A summary of this committee meeting is not yet available.
SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
27 May 2005
CHILDREN’S BILL: DELIBERATIONS
Documents handed out
Chapter 18: Trafficking in children with excerpts from Chapter 1
Chapter 20: Enforcement of Act
Amended Bill: May 2005
Children's Bill [(B70-2003) Reintroduced]
A delegation from the Department of Justice informed the Committee that they had been instructed to await further instructions before proceeding with the Children’s Courts chapter. The Deputy Minister of Justice had expressed concern at the cost implications of the Bill. The Committee was dismayed at the further delay to the Bill.
The Committee continued its consideration of the Bill, from Clause 50, and amendments to the inter-country adoptions chapter. As a signatory to The Hague Convention on Inter-Country Adoptions, South Africa was in the process of implementing the requirements for a Central Authority. The Director-General of Social Development was the Central Authority, but would function with a board that would include representatives of all affected departments. Attorneys would not be accredited to perform inter-country adoptions, as had been requested by the Department of Justice.
The further amendments to the provisions of the Bill in respect of child trafficking were discussed. Particular concern was expressed about the need for an escort for a trafficked child when that child was returned to the Republic. It was felt that too much discretion could leave the child vulnerable, and that the decision might be based on financial constraints.
A delegation from the Department of Justice informed the Committee that the Deputy Minister of Justice had expressed concern at the cost implications of the Bill. He had instructed the Department of Justice that the process in respect of the Children’s Courts chapter be put on hold, until a mandate was received from the Ministry.
Mr M Waters (DA) asked whether the Minister and Deputy Minister of Justice had not been briefed when the Bill had gone to Parliament.
Ms Shabalala (Department of Justice) replied that, subsequent to the initial presentation, there had been major changes to the Bill, on which the Department of Justice was still working, particularly with regard to the cost implications of the changes.
Dr M Mabetoa (Department of Social Development) suggested that this might relate to the change in Ministers, as the previous Minister had been part of the changes. The only changes since then had been those proposed by the Committee, and these were few and minor. The main issues had been guardianship and the children’s court assistants. Perhaps the delegates could make the Deputy Minister aware that the Chapter had already been passed by the previous Minister, and that the Chapter had not been tampered with apart from those two issues.
Mr Waters suggested that, in view of the fact that the delegates from the Department of Justice had to go back to the Ministry, this might be an opportunity to raise the question of guardianship with the Minister.
Ms Shabalala concurred, and said that that was precisely the issue she had hoped to raise. This was totally in line with the changes the Minister was making in terms of the review process.
Mr Waters reminded the delegates Tuesday was the very last day that the Committee would have to process the Bill.
Dr Mabetoa explained that if the Bill were not finalised by Tuesday, it would not go to the National Council of Provinces (NCOP) this term, and would only be able to be passed next year. This would shift the posts by almost one year.
Ms S Rajbally (MF) remarked that it had been raised in the programming committee as an issue, and it was said that the Committee was sitting continuously. The attention of the Speaker should be drawn to the possible delay.
Clause 250: No consideration in respect of adoptions
Dr Mabetoa reminded the Committee that Mr Masutha had raised an issue about the need for a definition of adoption services. No decision had been reached.
Ms A Muller (Department of Social Development) explained that Mr Masutha had said that it was a very vague definition, and that it would have to be addressed.
Dr Mabetoa asked the Committee for a go-ahead on redefining adoption services. This was given.
It was noted that one proposal was to state: "for adoption to occur, these are the preconditions…"
Dr Mabetoa suggested that the drafters consult with Mr Masutha on rephrasing the Clause. This was agreed.
Clause 253: Regulations
A minor amendment had been made in subparagraph (a). The reason for this was that the procedure for finding a child abandoned for the purposes of being in need of care was different from the procedure for finding a child had been abandoned for the purposes of adoption.
CHAPTER 16: INTER-COUNTRY ADOPTIONS
Clause 254: Purposes of Chapter
Subclause (b) had been removed, as there was currently no reference to bilateral arrangements, and a new subclause (c) inserted. It was proposed that the word "suitable" be replaced by "fit and proper", to concur with the Adoptions Chapter. This proposal would also place the focus on the child, so that the child would find suitable parents, rather than the parents going baby hunting and finding a child to suit their purposes. This was accepted.
