Controversial Issues in Children’s Bill: workshop

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Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report


30 August 2004

Chairperson: Ms J Masilo (ANC, North West)

Documents handed out
Department PowerPoint presentation on Surrogate Motherhood
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: Department Executive Summary
SA Police Service Proposed Amendment to Children’s Bill
NCOP (Department of Social Development) Workshop on Children’s Bill

Representatives of the Department of Social Development and the South African Law Reform Commission briefed the Committee, and representatives of Provincial Legislatures, on the controversial aspects of the Children’s Bill. The full-day meeting was held at the Quayside Hotel in Simon’s Town, near Cape Town.

Particular attention was paid to the issue of virginity testing. Some Members felt strongly that it was an important cultural practice, and that there had been insufficient consultation before its prohibition. It was agreed that further consultation was needed, and that this had to include fora in which young women could state their views. It was also recognised that this was not simply a rural debate. Some Members felt that there was a gender bias in the treatment of virginity testing by comparison with the treatment of male circumcision.

The Department gave a general overview of the background to the provisions on surrogate motherhood, and it was agreed that this was a common and traditional practice. There was also a general overview of the Bill as a whole, and it was agreed that the Portfolio Committee on Social Development would be invited to address the Committee on its decisions regarding the Bill.

The Chairperson reminded the Committee that the workshop dealt with the Section 75 Bill.

Department briefing
Dr M Mabetoa (Chief Director: Children and Families) gave a general background to, and overview of, the Children’s Bill. Children’s lives were affected by a variety of pieces of legislation and international conventions, and it had been found that existing legislation was not in keeping with the realities of social problems. South Africa had also acceded to various international conventions, and the principles of these conventions had to be incorporated into local legislation. During 1997, the then Minister for Welfare had requested the South African Law Reform Commission to develop new comprehensive legislation for children, and the proposed draft Children’s Bill had been submitted in December 2002. The Department of Social Development had aligned the Bill to national policy directives and priorities, in conjunction with national and provincial stakeholder Departments. The Bill was approved by Cabinet in July 2003, and submitted to Parliament in August 2003. It was split into Sections 75 and 76 Bills, and the Section 75 Bill was passed by the National Assembly on 22 June 2005. An important decision had been taken to focus the Bill on the protection of children.

Clause 12 of the Bill prohibited virginity testing. It was felt that the practice contravened Section 28 of the Constitution, as it infringed on the child’s right to and respect for bodily integrity. The reasons usually advanced for virginity testing, such as its role in the prevention of HIV/AIDS, were felt to be unrealistic. It was debatable whether children could give informed consent, under the guise of culture. Virginity testing also discriminated on the grounds of gender. It was, in fact, difficult to say whether virginity testing could still be regarded as part of culture.

In respect of male circumcision, provision was made for the need for informed consent, provided the child was of an age to consent. There were strong medical and cultural arguments for the practice. In terms of access to medical treatment, contraceptives and termination of pregnancy services, the focus was once more on the priority of the best interests of the child. The Bill provided for children of an appropriate age to give consent for their own medical treatment, and for these children to have full access to contraceptives and contraceptive information.

Mr T Setona (ANC, Free State) noted that the costing process was underway and not yet finalised, and that subsequent to the passing of the Section 75 Bill, the draft of the Section 76 Bill would be presented. The Regulations would be formulated immediately after the Section 75 Bill had been passed, and this seemed like "putting the cart before the horse".

Dr Mabetoa replied that the development of Regulations could be a parallel process with the legislation. If there were amendments to the Section 76 Bill, the Regulations would be amended accordingly. The substantive services were already provided; the issue was to improve on these.

Mr Setona asked for clarity as there was no way in which the Section 75 Bill would be implementable until there were Regulations to cover it. Would these Regulations also cover the Section 76 Bill? Delegated legislation could not be superior to Parliament’s powers.

