A summary of this committee meeting is not yet available.
SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
1 June 2005
CHILDREN’S BILL: DELIBERATIONS
Documents handed out
Department of Justice’s final amendments
Department’s proposed amendments to original tabled version of Bill’s Chapter 5
Amended Bill: May 2005
The Committee continued its deliberations on the Children’s Bill, starting from Chapter 7, Clause 113. Particular attention was paid to the practicality and feasibility of timeframes stipulated in the Bill. It was particularly important that the Bill should not set unreasonable timeframes, as the provisions would then not be implemented. The provisions relating to adoptions, both national and inter-country, were addressed. All actions had to be taken in the best interests of the child. This was stipulated in a number of clauses as well.
The Minister of Social Development and the Deputy Minister of Justice addressed the Committee on Chapter 4 on Children’s Courts. The Department of Justice had expressed reservations about the amendments to the chapter as proposed both by themselves and by the Department of Social Development. The Deputy Minister noted that the Ministry had not seen the revised version until very recently, and he had significant reservations about its cost implications. He requested that the Committee delete all amendments to the draft that had been approved by the Cabinet, and requested that two amendments only be inserted. These would be drafted by the Department of Justice, and provided, firstly, that the Children’s Bill would not impact in any way on the domain of the Divorce and Maintenance Acts, and secondly, that legal representation for children would be dealt with through the Legal Aid Board. The provisions of the Bill left the area of legal representation very wide, and the Legal Aid Board operated in terms of the Constitution and the Legal Aid Act, and had procedures that were established and accepted. The Committee expressed serious reservations about dropping all of the amendments, and questioned both the Minister of Social Development and the Deputy Minister of Justice closely on the implications for service delivery to children.
The main focus of the second series of deliberations was on whether to approve the draft of Chapter 4 that the Department of Justice had proposed, or to either amend Justice’s version, or continue to use the Committee’s amended draft from the previous evening’s meeting. It was suggested that using the amended version could impede the legislative process of the Bill, and that while returning and introducing desired amendments into Justice’s version some time later would be possible, it would be difficult. A main point of contention was the Committee’s requirement that the power to determine guardianship cases should be devolved to the magistrate’s courts to increase accessibility until the family court system came into effect. The Department of Justice had noted that the magistrate’s courts were unprepared to take on this responsibility, and that this would be a major policy shift. It could also cause other aspects of the Divorce Act to be devolved to the magistrate’s court.
After a brief ANC caucus, it was decided to formulate a resolution, giving concrete expression to the Committee’s desire to have guardianship devolved to the lower court. This resolution would be included in the Committee’s report on the Bill. The DA and the ACDP noted their objections to the process followed. It was agreed that the amendments submitted by the Department of Justice would be accepted, and the amendments proposed previously by the Committee would be included, although guardianship would remain the province of the High Court. The Committee completed its deliberations on the Bill, and it was referred to the drafters, to be submitted to the State Law Advisors by the Department of Social Development. The version returned to the Committee, would be formally considered for adoption on 10 June (and was in fact finally adopted on 10 June 2005).
CHAPTER 7: PROTECTION OF CHILDREN
Part 2: National Child Protection Register
Part A of Register
Clause 113: Purpose of Part A of Register
The entire Part had been transferred from the Section 76 Bill to the Section 75 Bill.
Clause 114: Contents of Part A of Register
Some amendments had been requested by the Department of Social Development. It had been proposed that the age and gender of the child should also be put on the Register. A provision had also been inserted to include information on disability and chronic illness. The same insertions were made in subparagraphs (b) (ii), (iii) and (iv), and in subparagraph (c).
Clause 117: Inquiries on information in Part A of Register
The phrase "in writing" was inserted in subclause (3).
Ms W Direko (ANC) acknowledged the slow machinery of state departments at any level, and asked whether the 21 days proposed was viable.
Ms H Bogopane-Zulu (ANC) suggested that one of the processes was the readiness of the Register. Provision had been made for a six month period, and this appeared reasonable.
Ms R van Zyl (South African Law Reform Commission (SALRC) indicated that the six month provision applied only to Part B of the Register. All employers would have to enquire as to whether current employee names also appeared on the Register but this applied only to Part B of the Register.
Part B of Register
Clause 119: Contents of Part B of Register
It had been requested that subparagraph (a) should look the same as Part A of the Register, and this amendment had been made. Subparagraphs (b) and (c) were inserted, with the proviso of "if available" for the photograph.
Clause 120: Finding persons unsuitable to work with children
There had been considerable discussion about this Clause, and an important insertion had been made in subclause (5), which tried to add an element of retrospectivity.
CHAPTER 4: CHILDREN’S COURTS
Departments of Justice and Social Development briefings
Mr J de Lange (Deputy Minister of Justice) noted that, through administrative problems within the Department of Justice, the Ministry had only been informed about the chapter the previous week. He had been concerned as soon as he saw it, and he had informed the relevant Ministers that some of the things that the Bill sought to do would be problematic.
If the Ministry had been involved earlier in the issue, he would have proposed a different approach. The chapter was very unusual, as courts were not dealt with in this way in other legislation. The provisions contained in the chapter were usually dealt with in rules or precedents in court cases, and that would give the courts flexibility to manoeuvre. Everything was now contained in the legislation, and that would tie magistrates absolutely. This would create problems for the children’s court, and issues would become procedural rather than substantive. He had already suggested that some aspects should be re-examined, but he did not want to intervene in the broader approach at present, as major changes would create havoc. It was a concern that, if many lawyers were involved with Children’s Courts and were given this Bill, problems would result. The Committee should also remember that it was magistrates who were getting this work. They were now being told to work completely differently and he could foresee, particularly with inexperienced magistrates, enormous mistakes being made in the process.
The Ministry was suggesting that the Committee keep the Bill as far as possible as passed by Cabinet, with the possibility that some of the issues would be readdressed at a later stage. Three particular issues arose. The first was that, as the Bill extended the powers of Children’s Courts, it was no longer clear how access and custody would relate to divorce. Divorce was the province of the High Court and three lower courts. Divorce and maintenance had to be excluded in the definition clause. There were specific legal regimes that dealt with divorce and maintenance. It could then be seen how the extension of Children’s Courts would work in practice. It would probably be necessary to re-examine it in the future.
The Department of Justice proposed that the Committee should keep the Bill intact, remove amendments, and specifically exclude divorce and maintenance.
Another problem was the stipulation that legal representation would depend on court orders. The policy in the Department of Justice had been that, if the state provided legal representation, it was the job of the Legal Aid Board. If it was dealt with as envisaged by the Bill, there would be enormous problems. Children would not know upfront that they had a right to legal representation. It had also been found that there were problems when the courts made rulings on this. There was, for example, a case in KwaZulu-Natal, where a court ruled that, not only were advocates required, but a specific senior advocate. The provision in the Children’s Bill should be changed, and the matter dealt with in terms of the prescripts of the Legal Aid Act.
In summary, the Department of Justice felt that the agreement reached between the different departments in Cabinet should be retained. Two amendments were needed, one on excluding divorce and maintenance, and the other to have legal aid dealt with through the Legal Aid Act. The finances would just have to be dealt with further.
