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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
31 May 2005
CHILDREN’S BILL: DELIBERATIONS
Documents handed out
Amended Bill: May 2005
Children's Bill [(B70-2003) Reintroduced]
The Committee continued their deliberations on the Children’s Bill. Of paramount concern was the perceived lack of co-operation from the Justice Department, which risked the completion of the Bill in time to be considered in this session of the National Assembly. The Committee reviewed the Bill definitions, as well as discussing most of the first three chapters. Other issues raised included the insertion of disability as a factor to be considered when making decisions about a child or informing the child of such decisions.
In the evening session that continued until after midnight, amendments to the clauses in Part 3 on Parenting Plans, were discussed and accepted. Minor amendments had been made to Clause 38 (Effect of subsequent marriage of parents on children), Clause 40 (Rights of children conceived by artificial fertilisation) and Clause 41 (Access to biographical and medical information concerning genetic parents).
The Committee noted that the Minister of Social Development would be meeting the following day with the Deputy Minister of Justice to address the latter department’s concerns around the Children’s Courts chapter. It was agreed to proceed with the chapter, pending the outcome of that meeting. Some amendments had been proposed by the Department of Justice, and others had been proposed by the Department of Social Development and the Committee. One major decision taken in the meeting was to devolve decisions on guardianship to Children’s Courts, through the renaming of ‘custody and access’ to ‘care and contact’. The Children’s Court would have jurisdiction over matters of guardianship, as this fell outside the ambit of the Divorce Court. The Bill contained a specific reference to the ultimate position of the High Court as the supreme guardian of all children.
The Committee paid careful attention to the wording of the clauses in the Children’s Court chapter. Of particular concern was the provision relating to the provision of legal representation for children. Although children were granted the right to legal representation in terms of the Constitution, this would be restricted to cases where substantial injustice would otherwise result. The Department of Justice had particularly requested that there be no blanket provision for a court to order legal representation at state expense. This was debated, and the Committee turned down the proposal.
The Chairperson had spoken to the Minister of Justice who had agreed to speak to the Deputy Minister of Justice. The Committee received a letter from the Department of Justice, indicating that they would meet on the Bill on 1 June and report back to the Committee.
Dr M Mabetoa (Department Chief Director: Child, Youth and Family) noted that the Minister had been in contact with the Deputy Minister, and the Department had asked for electronic copies of the Bill to give an indication of whether they would approve Chapter 5.
Mr M Waters (DA) noted that, even if the Department of Justice considered the Bill the following day and addressed the Committee later, nothing could be further amended as this was the last day for amendments to the Bill.
Ms Bogopane-Zulu (ANC) agreed and noted that the input of the Department of Justice was significant, especially in light of the Department’s large role in the implementation. The amendments suggested by Justice had to be entertained to improve the prospects for implementation.
Ms R van Zyl (SA Law Reform Commission) noted that the whole Bill with all amendments had been issued that morning. It had not been possible to put in an index, as the sequencing was not yet correct.
"Emotional" was inserted into sub-paragraph (c). When the final proofreading was done, the phrase would be checked for consistency.
The Committee reviewed but did not change the definition.
This issue had been discussed the previous night. Members felt it was important that the current definition of parent was used, as parent was defined to exclude a father who had been responsible for the rape of a mother, or where incest had been involved. Wherever the Bill said anything about a father, it had be clear in which context it was used. This was particularly salient as fatherdid not always mean the same thing, referring variously to guardianship, parental responsibilities and rights, and could reference differing marital status. Members felt that the current definition was clear enough and could be redefined later.
Ms S Rajbally (MF) asked whether this definition of fatherwould include a stepfather.
Ms van Zyl replied that a stepfather did not have parental responsibilities and rights or hold guardianship. Provision was made for him to adopt a child and gain parental responsibilities and rights, but general neutral terms would be used in that context. The word "stepfather" was never used in the Bill and the term "father" did not include it.
Mr Waters noted that "control" was still used in the definition of trafficking.
Ms van Zyl noted that this had been drafted in accordance with the wording in the International Convention, which used the word "control". The drafters had decided not to use "care", as it was not meant in the same sense as when a person was looking after a child, but rather in the sense of physical control. For example, teachers looking after a child at school would have control, but the child would not be in their care.
Mr du Preez (Legal Advisor to the Department of Social Development) noted that the State Law Advisor had drafted a clause on the transitional mechanism as discussed the previous day.
The Clerk read the letter from the Department of Justice.
Mr Masutha (ANC) noted that the Department of Justice had drafted the chapter itself. Were any particular problems raised? Were these new issues that had arisen internally within Justice?
Ms Bogopane-Zulu noted a number of issues in the Committee’s relations with the Justice Department. The first issue was the extensive process Justice was going through in reworking the courts. The second was the concerns Justice raised that the Committee could not agree with. Thirdly, Justice had wanted many additions to particular aspects of the chapter. Finally, there were disagreements on specific definitions and wordings in the chapter.
Mr Masutha proposed that more time be allowed to Justice to rethink their position on the matter and then respond to the Committee, as luckily the Committee had requested an extension of the date for the debate. However, Justice should be given a time limit by which they should revert, otherwise the Bill would over-run the deadline for passage this year.
Mr L Nzimande (ANC) requested that Justice notify the Committee of the precise issues that were causing delay. Previous suggestions from Justice had not fundamentally altered the policy or changed any principles behind the Bill. If the issue was costs, which were not anticipated as the Committee was working directly with the Treasury, a comment from Treasury would be helpful. Justice should explain the details and significance of the outstanding issues even if they were not required to appear before the Committee.
Ms Bogopane-Zulu registered her dissatisfaction with Justice and noted that, since the new meetings on the Bill had been started, Justice had been given the whole week to respond. She opposed the extension, noting that the Committee had already put in long hours.
Mr Waters noted that previously only Justice had raised a few questions of clarity with the Committee. It appeared that the problem was that the Deputy Minister ‘felt left out of the loop’, while he had been in the position for a year. The Committee should meet with the Deputy Minister after Parliament rose that day. Furthermore, Parliament should guide the Committee regarding timeframes, not Justice.
Mr Masutha asked whether Chapter 5 was substantially the same as originally submitted by Justice or if it had undergone changes based on the deliberations of the Committee.
Ms van Zyl noted that the drafters had looked through the whole document from Monday, but did not feel that they were in a position to take the decision to put in amendments. If the Committee wanted to put in the amendments, this could be done.
Mr Masutha recommended that the Bill be completed today. It was necessary to make the Bill as complete as possible, with or without the participation of any other Department. On completion of the Bill, it should be forwarded as urgently as possible to all line functions affected, especially those that were part of the task team, with notification that this was the completed Bill. If any department had problems with any part of the Bill, they should forward their concerns directly to the Chairperson. This timeframe should be by the end of the week, so that nobody could come in later with objections in a piecemeal way.
Mr Waters asked whether that would affect the timeframes. Dr Mabetoa replied that, if this process was followed, there should be no impact on the processes. After today, the Bill would go to the State Law Advisors and the other departments would be given an opportunity to look at the documents. If the Committee followed that process, there would be no disturbance of the process as outlined on Monday.
Mr Waters asked what would happen if there were amendments from departments. Would that mean that the Bill would not be approved by the end of the month?
Mr Masutha replied that this Bill was a multi-sectoral initiative and it was important to take a much more accommodative, inclusive approach by ensuring that the departments had the opportunity to comment. The Committee would complete the Bill that day, forward it to the State Law Advisor and departments, making it absolutely clear that only crucial changes would be considered, not substantial reworking.
Mr Masutha was unsure of the processes for the State Legal Advisors (SLA) and translators to ensure that the Bill was finished by next week Friday. At same time the Bill should be forwarded to other departments with a covering letter stating that the Bill was finished as far as the Committee was concerned and inviting only final correction of glaring omissions and technical mistakes.
