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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
14 June 2005
CHILDREN’S BILL: ADOPTION
Documents handed out:
B70B-2003 as passed by Portfolio Committee on 14 June 2005: Part1
B70B-2003 as passed by Portfolio Committee on 14 June 2005: Part2
Children’s Bill as revised by State Law Advisors: June 2005
Clause 55: Legal representation of children (see Appendix 1)
Clause 1(2) amendment (see Appendix 2)
The Committee continued its consideration of the Bill from Chapter 16, reviewing and accepting the changes as effected by the State Law Advisors.
Prior to the vote, some last-minute changes were effected. The Department of Justice presented its proposal for a revised wording for Clause 55, on legal representation of children. Although reservations were expressed by the Committee, the proposed clause was accepted.
It was also noted that the wording in Clause 300 on abortion, deviated from the wording in the Choice on Termination of Pregnancy Act. This was amended.
Clause 314 on Transitional Matters, was vigorously debated as the Committee feared a prolonged delay in the implementation of the Bill. Some Members felt that the current wording did not provide for staggered implementation of the Bill, or staggered repeal of the laws to be repealed by the Bill. This was of concern since the clauses on inter-country adoption and the Child Protection Register in particular, were immediately required. The State Law Advisor consulted the Interpretation Act, and it was agreed that the clause as worded did, in fact, provide for staggered implementation of the Bill.
The drafter proposed new wording to address the matter that the terms ‘custody’ and ‘access’ had been changed to ‘care’ and ‘contact’ but no provision had been made to replace the terms currently in other legislation nor accommodate the inclusion of the common law that had developed around 'custody' and 'access'.
The Committee adopted the Children's Bill with the ACDP voting against it.
The Chairperson read the Motion of Desirability for the Bill.
Clause 55: Legal representation of children
Mr J de Lange (Legal Drafter, Department of Justice) submitted a proposal from the Department.
Mr K Morwamoche (ANC) expressed concern at the delays experienced with Legal Aid.
Mr de Lange replied that that issue would have to be dealt with administratively, and that the Legal Aid Board would have to check that the guide was up to date.
Ms C Dudley (ACDP) asked whether this proposal potentially left any children without representation.
Mr de Lange agreed that there was a potential loophole. If the Guide was applied in such a manner that it denied a child the right to legal aid where that would result in substantial injustice, that would not be constitutional and would have to be challenged.
Ms Dudley asked whether there was not something else that could be done to ensure that no children were overlooked.
Mr M Masutha (ANC) suggested that no amount of meticulous drafting would ever take the place of the will to fulfil a statutory obligation. If there were problems in the future, the clause could be revisited, and the provision re-legislated.
Ms Dudley referred to subparagraph (2)(a), suggesting that this appeared to be an area where something was lacking. Mr Masutha replied that the issue had been clarified the previous Friday.
Mr M Waters (DA) referred to the new wording and raised a concern that the court would make a decision that it would be in the best interests of the child to have legal representation, so the Legal Aid Board should have no right to decline.
Mr de Lange asked whether the State was suggesting parallel budgets, and questioning who would pay if the Legal Aid Board declined representation. This should be dealt with comprehensively in the Legal Aid Guide. If there was a problem, that would have to be challenged.
Mr B Solo (ANC) stated that the ANC was satisfied.
The Chair noted the opposition of the ACDP and the DA.
Ms A Johaar (State Law Advisor) continued with the reading of the Bill, as started on 10 June 2005.
CHAPTER 16: INTER-COUNTRY ADOPTIONS
Clauses 254, 256, 257, 260, 263, 264, 265, 266 and 270 – 273
No changes were made.
Clauses 255, 256, 259, 261 and 268
Technical amendments were made.
Clause 267: Evidentiary value of adoption compliance certificate of convention country
The heading was changed from "evidential" to "evidentiary".
CHAPTER 17: CHILD ABDUCTION
All of the numbers of the clauses were changed, because they had previously been incorrect.
Clauses 274 – 280
No changes were made.
CHAPTER 18: TRAFFICKING IN CHILDREN
Clauses 281 and 282.
No changes were made.
Clause 283: International co-operation
The cross-referencing was corrected in subclauses (2), (3) and (4).