Clause 255: International co-operation
The Clause had been referred to the Department of Foreign Affairs, who had given written feedback to state that they did not disagree with its provisions. This was agreed to.
Mr Waters asked who would serve in the Central Authority.
Ms R van Zyl (SA Law Reform Commission) replied that the Director-General of Social Development would be the Central Authority, but that the responsibilities would be delegated.
Ms Muller noted that it was still an administrative function in the Department, until the legislation was in place.
Dr Mabetoa agreed that it was administrative at present. Information was received on children already adopted, and they were registered. Ideally, a Board was required that would involve other Departments such as Justice and Foreign and Home Affairs, as portrayed in the Hague Convention.
Ms P Moodley (Department of Justice) said that it had always been the Department of Justice’s contention that it would like to be part of that Board and share the responsibility with the Department of Social Development. Adoption was a legal process, sanctioned by a court of law, and the Department of Justice felt that it would be unable to control all the technicalities and legal mechanisms to be followed if it was not part of the Central Authority. The last time that the Committee had discussed the matter, the Department of Justice had not been invited, but had read the minutes on the Internet.
Ms Muller explained that it was planned to establish the Board with the other Departments. The Hague Convention provided for an administrative function and this had been implemented as far as possible, for example by issuing accreditation. It was still an interim body, and submissions had been sent to the Director-General to establish a Board, but that stage had not yet been reached.
Mr Waters asked whether this had to be legislated for. Ms Muller replied that this was part of the process, and that the Department was in contact with The Hague on a weekly basis to discuss the issue. The State Law Advisor had been asked for an opinion, and they had replied that the administrative process could be started. If the Committee wanted to legislate for a Board, that would not be a problem.
Dr Mabetoa explained to the Department of Justice that the Board would be elaborated on in the Regulations.
Ms Shabalala said that the Department of Justice would like to be represented at the highest operational level.
Dr Mabetoa suggested that the drafters should define the Central Authority, and that this would be further defined in the Regulations.
Clause 258: Delegation of functions
As discussed the previous day, the provision would be amended to refer to organisations "accredited for inter-country adoptions".
It was suggested that the Clause refer to a child protection organisation accredited to do adoptions, and remove the reference to a child adoption organisation.
Clause 259: Accreditation of child adoption organisations for inter-country adoptions
As per the earlier discussion, this would be amended to correctly reflect the position.
In subclauses (1)(a) and (2), "perform" was amended to "provide", as this was grammatically more correct.
Subclauses (4) and (5) were inserted, in accordance with the previous day’s discussion. It was proposed that when the wording in the previous chapter was finalised, these subclauses should be amended accordingly.
Clause 260: Entering into adoption working agreements
The same amendment would be effected to refer to a child protection organisation accredited to perform inter-country adoptions. This was agreed to.
Clause 261: Adoption of children from Republic by persons in convention countries
In subclause (3), the reference to a suitable child had been replaced by reference to adoptable child.
Subclause (5)(a) had been inserted to indicate that adoption had to be in the best interest of the child.
Subclause (5)(g) had been inserted and "suitable" would be changed to "fit and proper". It was essential that the authorities first ascertain that there were no appropriate adoptive parents in the country.
Subclause (6) had been inserted. The Hague Convention allowed for a probation period, where the adoption could be reconsidered. This subclause allowed for that probation period.
Subclause (7) had been inserted.
Subclause (9) had been inserted.
Ms Moodley asked whether or not attorneys were being accredited. Ms van Zyl replied in the negative, as the Department of Social Development had not changed its position on this. Attorneys did not have the necessary background and training of adoption agencies. Attorneys were free to render legal services in connection with adoptions, but would not be accredited to perform them.
Dr Mabetoa referred to Clause 259(4), and noted that this would cover the issue. She confirmed that attorneys could not be accredited.
Clause 262: Adoption of children from Republic by persons in non-convention countries
A minor amendment was made in subclause (3) to refer to "adoptable child".