Ms R van Zyl (SALRC) explained that the Regulations would be bulkier than the Bill. Although the process of drafting the Regulations had been started, they could not be promulgated until the Bill was passed. The initial process of calling for tenders could take six months on its own. The Department was aware of the time required to develop Regulations, and was being proactive. In addition, the Regulations pertaining to the part of the Bill already passed would be developed first.

Mr E Adolph (ID, Western Cape) asked whether the costing would be completed by the promulgation of the Bill in 2006.

Dr Mabetoa replied that the service provider would present its full report by the end of February 2006, and would have a draft report by the end of 2005.

Ms P McKay (KwaZulu-Natal Legislature) expressed concern at the implementation of the Bill given the lack of capacity.

Dr Mabetoa replied that two processes were underway in the Department. The first was the costing, to determine the required resources, both infrastructural and human. The second was discussions with the National Treasury regarding the human resources requirements in respect of social workers. A retention strategy had been developed, and this included improved remuneration packages. A service delivery model had also been developed to determine the exact role of Social Development to vulnerable groups. It was a problem that social workers were becoming a scarce resource.

The Chairperson asked the position of the Bill in respect of customary law.

Ms van Zyl replied that the Law Reform Commission was reviewing several aspects of customary law. The Department of Justice had said that the whole court system was in fact currently under review. In the case of conflict, legislation would take precedence. The fact that legislation now regulated something did not mean that customary and common law had been completely done away with. Customary and common law could also be changed by case law; for example by decisions of the Constitutional Court.

Mr Setona commented that South Africa seemed to feel that one kind of cultural approach should supersede others, and this was worrying. If virginity testing was a cultural practice, the Portfolio Committee did not have competency in terms of its constitutionality, as that vested in the Constitutional Court. It was of concern that most African practices were being abolished.

Ms J Vilakazi (IFP, KwaZulu-Natal) emphasised that the issue of virginity testing required broader consultation. It was not a compulsory practice, and nothing would happen to people who did not go. It was not easy to rape a virgin, so it would not lead to a greater vulnerability of the girls identified as virgins. It would be easy to regulate a healthy and constructive way of doing the testing. The people of KwaZulu-Natal would be very resistant to a ban on the practice.

The Chairperson noted that the House of Traditional Leaders would be involved in the Section 76 process.

Ms McKay remarked that there had been a big consultative workshop on virginity testing five years previously. This had concluded that, although virginity testing was traditional and backed by the king, it was a violation of children’s rights. Just because something was customary it was not always right, the realities had to be addressed, and unhygienic methods were a definite concern.

Ms X Tom (Eastern Cape Legislature) concurred with the need for wide consultation, and a lack of haste. There should also be fora for young girls to express their views. The Chairperson concurred.

Ms Vilakazi concurred that even now testing was not done on children, but on people who had just reached puberty. Once a child reached puberty, she entered a very vulnerable stage, and was then taught about sexuality.

Ms M Mbere (Director: Children’s Directorate) emphasised the context of the debate, noting that even traditional virginity testing was not done to children, but practised from a certain age. The Department supported the involvement of girls in the consultation process. The drafters could perhaps consider investigating an age limit for the practice.

Dr Mabetoa noted that the original draft had not mentioned an age, and asked whether the Clause should exclude virginity testing for children under the age of 16. The Portfolio Committee had decided to prohibit virginity testing, ranking it alongside female genital mutilation. The Department had agreed, but looked to this Committee to take it forward. The issue of age could be introduced.

Mr Setona requested clarity on the definition of majority, both in terms of marriage and indigenous law, asking whether 18 was consistent with traditional African indigenous law.

Ms van Zyl replied that the Constitution had been used as a guideline, together with international instruments, and this had set the age of majority at 18.

The Chairperson asked why the Bill was silent on lobola.

Dr Mabetoa replied that it had been a common practice for a virgin to get additional lobola, and compensation for "deflowering". The Bill only dealt with one aspect of the practice, and in all cultures, virgins were held in high regard.

