been inserted to provide for the training of children’s court clerks.
Mr Waters welcomed the provision for proper training, but asked for clarity on subclause (3), asking how the court would take account of geographical differences.
Ms Shabalala replied that, in practice, if one looked at the courts, some were ‘one-man stations’, with a magistrate, a prosecutor, interpreter and a clerk. The workload in this court was relatively small, and it would sit once a week. If there were a number of these courts in a cluster, there might be a decision to have the children’s court sit on specific days. The clerk of the children’s court would have to travel to those courts on those days.
Ms Bogopane-Zulu requested that the aspect of disability be taken into account in Clause 67(4)(b), and provision made for the recognition of the special needs of disabled children.
Clause 69: Pre-hearing conferences
Clause (4)(c) had been amended.
Ms Bogopane-Zulu noted that many cases involving sexual abuse seldom came to court, particularly where pre-teens were involved, for a number of reasons. The cases were withdrawn, and she felt that pre-hearing conferences might also assist here to minimise the caseload. Was this possible?
Ms Shabalala replied that they were two separate processes. Sexual abuse related to criminal proceedings, and the matter would be sub judice.
Part 4: Miscellaneous matters
Clause 74: Publication of information relating to proceedings.
The Clause was agreed to.
Ms Weber asked whether adoption or guardianship was more important, because a lower court could deal with adoption, but guardianship had to go to the High Court, and this did not gel. Adoption was permanent, while guardianship was not.
Ms Moodley replied that the argument was well taken. Adoption was a transfer of rights from person A to person B, and international adoptions had even more far reaching consequences. Ms van Zyl’s earlier suggestion should be carefully considered. One of reasons why guardianship had remained the domain of the High Court was that this had always been regarded as the upper guardian of all children.
Dr Mabetoa noted that it was unfortunate that guardianship and adoption were done at separate levels. At present, where people were unable to get children out through inter-country adoptions, they would do so through High Court guardianship applications. The lower court would prevent it, but at the High Court level, people were not aware of the implications of adoptions or adoption procedures. Magistrates were more aware than judges at grassroots level.
Mr Waters asked whether traditional leaders would also be offered the same training as specified in the Chapter.
Ms Shabalala replied that this training would be dealt with in terms of the Bill discussed earlier, and that it was in the pipeline. Training would be offered to traditional leaders on a variety of levels. The Department of Justice would return to re-visit the issues. It was noted that the Department’s amendments should be discussed during the Committee meeting on Friday 27 May, so that further changes could be effected over the weekend if necessary.
Clause 4: Implementation of the Act
Ms van Zyl noted that, during the International Convention Centre workshop, Mr Kollapen from the Human Rights Commission had referred to this Clause specifically. Option 2 was the way in which it was stated in the amended version discussed the previous week. Subclause 2 had been added to ensure that everybody was working together and taking measures to implement the Act. Mr Kollapen had indicated, and the Department felt that he spoke with authority on the matter, that children’s rights were not subject to progressive realisation. The Constitution did not allow government to state that it wanted to progressively realise these rights. A balance had to be found between at least recognising the fact that resources were limited. The phrasing contained in option 1 came from the United Nations Convention on the Rights of the Child. The proposal was to remove progressive wording, but maintain a balance, recognising what was reasonable and within available resources.
Option 1 was agreed to.
Clause 11: Children with disability or chronic illness
This Clause dealt particularly with children with disability or chronic illness, and had been amended more or less in line with preceding Clauses, separating out disability and chronic illness, and adding one or two measures.
A new subclause 11(1)(b) would be inserted and discussed at a later meeting.
Subclause (3) had been amended according to a proposal from the Children’s Bill Working Group, particularly the disabled group.
Ms Mars raised a brief query in relation to subclause 45(b)(c) and asked whether it should not read "artificial fertilisation" rather than "artificial procreation". Ms van Zyl replied that it had possibly been an error, and would be checked.