Dr Mabetoa noted that, according to the programme drawn up by the Department, the Committee would complete the Bill on 31 May in principle, and it would then go to the SLA until 8 June. The Committee would consider the Bill clause by clause on 9 and 10 June, which could include any amendments forwarded. The Committee would vote on the Bill on both 9 and 10 June to provide sufficient time to review the Bill clause by clause.
Ms van Zyl noted that on Friday, the Committee would have to formally adopt the Bill and approve it clause by clause. Amendments from other Departments could not be done on that day, as any amendments had to first be referred to the SLA, translated and inserted in Bill. If further amendments were considered, the Committee should do so at another meeting between 31 May and 9 June.
Mr Nzimande felt that the processes were now being flouted and suggested again that the Bill be completed, and that the Committee look into the Courts Chapter to see if it was substantially as the Committee required. He did not foresee major policy shifts in the Chapter from Justice, and that the Committee might only need to give the Departments the Bill and inform them of the process for the final completion of the Bill. The Committee must not budget for delays from other Departments and NGOs, as the process was now closed. However, the Committee should give interested parties an update of where the Bill was.
Ms Rajbally agreed with Mr Waters and stated that the Committee must carry on with the Bill to ensure that it would not be delayed and to justify all the effort put into it by various people.
Ms Bogopane-Zulu supported Mr Nzimande, emphasising that now was the time to finish the Bill and that none but technical or critical amendments could be entertained. Social Development must lead now, and other Departments had had their chance for input and snowballing cumulative changes must be prevented.
Mr Masutha agreed. The SLA had the prerogative to effect technical alterations if necessary, whether on drafting, on form or a similar basis. As the grammar of the Bill to be passed might be corrected, so too could other errors noticed by Departments. Regarding Justice, it was too late to consider any major policy issues arising from Justice, as they had already presented and the Committee was now drafting and finalising the Bill. If Justice should want amendments, the possibility of approaching the NCOP and propose amendments there remained open.
Dr Mabetoa suggested that the Department of Justice be responded to immediately. The Members agreed.
Ms Bogopane-Zulu asked whether the Committee were giving Justice a mandate to make changes.
Ms W Direko (ANC) asked how Justice could make corrections in the Committee’s absence.
The Clerk referred to notes on an earlier meeting, stating that certain issues had to be reverted on. When Ms Shabalala (Department of Justice) came, the Committee was instructed not to continue with the process. He recalled that she had indicated there would not be any major changes to the Chapter, and that the delay was just a question of briefing the Deputy Minister.
Mr Waters suggested that Justice be accommodated by going through their proposed amendments, and seeing whether the Committee agreed with them.
Ms Direko said that Mr Waters’ suggestion was in direct conflict with the Clerk’s report. It was very clear that Justice was given ample opportunity for comment throughout the process, and the fact that something went wrong on their side was not the fault of the Committee.
Ms van Zyl noted that a proposal from the Department of Labour had been received and would be presented later.
Children’s Bill (as amended)
The changes to the Long Title had not been discussed previously. Since there was no longer a rights chapter, and there was only a two-line reference to responsibilities of children, these references in the title had been deleted.
Ms Direko asked whether the long title and preamble were the same things.
Mr du Preez replied in the negative. The preamble, a fairly short document, would be drafted during the day and would be presented later.
Mr Waters suggested deleting the word "certain" in terms of the principles relating to the care and protection of children.
Ms van Zyl replied that "certain" was used as the Bill did not give effect to all the rights of children contained in the Constitution. However, the word "certain" could be deleted before the list of principles, as those were qualified.
Ms Direko asked whether the deletion of "certain" would lay the Bill open to misuse by people who would quote principles from other Bills under the purview of Labour, Justice and so on.
Ms van Zyl replied that the provision was qualified by relating exclusively to the care and protection of children. While not happy about removing "certain" regarding rights in the first line, she was happy with removing "certain" before principles.
Mr Masutha expressed concern over certain institutions or systems the Bill sought to create, and that would be regulated only by this Bill. This Bill had to indicate upfront that it was responsible for regulating those institutions, such as the institution of adoption, to make clear that the Bill conferred the authority to do so. While there were not many of these institutions, the chapter list would give guidance in this regard. He asked that the Bill use the word "included" to allude to some of these institutions that the Bill sought to regulate, establish or create. As it stood now, the Bill was overly vague in this regard.
Ms Johaar replied that the long title as gazetted was very broad. If it was the Committee’s instruction that it be lengthened by this insertion, it could and would be done.
Mr Masutha noted that the idea was not to list everything dealt with by the Bill, but saying that there were certain prominent institutions, such as the adoption system, which only this Bill regulated. As the title was now, it included only general concepts, which ordinary people would not be able to understand. He suggested that "included" would not be taken to mean a closed list, but rather should highlight some of the prominent features of the Bill.
Ms Johaar replied that generally it was not good drafting practice to use words like "including" and then not listing everything. What could be done was to list the important chapters, but then all of the big chapters would have to be listed, rather than isolating three or four, as it was not possible to only give examples of some.
Ms van Zyl noted that the table of contents would be revised. As the numbering and cross-referencing had also not been completed, there would be some errors at this stage.
Chapter 1: Interpretation, objects, application and implementation of Act
Clause 1: Interpretation of "abandoned"
Mr Masutha noted that the formulation of the definition was grammatically incorrect. Sub-paragraph (a) should read "having obviously been…"
Ms C Dudley (ACDP) noted her satisfaction with the wording as it stood.
Ms Johaar suggested that the definition of an "abandoned child" be used instead of the definition of "abandoned".
Ms van Zyl noted that the word "abandoned" was often used in the Bill and in other laws, and that the grammatical issue would be highlighted for the language division’s attention.
"adoption compliance certificate"
Sub-paragraph (b) would be deleted, because there were no prescribed foreign jurisdictions.
"adoption working agreement"
The reference should be to Chapter 16.
Sub-paragraph (d) was to be changed, as there was no longer a chapter of rights to refer to.
Mr Masutha suggested the use of "or" in sub-paragraph (c). This was agreed to.
Mr Masutha asked whether sub-paragraph (e) should be "guiding, directing and securing", as one of the things to come out of recent judgements in relation to custody included difficulty with forms to be filled in to admit children to school. As this was no longer seen as a role exclusively for the guardian, therefore the custodian should also have this ability to make decisions.
Ms Newhoudt-Druchen (ANC) suggested that sub-paragraph (f) be "guiding, advising," and that something relating to disability should be added. The difficulty in wording was avoiding the promotion of the idea that a disabled child needed someone else to think for her or him.
Ms van Zyl asked whether it would help to borrow from sub-paragraph (e) and use "appropriate".
Ms Newhoudt-Druchen repeated that, because of a child’s disability, people thought the disabled child could not think for him- or herself, and that this perception had nothing to do with the age or maturity of the child.
Ms H Weber (DA) suggested "guiding … the child, taking … disability in decisions to be taken by the child".
Mr Masutha expressed concern that the situation was being worsened. If disability was specifically highlighted as an issue, the clause could then be interpreted reinforcing the stereotype that worried Ms Newhoudt-Druchen. He thought that disability would have been covered indirectly elsewhere, under sub-paragraph (c) for example. Ms Newhoudt-Druchen concurred.
Mr Nzimande remarked that, although this had been accepted, appropriate should be inserted as suggested by Ms van Zyl. Sub-paragraph (f) then would read, "in a manner appropriate to the child’s age, maturity and stage of development."
Ms Johaar referred to sub-paragraph (e) and suggested that, after the Committee decided to replace custody and access, Mr Masutha had requested the drafters to insert a transitional clause. She would like to suggest that, in the definition of "care", that the Committee insert sub-paragraph (b) to read: "unless the context indicates otherwise any reference to custody in a law, must be read as a reference to care as defined in (a)". However, technically a transitional provision would not do what the Committee wanted it to do, as this change was not in fact a transitional provision, but rather a change of the term "custody" to mean "care" henceforth. This would be better done at the Definitions stage.