Input from stakeholder Departments
Ms M Ditsebe (Department of Provincial and Local Government) emphasised that the issue of virginity testing was not only limited to rural areas. A group of women from Zola in Soweto had protested against the Bill, and the Department supported the need for further consultations. Older women believed that they were helping young women by doing virginity testing. It was important for everyone to start to agree on an age to have a common understanding of the issue.

Ms R Mohlabi (Department of Health) expressed the Department’s full support of the Department of Social Development’s efforts to strengthen intersectoral co-ordination. All the Department of Health’s programmes were culture-sensitive, and the Department had taken a stand not to defy culture, but to see what was in the best interests of the child within the cultural practices. Virginity testing was of concern. A programme had been shown on television, showing 12 to 13 year-olds being subjected to virginity testing in the open veld. If cultural practices were preserved, they must be for older children in general. Other issues were also of concern, such as what would happen to a girl born without a hymen, for example.

Assistant Commissioner T Geldenhuys (South African Police Service)) noted the SAPS’ belief that many children in conflict with the law should rather be dealt with in terms of the Children’s Bill as children in need of care. Once the Child Justice and Children’s Bills had been promulgated, there would be a definite shift in the way in which children were dealt with in the country.

One aspect of the Children’s Bill was however of concern to the SAPS. In terms of Schedule 4, the General Law Amendment Act of 1962 was repealed. This dealt with situations where one parent was granted custody of a child. Provision had been made specifically for the other parent to have access to the child. This was normal in divorce proceedings. The provision in the General Law Amendment Act provided that, once a parent had been granted custody, that parent had a duty to inform the other parent of any change of address. It also provided that if a court had granted rights of access, a person who refused this access was guilty of an offence. This was a very common situation, and the law allowed police to act, and to open a case, which usually resulted in emotions being calmed. Lack of knowledge of rights could have serious consequences, including death. The SAPS submitted that the repeal should be reviewed, to allow the SAPS the ability to deal with instances of this nature. On the face of it, the Children’s Bill addressed the issue through the introduction of parenting agreements, but this would only apply to divorces after promulgation of the Bill. There was also no provision for enforcement of a parenting agreement that had not been made an order or court. Between 2000 and early 2005, 10 787 cases of this nature had been registered, and this was a strong argument for the retention of that provision.

Mr J Coetzee (Department of Correctional Services) noted that the Child Justice Bill was more applicable to the Department, but said that Section 20 of the Correctional Services Act provided for incarcerated mothers to have their children with them, up to the age of 5 years. The Department provided the necessary services to these children, and access to services within the Department. In respect of children awaiting trial, everyone was assessed on admission, and referred accordingly, for example for medical treatment.

Mr W de Jonge (Department of Home Affairs) emphasised the need for care when dealing with culture and tradition, as these formed the foundation for the future. How would the circumcision of, for example, Jewish boys be handled, as these children were too young to consent?

Mr D Plaatjies (National Treasury) raised two areas of concern. In terms of the Public Finance Management Act (PFMA), all Bills had to be costed. The Section 75 Bill raised a number of issues about national competencies, but other Departments were not really involved in service delivery, and there had to be juxtaposition. Provincial treasuries did not necessarily budget for one priority, but for a range, so there were competing interests. There were also serious reform questions. The Children’s Bill clearly wanted a different way of dealing with children, and a new cadre of personnel was needed. This was not just a new cadre of social workers, but included sociologists, criminologists and psychologists. It was important to identify the basket of services to be provided, both statutorily and non-statutorily. It was imperative to find a way to legislate on a progressive realisation plan.

Mr J Thlagale (UCDP, North West) expressed concern that the Section 75 Bill dealt with issues of virginity testing, circumcision and surrogate motherhood, suggesting that the Bill would have been passed by the time the Committee dealt with the Section 76 Bill. Traditional leaders, who were the custodians of cultural practices, would not have expressed themselves on the issues of virginity testing and circumcision. The Chairperson flagged the issue.