Chapter 7: Protection of Children
Part 2: National Child Protection Register
This had been placed in the Section 76 Bill, but the Department had felt that it was mainly a national function, and had proposed its reinsertion in the Section 75 Bill. The Committee had also requested that Part 3 of the Chapter be included in the Section 75 Bill, but the tagging committee had not yet commented on the proposal.
Part A of Register
Clause 114: Contents of Part A of Register
Minor amendments had been made to Clause 114(2)(a), following a proposal by disability groups to include the age and gender of child, and the disability or chronic illness status of the child. The inclusion of this provision was sensible as one of the purposes of the Register was to identify when children were at risk and was useful for research purposes especially. The same amendments had been made in subclauses (b) and (c).
Ms Mars asked whether Clause 114(a)(vii) covered all possibilities.
Ms van Zyl replied that the Committee had requested that it not be a closed list, and recommended the insertion of "an organisation providing … including … centre", in order to open it up. This had been done elsewhere in the Bill.
Part B of Register
Part B of the Register overlapped with the Sexual Offences Register envisaged in the Sexual Offences Amendment Bill. Since that process had been delayed, the Committee had decided to proceed with the Register, although this had been part of the process all along. The Register envisaged under the Children’s Bill would contain more than the Sexual Offences Register proposed to contain. It would not be limited to a record of convictions of sexual offences against children but would include any kind of offence against a child. A court could make a finding without necessarily finding a person guilty, and, on application, could find a person unsuitable to work with children.
Clause 119: Contents of Part B of Register
It had been decided that, in addition to the list currently in the Bill, the fingerprints of persons found unsuitable to work with children and their photographs should be added. The Department had requested that, if a person was convicted, particulars of the offence, sentence, date of conviction and case number, be included. The drafters had been informed that the Department had an agreement with the Department of Home Affairs to get access to their database, and everyone’s identity numbers and fingerprints were on the population register. These could possibly be obtained in this way. It would be nearly impossible for the Department of Social Development to get all fingerprints otherwise. It appeared impractical to include photographs, for logistical reasons.
Mr Waters concurred, and confirmed that the Department of Home Affairs did not have photographs, suggesting these be obtained from the SAPS, as they would surely be on file.
Ms van Zyl concurred in respect of persons convicted of an offence, but noted that people were not only found to be unsuitable on a conviction. It would be practically very difficult to implement an obligation to get a photograph of everybody.
Mr Waters noted that passport photographs were on computer, so it might be possible to get photographs of people with passports.
Ms Mars observed that it was also possible to change the outward appearance of a person dramatically, and that fingerprints were the safest.
Ms Rajbally felt that the requirement of photographs should remain, but be qualified by "as far as possible".
Mr Godi asked for clarity on the consistency in the Clause.
Ms van Zyl replied that Clause 114 provided the need for records, but that Part B was a record of people found unsuitable to work with children. She would ensure that the provisions correlated.
Clause 120: Finding persons unsuitable to work with children
This was the most important Clause in respect of Part B of the Register. The new subclause (4)(b) had come from the Sexual Offences Register. One of the issues that could be raised when a person was charged with a crime was whether they were fit to stand trial. The mere finding of not guilty on the basis of mental incapacity or insanity would not obviate the need to put that person’s name on the Register, particularly where the person was unable to control his actions. In such a case, even though the person had not been found guilty of the offence, that person’s name still had to be entered into Part B of the Register.
Subclause (5) was a retrospective clause, and had been restricted to the named offences because, whenever a person was found guilty of these after the commencement of this Chapter, their names must be entered into Part B of the register. A period of five years was provided for, because, if a person wanted their name removed from the register, they would only be able to apply for this after five years had elapsed. They would also have to present evidence of rehabilitation. For the sake of consistency and because this was a retrospective clause, the drafters had restricted the application of the Clause to those offences listed as serious, and the five year period, in line with the period after which one might apply for removal.
Ms Rajbally asked whether "unsuitable" applied to parents as well.
Ms van Zyl replied that the Bill indicated that a person found unsuitable was not a fit and proper person to be a foster parent or an adoptive parent, but such a person could not be restricted from having children, as this was a very fundamental right. The provision could not really be extended to apply to children and their parents.