Mr Z Skweyiya (Minister of Social Development) expressed his awareness of the delays and tensions created over this Bill. He had tried to explain to the media and the NGO sector that the issues had been discussed within the Cabinet for over two years, and an agreement had been reached. It would have been wonderful for the Bill to have been as wide as possible to accommodate the needs of children. The main complaint was that the Departments did not have the money, and that such a Bill could not be fulfilled.
The issue on the courts was a compromise, reached with Mr Maduna, the previous Minister of Justice, who also was supportive of the Bill but maintained that the capacity was not there. The Bill had been with us for seven years, and it had been in Cabinet, discussed and thrown back many times. We should now accept what Cabinet had agreed, but at the same time open our eyes. When budgets were discussed the next year, they should be able to accommodate what was best and the Departments should negotiate with the Treasury for the things that they felt could be added. That was the agreement and he appealed to Members to be patient. The Department of Justice was raising issues that had been agreed with Mr Maduna and the question of the Legal Aid Board was important. He promised that, as the years passed, the Department of Social Development and all the other Departments in the social cluster would be able to accommodate some of the other genuine concerns.
Ms Bogopane-Zulu asked for clarity on which Bill was the original Cabinet version. The aspect of maintenance was not addressed in the Bill in any case. One of the Committee’s decisions had been that any matter legislated anywhere else would not be addressed in this Bill, and she asked the Deputy Minister to point out if it had crept in. The Committee acknowledged that the Maintenance Act effectively dealt with the aspect. In respect of divorce, the Divorce Act had been defined because it was referred to, and she asked for assistance in the wording to be deleted from Clause 45. However, guardianship was the biggest problem facing the Committee. It had been taken to the children’s court with the acknowledgement that it belonged to the High Court. Access was a significant problem.
Mr M Waters (DA) noted that the Committee had been concerned at the number of people who found themselves without guardians. People were geographically and financially barred from accessing the High Court, and the Committee had sought a compromise. The drafters had proposed an alternative that, where a child had no guardian, the magistrate’s court could be approached, but any case involving removal of rights would go to the High Court.
Mr de Lange replied that the Children’s Courts had previously had a very limited scope of work and had dealt very narrowly with neglect issues. He agreed that it was important to bring issues to lower levels for accessibility. This would also help the state as legal aid services were cheaper at a district court level. The problem was that, if this was done without proper research into the possibilities, it would create more problems than solutions. Clause 45 had made the definition of what the Children’s Courts could do, very wide, particularly in subparagraph (a). Maintenance and divorce, particularly in relation to custody and access, would fall into it. It was essential that, if it was desired to keep other regimes intact, this should be specified in the definitions.
He had noted that some of the amendments stated "except maintenance matters", but this was a piecemeal approach, and it should rather be dealt with in the definitions. This would mean that custody and access matters after a divorce would potentially have been devolved. That might be one alleviation, but at this stage, it was not acceptable to create a possibility of an interpretation that divorce matters would also fall here. He had sympathy with the problems of guardianship, but wanted to see research and some mechanisms of how deal with it. How would it be divided?
Another issue of concern was that, the lower you went down the legal system, the bigger the chance of corruption became. The whole issue of trafficking and sex trafficking was escalating all over the world, and problems were multiplied lower in the system. He suggested that the Committee pass a resolution for the two Departments to sit down and investigate the issue of guardianship, protecting the child's interests and increasing access, and how to put in checks and balances. They were otherwise potentially allowing adults to intervene in a child’s life and take control of that child’s life, so there was potential for abuse.
Ms Bogopane-Zulu referred to the legal representation of children, as contained in Clauses 54 and 55. The Committee’s decision had been based on information and acknowledgement of available resources. Was the Deputy Minister saying that, practically, if the child requested representation as and when there was any major injustice, a court order would be required? The Committee had tried to retain the general practice. Clause 54 provided for the court to compel those parents who could afford to pay for legal representation, to do so.
Mr de Lange replied that the policy had always been that, in terms of law, a person could have any legal representation they desired. The problem existed where the state was required to provide it. It then had to be done in a certain way, and that way was through the Legal Aid Board. If the government now decided, as policy, to give legal representation to children and created that right, the right would have to be exercised through existing structures. It was then the administrative system that would allow it. In addition, how would a child draft the papers for the court without a lawyer, if the court first had to be approached for a court order? This was in addition to all the delays before the child would get help. It would be untrue to say that the provision would be workable, and it would be a disaster for children from the outset. There would also be no way of controlling the Legal Aid budget, so the Section would have to be amended. An entitlement to legal representation would be created, but this would happen in terms of the Legal Aid Act.
Ms Direko asked the way forward in light of time at the disposal of the Committee.
Mr de Lange replied that this was exactly what he had suggested. The Committee should take the chapter as passed by the Cabinet, with the two suggested amendments and then pass a resolution that the two Departments should investigate guardianship further and any other issues the Committee felt should be addressed. This would mean that the Cabinet Bill was basically being kept intact. In the future, the whole Act should be re-visited. Children’s Courts should perhaps be given a year or two to operate, and good statistics kept on their operation. It was a danger that the matters were so over-regulated in legislation that the courts would have a problem operating on procedural issues. The issues could be reviewed in a year or two’s time, to see if the courts were working properly or not.
Mr Waters suggested that if services were not legislated for, the Department of Social Development or other Departments would never be forced to budget for them. Surely they should be legislated for, and the onus placed on the Department of Justice to budget for services to children.
Mr de Lange replied that the Department of Justice was not changing, except for the legal aid issue, the rest of the Bill that Cabinet had approved. Issues such as lay forums and professional reports would also have enormous financial implications, but the Department was just going to have to provide for that and find the budget somewhere to pay for it. If there was no budget for something, the implementation will be very difficult. He wanted to make it very clear that he was not suggesting that the Committee take away any of the services provided in the Cabinet Bill.
Mr Skweyiya replied that this was a difficult issue. He could not dictate, for example, what the Department of Justice should do. They did what they could and what they had budgeted for, and the same applied to other departments. In terms of the priority placed on children, especially vulnerable children, it was the duty of all concerned to put some pressure on the Departments concerned in the issue. He personally felt that some of the issues discussed were correct, but the problem was finances. If children were held as a priority, as directed by the Constitution, the Committee would have to prioritise those issues in each year and be able to bring them together to improve the status of children.
Many issues had been raised by the Department of Justice, such as the way in which the Bill brought in the issue of traditional leaders. The implications of this were too big to accept. For instance, all powers of the Black Administration Act, the Zulu Code and others, would no longer be there in two months or so. He understood the concerns raised by the Committee and supported them, but felt that the feasibility of the aspirations had to be questioned. The way in which litigation against the Department had increased across all provinces, especially KwaZulu-Natal, was of great concern. Having a Bill like this available to the South African public would empower the Department and others concerned, to be able to move as soon as possible.
He pledged that if any possibilities to enhance the issues of children arose as work progressed, he would do everything in his power to do so. To get the Bill through, it had to be accepted that there was a need to aim at what Cabinet had accepted. The Law Reform Commission had had wonderful ideas, which the ANC in exile had held as well, but they were now realising that they could not work if the money was not there.
Ms H Weber (DA) asked whether the proposed replacement of "care" and "contact" for "custody" and "access" for all legislation would be in order.