Mr Masutha concurred and asked where Ms Johaar proposed the clause be inserted. His understanding was that the whole definition, items (a) to (i) defined the term "care", so the clause would have to speak not only to a particular paragraph, but to the whole definition. It would either have to be item (a) and then, under it have paragraph (aa), so that (a) says in relation to a child includes "where appropriate", then items (a – i) becoming (aa) to (ii), or then have (b) that says any reference to custody means the word "care". However, this was just a technical numbering issue. The most straightforward possibility was to have the first paragraph, (a), define care, and insert a second paragraph, (b), which would assimilate all references to "custody" to mean "care."
Ms Direko expressed concern at the numbering as suggested.
Ms Van Zyl noted that the drafters would ensure that the numbering was correct when the proofs were done.
Sub-paragraph (f) was a repetition, and would to be deleted and the clause renumbered.
"or" would be moved to the end of sub-paragraph (g).
The definition would be presented to the Committee later in the day.
Ms Rajbally asked whether this would also apply to a surrogate mother and the commissioning parent(s).
Ms van Zyl replied that there was no stipulation in the surrogate motherhood chapter that the surrogate mother would have the right to contact after the child was transferred to the commissioning parent(s).
The Chairperson noted that this procedure of reviewing the Bill clause by clause would also be followed next week. She suggested that Ms van Zyl highlight important issues or amendments, which would also give Members a chance to look at the amended Bill.
Ms Direko disagreed and felt that the Committee should clear up as many debates as possible so that next week’s meetings would not be such a cumbersome process. It was agreed that the Committee would continue to review the Bill clause by clause.
Ms Johaar suggested that the retroactive application of the definition of "contact" to instances of "access" be dealt with as "care" was above.
Ms Bogopane-Zulu questioned whether the reference to the Mental Health Act 1973, included the substantial amendments made to that Act. Ms Van Zyl reassured her that the amendments, once enacted, became organically part of that Act.
"social service professionals"
Mr Masutha asked why the definition was in the plural, and Ms van Zyl confirmed that this would be corrected.
This was the definition currently in the Section 76 Bill, and the drafters felt it was better to return the excised definition to the Section 75 Bill, as it was linked to Clause 150.
"surrogate motherhood agreement"
The plural would be deleted.
Including the manager of a shelter in the definition would make the provision of shelter care easier. Members agreed to include this phrase.
Mr Nzimande asked for clarity on whether this now exhausted all the centres that should be included. He was concerned that an exhaustive list might place the Committee in the difficult position of inadvertently excluding other caregivers.
Ms van Zyl replied that most caregivers would be included under the definition of those employed at, owning, or managing child and youth care centres. However, a shelter was not a child and youth care centre, and so this particular omission was corrected. Street children were usually housed in shelters, and the manager needed to be empowered to give consent for their medical treatment.
Mr Nzimande repeated that this definition would have to cover all centres, including rape crisis centres, shelters for victims of domestic violence and so on.
Ms van Zyl replied that the drafters had tried to accommodate all the categories of caregivers that had been thought of. She truly hoped that there would not be any exclusions, as the definition of "care-giver" was itself a list.
Mr Masutha recommended an adjustment to sub-paragraph (c), with "of the child" to be inserted after "guardian." Members agreed.
Ms Bogopane-Zulu noted that disability had been placed in sub-paragraph (f).
Mr Masutha suggested a small adjustment to sub-paragraph (b) and suggested that "in contravention of this Act" be added to narrow it, as he wanted to prevent informal adoptions necessarily also meaning trafficking. This section of the Bill prohibited adoption under specific circumstances of trafficking, and other sorts of illegal or unconventional adoptions were dealt with elsewhere in the Bill.
Ms L Stuurman of the SA Law Reform Commission (SALRC) indicated that this would not be a problem.
Clause 2: Objects
"Emotional" was to be inserted in order to be consistent with Clause (1)(f).
Ms Bogopane-Zulu asked whether disability ought to be mentioned somewhere in the objects clause, in order to be consistent with its mention in the principles clause. Ms van Zyl agreed to check.
Clause 3: Conflicts with other legislation
Ms Johaar (State Law Advisor (SLA)) noted that she could not recall an instruction to remove the provision stating that when a section of this Act was in conflict with another piece of legislation, this Act would prevail.
Mr Masutha replied that the effect of that provision would have been to indirectly amend all other laws, to align them with the provisions of this Act retroactively.
Ms van Zyl noted that the instruction had been given on 16 February 2005.
Mr Masutha noted that under the commonly accepted rules of interpretation, this Act would eventually prevail over laws passed before it by virtue of elapsed time.
Clause 4: Implementation of Act
Mr Masutha expressed concern at the use of "to the maximum extent of their available resources," which could put Departments on the spot. Although government was not as efficient as it should be, that was not a sufficient justification for the inclusion of the wording "to the maximum extent." He would have preferred a different formulation to avoid creating dramatic consequences for government.
Ms van Zyl replied that the wording came from the UN Convention on the Rights of the Child.
Mr Waters remarked that Departments had to take reasonable measures to the maximum extent, and that the inclusion of the wording showed the Committee’s commitment to children.
Ms Bogopane-Zulu supported the retention of the wording, which rightfully placed the onus on the State to prove that it had done its utmost.
Mr Masutha expressed serious concern and suggested that Members might not realise the possible far-reaching implications of the words. He cautioned that Members take full responsibility for this wording, as it was not in the Constitution but rather introduced a new concept in law.
Ms Bogopane-Zulu understood that South Africa had ratified the Convention with no objection, and therefore had the obligation to domestically implement the Convention on the Rights of the Child. This Bill played a large role in doing that and hence its wording had been used, regardless of the implications.
Ms Direko expressed support for the retention of "maximum extent," as it made clear it clear that as many resources as possible must be allocated to the implementation of this Bill and to children in general.
Mr Masutha was concerned that the "maximum extent" wording might apply to government in totality, rather than a specific Department, and that this wide scope might be overreaching the competence of the Committee.
Ms Weber felt that surely "reasonable measures" also expressed the seriousness of the Committee’s concern about children.
Ms Bogopane-Zulu added that, constitutionally, the Committee were within its constitutional rights to retain the word "maximally," because children’s rights were the only ones in the Constitution that were not progressive.
Clause 5: Inter-sectoral implementation of Act
Chapter 2: General Principles
Clause 6: General principles
This clause was originally a provision outlining that there should no preference on the basis of gender. Ms Van Zyl felt that this determination would be better placed in Chapter 3, dealing with parental responsibilities and rights.
Ms Newhoudt-Druchen suggested that a reference to disability be included in subclause (5), in order to be consistent with the reference to disability in sub-paragraph (7) of the definition of "care."
Ms Bogopane-Zulu disagreed on the basis that disability should be mentioned only where an action needed to be taken, rather than every time "age, maturity and stage of development" was mentioned.
Ms van Zyl reminded the Committee that the amendment to sub-paragraph (f) in the definition of "care" was to add "in a manner appropriate," and not "disability."
Ms Newhoudt-Druchen asked whether "disability" in sub-paragraph (f) of "care" had included "disability."
Ms Bogopane-Zulu requested that the Committee reconsider sub-paragraph (f) of "care" in order to reach an agreement.
Dr Mabetoa agreed that it was essential that "disability" be included in sub-paragraph (f) of "care".
Ms Van Zyl stated that "disability" had to be included under objects, principles, and best interests of the child. These additions would ensure that disability should always be taken into consideration and avoid inserting "disability" explicitly throughout the entire Bill.
Ms Bogopane-Zulu agreed with Ms Van Zyl, but noted that disability was not defined anywhere. The definition of "care" was only trying to define the term, and sub-paragraph (f) spoke to guiding and advising the child, while taking into account the child’s age, maturity and stage of development. She repeated her and Mr Masutha’s concern that the explicit inclusion of "disability" would lead to stereotyping of disabled children as incompetent.