Clause 284: Trafficking in children prohibited
Subclause (3) was amended. The intention of the clause was to state that there would be vicarious liability where the employer would be charged with the act as though he or she was the employee, and the wording had been changed to accommodate this.
Mr Masutha asked whether the liability of the employer excluded the liability of the employee, or whether they were jointly and severally liable.
Ms Johaar replied that the actor would be charged in terms of the offences section, but that it had also been made an offence for the employer whose licence would be revoked, or whose registration would be cancelled. The employee would also be liable for an offence in that section of the Bill.
Clause 285: Behaviour facilitating trafficking in children prohibited
Only technical amendments were made.
Clause 286: Assistance to child who is a victim of trafficking
The wording was simplified and condensed, but the substance of the clause remained the same.
Ms H Bogopane-Zulu (ANC) noted this had been a contentious clause in terms of the jurisdictions of the various departments. The Committee had also wondered whether a social worker or a parent would accompany the child, and she queried whether "adult" covered the issue. This was an additional cost that was being added.
Dr M Mabetoa (Department of Social Development) replied that, in certain situations, where the Department of Social Development had to decide on an escort, it would currently be an official of the Department that would take that responsibility.
Ms L Stuurman (South African Law Reform Commission) said that the relevant social workers in the Department had been consulted. The Director General would usually authorise a social worker to escort a child, but it was not necessarily always a social worker that was sent. The Director General needed the discretion to appoint another person.
Only technical changes were made.
Clauses 288 and 289
No changes were made.
Clause 290: Repatriation of child who is a victim of trafficking
The Clause had comprised three subclauses, and these had been condensed into two.
Subclause (2) had been made identical to subclause (2) of Clause 285.
Ms Dudley noted that the cross-reference was incorrect in subclause (1).
Clause 291: Extra-territorial jurisdiction
The clause had comprised three subclauses, and these had been condensed into one clause. Unnecessary items had been deleted.
Mr Godi (PAC) noted that the previous clause had dealt with two issues. An offence committed outside the Republic would be prosecuted in the Republic. The second was that a person prosecuted in another country would not be prosecuted here. Was this still included? Ms Bogopane-Zulu reiterated these concerns.
Ms Johaar replied that the intention of the clause was to extend normal jurisdiction and that that was done in subclause (1). It was unnecessary to include subclause (2), because it stated that if an offender was tried in another country, that person could not be retried in this country. This rule already stood, and the provision was thus unnecessary. Subclause (3) had stated the rules of jurisdiction that were stated elsewhere, in other words that that the court in the country where the crime was committed would have jurisdiction. This was also unnecessary.
Ms S Rajbally (MF) asked what would happen to a person who committed an offence in another country, was tried in that country and paid the penalty, then returned to the Republic and committed the same crime. Would that person not be tried?
Ms Johaar replied that if a person committed a crime twice, s/he would be tried again. This provision addressed the situation of a person who had not been arrested and been tried elsewhere, to be tried on her/his return.
CHAPTER 19: SURROGATE MOTHERHOOD
Clauses 292 – 294
No changes were made.
Clause 295: Confirmation by court
"Custody" and "access" were changed to "care" and "contact".
Clause 296: Artificial fertilisation of surrogate mother
An incorrect reference had been corrected.
Clause 297: Effect of surrogate motherhood agreement on status of child
References to "custody" and "access" were changed to "care" and "contact".
Clause 298: Termination of surrogate motherhood agreement
Cross-referencing in the clause was corrected.
Clause 299: Effect of termination of surrogate motherhood agreement
Cross-referencing in the clause was corrected.
Clause 300: Abortion
No changes were made to the clause.
Ms Bogopane-Zulu raised a problem with the heading of the clause. South African legislation referred to "termination of pregnancy". This heading should be amended.
Mr Masutha noted that if that were done, subclause (1) would also have to be amended as it alluded to "abortion". The wording of the Choice on Termination of Pregnancy Act should be used.
Ms Johaar replied she was not sure of the wording in the Act, and would go back and check, but proposed "a surrogate … is terminated when a pregnancy is aborted in terms of the Choice on Termination of Pregnancy Act".
Mr Masutha reminded the drafters that it was important that the legislation should sound neutral. If possible, the relevant Section of the Choice on Termination of Pregnancy Act should be checked, and the appropriate wording used here.