Mr de Lange would have preferred to retain access and custody, but said Clause 57 would still have to be interpreted. There was an interpretation at this stage that this would include access and custody, but he was not sure that everyone would understand it that way. Clause 57 at least allowed time to devolve the issues in the courts, so that if it was taken up, it would only be possible to take it up in any way other than in divorce situation, and he was comfortable that this could take place over a period of time. It should be allowed to run its course, and, when the issue of guardianship was re-examined, access and custody could also be addressed. Children were totally dependent on how magistrates would interpret it. There were no precedents and it broadened the scope of their application.
Ms Bogopane-Zulu referred to some of the Department of Justice’s original proposals that the Committee had rejected, such as subclause (11) that dealt with training. She also asked how the inclusion from the South African Police Service (SAPS) would relate to the Department of Justice, such as the aspect of the removal of the person and the powers that the SAPS was requesting be included, because at some stage the courts would be involved. Other additions proposed by the Committee concerned the aspect of ensuring access for children with disabilities and they felt very strongly about the Department ensuring that that happened.
Mr N Godi (PAC) asked whether the Committee could allow the Department of Justice to work on the chapter and revert with a proposed submission so that the Committee could look at it holistically.
Mr L Nzimande (ANC) disagreed with Mr Godi, saying that it was not the whole chapter but just the two aspects mentioned by the Deputy Minister that would be revised. Other issues had been clarified and the Committee was in concurrence with the broad understanding of what had been raised. They would be capable of dealing with the two aspects raised by the Deputy Minister without sending the chapter back to the Department of Justice, because they hoped to finish that day.
Mr de Lange agreed that there were a lot of other amendments, and emphasised that he was proposing that those amendments be ignored. The Department was totally opposed to some of them, such as the wording of the subclause on qualifications and training. A case could be stopped on the basis that the person had to have skills in dealing with children. This could be attacked every time. He would now return to the Department to argue for more resources from Treasury. All of the additional issues should be removed. He had doubts on the constitutionality of the SAPS provisions, and felt that the Committee should simply revert to Chapter 5 in its original form.
Ms Bogopane-Zulu repeated the request for guidance on the way forward.
Mr de Lange replied that the Committee should go back to the original Bill, and that two amendments would have to be drafted for the original Chapter.
Ms Bogopane-Zulu asked whether this meant that, once the amendments were made, the Committee could then consider the chapter and work on it, as she was concerned about certain aspects in the Cabinet draft.
Mr de Lange replied in the negative, saying that the Department of Justice was supportive of only two amendments. Ordinary technical amendments were in order, but if the Committee was going to change anything further or bring back issues that had been rejected, he was clearly saying no.
Clause 122: Findings to be reported to Director-General
A small amendment had been made. The Director-General had been restricted from entering a name until the appeal period had lapsed. An obligation was now imposed to enter the name as soon as the period had passed.
Clause 123: Consequences of entry of name in Part B of Register
A number of small changes had been made, and the drafters had tried to expand the list of institutions where offenders could not work.
Clause 124: Disclosure of entry of name in Part B of Register
Subclause (2) had been inserted, and provided that a person who failed to disclose could be found guilty of misconduct.
Clause 125: Access to Part B of Register
Subparagraph (1)(e) had been inserted to state that a manager or person in control of a designated chid protection organisation dealing with foster care and adoption could also access Part B of the Register.
Clause 126: Establishment of information in Part B of Register
A provision had been inserted to state that before a person was allowed to "work with or have access to", and the list was opened.
The same amendment was made to paragraph (b) of the subclause. Another amendment was the obligation inserted as a new subclause (2), that enquiries were to be made within twelve months of the inception of this Chapter. The timeframes provided for in subclause (5) were amended.
Clause 127: Disclosure of names in Part B of Register prohibited
A new subclause (3) had been inserted.
Clause 128: Removal of name from Register
A new subclause (4) had been inserted in respect of repeat offenders.
Part 3: Protective measures relating to health of children
Clause 129: Consent to medical treatment and surgical operations
The entire Clause was rephrased for ease of reading.
The term "primary care-giver" had been replaced with parent, guardian or care-giver when applicable, for example in subclause (4).
Some objections had been raised to the term "does not have mental capacity", and that had been amended to read "is unable to understand the benefits, risks and social implications".
Subclause (7) had been amended to refer to the Minister, rather than the provincial head of department.
The cross-reference was corrected in subclause (9).
Clause 142: Regulations
Subparagraphs were added for additional requirements that might be prescribed.
Subparagraph (a) was a completely new clause.
Subparagraph (i) had been inserted to prescribe the procedure and time periods for reporting a finding to the Director-General.
CHAPTER 9: CHILD IN NEED OF CARE AND PROTECTION
Part 1: Identification of child in need of care and protection
Clause 150: Child in need of care and protection
A new subclause (2) was inserted to oblige a social worker to do an investigation if sh/e found children in more or less suspicious circumstances. This provision covered the concerns relating to the original chapter on children in especially difficult circumstances.
Ms Bogopane-Zulu noted that the clause referred to the person under whose control the child was, and that this should read "care".
Ms van Zyl agreed that that decision had been taken and said that when the final document was produced, the appropriate replacements would be made.
Clause 151: Removal of children to temporary safe care by court order
Subclause (1) was amended to refer to a designated social worker.
The only other amendment was a consequential one, to match the wording in other amendments, so that subclause (7) had stated "primary care-giver", and this was now a parent, guardian or care-giver.
Subparagraph (7)(c) had been inserted to provide for reporting to the relevant provincial department of Social Development, and this would assist with statistics and the keeping of a central register.
Clause 152: Removal of children to temporary safe care without court order
The clause stipulated the procedures for emergency procedures, or a Form 4 removal.
An amendment had been made to provide for reporting of the matter and to delete "primary care-giver" in subparagraph (2)(a). A new subparagraph (c) was added to provide for the matter to be reported to the provincial department of Social Development.
Subclause (3) dealt with the scenario where a police official removed the child, and again "primary care-giver" was amended. A new subparagraph (b) contained a reference to designated social worker. The clause had previously stated that when a police official removed the child, the province and designated child protection organisation must be notified, but that had been covered by the report to the social worker.
Subparagraph (d) had been amended to provide for the court to be informed, as it was the court that would make the decision on the way forward with the child.
Clause 153: Written notice to alleged offender
The SAPS had proposed this Clause originally, and had extensively consulted within their own fora and with the State Law Advisor on the constitutionality of the provision.
Subclause (6) had been amended by the insertion of subparagraph (d) to add that the matter had to be referred to a designated social worker for investigation.
Clause 154: Other children in need of care and protection
The clause had stated "any siblings", but the Committee had felt this to be inadequate, and the clause now referred to any child at the same place.
Part 2: Children’s court processes
Clause 155: Decision of question whether child is in need of care and protection
An amendment had been made to insert a provision that a social worker must investigate and that the child should not be sent to the children’s court straight away. The matter must also be reported to the provincial department of Social Development (subclause (3)).
Mr Waters reminded the drafters that the Committee had agreed on 12 weeks for the report to be completed (subclause (8))
Clause 156: Orders when child is found to be in need of care and protection
This Clause was an extension of some aspects of the courts chapter. The only changes made were in relation to Social Development functions, and this had already been mentioned to the Deputy Minister. The Department of Justice would be asked to read through the clause.
Ms S Rajbally (MF) asked for clarity on the clauses without amendments, and asked whether they were being referred to the Departments of Justice or Social Development.