Ms van Zyl proposed that, if the Committee felt that the issue of disability should specifically be included under care, it should rather formulate an extra paragraph to speak to disability, which would then require its consideration throughout the rest of the Bill.
The Chairperson asked whether this would satisfy the Committee.
Ms Bogopane-Zulu replied that she wanted to clarify the issue of disability, stating that the inclusion of advising and guidance "according to the special needs of the child" might be more appropriate than the inclusion of "disability" particularly. This phrase might be misplaced in sub-paragraph (f), but had to fall under the definition of "care."
Ms van Zyl proposed a separate paragraph under "care" to address the issue of special needs.
Ms Newhoudt-Druchen asked for clarity on inserting "disability" into the general principles in the best interest of the child section, and expressed her satisfaction with "disability" in Clause 6(d) and (f). Regarding subclause (5), did the Committee need to insert "disability" or "special needs", or was such an amendment now unnecessary?
Ms Van Zyl replied that Clause 6(5) was about the provision of information on decisions about the child with regard to "age, maturity, and stage of development," not disability. Therefore, a mention of "disability" in subclause (5) would be extraneous. Additionally, Clause 11 dealt with disability throughout the Bill, and disability will also be mentioned explicitly as a sub-paragraph of the definition of "care"
Clause 10: Child participation
Ms Bogopane-Zulu reminded the Committee of the debate around "meaningful." The Committee had decided that a more suitable term must be found, but this did not happen.
Ms van Zyl replied that this clause mostly related to age and maturity and inclusion of "meaningful" would not exclude children who found it difficult to communicate, as this would be discrimination. The drafters had been unable to find another term.
Ms Rajbally asked for clarity or an explanation from the State Law Advisor on the terms.
Ms Johaar felt that the intention was to ensure that any valuable contribution the child was capable of making to a decision that would affect the child would be considered. If "meaningful" were deleted, the phrase "age, maturity and stage of development" would still act as a rider. She suggested deleting "meaningful." Members agreed.
Chapter 3: Parental responsibilities and rights
Part 1: Acquisition and loss of parental responsibilities and rights
Clause 18: Parental responsibilities and rights
In subclause (2)(a), "custody" had to be changed to "care"
In subclause (2)(b), "access" had to be changed to "contact".
Ms Bogopane-Zulu asked for a definition of a "competent court."
Ms Van Zyl replied that the "competent court" was the court that had jurisdiction in that case.
Clause 21: Parental responsibilities and rights of unmarried fathers
Ms Weber asked what a "reasonable period" would be defined as.
Ms Van Zyl noted that a sub-committee had settled this question and that the wording "reasonable period" was chosen.
Mr Nzimande explained that "reasonable" was already in use by courts and that a strictly defined period was not a significant or consistent test of the qualifications of the biological father to assume the responsibilities and rights of parenthood.
A short discussion about when to finish working on the Bill followed.
Clause 29: Court proceedings
Ms Bogopane-Zulu asked for clarification of subclause (2)
Ms Van Zyl responded that as the applicant would be applying for parental responsibilities and rights, in effect becoming a parent, they must indicate why they have not applied to adopt the child.
Ms Bogopane-Zulu asked whether this would also apply to a biological parent of the child.
Ms Van Zyl replied that this applied to anyone without parental responsibilities and rights.
Ms Stuurman stated that this paragraph was originally included to prevent foreigners coming to SA, applying for guardianship of the child, removing the child from SA and then adopting the child from the foreign country. This method of adoption, avoiding the oversight of South African adoption legislation, would be prevented by this clause.
Ms Bogopane-Zulu asked if this would be the clear interpretation of this clause.
Ms Van Zyl replied that this clause complemented Clause 25 and as such, was a safeguard.
Part 2: Co-exercise of parental responsibilities and rights
Clause 30: Co-holders of parental responsibilities and rights
Ms Bogopane-Zulu asked for clarification of subclause (2)
Ms Van Zyl reminded Members that Clause 18 stipulated that both parents must consent to serious actions regarding the child, including removal from the country, but that for less serious decisions, including a school fun day or a medical procedure, the consent of only one parent was required. This distinction was drawn for practical reasons.
Mr Masutha concurred with Ms Bogopane-Zulu and asked whether it would be simpler to state that, aside from those actions outlined in Clause 18, the consent of only one parent was required. The Bill must avoid encouraging situations involving children being treated in a manner not mutually consensual between the parents or guardians.
Ms Rajbally referred to Clause 18, and felt that this appeared to contradict the statement.
Ms Van Zyl noted that the wording of subclause (2) was taken from the current Guardianship Act, which gave both parents individual responsibilities and rights in respect to the child. As this Bill would supplant the Guardianship Act, it was important to clarify parental decision-making power in order to avoid a return to the common law, where the married father of the child was the legal guardian. She suggested changing the wording of subclause (2) to make it clear who may give consent for situations such as necessary medical procedures, but the matter was referred to the Committee.
Mr Masutha asked whether it would be better to include a general provision to change the common law and avoid any unfair discrimination on the basis of gender that may be inherited from the common law.
Mr Nzimande felt that Mr Masutha was creating a middle ground.
Ms van Zyl replied that there would not be a problem with inserting such a general non-discrimination clause. She was concerned about inadvertently reverting to the principle that all guardians would have to give their consent for any, even minor decisions, involving the child.
Ms Bogopane-Zulu expressed her dissatisfaction with the chosen wording, but supported the principle expressed in subclause (2).
Mr Masutha agreed with Ms Bogopane-Zulu, and suggested rewording subclause (2) to state that nothing in this clause should preclude a parent from exercising parental responsibilities without prior consent of the other parent, except as explicitly outlined in Clause 18.
Ms Rajbally was concerned that subclause (2) could cause friction between the parents.
Ms van Zyl alluded to provisions that addressed this concern, particularly a later clause imposing a duty on all holders to consult each other in respect of major decisions. There was also a method to override decisions regarding obtaining consent from other sources in urgent situations, such as medical emergencies. She would examine the wording of those clauses.
Clause 31: Major decisions involving child
In subclause (1)(b)(iii), "custody" would be replaced by "care."
Clause 32: Care of child by persons not holding parental responsibilities and rights
"Emotional" was to be inserted in subclause (1)(b). Subclause (2) should read "parent or guardian of the child."
This ended the daytime deliberations. In the evening session, it was agreed that the Committee would only read those clauses that had been amended.
Part 3: Parenting Plans
Clause 33: Contents of parenting plans
Subclause (1) was inserted.
Clause 34: Formalities
Clause 35: Amendment or termination of registered parenting plans
Part 4: Miscellaneous
Clause 38: Effect of subsequent marriage of parents on children
Ms Bogopane-Zulu asked for clarity on the clause.
Mr Godi asked how substantively different subclause (2) was from (1).
Ms van Zyl replied that, normally if a child was born out of wedlock, the child would be "illegitimate". This clause provided that if the parents married, regardless of at what date, the child would be regarded as born in wedlock. Subclause (2) provided that, if for instance, the parents could not marry when they were underage. When they were of age, they would marry, and their child would then be considered to have been born inside of wedlock.
Clause 40: Rights of children conceived by artificial fertilisation
Clause 41: Access to biographical and medical information concerning genetic parents
Ms Bogopane-Zulu asked for clarity on the amendment.
Ms Van Zyl replied that the amendment was the insertion of "subject to section 290" into (3). That was done because Section 290 was part of the Chapter on surrogate motherhood. Although in law, the birth mother was regarded to have been the parent, even though another person’s reproductive material was used, the surrogate motherhood agreement made an exception to this.
Ms Bogopane-Zulu referred to (1)(b) and asked whether this related to (a) in any way.
Ms van Zyl replied that the reason the medical information could be made available was that it might be crucial if the child suffered a genetic illness. The other information could be general information about the parents, such as their backgrounds. Because of confidentiality and release of information on the child’s other parents, it was not advisable that this was released when the child was a young age.