Dr Mabetoa suggested that the clause should be flagged, and that the drafters would revert to this later.
Ms Dudley stressed that this suggestion was blatantly hiding the fact that this was abortion, and recorded the objection of the ACDP to the clause as a whole.
Ms Johaar noted that the Choice on Termination of Pregnancy Act referred to "termination of pregnancy", not "abortion", and she proposed the following changes:
Subclause (1) would be amended to "… is terminated when a pregnancy is terminated …"
Subclause (2) would be amended to "…. decision to terminate a pregnancy …."
The objections of the ACDP were noted.
Clauses 301 – 303.
No changes were made.
CHAPTER 20: ENFORCEMENT OF ACT
Clause 304: Inspection of child and youth care centre, partial care facility, shelter and drop-in centre
All provisions in the clause were changed to the singular rather than the plural.
Clause 305: Offences
The cross-referencing and references in the clause were corrected.
CHAPTER 21: ADMINISTRATION OF ACT
Clause 306: Regulations
The subclauses that were not applicable (i.e. that were in the Section 76 Bill) were deleted, and the numbering was corrected.
Clauses 307 – 312
No changes were made.
CHAPTER 22: MISCELLANEOUS MATTERS
No changes were made to Clause 313 and 314.
Clause 314: Transitional matters
No changes were made to the clause
Mr Masutha asked for clarity on transitional matters. If it was decided to implement aspects of the law in whole or in part, did the transitional mechanism make it possible, together with the commencement agreement, for the selective implementation of the Bill, and the selective repeal of certain of the laws repealed in the Schedule?
Ms Johaar replied that Clause 314 did not make provision for the selective repeal of laws contained in the Schedule.
Mr Masutha asked the Department of Social Development what its plan was in terms of operationalising the Bill. Would nothing come into operation until everything was ready to replace the existing Act? It was possible that certain aspects could be put into operation to the exclusion of others, and certain aspects of the repealed laws remain in force until the rest of the Bill was ready for implementation. Had this been considered by the Department, and what decision had been reached?
Dr Mabetoa replied that the Department had contemplated fast tracking some of the chapters, particularly those on inter-country adoptions and the child protection register. This had been discussed with the State Law Advisors, and they had made the Department aware of the technicalities. The chapters were also dependent on the Section 76 Bill, because designation was done both at a provincial and national level. The Department would like to be given the opportunity to fast track the Bill, but the chapters might have to be amended again to bring them in line with the entire Act when it was passed.
Ms Johaar confirmed this. The inter-country adoption chapter had referred to "designated" child protection organisations and she had queried this. The Department would require all welfare organisations to be designated. In addition, these organisations would have to be accredited in terms of Section 231 to do national adoptions. From that, some of those organisations would be accredited to do inter-country adoptions. Three standards were being set, but the first standard was defined in the Section 76 Bill. That clause was clearly a Section 76 clause that could not be brought over. An organisation could not be designated, but could be accredited. It had been suggested to the Department that they accredit without designating, and that an amendment would be introduced to bring the provision in line with the full Act. That morning the Department had elected not to have a second Amendment Act.
Mr Masutha suggested that it was possible that other unforeseen difficulties might arise in respect of the implementation of the Act, whether financial or otherwise. Would this mean that implementation would be an 'all or nothing' situation? Unforeseen difficulties should be provided for. The current Child Care Act had only been brought into operation four years after it had been passed, because of contestations around certain aspects that had resulted in several amendments. The Social Assistance Act of 1992 had been operationalised in March 1996, again because of contestations. This was a huge Bill with a massive policy content.
Mr Waters asked about fast-tracking child trafficking and the register in the meantime, suggesting that the database on the register could be built, so that it was there when the Act became operational.
Dr Mabetoa replied that the Department had wanted to fast-track certain areas, but that they required assistance in overcoming the technical obstacles. Children had to be put first. The Department would really have liked to see inter-country adoptions and the register being fast-tracked. Inter-country adoptions were the main priority and problem. If they were controlled, that would largely address child trafficking. Some Members disagreed that controlling would largely address child trafficking
Mr Masutha reminded Members that South Africa was a party to the Convention on Inter-Country Abductions, and that a Central Authority was in place. This was not the situation with inter-country adoptions. This Bill was an improvement on what existed for abductions. Thought should be given to making a generalised or general enabling mechanism for differentiated or staggered implementation, and for a selective repeal or selective implementation of the repealing effect of different provisions of the laws that were sought to be repealed. The drafters should explore this formulation and could refer to the Welfare Laws Amendment Act for an example.