Ms van Zyl replied in the negative, and explained that she had mentioned the Department of Justice because the clause related to the court’s chapter. The one thing that had changed was that this Chapter had previously been in the Section 76 Bill. The Department of Justice had been consulted on this, and they were satisfied.
Dr M Mabetoa (Department of Social Development) noted that the Deputy Minister had been shown the provision where the social worker had to investigate, and in Clause 157, the designated social worker had to write the report.
CHAPTER 10: CONTRIBUTION ORDERS
Clause 161: Issue of contribution orders
Mr Godi referred to Clause 161(1)(a), and expressed concern that that might be verging into the maintenance aspect and would thus be inconsistent with what was discussed earlier.
Ms van Zyl replied that it did so, but that the issue of contribution orders was not a new determination, as a similar provision existed in the current Child Care Act. The clause dealt with the high expense to the state for dealing with children in youth care centres. If the parent could afford to support the child, or make a contribution to the child’s maintenance, it was not quite the same as a maintenance order. The chapter used the same methods as the Maintenance Act to enforce orders, but these were not intended to be maintenance orders.
Clause 163: Effect of contribution orders
Subclause (2) had been inserted to enforce payment. The issue was before Cabinet and was in the current Child Care Act, and it should not be considered problematic.
CHAPTER 15: ADOPTION
The Department had submitted a proposal for a definition of adoption services. The Committee had not approved the definition, and it had been redrafted. There were two consequential amendments in this Chapter to accommodate the definition.
Clause 229: Purposes of adoption
The original subparagraph (c) had been deleted, that had said the "purposes of adoption are to respect the individual and family by demonstrating respect…" This had been accommodated as part of the assessment to be made by the social worker.
Clause 230: Children who may be adopted
This Clause would have to be consequentially amended to accommodate the new definition. A major amendment had been the criteria for finding a child adoptable, and the clause would be amended to provide for an assessment by a social worker.
Mr Waters noted that the Committee had proposed a new subparagraph (2)(f).
Ms van Zyl replied that there had been a proposal to insert that the biological parents were giving up the child for adoption. When this was subsequently discussed, it was noted that a parent could only give consent to the adoption of their child if that was identified as the best way in which that child could be dealt with permanently. There was no legal formal system whereby biological parents could give up their child for adoption.
Clause 231: Persons who may adopt child
Subparagraph (1)(a)(ii) had been amended, as it had previously read "permanent domestic conjugal life partnership". The Committee had felt that "conjugal" was not appropriate, and it had been amended accordingly.
"Permanent" had also been inserted in subparagraph (1)(a)(iii), as it was felt that, if permanency was required in subparagraph (ii), it should also be a requirement here.
Several amendments had been made because the chapter referred constantly to "parent or parents", which was unnecessary in view of the Interpretation Act. For technical reasons, the plural had been deleted wherever it appeared and was unnecessary.
Subclause (3) had been amended to provide that the issue of cultural, ethnic and community diversity be considered.
Ms Rajbally asked whether this barred any ethnic group from adopting a child.
Ms van Zyl replied in the negative, saying that it merely tried to match up adoptable children and prospective adoptive parents. The social worker would try to match the child to the parents, so that the child would not grow up in a totally foreign culture.
Mr Solo suggested that the original culture of the child should be known, regardless of the ethnic group of the prospective adoptive parents.
Dr Mabetoa replied that this was where, after the assessment, the consideration for an open adoption would take place.
Mr Nzimande asked whether this would also stand with issues of equality, and whether those Constitutional issues had been properly dealt with.
Ms van Zyl replied that, under the Constitution, one would not be allowed to apply this test in order to discriminate. It was merely there so that the social worker would take cognisance of it to better match an adoptable child to the fit and proper parents. If at all possible, there should be common ground between them on the issues of cultures and so on. It would be unconstitutional if it was ever used in a discriminatory manner.
Ms Rajbally expressed concern, saying that her niece and nephew were black, and they were growing up happily in her family. A social worker might decide that a person was not a prospective adoptive parent on the grounds of cultural differences. Did this restrict the adoption of children of other races?
Mr Nzimande remarked that it had that implication.
Mr Godi suggested that the State Law Advisor be requested to respond. He had not thought that the clause was meant to be restrictive in its application. The concept of adoptability had already been introduced, a child could either be adoptable or not, and the parents could equally be suitable or not. The consideration required of the social worker was not meant to be restrictive per se, but the intention was not to alienate children from their roots.
Mr Solo said that Mr Godi had tried to highlight the intention, and agreed that people should know upfront about the child’s culture. The problem lay with the use of "ethnic".
Dr Mabetoa reminded the Committee that the consideration was to be done in the best interests of child, and proposed the insertion of "in the best interests of the child", or removing "must" and substituting "may".
Mr Nzimande expressed support for the proposal.
Ms Rajbally concurred, and noted that the aim of adoption was the best interests and a safe and happy environment for the child.
Mr Solo suggested that the drafters should change "must" to "may", and make the insertion. The constitutionality of "ethnic" should be checked.
Ms van Zyl asked whether "ethnic" should be deleted.
Mr Nzimande asked why religion had been omitted, and the Chairperson noted that the religion was a component of culture.
Ms van Zyl rephrased the clause to "may take … cultural and community diversity … where this would be in the best interests of the child concerned". This was accepted.
Clause 232: Register on Adoptable Children and prospective Adoptive Parents
This was a completely new Clause, and had been discussed in the Committee. The Department had added or fine-tuned a few things, when drafting the provisions.
It had been agreed to include a child protection organisation accredited to do inter-country adoptions under subclause (6).
Ms Bogopane-Zulu noted that the Committee had felt that it related more to inter-country adoptions, where the child had already been removed from the country and the adoption fell through, asking if that was covered elsewhere
Ms van Zyl replied that the United Nations Convention on Inter-Country Adoptions provided for a probation period of 140 days. It should be stated more clearly in that Chapter that the child might leave the country once the adoption was approved, but the must be a possibility to return to the country after the probation period.
Clause 233: Consent to adoption
Amendments had been made to subparagraphs (1)(a) and (c).
An amendment was made to subparagraph (5)(a) with regard to the consent of the child.
Subclause (7) included the child from subparagraph (1)(c).
Clause 234: Post adoption agreements
This was a completely new clause to accommodate open adoptions.
Clause 235: Freeing orders
The only amendment was made to subparagraph (4)(a), which had been changed to "the child has not been adopted within a period of 12 months and there is no reasonable prospects that the child will be adopted".
Clause 236: When consent not required
Subclause (1) had been amended from parental responsibilities and rights to guardianship.
Subparagraph (3)(c) was amended to deal with the issue of a child as a result of rape.
Clause 237: Gathering of information for proposed adoptions
The only amendment was a change to subclause (1) which had previously stated the clerk must take all reasonable steps. This now stated that the prescribed steps and reasonable steps (a) and (b) had to be taken.
Clause 239: Application for adoption orders
Amendments were made to subparagraph (1)(b).
Clause 240: Consideration of adoption applications
A technical amendment was made to subparagraph (1)(c), to state the report required.
Clause 241: Unreasonable withholding of consent
A small amendment was made to refer to a post-adoption agreement.
Clause 243: Rescission of adoption orders
The initial reference in subparagraph (1)(b) was changed to persons having guardianship in respect of the child.
Subclause (3) was added to provide that it was in the best interests of the child.
An amendment was made to subparagraph (5)(b).