Ms Bogopane-Zulu remarked that, if the father of a child had been convicted of rape and had his name placed on the Register, the provision should apply equally to him. The people on the Register did have children and were family men and women. Parents had to be ‘accommodated’ because numerous children were abused by their own parents, and many of these parents were convicted as well. Was this where the child would be removed?
Dr Mabetoa replied that Part A would accommodate registration if the perpetrator was a parent.
Ms Bogopane-Zulu replied that if a person were convicted, s/he would go to jail and be out in a year, asking whether that person would go back and live with his family.
Mr Waters asked whether the provision stipulated that, until the name was removed from the Register, they would not be allowed to live with their children.
Ms Bogopane-Zulu asked if they would go back to the same house, wait for five years and then apply to have their names removed from the register.
Ms van Zyl noted that this Register was trying to keep people out of the workplace where they would work with children. It had been extended to adoption and foster care, but was difficult to regulate in terms of a person’s private home, as that was an invasion of the constitutional right to privacy. A person’s name would not automatically be removed from the Register after five years; they would have to apply, be assessed, and provide proof of rehabilitation. This became difficult to regulate when it came to people’s private homes. The drafters would be guided by the Committee, but the main object of the provision was to keep people out of the workplace.
Ms Johaar noted that the Bill did not attempt to regulate those kinds of occurrences, but that, if a parent had been convicted of rape, the name of the parent and the offence would be entered into the Register. It was not the intention to regulate further.
Ms van Zyl noted that listing occurred in two places: the child’s name in Part A and the offender’s name in Part B. That person would not be able to work with children, foster or adopt children. The advantage of having the child’s name in Part A was that the authorities would be aware of this child as a victim, and could monitor.
Dr Mabetoa reiterated that the perpetrator’s particulars were also recorded in Part A, so that, if it was a person related to the child, living with the child in the same home, this would be reflected in Part A of the register. It was up to the professionals working with the family to separate the two.
Ms Makasi expressed concern that abuse was happening in the home, and that this presented a problem.
Mr Waters agreed that, in an ideal situation, with sufficient social workers, Part A of the Register would be consulted, but this was not an ideal situation. This might, however, not be the appropriate Bill to deal with the issue, but it had to be addressed.
Ms Johaar asked whether the Child Justice Bill dealt with the issue. Ms van Zyl replied in the negative, stating that that Bill concerned child perpetrators.
Ms Bogopane-Zulu suggested that the whole aspect of privacy in homes had been questioned in the introduction of the Domestic Violence Act. As soon as abuse occurred, the home was no longer private. Most children were abused in their own homes, and had to be protected. She recommended that the drafters consult the wording of the Domestic Violence Act. The Bill needed to have somewhere where this was dealt with, even if it was just an acknowledgement of the situation, perhaps under the provisions relating to children in need of care.
Ms Rajbally felt that if someone had been found to be unsuitable, this should apply right through and suggested that the drafters look at the relevant Section in the Constitution to see whether it actually restricted this.
Mr Waters suggested that if the father came out of jail and was allowed home, this would sentence the child to further abuse
Ms van Zyl replied that the Bill contained a Clause allowing the restriction or suspension of parental responsibilities and rights. This should not happen automatically, but the clause could provide that, if the offence was committed against a child with regard to whom the perpetrator had parental responsibilities and rights, the court must consider whether or not the person’s parental responsibilities and rights should be terminated.
Ms Bogopane-Zulu remarked that the suspension of parental responsibilities and rights did not necessarily mean that the child would no longer live with that person.
Ms Johaar suggested that Clause 150 of the Bill catered for a situation where the child at risk was removed from the situation.
Ms van Zyl concurred, and noted that a link would have to be inserted, as this did not follow automatically.