Mr Godi supported Mr Masutha’s suggestion, with the emphasis that the Committee really wanted to see everything possible being done to implement legislation. It was a concern that, once staggering was introduced, there might be a situation where the Act was passed, but certain aspects remained un-enacted. Everything in this Act was very important for the welfare of children, and there was supposed to be the capacity to implement all of its provisions.
Mr Waters asked what timeframe was envisaged for a staggered implementation.
Mr L Nzimande (ANC) agreed with Mr Masutha and asked the State Law Advisor whether that was possible. He echoed that staggering was not the first preference of the Committee, but that it did not want to frustrate children.
Mr Masutha noted there were two options open to Parliament. The first was to pass the law without providing for a power to operationalise it by way of proclamation, in which event the law would take effect from midnight the day on which the President signed the law. The second option was to pass the law with the provision that the law would take effect on the day that the President announced by proclamation. That would allow for regulations to be put in place, for example. It was at that point that another two possibilities arise. One would be a proclamation to stagger implementation, and the other a proclamation to operationalise everything. The government would not operationalise any law for which it was not ready, so it might be wise to create the opportunity of staggering the implementation, without stating what was to be staggered.
Ms Johaar read Section 13 of the Interpretation Act, which dealt with the commencement of Bills. The clause as contained in the Children’s Bill could be deemed to provide for staggering, and she suggested that the clause remain untouched.
Clause 315: Short title and commencement
The short title of the Act was changed to "Children’s Act, 2005".
These were accepted.
Cross-referencing of 'care' and 'contact' in Clause 1(2)
In respect of the cross-referencing of 'care' and 'contact', Mr Masutha asked for assurance that all the elements that had evolved into jurisprudence, giving interpretation to the original meaning of custody and access, would not be lost by the decision to cross refer.
Ms Johaar replied that in her opinion, it was not possible to state with certainty that the re-definition of 'custody' and 'access' would not result in the loss of the entire body of jurisprudence and common law.
Ms van Zyl reiterated her opinion that the amendment did away with developed jurisprudence.
Mr Masutha asked if "unless the context indicates otherwise" would indicate that the developments that had occurred when 'custody' was still being used, would provide the context. This would have the effect of adding to the word "care" those elements not contained in this definition. The courts would be inclined to interpret the words in this way.
Ms Johaar replied that the paragraph to be added made reference to those words, and said the law being referred to was a piece of legislation. 'Custody' and 'access' had not been defined although they were used in legislation. Common law had developed those terms together with jurisprudence, court cases and precedents, rather than legislation. This did not appear to do what was required by the Committee.
Mr Masutha agreed with the State Law Advisor that "law" referred only to legislation, and that this clause would not amend any aspect of common law, but would simply add a new concept. Therefore, this legislation was not doing away with jurisprudence. In addition, having arrived at that conclusion, the further words "unless the context indicates otherwise" ensured that if the purpose of that legislation was to deal with a matter other than a matter covered in this definition, then this definition would not have the effect of limiting the other legislation. The formulation was thus sufficient not to limit the existing legal arrangements with regard to how far the meaning of the word "custody" went, but at the same time imposed a new concept that would now have to be used.
Ms Bogopane-Zulu asked whether legislation would not take precedence over common law.
Mr Masutha reassured Ms Bogopane-Zulu that the common law would continue in place, unless there was an Act that overruled the practice of the common law, for example corporal punishment.
Ms Dudley was concerned that difficulties were being put in and that children would be disadvantaged. She recorded that the ACDP was concerned about the matter.
Ms van Zyl proposed a new wording to address the common law issue of 'custody' and 'access' and deal with cross-referencing in Clause 1(2): "In addition to the meaning assigned to the terms "custody" and "access" in any law and the common law, the terms "custody" and "access" in any law must be construed to also mean "contact" and "care" as defined in this Act". This was accepted.
The Chairperson read the report of the Committee adopting the Bill.
Ms Dudley noted that the ACDP would be voting against the Bill on the grounds previously specified.
The meeting was adjourned.