Clause 248: Access to adoption register
New subclauses (3) and (4) were inserted.
Clause 249: No consideration in respect of adoptions
Subparagraph (1)(a) was amended.
Subclause (2) was amended with regard to the compensation that a mother might receive, and compensation for loss of earnings was deleted.
"Reasonable" expenses were provided for counselling ((2)(b)), and "reasonable" was removed in subparagraph (2)(a)(iii), and "other professions" inserted.
Ms Bogopane-Zulu asked for clarity on the fees.
Ms van Zyl replied that it had been eventually decided that the professional bodies would determine the fees, and that this was not the province of this legislation.
Clause 250: Only certain persons allowed to provide adoption services
Subparagraph (1)(d) was amended.
Clause 253: Regulations
A small amendment was made to subparagraph (a), where "for purposes of this chapter" was inserted.
CHAPTER 16: INTER-COUNTRY ADOPTIONS
Clause 254: Purposes of Chapter
The original subparagraph (b), on bilateral arrangements, was deleted.
A new subparagraph (c) was inserted, to provide for finding fit and proper adoptive parents for an adoptable child.
Clause 255: International co-operation
This was a completely new clause, and the principle had been cleared with the Department of Foreign Affairs, particularly with regard to the role of the President in such arrangements.
Clause 257: Central Authority
Subclause (2) was amended.
Clause 258: Performance of functions
An oversight had been identified in subclause (2), and it was realised that the performance of powers by a child protection organisation referred only to The Hague Convention and not to similar clauses taken up in the Bill itself. This had been corrected.
Clause 259: Accreditation of child protection organisations for inter-country adoption
Subclauses (1) and (2) had been amended to replace "perform", with "provide".
The reference to "designated" had been removed, because the organisation would be accredited, and would not necessarily also be a designated organisation.
Subclause (4) had been amended to state that there was no prohibition on the rendering of services "… by a lawyer, psychologist or other professional person".
Clause 260: Entering into adoption working agreements
A technical amendment had been made consequent to the deletion of "designated", and the use of "provide".
Clause 261: Adoption of children from Republic by persons in convention countries
Subclause (3) had originally referred to a "suitable child"; this was now an "adoptable child".
Subclause (5) had been amended to change the sequence of the list and insert subparagraph (a) to say that an adoption order might be made provided that the court was satisfied that the adoption was in the best interests of the child.
Subparagraph (5)(g) was inserted to ensure that, before the child was allowed to leave the country, the social worker should have consulted the Register on Adoptable Children and prospective Adoptive Parents (RACAP). A period of 60 days had been inserted, because it had been brought to the attention of the drafters that babies that were barely weeks old were being taken out of the country. That did not give the organisation sufficient time to ensure that there were no prospective adoptive parents in the country. Young pregnant girls were being targeted, and the matter was finalised as soon as the baby was born. The baby was then removed from the country. It had been felt that the baby’s name should be on the register for a period, and the 60-day provision was in line with the 60 days revocation period for parents.
The probation period referred to was contained in subclause (6). It was not clear from this whether it was possible for adoptive parents to take the child out of country during this period and whether the child would have to be brought back. The idea was that the adoptive parent would be allowed to leave the country in that period, but follow up reports could be requested. If these were not satisfactory, the Department could require that the child be returned. A small amendment might be necessary to clarity this.
Subclause (9) had been inserted, so that the provisions of Chapter 15 would apply to adoption of a child referred to in subclause (8).
Clause 262: Adoption of children from Republic by persons in non-convention countries
As for the previous Clause, subclause (3) had been amended to substitute "adoptable child" for "suitable child".
Subclause (5) was amended by the insertion of subparagraph (a) providing for the best interests of the child.
Subparagraph (g) had been similarly amended to provide for listing in RACAP for a period of 60 days, and "fit and proper" had replaced "suitable".
As per Clause 261, subclause (9) had been inserted.
Clause 264 and 265: Adoption of children from convention countries by persons in Republic
In subclause (3), "suitable" had been replaced by "adoptable". A similar change was made in Clause 265.
Clause 270: Refusal to recognise inter-country adoption or Article 27 decisions
Mr Solo noted that subclause (1) had been amended. It was initially "public policy", and concern had been expressed about this term. One alternative proposed was "adoption practices". This term came from the Convention itself, and enjoyed some legal recognition, as pointed out by the State Law Advisor.
Dr Mabetoa raised the issue of fees charged by professionals. There had been agreement that these could not be prescribed. The Ministers had proposed a provision such as "the Minister, after consultation with the specific Board, should prescribe fees", so that it was not left open to abuse. She recommended that fees should be determined by the Minister in consultation with the relevant bodies.
Mr Waters noted that the Committee had felt that, where someone had to be involved in the adoption process, the fees could be regulated, but where it was an additional measure, the fees could not be regulated.
The Chairperson stated that the matter had been agreed with the Ministers and should be left.
Dr Mabetoa expressed concern at the high fees that might possibly be charged. When the Ministers had discussed the Justice Chapter, they had also picked up professional work that would have to be provided by private practitioners. There was a concern that, if fees were not determined, and were left to the discretion of professional boards, the issue would be left open to abuse.
Ms Bogopane-Zulu felt that this was a protective measure, but that the process had not been agreed upon. The Bill did not have the power to dictate to professional bodies. She proposed that the Minister in consultation might set minimum standards, because he could not tell the Bar how to run its own affairs.
Mr Nzimande remarked that it was technically difficult to say "maximum", but felt that the clause should provide for some intervention mechanism.
Mr Solo felt that the principle of consultation with the Minister should be included.
The clause was flagged for revision.
CHAPTER 17: CHILD ABDUCTION
No amendments were made to the chapter.
CHAPTER 18: TRAFFICKING IN CHILDREN
Clause 280: Purposes of this Chapter
Subparagraph (b) was deleted, and the clause renumbered.
Clause 283: Trafficking in children prohibited
Amendments had been made to the clause.
Clause 284: Behaviour facilitating trafficking in children prohibited
This was a completely new clause.
Clause 285: Assistance to children who are victims of trafficking
Subclause (2) had been amended to qualify the Director-General as the Director-General of Home Affairs.
Subclause (3) was inserted.
Ms Bogopane-Zulu noted that there had been a number of issues to verify with the Department of Foreign Affairs, as they added a cost implication and added something that Foreign Affairs had originally indicated was problematic. The first chapter as drafted had been submitted to the Department of Foreign Affairs, and they were happy.
Mr Solo suggested that the Department of Social Development check the clause with the Department of Foreign Affairs.
Clause 286: Trafficking of children by parent, guardian or other person who has parental responsibilities and rights
A small amendment had been made, inserting "reason to believe".
Clause 287: Reporting of child victims of trafficking
This was a completely new Clause.
Ms Bogopane-Zulu referred to a previous discussion, in which concern had been expressed that this might add to the burden of reporting.
Ms L Stuurman (SA Law Reform Commission) referred to Clause 105 of the consolidated Bill, which contained the categories of persons obliged to report. This Clause provided that these categories of persons had to report to a designated social workers and that worker would have to do an investigation. The drafters hoped to avoid the situation where the child first came into contact with an immigration official, for example, and was then treated as an illegal immigrant. They should first go to a social worker.
Ms van Zyl remarked that this provision linked to the new subclause (2) in Clause 155.