Chapter 4: Children’s Courts
Ms Rajbally and Ms Bogopane-Zulu remarked that they were unable to recall the details of the previous meeting with the Department of Justice. Ms Bogopane-Zulu noted that the Committee had agreed that morning to continue with the Chapter and the drafters should make the required changes.
Ms W Direko (ANC) remarked that she had been under the impression that the Committee would continue, but their information should be communicated to the Deputy Minister.
Mr M Waters (DA) said that the Department of Justice had appeared twice, and the first time had presented amendments to the Chapter, which had not yet been effected. The Committee should go through the Chapter and, if it was felt that amendments should be included, this should be done.
Mr M Masutha (ANC) understood that the Committee had felt that certain provisions in the Chapter did not make sense, and suggested certain improvements on the quality of the draft. The Department of Justice had agreed that many of these should be reworked. His understanding was that they would then effect those changes accordingly, and revert with a chapter amended according to the Committee’s instructions. It did seem that, probably in an attempt to effect those changes, they might have encountered resistance to matters at a certain level within the Department. He understood that the Minister of Social Development would be meeting with the Minister and Deputy Minister of Justice the following morning, with officials of both departments, to try to resolve concerns. The Committee could either proceed and potentially revisit the amendments, or meet after the meeting the next day.
Ms Direko expressed concern that the Committee was now accommodating the Department of Justice, while the delay had not been theirs. The Chairperson confirmed that the Committee would proceed.
Mr L Nzimande (ANC) said that there was a Chapter that had been approved by Cabinet, and this needed to be examined.
Dr M Mabetoa (Director: Department of Social Development) noted that there were two versions of Chapter 4 before the Committee. There was the Department of Justice version, on which the Committee had also made inputs. In the main document, Chapter 4 did not contain the changes recommended by Justice. It merely contained changes effected by the Department to align it with the rest of the Bill.
Ms van Zyl agreed to proceed through both versions.
Part 1: Establishment, status and jurisdiction
Clause 42: Children’s Courts and presiding officers
The Department of Justice had made a small amendment to the language.
Ms Bogopane-Zulu moved that the changes proposed by the Department of Justice should be made.
Mr Waters noted that subclause (3) of the Justice document was in fact an insertion, not an amendment.
Ms Bogopane-Zulu referred to the new subparagraph (d), and requested that it be amended to read "to disabled children and children with special needs". There was no such thing as "the disabled".
Mr Godi recommended that the provision should read "persons" not "children".
Mr Masutha felt "persons" would be ideal, as there might be disabled parents rather than children.
Ms van Zyl amended the subclause accordingly, "to disabled persons and persons with special needs".
Mr Godi suggested that instead of the second "persons", the term "those" be retained, thus "disabled persons and those with special needs".
Mr Masutha noted that in terms of legal drafting, "persons" would be more correct. If two words were used in one sentence, the rule of interpretation would intend the second word to have a different meaning.
"Persons" was agreed upon.
Subclause (8) on the Department of Justice document appeared similar to the old subclause (4). There had been a proposal to add the extra words in subclause (8) to the new subclause (5) and delete subclause (8).
Mr Godi recommended simply replacing subclause (5) by subclause (8).
Ms van Zyl confirmed that she should combine subclauses (4) and (8) and delete subclause (8).
Subclause (11) had inserted in respect of presiding officers of Children’s Courts.
Mr Nzimande remarked that the issues of sign language interpretation had not been attended to. Mr Solo noted that this matter had been raised.
Ms Johaar suggested that these were not the usual competencies of magistrates, and were additional requirements.
Ms Weber remarked that the Committee had decided that linguistic skills included sign language.
Mr Masutha suggested that the aspect of sign language had been an issue of accessibility. This related to the qualifications of magistrates.
Ms Bogopane-Zulu noted that it was generally a good amendment but it did not speak to magistrates that were already in the system. It addressed incoming magistrates.
Mr Nzimande wondered whether this should be stated, as it sounded difficult to attain and might be imposing some difficult prescriptions. It was a limiting clause. Perhaps it was unnecessary and could be deleted.
Mr Solo concurred, and suggested it might better appear in the Regulations. A magistrate surely had legal qualifications.
Mr Waters recalled that he had been told that every magistrate should have a family law background and knowledge of Family Court procedures. Thus it didn’t make sense to have the provision. To complicate matters further, the Committee had decided to delete subparagraph (d) and insert "ability to communicate". There could be interpreters, so the magistrate did not have to have linguistic skills.
Ms Direko said that magistrates were supposed to have those skills and that surely these provisions were superfluous.
Mr Masutha replied that this flowed out of a clause that Justice had introduced, calling for the possibility of designating specialist magistrates for Children’s Courts. The difficulty was that it would have been relevant in the context of the introduction of a Family Court, but was a contradiction to say that every magistrate’s court was a Children’s Court and every magistrate was a commissioner of child welfare. On the the other hand, they would be saying that there would be specialist magistrates. It appeared to serve no purpose.
Ms van Zyl noted that the proposal in subclause (11)(2) came word for word from the original SALRC proposed Bill. When that had been referred to the Department of Justice, they had consulted with the Magistrate’s Commission who had instructed them to remove it. It was strange that it had been reintroduced. All magistrates were trained in family law and child and Family Court procedures - it was part of basic legal training.
The Chairperson noted that subclause (11)(2) would be removed.
Mr Masutha remarked that this would also narrow down a designated magistrate to specialise in Children’s Court work. If it were retained, a dedicated magistrate would also have meant specialisation. He supported the retention of subclause (3) but the deletion of (11).
Ms Johaar proposed a new (11) headed designated officers of Children’s Courts, (3) would become subclause (1). Subclause (2) would be (11)(1) and delete (11)(2).
Mr Godi noted that the provisions of (11) did not add anything to (3).
Mr Waters asked whether all magistrates had full understanding of (c), as a person working in the Children’s Court would have to have that training.
Mr Masutha clarified that, at the beginning of the chapter, there was a provision for every magistrate’s court to be a Children’s Court and that every magistrate was an Officer of the Court. This issue was that everyone over and above that had to be a magistrate who specialised in this work. The moment provisions were added, such as competencies, it implied that only dedicated magistrates could handle the work. The Magistrate’s Commission had said that this was inherent in the training of every magistrate. He concurred with Ms Johaar, in that subclause 11(b) dealt with qualifications proper, in terms of what was expected. The first part made it possible to appoint that a newcomer directly into the Children’s Court, and redirecting an existing magistrate from serving as a general practitioner, to work in the Children’s Court. As (3) was currently worded, it could be interpreted as not applying to existing magistrates. The State Law Advisor had been correct to suggest amalgamating the two.
Ms van Zyl agreed to liaise with Ms Johaar on the drafting.
Clause 45: Matters Children’s Courts may adjudicate
The Department of Justice had suggested amendments to subclauses (2)(i) and (3). Subclause (3)(b) had been amended to read "in respect of the guardianship of a child". In the chapter on parental responsibilities and rights, the Children’s Court was enabled to deal with issues of parental responsibilities and rights. The amendment that Department was proposing would be in line with the amendments reflected in that Chapter.
In subclause (3)(c), the Department had changed artificial procreation to artificial fertilisation and deleted "of".
Subparagraph (d) had been deleted as the term parent-substitute was no longer used.
Mr Solo said that the Committee had agreed that guardianship be included in (2).
The Department of Justice had not yet reverted with a final answer on the issue of guardianship. The Committee had requested consideration of devolution to the lower courts, especially where there would not be a removal of guardianship. The Department of Justice had been told that this was an urgent matter for the Committee.
It was noted that Mr Masutha had raised an issue with (3)(b). The Department of Justice had indicated that this subclause had been included in error and would be deleted.
Mr Solo felt very strongly about the devolution of guardianship to the magistrate’s court level and moved that the Committee should simply amend it.
Mr Godi also recalled that a sticking point had been the accessibility of the courts to the majority of people. The Committee had made it clear that all matters to do with children should be at the lowest possible level. Subclause (3) should be deleted, and all functions should be vested in the Children’s Court.