Mr Godi raised two issues. The purpose of Part A of the Register was to have a record of the circumstances around abuse, whether it had been done by a parent or an outside person, and to protect children from further abuse and neglect. Could this be used to assist in this instance? Where would the application to terminate a person’s parental responsibilities and rights be made? If it was in the High Court, this again raised the question of accessibility, and might be a further compelling argument for its devolution to encourage accessibility for as many people as possible.
Ms van Zyl concurred that the idea of Part A was to identify children at risk. If a parent was found guilty of an offence against a child, whether his own child or another child, the parent’s particulars would be contained in Part B. If the offence had been committed against his own child, the child’s details would appear in Part A. If the offence had been committed against another child, his own children’s details would not necessarily appear in the register. The Committee seemed to be asking who would protect the children of a person whose name appeared in Part B. Clause 150 dealt with a child in need of care and protection and Clause 27 referred to application for termination of parental responsibilities and rights. She proposed that, if a person was convicted of an offence against another child, his own child was not necessarily in need of care and protection. The court would have to look at the risk to his own children. The cross references could be made in this Clause.
This was agreed.
Mr Godi reinforced the element of accessibility, if High Court applications were to be made.
Ms van Zyl reiterated the Department’s view that these applications should be devolved to the lower court, but that it was not their decision. She requested the Committee to engage with the Minister of Justice or the Justice Portfolio Committee, as she feared that the family courts might take another ten years to be implemented and this problem would remain.
Ms Bogopane-Zulu proposed that the Chairperson be tasked to contact the Minister of Justice, to hear her own perspective in a short meeting, and to raise the Committee’s concerns.
Mr Waters asked why only assault to do grievous bodily harm was referred to in subclause (4)(a), rather than assault.
Ms van Zyl replied that those were the persons who had to be found unsuitable. There was an earlier provision that removed the court’s discretion in these cases. It was not a restriction but a compulsion.
One problematic area was that, once the Chapter was in operation, whenever the manager of, for example, a nursery school wanted to employ someone, they would have to enquire whether that person appeared on the register, and that person had a duty to divulge this fact to the employer. It was cause for concern that someone who had worked at a nursery school for the past ten years, but had been found guilty of this kind of offence in the past five years, would continue to work at that school. There was currently no obligation on employers to enquire about persons already employed. The Chapter should include something to say that a manager or owner within a year after commencement of this Chapter, should also enquire about existing employees. The Committee concurred.
Ms Bogopane-Zulu noted that this would be in line with subclause (5). That it was retrospective would enhance the consistency of the legislation.
Mr Godi asked what the consequences would be on finding that the person had been convicted four and a half years previously.
Ms van Zyl replied that the Bill provided that, if your name was placed on the Register, you were supposed to divulge this fact. If the employer was obliged to enquire as well, and he did so and discovered an employee’s name on the Register, the Bill could not provide that that person be summarily dismissed. If an employer discovered that a person’s name was on the Register but that person had not divulged this, it would be grounds for misconduct, and the employee could be dismissed.
Mr Godi noted that the practical implication of this was that every crèche, primary and secondary school in the country, hospitals and even universities, would have to go through their staff. This might not be consistent with legislation, as it added a new condition of employment. The Committee needed to be careful not to insert a provision that could not be implemented.
Ms Bogopane-Zulu said that, practically, the places most affected would be places of safety, pre-schools and primary and secondary schools; in other words, any institution dealing with children under the age of 18. She referred to the number of teachers still teaching after being convicted of raping children and raised the practical issue that this would mean that the Department of Education would have to look at convicted teachers. This further enforced the importance of such a measure because offenders raped repeatedly until the victims no longer reported it because it was not worthwhile.
Ms W Direko (ANC) observed that some children entered university at 17.
Mr Waters agreed with Ms Bogopane-Zulu that if someone appeared on the list, they should not be working with children and should be fired. The fact that teachers convicted of rape were still teaching, showed that the labour experts should be looking at labour legislation. The Bill sent a very strong message that such behaviour would no longer be tolerated.