Subclause (5)(a) had been inserted, for the best interests of the child.
Subclause (5)(g) had been inserted, and would be amended to "fit and proper".
Subclause (6) had been inserted, as per the previous clause, providing for a probation period.
Subclause (7) had been inserted as per the previous clause.
Subclause (9) had been inserted as per the previous clause.
These amendments were agreed to.
Clause 264: Adoption of children from convention countries by persons in Republic
Subclause (3) was amended to refer to an "adoptable child".
Clause 265: Adoption of children from non-convention countries by persons in Republic
The Clause was amended as above.
Clause 270: Refusal to recognise inter-country adoption or Article 27 decision
A question had been raised regarding the term "public policy" in subclause (1). This had been used because it appeared in the Hague Convention itself. It might be possible to substitute the term with "general adoption practices".
Mr Waters asked whether the general adoption practices would be the two Chapters just discussed. Ms van Zyl confirmed this. Mr Waters supported the use of "general adoption practices".
Ms van Zyl suggested that "general adoption practices" was actually narrower than "public policy", which seemed to speak to the feeling of the community at large.
Ms A Johaar (State Law Advisor) replied that the Committee could amend the provision to "general adoption practices", but noted that public policy was a defined policy.
Ms van Zyl observed that the term had been used as per Article 24 of the Convention.
The Committee agreed to retain "public policy".
CHAPTER 18: CHILD ABDUCTION
Ms van Zyl noted that no amendments had been made to this Chapter.
CHAPTER 21: ENFORCEMENT OF THE ACT
Clause 297: Inspection of child and youth care centre, partial care facility, shelter and drop-in centre
Mr L Nzimande (ANC) raised a minor point for consistency in subclause (1) requesting the use of "municipal manager", as it would cause indirect challenges at a municipal level if left unchanged. Ms van Zyl agreed that a municipal manager was named in the consolidated Bill.
Ms Rajbally asked whether this included the child’s home. Ms van Zyl replied in the affirmative, if that home was used as a child and youth care centre, but that there had to be a reasonable suspicion. If it was a private home on the face of it, but there was a suspicion that it was actually an unregistered facility, it could be entered.
Mr M Masutha (ANC) wondered whether, in terms of the Municipal Services Act, the municipal manager’s office would exist in every single municipality. Ordinarily, legislation would try to impose the obligation on the head of the institution in all instances. The main distinction lay between the functions the Bill wanted to bestow on the executive head and on the administrative head. In this instance, it was proper to have appointed the Director-General, not the Minister, but consistent with that approach, the function was being allocated to the office of the head, because he had to take ultimate responsibility. A letter from any government department was always signed under the authority of the Director-General, because ultimately the actions of the Department had to be taken under the authority of the Director-General. The same approach should be applied to all entities of the State.
"Municipal manager" would be inserted. This could be clarified with the Department of Provincial and Local Government, or the Municipal Systems and Municipal Structures Acts could be consulted. This was agreed to.
Mr Masutha referred to subclause (3(a)(iii) and asked whether this was dealt with anywhere else. Most laws were administered by municipalities, but the standards could be set in national or provincial legislation.
Ms van Zyl suggested the insertion of "as may be required by any other law".
Mr Waters asked whether any authorised person who suspected than an unregistered drop in centre was operating, was allowed to investigate while carrying only an ID card. Was this in line with the Constitution?
Ms van Zyl replied that a warrant was required, but if legislation provided for other measures, this could be altered. For example, the Department of Labour had labour inspectors, and the Department of Social Development had social workers. If these people had to get warrants each time, it would hamper their work. If they were in any doubt about whether they could enter, they would obtain a warrant. Several pieces of legislation contained this provision, and the drafters had been assured that this was in line with the Constitution.
Dr Mabetoa remarked that the Department of Correctional Services had a similar provision. She had a card that allowed her to enter any correctional services facility.
Ms Johaar explained that the entry, search and seizure provisions were carefully monitored, but that people had to have inspection rights.
Clause 298: Offences
Amendments had been made throughout the Bill and, when it was finalised, the drafters would ensure that this Clause was in line with other possible technical amendments.