Mr Masutha added that, in any case, there was a provision in subclause (4) that nothing in the Act should be construed as limiting the jurisdiction of the High Court as the upper guardian of all children. The High Court had the inherent right to deal with matters, but the intention of the Committee was to make it possible for people to go to a magistrate’s court, the most accessible court. A perception had developed that the Bill intended to remove the jurisdiction of the High Court, and this was erroneous. The Bill was in fact extending the jurisdiction of the magistrate’s court.
It was agreed that guardianship should be included as proposed.
Mr Masutha also did not understand the need for subclause (3)(e). Removal could be legal, and there were many ways in which a child could be removed, for example with the permission of the Minister of Social Development. In addition, inter-country adoptions were squarely located in the hands of the Children’s Court, and this implied the removal of a South African child to a foreign country.
Mr Godi reasoned that abductions should also go to a lower level court.
Ms van Zyl confirmed that guardianship should be removed from the exclusive jurisdiction of the High Court, and subparagraph (b) removed. The implication would then be that artificial fertilisation remained with the High Court. Subparagraph (d) should be removed and the issue dealt with at Children’s Court level.
Mr Masutha asked for clarity on a parent-substitute. Ms van Zyl replied that the term had been used in an earlier version of the Bill. A parent-substitute could be nominated to be vested with the care of children or to be guardians in the place of a parent, on the death of a parent.
Mr Masutha asked whether this did not form part of a will, and noted that wills were retained at High Court level. Why was it being devolved?
Ms van Zyl noted that it was not being devolved, but that the term was no longer used in the Bill. She offered to insert a cross-reference, and noted that the function would have to be retained in the High Court if it involved wills.
Mr Solo asked whether the devolution of guardianship would impact on subparagraph (3)(h).
Mr Masutha said guardianship accrued in various ways, such as by application to a court, by way of the law of intestate succession, or a will. The safeguarding of a child’s interest in property invariably related to who had control over the child property and therefore related to guardianship. The complexity of guardianship as opposed to custody implied that the holder had to have capacity to apply certain other areas of law such as succession, and this might explain the Department of Justice’s resistance to its devolution.
Ms van Zyl replied that the Department appreciated all the complexities of guardianship, as it related to wills and property. The Department of Social Development was not proposing that it should be dealt with by the Children’s Court in totality, but that the Children’s Court should be empowered to appoint a guardian for an orphan, where the care-giver could not exercise a full range of parental responsibilities and rights because s/he was not the guardian. Intricate matters could still be dealt with in the High Court.
Mr Masutha noted that they had made a decision but that he was just alerting the Committee to the issues. The Department of Social Development’s argument was not particularly useful, as a magistrate would have to ask if there was a will valid in law, and for any objections. If there were no will, the rules of intestate succession would have to apply. There was no way in which the court could avoid dealing with succession. If someone was appointed a guardian in contradiction with an existing valid will, this would create a problem. If there were no will, the magistrate would need a sound knowledge of the law of intestate succession.
Ms Bogopane-Zulu asked whether a possible solution might be to follow the lead of the Master’s office, which was establishing offices in magistrate’s courts.
Mr Masutha replied that the Master’s office had been called as their function included the administration of deceased estates and the recommendation of the appointment of guardians and curators and others to look after the interests of children. The functions devolved were not devolved to magistrate’s courts as such, but the Master’s Office had placed its own staff at that level without making it a function of the magistrate’s courts. The question had been raised that magistrates had been accustomed to administer the estates of all black persons and thus had to be knowledgeable of all customary laws of succession. This appeared to be sufficient justification that magistrates should be proficient to deal with questions of succession. If the Master’s office had a presence at magistrate’s court level, this would lend some support to the affairs of the properties of minor children. The Department of Justice had conceded that eventually guardianship could be devolved. It was thus a question of whether the Bill would succeed in making this devolution.
Ms Direko recalled that the reply from the Master’s Office was that although it would be placed in the magistrate’s courts they would have their presence there and supervise because in the final analysis was responsibility of the Master to settle estates. Magistrates thus had no jurisdiction over estates.
Ms van Zyl confirmed the following amendments in terms of subclause 45(3) that dealt with matters that were the exclusive jurisdiction of the High Court and Divorce Court:
(a) was deleted, hence the magistrate’s court could deal with it.
(b) was deleted, as above.
Mr Nzimande asked whether the amendments took cogniscence of Mr Masutha’s input on extending access to a lower court.
Mr Masutha confirmed that the removal of the exclusive jurisdiction of the High Court over guardianship and the other issues, did not imply the extension of the jurisdiction of the Children’s Court with regard to other processes currently the exclusive jurisdiction of the High Court. Children’s Courts would have a right to consider the matter, but that was not by implication extending jurisdiction of Children’s Courts to handle, for example, divorce matters.
Ms Direko asked where the jurisdiction of an estate lay.
Ms Rajbally requested that the drafters spell out which areas fell under the jurisdiction of the High Court.
Ms Bogopane-Zulu said that with the understanding that Family Courts, the guardianship of a child would one day be conferred on a lower court. Subparagraph (a) should not be deleted. Subparagraph (c) should be reworked as (b), (e) would become (c), but for now (h) would become (f) and subclause (4) would be the over-rider.
Mr Masutha asked for clarity on whether the retention of what was currently (k) of (1) did not by implication suggest that a magistrate’s court could deal with matters involving children that fell outside the jurisdiction of the magistrate’s court, such as divorce.
Mr Waters said that if guardianship were deleted, it would have to be placed under the jurisdiction of the Children’s Court.
Mr Masutha suggested that this was covered under (1)(k). Mr Waters recommended that it be expressly stated.
Ms van Zyl noted that what happened here would impact on the rest of the Bill. She had to be 100% certain of the Committee’s instructions on this clause. The following amendments were confirmed:
(a) would remain,
(b) would remain,
(c) would remain, and
(d) would remain.
Mr Masutha asked whether the term ‘support’ equated with ‘maintenance’ as in the Maintenance Act, and whether this was not by implication extending the jurisdiction of the Children’s Court to deal with maintenance.
Ms Rajbally suggested that support could be defined in many ways and that it should remain. Ms Bogopane-Zulu concurred.
Ms Johaar was unable to answer Mr Masutha’s question, and suggested that, when the Bill was submitted to the State Law Advisor, she could deal with it as instructed.
Ms van Zyl replied that it was difficult matter, as she understood support to be a broader concept than maintenance. The Maintenance Act only dealt with money and concrete figures. Support was broader than just money. She did not have any legal authority on hand to indicate how this should be understood.
Mr Godi proposed that support remain as stated, with the understanding that when the State Law Advisor looked at the Bill, if it was found that they had same interpretation, the provision should be removed.
Ms van Zyl confirmed the retention of subparagraph (d) subject to confirmation of interpretation by the State Law Advisor. Subparagraphs (e), (f) and (g) would remain.
Subparagraph (i) contained a proposed amendment by the Department of Justice, but the reasons for this were unclear. In any event, the Hague Convention had to be complied with and the Chapter on inter-country adoptions had to be complied with, and in that Chapter it was stated that the court had to ensure a check list of issues to go through. It was suggested that the insertion be ignored, and that (i) should remain. This was agreed.
Subparagraphs (j) and (k) would remain. In subclause (2), subparagraphs (a), (b) and (c) would remain.
In subclause (3), the Department of Justice had proposed the insertion of additional wording "or legislation…" This was of concern because the drafters were not aware of legislation or any plan to confer civil and family law jurisdiction on regional courts. It was proposed that this part not be accepted. This was agreed.
Subparagraph (a) had been deleted from the subclause, and it was queried whether this should be inserted into subclause (1).
Mr Masutha thought the reason for the insertion was that the establishment of Family Courts might not be the only route to deal with the matter. The the Department of Justice was currently preparing legislation to extend the jurisdiction of the regional court to deal with a range of civil matters, including many of the Family Court aspects currently dealt with at the High Court.