Ms Bogopane-Zulu asked whether there was any provision for reporting by ordinary members of the community.
Ms van Zyl replied in the negative in respect of trafficking, but said that subclause 105(2) of the Section 76 Bill provided that the public could report. That would cover the trafficked child, but there was an obligation on these four categories of persons to report the child.
Ms Bogopane-Zulu expressed concern at the situation of children trafficked within the country, as they would probably first come into contact with a member of the public.
Ms Stuurman noted that the clause was not restricted to cross-border trafficking, but applied to all children found in South Africa that were trafficked.
Clause 289: Repatriation of trafficked children
Ms Stuurman proposed the replacement of "trafficked child" with "child victim of trafficking" in accordance with the Protocol. This was accepted.
CHAPTER 19: SURROGATE MOTHERHOOD
No amendments were made to the chapter.
The Committee returned to its discussion on the Children’s Courts Chapter.
CHAPTER 4: CHILDREN’S COURTS
Clause 45: Matters Children’s Courts may adjudicate
Mr R Skosana (Department of Justice) stated that Clause 45 would exclude an amended reference to disability, but that the rest of the clause would remain unchanged. The Members approved the amendment.
Clause 55: Legal representation of children
In Clause 55, the underlined portions in the revised Department of Justice copy of the chapter were altered. The reference to legal aid replaced the rest of the clause as it referred to a specific Act. As the Deputy Minister of Justice had indicated, legal counsel should go through the Legal Aid Board. The amendment was approved.
Mr Waters asked that the Committee review Chapter 4 clause by clause, and wanted to re-amend the Department of Justice version to re-insert provisions relating to disability, including access to courts.
Dr Mabetoa was unsure whether the Committee needed to discuss these changes themselves, as they were amendments from the Department of Justice. The Chairperson agreed.
Mr P du Preez (Legal Advisor to the Department of Social Development) clarified the position of the Department of Justice, stating that the Deputy Minister of Justice had approved specific changes to Chapter 4. Any further changes that the Committee decided on would have to be sent back to the Department of Justice for review and comment.
Ms Van Zyl stated that the Minister of Justice had agreed that the Committee could make technical changes to the Department of Justice draft of Chapter 4, but had expressed concern about major changes. Any major policy shifts or substantial differences from the Cabinet version of the Bill would have to go back to the Department of Justice for comment, and the previous night’s amendments had included policy changes.
Mr Nzimande stated that the Committee needed to assess whether their amended version of the chapter had moved substantially away from the Cabinet version, on the basis of the previous days’ suggestions and today’s session with the Minister of Social Development and the Deputy Minister of Justice. The Committee had to reach a compromise regarding the previous day’s concerns, but they could raise issues regarding Justice’s new concerns.
Ms Bogopane-Zulu agreed with Mr Nzimande, and proposed that the Committee review Chapter 5 to note differences between the amended and Cabinet versions. The Committee could then entertain particular amended clauses introduced by the Department of Justice.
Ms Rajbally noted that Committees were the "engine room of Parliament" and that they had the final right to determine the contents of a Bill. The Committee should express their concerns to the Department of Justice, if necessary, and work on the Bill, and then let the Department of Justice review their amendments and propose changes.
The Chairperson was concerned that this would be starting over from the beginning.
Ms Bogopane-Zulu proposed that the Committee begin with Clause 42 and consider Justice’s proposed changes. Members agreed.
Mr Skosana stated that his mission had only been to present the two new clauses from Justice, and he had no mandate to participate in the Committee meeting. He would, however, convey the substance of the meeting to the Department of Justice.
Mr Solo stated that the Committee ought to work on the chapter holistically with Justice.
The Chairperson expressed concern about the passage of time and unnecessary repetition by the Committee.
After a brief flurry of exchanges between Members, it was agreed to review the new chapter re-submitted by the Department of Justice.
Clause 42: Children’s Courts and presiding officers
Mr Waters proposed amending Clause 42(7)(d), 42(8)(d) in Justice’s draft of the chapter, to include "is accessible to disabled persons and those with special needs."
The Clerk suggested that the Committee first look at the amendments from Justice and those added by the Committee the previous day to see how they would affect other parts of the chapter.
Mr Waters asked for clarity regarding the proceedings. The Committee had amended Justice’s original chapter. The Department of Justice was unhappy with the Committee’s amendments and had instructed the Committee to revert to the Cabinet version of the Bill. Now the Bill stood with the two new amendments inserted by Justice, and he proposed re-inserting some of the amendments the Committee had agreed upon the previous night. He was concerned that the addition of more amendments would delay the Bill.
The Members agreed to review all of the amendments to the chapter and decide whether to re-insert any of them Clause by Clause.
Clause 42: Children’s Courts and presiding officers
Subclause (3) had an amendment proposed by Justice in their draft of the chapter which had been adopted both last night and today by the Committee.
In subclause (7), a new subparagraph (d) relating to access by disabled persons had been adopted the previous night. The Committee agreed to readopt Clause (7)(d) as proposed earlier by Mr Waters.
An additional subclause, (11), proposed by Justice in their draft regarding the qualifications of court officers was rejected the previous night and twice today.
Clause 43: Status
This Clause had remained unamended by both the Department of Justice and the Committee.
Clause 44: Jurisdiction of Children’s Courts
This Clause had not been amended.
Clause 45: Matters Children’s Courts may adjudicate
The previous night, subclause (3), dealing with the exclusive jurisdiction of the High Court and divorce court over certain matters, pending the creation of the Family Court, had been deleted. The Deputy Minister of Justice had objected to this deletion.
The Chairperson asked whether the Committee approved of the Department of Justice’s insertion in Clause 45(1).
Mr Waters asked whether the Committee intended to keep guardianship as a matter only for the High Court, rather than devolving it to lower courts.
Ms Van Zyl reviewed the amendments agreed to by the Committee last night, noting that subparagraphs (3)(a) and (b), which had been moved to subclause (1) would have to be reconsidered. Subparagraph (3)(c) would remain, (3)(d) had been deleted in the original Bill, the new (3)(d) would remain, (3)(e) would remain, as long as it was clarified that (3)(e) did not include inter-country adoption returns, in which case there had to be authorisation of jurisdiction for the Magistrate’s court. Subparagraphs (3)(f) and (3)(h) would remain, while (3)(g) would be deleted. The Committee should therefore consider the matter of jurisdiction of the courts as it related to guardianship.
Mr Solo asked about the cost to the state if the matter of guardianship was dealt with in the Magistrate’s court, and stated that, in principle, keeping guardianship only in the high and divorce courts effectively disadvantaged the poorest of the poor; the people Members were trying to represent.
Ms Bogopane-Zulu asked about the Divorce and Maintenance Acts, and what matters were provided for in the divorce courts, and the implication of the current wording.
Mr Skosana stated that as the divorce court was a higher court than the Magistrate’s court, the judges there require more advanced qualifications and received specialised training in issues of custody and guardianship. The Family courts would also be higher than the Magistrates’ courts, but would be more widely distributed and accessible than the High Court. A major objection to giving Magistrates’ courts jurisdiction over matters of custody and guardianship was the insufficient capacity, lack of knowledge, and prevalence of corruption in those courts.