In addition, the trafficking Chapter created two new offences, and these were contained in subparagraphs (1)(r) and (s).
Subclause (7) had been inserted, to make trafficking in children a more serious offence. The subclause contained the provision that, on a second conviction for child trafficking, the offender could get a double penalty.
Ms I Mars (IFP) asked what a reasonable period was for reporting to the police, suggesting a timeframe be inserted.
Ms Johaar replied that a legal test was applied when reference was made to "reasonable". This was the test of what a reasonable man would do in that situation. It was reasonably subjective.
Mr Masutha wondered whether there should be such an emphasis on reasonable time or reasonable measures or steps, or whether the Bill should simply stipulate "promptly take", to ensure an element of urgency was built in. It might be necessary to safeguard a person who went to the police station in good faith, but where the police officer discussed the matter formally without opening a docket. That person would assume that the police would deal with the matter.
Ms van Zyl suggested a change to "is guilty of an offence if that person, on gaining information of the occurrence, fails to promptly take reasonable steps to report the occurrence to the SAPS".
Ms H Weber (DA) suggested a provision that a person’s assets be forfeited. Ms van Zyl replied that the Assets Forfeiture Act made provision for such a step in cases of organised crime. It appeared that the court was fairly flexible in applying the legislation.
Ms Rajbally asked what would happen to the child, when the person guilty of the offences was removed and imprisoned? Would the child remain in that institution and what would happen once the person had been released or had paid his or her fine?
Ms Van Zyl replied that the provisions relating to a child in need of care and protection would come into force. A child in the care of someone who clearly abused that child would definitely be in need of care and protection and would be removed from that situation. This would apply regardless of whether the offender was removed. Once the child was in the system, it would normally take a court order to have the child placed back with the offender.
Dr Mabetoa confirmed that Chapter 10 would cover the situation together with the Chapter on the Child Protection Register. Once the child had been declared in need of care, the child had to be provided with services.
Mr Masutha referred to subclause (3) and asked whether subclause (4) added anything to neglect. Subclause (4) could be interpreted either as applying only to a person with parental responsibilities and rights, or a person responsible for the care of the child at the time, or to usurp the role of the Maintenance Act. The Maintenance Act sought to create a legal obligation that focussed especially on the parent who was not currently the child’s carer, and failure to provide for that child would render that person guilty of an offence under that Act. He proposed that subclause (4) should be deleted, because, if it targeted maintenance defaulters, that would be dealt with under the Maintenance Act. If it targeted parents or caregivers who neglected their children, that would be covered under subparagraph (3)(a). The duty under subclause (3) should not be limited only to parents and caregivers, but anybody else in a position of loco parentis for the child, for the duration of that proximity, should equally be affected by both subclauses (3)(a) and (3)(b).
Ms Johaar replied that subclause (3) spoke to a parent and a caregiver, and spoke of neglect (which was defined to be anything done in respect of parental duty). In the literal meaning of "contact", not all persons making contact with a child had parental responsibilities and rights. Subclause (4) provided that any person making contact with the child had an obligation to provide care for the child. They were different provisions.
Mr Masutha replied he had been checking whether the list was a closed one, and whether there was nothing else that could have been included, that should have been. The definitions might have to be re-examined, as the failure to protect a child from danger might not be covered.
Ms Weber suggested that "medical aid" should read "medical assistance".
Dr Mabetoa replied that, to accommodate Mr Masutha’s concern, the drafters would add childminder or anybody in locus parentis in subclause (3).
Mr Masutha concurred with the State Law Advisor in confining people in subclause (3) to parent or care-giver and agreed that anybody else in a position of responsibility to the child, other than a parent or person with parental responsibilities and rights, would be covered under subclause (4). The problem at issue was that (4) defined abuse and neglect in terms of persons other than those holding parental responsibilities and rights, which contradicted the definitions of the terms.
Ms van Zyl proposed that in (3), the drafters would include a person who held parental responsibilities and rights, because a parent was only defined as a parent, and included adoptive parent, but might exclude another person holding parental responsibilities and rights. The wording of Clause 32 could be used to cover a person in loco parentis.