Ms van Zyl replied that, if a condition of employment was revealed before employment, there was no problem. If a person was already employed and it then became a condition, this would pose a problem. If that person was under a compulsion to inform his employer, and the employer found out, he could be charged with misconduct and that could be grounds for dismissal, possibly even forthwith. It might not be constitutional to dismiss the person out of hand. Legislation was not usually accepted to be retrospective, and this provision had therefore been inserted.
Ms Bogopane-Zulu noted that this was actually possible, provided it was drafted in line with internal procedures. The problematic aspect of the situation was the question of whether it was your neighbour’s child and not your own. It was often found that a rapist started with his own child, but that that child had not reported it.
Ms van Zyl noted that this was the reason for a link to the person’s suitability as a parent.
Ms Bogopane-Zulu suggested that this did not only apply to parents, but to teachers in rural areas, where the teacher consistently raped girls. He might only be convicted of one rape, but actually have been raping many others. This would not be a problem if he was listed, as if he was convicted of only one offence, he would be dismissed.
Mr Solo noted that this was an important point, as people existed around a particular community and were vulnerable without support.
Ms Bogopane-Zulu remarked that class, status and respect often allowed people immunity from crimes.
Mr Godi asked whether Clause 199(g) could be used to accommodate this issue. Ms van Zyl replied that the intention was for subclauses 1,2 and 3 to deal with the consequences of having your name in the register. After the Act was in operation, if you then raped a child, you would have to be dismissed. The provision would have to apply retrospectively to a person currently in employment who committed such an act before the Act came into operation.
Mr Solo reminded the Committee that not only teachers were offenders, but also priests for example.
Clause 122: Findings to be reported to Director-General
Subclauses (2)(a) and (b) provided that a person’s name could not be entered on the Register if an appeal was pending. The Bill followed in the footsteps of the Sexual Offences Act, stating that as soon as the time for appeal expired, it had to be put on the register. This imposed a duty on the official to note the outcome of the appeal. It was a compulsory duty.
Ms Direko expressed concern at the monitoring by the officials. The name should be on the register until the outcome of the appeal. Arresting officers, for example, took young people to court, sent them to Grootvlei and never followed up on what had happened to them. What monitoring tool was in place?
Ms van Zyl replied that a Clause had been inserted in the Regulations Clause stating that the procedures and timeframes, within which findings were to be communicated, had to be prescribed. This was an internal administrative issue. The failure of officials to do their duty was not really something that could be addressed through legislation. Measures had to be put in place within that section or Department.
Clause 123: Consequences of entry of name in Part B of Register
The list of institutions had been expanded in the way discussed earlier in the meeting. There was no longer just a list; provision was now made for "an institution providing welfare services to children, including …". This change had been made in subclauses (1)(a) and (b) and subclause (2).
Ms Direko remarked that it should cover any environment where children were present and that was supervised by a person of that inclination.
Ms Bogopane-Zulu asked whether the owner of an early childhood development centre, convicted of an offence would be covered.
Ms van Zyl replied that subclause (1)(a) would cover this, as that person could no longer own such a place.
Ms Bogopane-Zulu asked about those persons who already owned such a centre.
Ms van Zyl replied that, in practice, a person would have to register to operate such a facility. She was not sure how this would be enforced.
Ms Direko recommended that they be immediately deregistered.
Ms Bogopane-Zulu noted that she was referring to the owners, and asked who would look up the people who were already registered.
Ms Direko suggested that an employee should go to the police.
Mr Waters noted that Ms Bogopane-Zulu was requesting an additional provision in the Bill to require owners to come forward for additional vetting.
Ms Bogopane-Zulu suggested that the drafters include a provision that owners of existing licenses be obliged to disclose a listing of their names to the local authority.
Dr Mabetoa noted that, once someone was convicted, they would automatically be on the register and thus in the system.
Ms van Zyl replied that the Early Childhood Development Chapter formed part of the Section 76 Bill, and that this could be strengthened in that process.
Dr Mabetoa pointed out that all centres were monitored, and that if, during monitoring, problems were discovered, the centre could be deregistered. Regulations would also take care of that, in terms of monitoring.
The meeting was adjourned.