Ms Van Zyl noted that currently when a married couple separated, the divorce court made a ruling on the "custody" of and "access" to children, and that the new terms of "care" and "contact" might prove confusing. According to the Deputy Minister of Justice, the divorce court dealt with custody issues at the time of the divorce, and he had been concerned that the current draft of the Children’s Bill would remove this responsibility from the divorce court. However, the clause in the Children’s Bill should more clearly state that the Magistrates’ courts would have the power to rule on guardianship in cases where divorce was not involved. The Department of Justice was not opposed to making the courts more accessible, but this devolution of guardianship to the lower courts was a major policy shift, which the Department was not prepared to accommodate. Such a major policy shift would have to go back to the Department of Justice for review, and there had been a request that the Departments of Social Development and Justice consult to avoid major policy shifts.
Ms Bogopane-Zulu suggested leaving subclause (3) in the chapter to be sorted out during the NCOP process, but that the Committee meet with both the Departments of Social Development and Justice about this issue at a later date.
Mr Nzimande noted that the Deputy Minister was concerned about the potential for the chapter to broaden the power of the Children’s Courts to include matters of divorce, and proposed adding a resolution preventing that effect. The principle of the devolution was to give access to the courts to children and their guardians, but he saw problems in that the situation could be manipulated. He concurred with Ms Bogopane-Zulu, but added that the process should be delineated in a timeframe and had to be concluded before the Section 76 Bill was finished.
Mr Waters supported Mr Solo’s pleas to devolve guardianship to the magistrate level, and noted that the Magistrates’ courts had been dealing with adoption since 1963, which was a far more permanent decision than those surrounding custody and access, which they were prohibited from ruling on. Magistrates could also terminate parental responsibilities and rights in cases of child abuse. The Committee should create a timeframe for the Department of Justice by which guardianship should have been devolved to the Magistrates court and this should be inserted into the Bill. This would give the Department of Justice both time and a strong incentive to do so.
Ms Bogopane-Zulu suggested leaving the chapter as amended the previous night, but as the Committee did not intend to interfere with the Department of Justice, adding an amendment making it clear that the Magistrates’ courts would not assume the responsibilities allocated to the divorce courts.
Mr Solo questioned the objectives of the Committee, stating that it was paramount that ease of access to courts for matters including guardianship and access be increased. If necessary, the Bill could include a "sunset clause" stipulating when the matters of guardianship had to devolve. Magistrates training could also include the topic of guardianship.
Ms C Dudley (ACDP) noted that the problem was time, as any deviations from the Cabinet Bill or the policies laid out by the Deputy Minister of Justice would be a substantial change in the Bill which would have to go back to the Department of Justice for consideration. This could create a deadlock.
Dr Mabetoa concurred with Ms Van Zyl, reminding the Committee that if they required that the previous amendments be included, there was a possibility that the Bill would not make it to the National Assembly during this session.
Mr Nzimande stated that the intent of the Committee was not to affect the integrity of law and policy but simply to provide accessibility and affordability by making guardianship proceedings available in a lower court. He asked whether the drafters could find a way to keep guardianship at the lower court, but exclude all functions specific to the High Court and the divorce court from the provisions of the Bill. This should avert a deadlock as the Bill would not be deviating either from policy or precedent.
Ms Rajbally suggested that the Committee draft a letter to the Department of Justice, showing their motivations for including guardianship in the purview of the lower court.
The Chairperson asked Members to come up with a proposal or flag the issue.
Ms Bogopane-Zulu noted that legislative deadlock was normal and that the Department of Justice might not have seen all of the amendments recommended by the Committee. She proposed keeping the amendments from the previous evening, along with Justice’s two new amendments, and inserting a sunset clause relating to when the responsibility for guardianship would devolve to the lower court. The legislative procedure allowed the Committee to retain their input.
Mr Nzimande asked if a limiting clause dealing with the Divorce Act could be included, so as to avert tampering with Cabinet policy but still retaining the accessibility championed by the Committee.
Ms Van Zyl repeated that if the Committee retained the provision, it was likely to impact on the process. The Department of Justice would not be happy with the inclusion of a sunset clause, compelling action, and this could further impede the Bill. A viable alternative would be for the Committee to follow the Department of Justice’s recommendation to pass the Justice version of the chapter and to review any changes later.
Dr Mabetoa informed the Committee that the Minister of Justice had emphasised that all substantive changes would have to go back to the Department of Justice for review. Officials from the Department of Social Development were not mandated to insert changes, as the Department of Social Development felt that all changes should come from the Department of Justice.
Ms Magazi (ANC) proposed flagging the issue and returning to it later in the day.
Mr Waters proposed relocating the clauses dealing with guardianship to subclause 42(1) and stipulating that the responsibility must devolve to the Magistrate’s court after two years.
Ms Van Zyl noted that this change, while possible, would delay the process.
Ms Bogopane-Zulu proposed leaving the Committee’s earlier amendments in the Bill, continuing with the legislative process, and resolving the problem when the Section 75 and 76 Bills were incorporated. Although the devolution of guardianship to a lower level was a deviation from Cabinet policy, it was what the Committee wanted.
Mr Nzimande noted that Ms Bogopane-Zulu’s proposal was more of a strategy than a compromise. He asked if the other powers of the divorce court could be left intact, and just the devolution of guardianship be left pending, before the establishment of the Children’s Court.
Ms Bogopane-Zulu reiterated that the point of moving responsibility for guardianship to the lower court was to improve access.
The Clerk read the proposal to leave the chapter as amended the previous day with the addition of Justice’s two amendments, and placing the obligation on the Departments of Justice and Social Development to sort out the issue of the devolution of guardianship during the NCOP cycle.
Ms Direko noted that if the Committee acceded to the request of the Minister of Social Development and Deputy Minister of Justice, the Committee could return to the issue in a year or two and ask for their requested changes to be effected.
Mr Skosana stated that currently the Magistrates’ courts did not have the capacity to rule on guardianship, as the Committee wanted.
Ms Direko asked the purpose of pushing through these amendments if they were not going to be effected, and suggested leaving the chapter as Justice had proposed it and revisiting the debate in a year or two.
The Chairperson asked which Members supported Ms Bogopane-Zulu’s proposal. Mr Nzimande responded that he supported retaining the clause if it was kept in subclause (3). Mr Waters noted his strong objections.
Ms Van Zyl reminded the Members that if the clause were kept in (3) then the High Courts and divorce courts would have jurisdiction over guardianship, and if it were moved to (1) then the Magistrates’ courts would have jurisdiction.
Ms Bogopane-Zulu asked if Justice would have any objections if the clause were left in (3), as that had been the way Justice had originally wanted it.
Ms Van Zyl pointed out that the Committee needed the Department of Justice to report on how far along they were with the implementation of the Family courts, as they would be more accessible than the High Courts and would have specific jurisdiction involving children and guardianship.
The Chairperson felt that the Committee was going around in circles, as they had agreed on this issue previously and were now in disarray. Ms Van Zyl was instructed to continue outlining proposed amendments.
Clause 46: Orders Children’s Courts may make
No amendments were proposed.
Clause 47: Referral of children to children’s court by other courts
No amendments were proposed.
Dr Mabetoa stated that the Committee should not consider old amendments proposed by the Department of Justice, as considering them was immaterial as Justice had withdrawn that set of amendments in favour of the two adopted that morning.
Ms Bogopane-Zulu expressed dissatisfaction with this.
Mr du Preez suggested that the Department of Justice should present the chapter to the Committee.