Mr Masutha expressed doubt about whether the word "voluntarily" was sufficient, and would apply to everywhere else where the word was used. Volunteering could be interpreted to mean work not in return for reward. He sought reassurance that it would cover teachers and similar persons.
Ms van Zyl replied that the definition of caregiver had not been intended to cover child-minders, including teachers or nursery school teachers. She thought it was covered in Clause 32. She was unable to say whether "voluntarily" would exclude someone receiving remuneration, and proposed adding "whether for remuneration or not".
CHAPTER 22: ADMINISTRATION OF ACT
Clause 299: Regulations
Ms Rajbally asked why there was a reference to "specified areas" in subparagraph (2)(a)(i), as this would not cover the whole Republic.
Mr Waters asked whether provinces could make additional regulations.
Ms Van Zyl replied that specific areas were referred to, because if the intention had been to make regulations applicable to the whole country, it would have been unnecessary. The intention was to allow for regulations that would apply only in Gauteng, for example.
Mr Masutha asked whether this was constitutional. It was also debatable whether it was constitutionally possible to leave a matter to be regulated in a national law, to be regulated by somebody in a provincial legislature.
Ms W Direko (ANC) argued that this appeared to make interpretation very difficult, and laid the Act open to exploitation. It should be as uncomplicated as possible.
Mr Masutha suggested that another interpretation meant that they could even go so far as to regulate in terms of a specific municipal area, which was even more intrusive in terms of the separation of powers between spheres of government and not just administrative competencies but also legislative competencies.
Ms Johaar requested some time to research, and agreed to revert to the Committee on Monday.
Mr Waters agreed with Mr Masutha, but asked whether the provision had been inserted to make provision for the Section 76 Bill. Ms van Zyl replied in the negative. This section dealt specifically with the power of the Minister to make regulations. Many of the Agriculture regulations made a similar distinction. It should, however, not be a problem to delete the subclause, as there was nothing that would affect the Department’s service delivery if it was deleted.
Mr Masutha suggested that this be contrasted to a situation where there might be a need to differentiate on geographical realities. In Gauteng, for example, it might be necessary to see more norms and standards that were more rigorous given the population density of the province, than those imposed in a deep rural area of Limpopo, also taking into consideration unequal distribution of wealth. A category of areas would not be problematic, while specific areas were. An example of this was the child support grant, where the Minister had created a differentiated means test for urban and rural situations.
Dr Mabetoa added that the Treasury, when it allocated funds, applied the equitable share formula, where certain provinces received more than others, owing to their development situations.
Ms Johaar confirmed Mr Masutha’s input on rural and urban areas.
Ms Rajbally asked what would happen to the rest of subclause (2) if (i) was deleted. Ms van Zyl replied that (a) dealt with a regulation that applied to everybody, while (b) referred to a regulation that could make a distinction on other areas. Subparagraph (ii) tried to make a distinction on persons. These were not measures to discriminate, but rather measures to level the playing fields. Child and youth care centres covered a wide range of centres, and there could be different requirements for centres for children that had been orphaned, and those housing children with behaviour problems.
Mr Nzimande remarked that he had grown up in a rural area and expressed concern that the provision appeared to allow indirect consequences in terms of the conduct of the other levels of government, the provinces or the local municipality. These determined budget allocations and this gave them the leeway or option to approach the Minister and claim an inability to meet the requirements. Uniform standards should be applied, and if there were problems later, these could be dealt with as they arose.
Mr Masutha agreed that this was difficult, and that it raised issues of categorisation. One way of dealing with the problem might be by way of exemptions.
It was agreed that Mr Masutha would meet with the drafters to address the issue.
Clause 300: Delegation of powers and duties by Minister
Mr Nzimande noted that subclause (1) again referred to the MEC, and suggested that this be revisited, in light of what Mr Masutha had just said.
Ms van Zyl replied that this clause provided for the MEC to delegate in turn to those under him. It was important to make that distinction between lines of authority.
Mr Masutha recommended that the Constitutional provision that dealt with delegation of powers be checked, asking whether it was envisaged that the Minister could delegate functions in his line function to the Director-General of another Department without the approval of the Minister of that Department.