Ms van Zyl proposed that the drafters would ascertain whether this was in the pipeline, and if so, that it not be removed by the State Law Advisor when reviewing the Bill.
Mr Masutha expressed concern at this approach. It should be assumed that a delegation from the Department was duly authorised to speak on behalf of the Department. The proper procedure would be to rely on the official communication given to the Committee by a delegation authorised by the Department.
Mr Godi suggested that Mr Masutha was correct as this had been given at a formal level. The issue should be addressed in the next day’s meeting.
Ms van Zyl asked for confirmation of including guardianship of a child in subclause (1). Ms Bogopane-Zulu concurred.
Ms van Zyl noted that subparagraphs (3)(a) and (b) were to be placed in subclause (1). The Department had proposed that this be amended to refer to guardianship. Should the reference be to parental responsibilities and rights or guardianship?
Mr Masutha confirmed that parental responsibilities and rights included everything. This would be hiding guardianship under parental responsibilities and rights.
In terms of subparagraph (f), Mr Masutha suggested that the difficulty was that the situation could arise out of two different scenarios. It could either be an unsuccessful inter-country adoption or an inter-country abduction, which belonged at two different levels of jurisdiction. The difficulty of excluding a Children’s Court here was that it effectively said that, if an inter-country adoption failed, whoever had an interest in the matter would be unable to approach the court for assistance to have the child returned. The High Court would have to be approached, and he questioned whether that had been the intention.
Ms Direko asked whether a lower court would have the competence to deal with a case of this nature.
Ms Johaar noted that the Children’s Court could deal with all matters relating to adoption, including inter-country adoption. In her opinion, the clause referred to removal in any other way but inter-country adoptions.
Ms van Zyl suggested that this be inserted under subclause (1). If a child was abducted, it was international child abduction and would be the jurisdiction of the High Court only. If a person approached High Court, where part of the problem was that the child had been removed from the country, that would form part of the application. Both applications would be brought to one court.
Mr Masutha noted that his question had not related to (e) but to (f). His understanding was that the return of a child could involve a failed inter-country adoption order. The paragraph might have been drafted with abduction in mind, but by implication it included adoption.
Ms van Zyl reiterated her proposal that it be inserted under subclause (1).
Ms Bogopane-Zulu asked where unsuccessful inter-country adoptions would be covered, if the subparagraph was deleted.
Mr Godi felt that subparagraph (f) was still required insofar as it related to abductions. If the provision stated that the adoption of a child included inter-country adoption, the sentence would imply that the process of inter-country adoption would be completed the moment that child phase lapsed. Until then, the Children’s Court would have jurisdiction over whatever arose out of the initial ruling.
Ms Johaar suggested that subparagraph (f) be redrafted to read "except when relates to an inter-country adoption" as it might not be possible to foresee all eventualities. If the Committee would like to make it the jurisdiction of the High Court, that would not be a problem, but in terms of adoption, the Children’s Courts had exclusive jurisdiction.
Ms van Zyl noted that subparagraph (g), the age of majority would stay, and subparagraph (h) would move to subclause (1).
Mr Masutha noted that the same question arose of whether it was outside the framework of the broader concept parental responsibilities and rights. Was there a need to mention it specifically? Issues of succession and the interpretation of wills were the Master’s role and his office was located in the High Court. Provided that the issue of guardianship was dealt with by subsuming it under parental responsibilities and rights, the Committee would have achieved what it wanted. Any further complications arising out of disputes over property could to the High Court.
Mr Godi agreed with Mr Masutha saying that the question of guardianship had had a narrow definition so that it did not include all the other desired elements. The key element was to ensure access, so subparagraph (h) could be left in subclause (3). Ms van Zyl confirmed this.
Mr Masutha noted that the objection had been to expressly mentioning it in subclause (1). If it was deleted, parental responsibilities and rights would in any case have included guardianship, but would have avoided any accusation that the provision was devolving issues like succession to the Children’s Court. He recommended the subparagraph be deleted and not mentioned elsewhere.
Ms van Zyl confirmed that subparagraph (h) would be deleted. Subparagraph (i) on surrogate motherhood would remain, as the chapter on surrogate motherhood specifically stated that this would be dealt with in the High Court.
Subclause (4) was important, and should remain. She asked for clarity on the Committee’s decisions in respect of subclause (5).
Ms Bogopane-Zulu referred back to subclause (3), noting that subclause (5) still referred to (3) as it stood before amendment, asking whether the amendments had any bearing on subclause (5) as it stood.
Mr Godi was unsure of the extent to which the absence of the subclause handicapped the functioning of the High Court and Divorce Court in relation to the matters alluded to in subclause (3). He questioned the necessity of subclause (5).
Mr Masutha concurred with Mr Godi and Ms van Zyl, because the subclause alluded to a request for a report, and lacked specificity. A Children’s Court was a court in its own right, and it did not produce reports, it produced decisions as distinct from the other institutions. A Children’s Court, as long as it remained a court, could not be expected to produce a report. It could produce a record of the court, or the decision of the court, but not a report. The subclause made it an administrative instrument which was not right.
Ms Johaar concurred with Mr Masutha. It was agreed to delete the subclause.
Clause 46: Orders Children’s Court may make
No amendments had been proposed.
Mr Masutha asked whether there were no implications for this clause pursuant to the decisions taken that night, such as on guardianship.
Ms van Zyl would have to examine it in view of the amendments done to the guardianship issue. When the State Law Advisor did a final review of the Bill, it might be necessary to look at possible consequential amendments.
Mr Godi suggested that the Committee should take a general line, saying that if changes made were consequential to other sections, the drafters and the State Law Advisor would make general changes as indicated by the changes already made.
Mr Masutha added that, as he read the list in Clause 46, guardianship was not included, and this was because guardianship was expressly excluded from the lower courts.
Clause 47: Referral of children by other court for investigation
Subclause (1) contained an amendment proposed by the Department of Social Development, to provide for referral to a designated social worker.
Subclause (2) contained amendments proposed by both the Departments of Justice and Social Development. The amendment proposed by the Department of Justice was the introduction to the subclause.
Subclause (3) remained unchanged.
Mr Godi confirmed that Ms van Zyl was reading amendments proposed by the Department of Justice.
Ms van Zyl replied that the introduction to subclause (2) had been proposed by the Department of Justice, and inserted "in the opinion of the court", which was substantively the same. Allegations of abuse or neglect had been deleted, and "made in respect of" should also be deleted, as it no longer made sense in the sentence. It was a move away from allegations of abuse to say that the court had to be of the opinion that there had been abuse. Mr Godi concurred with the insertion.
Ms van Zyl noted that the references would be checked, but stated that the Divorce Act was defined, but that the Domestic Violence Act was not, and it would now have to be given its full name.
Mr Masutha noted that ‘cosmetic’ changes were necessary and should not be dealt with here. The only issue that the Department of Justice was raising, and which had been correctly captured by Ms van Zyl, was that the court should apply its mind and arrive at an opinion. This was not an unreasonable request, but the language should be sorted out.
Ms van Zyl confirmed that the change would be made, but the grammatical errors would be corrected.
Clause 48: Additional powers
Ms van Zyl requested clarity on the issues previously raised by the Committee.
Mr Masutha noted that it had been suggested that interdicts and auxiliary powers could not simply be extended to Children’s Courts in general, but in relation and confined to those matters over which the court had jurisdiction. Magistrate’s courts did not ordinarily have powers relating to interdicts.
Ms Johaar suggested that clause 48 should read, "subject to section 45". That was a closed list, and if clause 48 was made subject to section 45, this would cover Mr Masutha’s concern.
Mr Masutha expressed doubt on how this would work in relation to subparagraph (a).
Ms van Zyl suggested that the suggestion be accepted, but that the wording be placed in subparagraph (b), rather than at the beginning of the clause.