Ms Bogopane-Zulu clarified that the Committee had been considering the Bill with input from the Department of Justice. After the meeting that morning, Justice had withdrawn their proposed amendments. The Committee was now complaining that Justice was telling them what to do.
The Clerk of the Committee clarified that the dispute was a process issue. The Committee had asked the Department of Justice to produce an amended Bill, with input from the Committee. Currently, the Committee did not need to decide about the amended Bill, as the Department of Justice would view the Bill later, and the Bill should have the approval of the Department of Justice. The Committee could amend the Bill after a short period, but could not force Justice to re-introduce their discarded amendments.
Mr Nzimande felt that, in terms of the legislative process, the Committee should now make a decision and have it tested.
The Clerk explained that the Department of Justice was making their decisions separately, and was not stopping the Committee from making their own amendments to this draft of the chapter. Because of the subsequent amendments, the Bill should be introduced as amended. When the State Law Advisor received the Bill, it had to have the approval of the Department of Social Development, and the Committee could make further amendments to the Bill when it was returned to them.
Ms Dudley suggested that the Committee had two choices. Firstly, the Committee could either reconsider and re-introduce some of the amendments added to the Bill the previous night, or simply move forward with the Bill with all of the amendments from the previous night. Alternatively, the Committee could follow the path suggested by the Department of Justice and approve the Bill with Justice’s draft of the chapter, even though it included undesirable elements, and attempt to change it later.
The ANC requested a break to caucus, and the meeting was temporarily adjourned.
After this caucus, Mr Nzimande repeated that he supported the proposal by Ms Bogopane-Zulu to put a resolution expressing concretely the concerns and intention of the Portfolio Committee that the services accompanying guardianship should resort in the lower court. The ANC remained committed to this. The two amendments in the subclauses should be included. They were cosmetic in terms of the decisions taken the previous day. The resolution was supported by Ms Direko and Ms Rajbally, and would go into the Committee’s report.
Mr Waters requested that the objections of the Democratic Alliance be noted that the guardianship was remaining in the ambit of the High Court and not devolved to the Magistrate’s court or children’s court.
Ms Dudley lodged the objections of the African Christian Democratic Party to the process, and having been "railroaded", rather than to the resolution.
Mr Waters asked for reassurance that subclause 54(d) would be in the Bill.
The Chairperson suggested that when the majority had supported the resolution, the process had been closed. Mr Waters said that the clauses had not been concluded and cited the issue of disabilities and the use of intermediaries, querying the need for haste. The Chairperson replied that the Committee had agreed that they had concluded the discussions on this chapter.
Ms Dudley and Mr Waters said that the process had been cut off, citing amendments from the previous night that had not been discussed and asking for clarity on the issue. The previous night it had been decided to include provisions for disability, as far as children participating in court, as well as "must" use intermediaries, instead of "may". If the discussion was closed at this point, this would not be included. It became clear that the Chairperson had been misunderstood.
Mr Solo noted that the amendments as proposed by the Department of Justice had been accepted, with the proviso that there should be a resolution attached, noting that the aspect of guardianship should be looked at and dealt with as soon as possible.
Mr Waters reiterated his call for clarity, as Chapter 4, subclause 7(d) was not included in the Department of Justice document.
Ms Bogopane-Zulu noted that there was an assumption that the Committee was working from the document from which they had worked the previous night, with amendments made the previous night, and the Committee was now effecting and entertaining amendments as requested by the Department of Justice. This would mean that subparagraph (d) would be included.
Ms van Zyl requested absolute clarity, as the document would be submitted to the State Law Advisor the following day.
Ms Bogopane-Zulu said that in terms of Mr Nzimande’s proposal, she understood that the Committee was retaining the provisions as contained in the original Bill.
Ms van Zyl replied that this would mean that the proposed subclause 42(3) would not be inserted. Ms Direko questioned whether this would accommodate Mr Nzimande’s proposal.
Ms Bogopane-Zulu replied that, to the best of her understanding, what Mr Nzimande had moved for was accommodated in Clause 45. Subclauses 42(3) and (7)(d) would therefore remain, but subclause 42(11) would be deleted. Clause 43 would remain. The insertion as requested by the Department of Justice would be made in Clause 45, and subparagraph (i) and subclause (5) would be deleted. Clause 46 would remain unchanged.
Mr du Preez confirmed that the Committee was proposing more amendments than the two amendments proposed by the Department of Justice. Mr Nzimande replied that this was the prerogative of the Committee.
Ms van Zyl noted that the Committee had also made an amendment to Clause 48.
Mr Solo confirmed that the amendments as proposed by the Committee were to remain in addition to the amendments submitted by the Department of Justice.
Ms van Zyl confirmed that the amendments to subclause 47(1) and Clause 48 would remain. The Committee had proposed that subclause 50(d) be retained with a cross reference, and this was confirmed. There were no amendments to Clauses 51, 52, 53 and 54. Clause 55 was amended as proposed by the Department of Justice, with no further amendments by the Committee. No amendments were made to Clauses 56, 57, 58, 59 and 60. "Special needs" had been added in Clause 61(1)(a).
Mr Nzimande noted that this amendment was pursuant to the public hearings.
Ms van Zyl confirmed that the provision in subclause 61(2) would be changed from "may" to "must". No amendments had been proposed to Clause 62 and Clause 63 had been agreed to without amendment.
Mr Solo asked whether the court should allow hearsay evidence. How would this be dealt with?
Mr Waters asked whether this related to cases of abuse, where children were giving evidence.
Ms Bogopane-Zulu noted that the last time this clause had been discussed, it had been in the context of a member of the community witnessing the abuse of a child, and giving evidence about this. The court would have to entertain this.
Mr R Skosana remarked that the omission would not be disastrous as the law of evidence would govern it. There were exceptions, such as dying declarations. There was also evidence that in a case of rape, there had to be evidence that the child had reported the matter to a parent or other adult.
Ms Direko asked whether the court would accept the evidence of a community member who had contacted the police following suspicion that a child was being abused by his/her stepfather, for example.
Mr Skosana pointed out that it was not necessary to specify the exceptions to the law of evidence in law.
Ms Bogopane-Zulu proposed that the Committee instruct Ms van Zyl to continue.
Ms Dudley asked whether it affected the burden of proof in criminal and civil cases. Mr Skosana replied that it stated the law.
Ms Bogopane-Zulu proposed that it should be deleted, and this was agreed.
No amendments were proposed to Clauses 64, 65 or 66. A proposed amendment to Clause 67 was questioned, as previous provisions relating to the qualification and training of magistrates had been deleted.
Ms Weber suggested that there was another amendment in Clause 67(4)(b) where "and those with special needs" had been proposed.
Ms van Zyl said that this was a detail that would not usually be included in legislation. The Committee had decided the previous night that they did not wish to prescribe qualifications and training for presiding officers in the Bill itself, so she was unsure why there was a need to do so for the clerks of Children’s Courts as this was not usual in legislation.
Dr Mabetoa noted that it had not been done with other professionals in the Bill, and queried the exception.
Ms van Zyl noted that the Department of Social Development had proposed a rewording in Clause 68 to address the investigation to be carried out by a social worker. This was accepted.
Clauses 69 - 75
No amendments were proposed.
The Chairperson noted that this completed the process and suggested that South Africa would be proud of the Bill. The amendments were for the betterment of children’s lives.
The meeting was adjourned.