Ms van Zyl replied that, where the clause stipulated that the Minister could delegate, the provision was that this would be done by agreement, and the Minister would have to consult with the other organ of state.
Ms Johaar noted that provision was made for conflict in Clause 3(2). If regulations conflicted, Clause 3(2) would prevail. If provincial legislation conflicted, Clause 146 would prevail, and if municipal legislation conflicted, Clause 156 would prevail.
No changes were made to Clauses 301 – 304
Clause 305: Outsourcing of services
Mr Waters expressed concern at outsourcing, saying that the appropriate funding was never available. Was there any way to put in a safety measure to say that appropriate funding had to follow the outsourcing of services?
Dr Mabetoa replied that Gauteng did real outsourcing where the organisation gave the Department a specific business plan, and outsourcing meant that the Department had to provide the full funds to that business plan. There was a difference between outsourcing and the delivery of services by a designated organisation. If research was required, for example, the research organisation would have to be paid the exact amount of money required to do the work, and a contract would be in place.
Mr Masutha expressed concern about the use of the words "assign" and "delegate" in relation to entities that were not part of the public service. "Procure" might be a more pertinent word relating to the rendering of services which the state would otherwise have rendered itself. The legal meaning of "assign" meant that it was not possible to direct people on how to perform a task, as you were divesting yourself of that responsibility. "Delegation" as stated in the Bill was different in the sense that it meant that the person to whom the work was delegated was under your instruction, but it might still not be the correct term for anybody outside the chain of command. He appreciated the need in certain instances to empower persons other than state officials to do things on behalf of state officials, but there were legal implications.
Ms van Zyl noted the issue, and would take it up with the State Law Advisor.
CHAPTER 23: MISCELLANEOUS MATTERS
Clause 306: Repeal of laws
No changes were made.
Clause 307: Transitional matters
Mr Masutha asked whether the Schedule had been completed as it would have to be examined before the Bill could be passed. The transitional provisions were not just terms of laws or provisions of laws that might be required to be repealed by the Bill. They could also be in respect of laws that were not being repealed but in terms of which there was a requirement that they be interpreted in accordance with the provisions of this Bill. The legislation relating to divorce and matrimonial affairs was not being repealed, and this Bill used certain concepts and parental responsibilities and rights in terms of those Acts. A new standard was created in respect of custody and access for example. It might be necessary to create a general transitional mechanism to cover the possibility.
Ms van Zyl replied that the transitional provisions would have to be discussed with the State Law Advisor as this was a technical legal issue.
Clause 308: Short title and commencement
Mr Masutha suggested that the Clause meant that the Act would have to be operationalised as a whole, or not at all. It was of concern that a situation might arise where it was not possible to operationalise the whole Act at the onset, but that there was a need to operationalise some sections. It might be necessary to look at all possible permutations, such as the provisions of the Welfare Laws Amendment Act.
Ms van Zyl replied that there was a provision in Section 11, 12 or 13 of the Interpretation Act, which allowed for staggered operationalisation when the wording as used in Clause 308 was used. To the best of her knowledge, the only Chapters that the Department envisaged putting into effect early were those relating to inter-country adoptions (as there was no existing legislation) and possibly the National Child Protection Register. The drafters would consult the Welfare Laws Amendment Act.
CHAPTER 18: TRAFFICKING IN CHILDREN
The additional amendments were discussed.
In the definition of traffic, (a) was amended to have "sale, supply … within or across the borders of the Republic".
A new definition had been added for the removal of body parts
Mr Masutha expressed concern that the definition might not include procurement under false pretences.
Ms van Zyl replied that a string of forms were used in subclause (a)(i) and asked whether the drafters should use those words in (b) as well. Subparagraph (b) dealt with adopting children, while subparagraph (a) dealt with recruitment by any means.
Mr Masutha suggested that the same language should be used. Ms van Zyl replied that she would amend the subparagraph accordingly.
Mr Masutha recommended that the drafters look at the wording in the Convention to meet the minimum standard there.