Mr Masutha suggested that a more direct way of doing this could be to collapse subparagraphs (a) and (b) into one paragraph, to read "make any order it is empowered to make in terms of this Act, including the granting of interdicts and auxiliary relief in relation to such matters". In addition, the matters in respect of which it was required to allow the court to grant interdicts and auxiliary relief were the matters over which it had jurisdiction, rather than the matters over which it could make orders. A proposed wording would be "with regard to any matter that it is competent to adjudicate on as outlined in section 45". Subparagraph (b) would then read "grant interdicts and auxiliary relief in respect of any matter contemplated under section 45".
Mr Godi asked whether that meant that (a) would go as the two would have been collapsed.
Mr Masutha suggested that subparagraph (a) should read "grant any other order incidental".
Ms Direko asked Mr Masutha not to use words like incidental as the Bill was supposed to be addressed to the ordinary people.
Ms van Zyl proposed "(1) A Children’s Court may apart from the orders it is empowered to make in terms of this Act, (a) grant … in respect of any matter … 45(1) etc".
Clause 49: Lay forum hearings
The Department of Social Development had proposed one small amendment, to refer to a suitably qualified person rather than a professionally qualified person. This was agreed.
Clause 50: Investigations
The Department of Justice had proposed the insertion of subparagraph (4)(d), empowering a police official to remove a person suspected of immediately causing harm from the child’s home pending a court order.
Ms Bogopane-Zulu noted that, although the amendment was supported, it was impractical. What had the Committee concluded?
Mr Masutha proposed that, rather than listing all the possible court measures (including that such a person should continue his responsibility to support the family), the clause could, in (e), order that the person removed should continue to fulfil their obligations in relation to the upkeep of the child and the family and the household from which they have been removed. This would be in addition to order contemplated in (d).
Ms van Zyl referred to clause 153, which was written notice to an offender. This clause had been requested by the South African Police Service. It was a very long and detailed clause giving a police official the right to remove a person. It covered continued maintenance and the confirmation of the removal by a court. Subparagraph (d) could cross refer to clause 153, and state that if a person was removed under (d), the same procedures should be followed as per clause 153. This was agreed.
Clause 55: Legal representation of children
An amendment had been proposed by the Department of Justice. Substantial injustice was already referred to in subclause (4), so it appeared a repetition to insert it in subclause (1).
Ms Direko proposed avoiding repetition.
Mr Masutha did not feel that subclauses 55(1) and 55(4) were identical.
Ms van Zyl noted that the same term was used but she had a specific problem with its use in Clause 55. In subclause 55(4), the wording was based on the wording of the Constitution that said that legal representation may be appointed … if substantive injustice would otherwise result. The proposal to add in subclause (1) seemed to mean that a child could only get legal representation in a matter, if leaving the child without representation would lead to substantive injustice. Children now had the right to be heard during court proceedings. The only way that they could participate would be through a legal representative. A qualification was now being imposed that was not there before.
Mr Masutha remarked that the duty of legal representation had been introduced in the Child Care Act, and was still contested and had not yet come into operation. He was reluctant to pass a clause that would take another ten years. There could be situations where the involvement of a lawyer would be counter-productive. He was unsure whether it was appropriate to impose that, in every situation where a child appeared, the court would of necessity, at state cost, have to provide a lawyer.
Mr Godi said that if the interpretation as presented by Mr Masutha was that subclause (1) should not imply that there should be a lawyer for all matters, he would support keeping the amendment to the extent that it did not impose an obligation on the state to provide a lawyer every time a child came before the court.
Ms Johaar took the Committee back to clause 54 and pointed out that the person there would include a child. She would suggest that subclause 55(1) be deleted, because she would interpret clause 55 as saying that a child was entitled to a lawyer. If the child was unable to pay, the court could be asked to appoint a lawyer, and the court could refuse. If substantive injustice would result, the court could be instructed to appoint a lawyer at state expense.
Ms Bogopane-Zulu asked whether, in deleting subclause 55(1), Clause 54 would fall away.
Mr Masutha noted that children were incapable of managing their own affairs so the appointment of a legal representative was a legal act which a child was not competent to perform, as it involved a contractual agreement.
Ms Direko suggested that provision should be made for the court to monitor the performance of the lawyer.
Mr Godi referred to subclause 55(1) and suggested that it established the right referred to in subclause 55(3). The Department of Justice had put in a qualification to ensure that legal representation was not appointed in each and every case in which a child was involved.
Ms Direko asked why subparagraph (2)(a) was included.
Mr Masutha warned that good might be undone if the subclause was deleted. A statement of right might be counterproductive in the sense that it could complicate the way in which the Committee was trying to manage the child in relation to legal representation. In the first instance, the Bill said that the child lacked the capacity to act, so an adult had to act. Pursuant to the principle enshrined in the child rights chapter, that child had to be consulted, so this was creating the space for the child to be able to request legal representation. Instead of a blanket statement of right, it affirmed a specific way of effecting the right, and this could have unintended consequences.
Ms Johaar emphasised that Clause 54 was a statement of right, and proposed a change to "a child in a matter before …. a legal representative … expense", and then name Clause 55 "Appointment of legal representative by court", renumbering subclause 55(2) as (1). If a child was unable to pay for legal representation, the child could request the court to appoint one on his behalf, and subclause (4) would provide that, if substantial injustice would occur if there was no legal representation, the court could appoint such at the state’s expense.
Mr Masutha expressed surprise that the State Law Advisor was saying that a child could in law be expected to do something that the law said a child could not do. A child could express a wish but could not perform such a legal act.
Ms van Zyl noted that the precedent had been set in two court cases. The substantial injustice would only apply to instances where the state was paying.
Mr Masutha suggested that Ms van Zyl was out of order as the issue was the statement of right.
Mr Waters said that subclause 55(1) laid down the principle that a child was entitled to legal representation. This was an important principle and should be embraced.
Ms Bogopane-Zulu suggested that leaving subclause (1) would create a problem in that children could just make demands. She proposed deleting subclause 55(1) and renumbering the clause.
Mr Masutha asked whether "person" excluded a child. If, as suggested by Ms van Zyl, there was a precedent by the court to the effect that child was allowed to appoint their own legal representative at their own cost. Surely the word "person" in that context would also include a child? If this was not the case, Clause 54 should state "a person including a child", so that it was clear that it related a child exercising the right at her or his own expense.
Ms van Zyl replied that the two cases involved custody litigation. In the first case, the need for the child to be represented was communicated to the court and the court then instructed that a lawyer be appointed. It was not a case of the child entering into an agreement; the court was ordering representation. The second case was a father trying to enforce access, where the court also allowed the children to have legal representative. The children did not enter into an agreement with the lawyer. Following on that, it appeared that Clause 54 was not meant to cover the child. At issue was the idea that government should only pay when the child truly could not pay. If the court ordered a lawyer to be appointed, the court could also instruct the parents to pay, for example. In the one case mentioned, the lawyer had offered his services free of charge. The Legal Aid Board recognised that they would probably have to provide, and this formed part of the costing currently being undertaken. It was estimated that it would cost R20 million a month to expand the services of the Legal Aid Board to civil cases as well. If there was a concern that it might cost the government too much, the drafters could add that, where a child or parents could afford legal representation, the child could request the court to appoint representation, but that the parents would pay. Only when substantial injustice would result, would the state pay the lawyer.
The Committee agreed to delete subparagraph (1).
Clause 56: Attendance at proceedings
Ms Bogopane-Zulu noted that there had previously been a debate on who should attend, in order to accommodate relayed interpretation.
Ms van Zyl suggested that this might be dealt with in 61(2).
Ms Bogopane-Zulu emphasised that the provisions were addressing two different issues. This clause related to the realities of deaf children in particular, and their access to sign language. Although it might not belong here, it had to be taken into account. Ms van Zyl thought that a provision had been made, as it was pointed out specifically in relation to disabled children.
The meeting was adjourned after midnight.
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