Ms Johaar asked whether the definition of traffic was what the Committee had requested, because it now seemed very wide.
Mr Masutha suggested that the change was wrong, and the old formulation should be retained.
The Committee agreed that the broad definition be retained.
Clause 280: Purposes of this Chapter
On the recommendation of the Department of Foreign Affairs, subparagraph (b) had been deleted, and the Clause had been renumbered. "Combat" had been used in place of "regulate", to avoid an impression of approval.
Mr Masutha noted that there was only reference to the United Nations Protocol, and asked whether that was adequate.
Ms van Zyl replied that subparagraph (2)(b) referred to "generally to combat trafficking in children". Domestic trafficking was covered in Clause 284. These should be swapped.
Clause 282: International co-operation
This Clause had been drafted in consultation with the Department of Foreign Affairs.
Clause 283: Assistance to children who are victims of trafficking
The Department had suggested that the heading include "outside South Africa".
Subclause (5) provided for the Director-General of Home Affairs to refer the child to social services, and this would also be inserted in subclause 150(2).
Mr Masutha suggested that all subheadings should be checked when the Bill was refined.
Mr Nzimande asked whether it had not been agreed to include national trafficking.
Ms van Zyl replied that the Clause related particularly to the Department of Foreign Affairs assisting children outside South Africa. Clause 150 would cover national trafficking, and this would be confirmed on Monday.
Mr Waters raised the point that the Committee had agreed to "must" and not "may" in subclause (3).
Mr Masutha asked what the situation would be if the country concerned was willing to provide an escort at their own cost.
Mr Waters suggested this be included as an exception.
Dr Mabetoa noted that the drafters had retained "may" and deleted the provision relating to the child’s age and level of maturity, because they felt that that was the contentious issue. The Director-General might not always authorise an escort.
Mr Waters said that the parents’ ability was provided for, and if the child was alone and a victim of trafficking, the child would have been through some form of trauma. It was unreasonable to expect even a 17 year old to travel alone after a traumatic experience.
Mr Masutha suggested a general qualification of "if in the best interests of the child", and the insertion of "must". This was agreed to.
Clause 284: Trafficking in children prohibited
Subclause (1) now included a partnership.
Subparagraph (2)(a) would have to be amended to fit in with what had been decided on trafficking.
Mr Masutha asked whether his or hers also included its, for the use of the word person in the Interpretation Act. A juristic person would not have a gender. Ms van Zyl replied that the Interpretation Act provided that the masculine would include the feminine, so "its" would have to be inserted here.
Mr Masutha suggested that a person could be employed by another natural person, so subclause (3) would have to provide "if a person is an employee or whatever of another person".
Clause 285: Behaviour facilitating trafficking in children prohibited
Mr Masutha asked what "incompatible with this chapter" meant, suggesting it would be "in contravention". The contravention created elsewhere was the actual act of trafficking.
Ms van Zyl recommended that subclause (2) be "contravention of (b)".
Ms Johaar remarked that not all amendments had been effected, because the Committee had decided that Clause 285(1)(b) was going to be changed to trafficking and not behaviour.
Clause 286: Trafficking of children by parent, guardian or other person who has parental responsibilities and rights
"Or has reason to believe" was inserted in the introduction.
Clause 287: Reporting of child victims of trafficking
This was a new Clause.
Clause 289: Repatriation of trafficked children
Mr Waters referred to the change to "may" in subclause (2) and asked why it had been made.
Mr Masutha suggested inserting "if it is imperative in the best interests of the child", as previously discussed. It could be argued that it would always be in the best interests of the child. It might be possible to state: "if it is essential in the best interests of the child", so that an assessment would be made when necessary.
Mr Waters raised a concern that if "essential" or "imperative" were used, money would become the overriding consideration.
Mr Masutha insisted that the best interests of the child would be the overriding consideration, not money.
Mr Nzimande noted that airlines and other people offered services for unaccompanied minors.
Ms van Zyl clarified that the Committee required "if essential in the best interests of the child" in both instances. The Committee concurred.
Clause 290: Extra-territorial jurisdiction
It was agreed to substitute "such act" in subclause (2).
The meeting was adjourned.
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