Mr Setona expressed concern that the Committee might assume that the Section 76 Bill should deal with everything discussed. The Section 75 Bill was in fact laying a broad philosophical framework and the Section 76 Bill would talk about institutional arrangements within this context. All issues should be engaged at the Section 75 stage.

Dr Mabetoa concurred that the Section 75 Bill dealt with the rights as contained in the Constitution and set up the principles relating to the care and protection of children, giving effect to international instruments. It laid the basis for the Section 76 Bill. It was important that any changes take into account the cost implications, however.

Mr Thlagale noted that virginity testing was mostly practised in KwaZulu-Natal, and to a limited extent in other provinces, but appreciated that it was not compulsory. Were those who presented themselves free to do so? If this was so, the practice should be allowed, but regulated. People had died from circumcision practices, but these were being regulated, and the same should apply for virginity testing.

Ms Vilakazi emphasised that 18 was not the age of puberty, but rather 14. The procedure should be monitored closely and regulated, so that it was done in a proper hygienic manner.

Dr Mabetoa emphasised that the NCOP was responsible for all Regulations pertaining to the Children’s Bill. The age of testing for virginity testing should be looked at, and a cut-off point established. Everyone had the same aim, to protect children, and procedures had to be established. Although children’s rights were substantive, there had to be some measure of progressive realisation.

Mr M Thetjeng (DA, Limpopo) suggested that there was inconsistency in the treatment of virginity testing and circumcision. Mr M Sulliman (ANC, Northern Cape) concurred, and reminded the Committee that circumcision was not only a cultural practice, but also a religious requirement in some faiths.

Ms Mohlabi noted that, from a health point of view, the earlier circumcision was performed, the better. As the child grew, the nerves became more sensitive, and botched circumcisions were seen in older boys. As the child grew older, the foreskin could also pull back and the child might experience pain and be unable to urinate. There was also a hygiene aspect to circumcision.

Mr P du Preez (Legal Services, Social Development) noted that the Portfolio Committee had approved the Bill on 22 June 2005. It was now in the hands of this Committee, but whatever changes were made would have to go back to the Portfolio Committee. A workshop had been held in April with the purpose of hearing the traditional leaders, but they had not attended, so there were some issues remaining. It was crucial for these leaders to be invited soon. The issues could not be dealt with in the Section 76 Bill. In terms of the Regulations, the Department was in the process of appointing people to draft them. Mr Plaatjies had mentioned progressive realisation, but the President would sign the Bill and it would have to be operationalised. This was unlikely within the next two to three years.

Ms McKay expressed dismay at this estimate, as the Bill was needed to protect children.

Mr du Preez replied that, when he said two to three years, he had referred to both Bills. If the Section 75 Bill were finalised on 19 September 2005, it would become an Act this year. The Regulations would also have to be drafted however, and this would take time.

Mr Setona noted that at some point, the Committee would have to conceptualise a way forward, and the Department would have to assist with data on contentious issues. It may not be sufficient to simply call the House of Traditional Leaders.

Dr Mabetoa emphasised the sense of urgency regarding the Bill. Only a few clauses were being debated, and these could surely be dealt with within the given timeframe, so that the Committee could start work on the Section 76 Bill in 2006. There were major problems with protecting children in South Africa, and the Bill was needed. The Chairperson noted the intention of the Committee to go through the Bill before December 2005. Mr Sulliman emphasised the need for caution.

Mr Thetjeng took Mr Setona’s point about shareholders, but reiterated that there was no consistency in the protection of girl and boy children.

Dr Mabetoa replied that, in 1998, there had been wide consultation on the Children’s Bill, and that circumcision and virginity testing had been on the agenda. There were two warring factions in terms of virginity testing, namely those who felt that it was a violation of the girl child, and those who felt it was good for the child. There was overwhelming agreement that circumcision was all right, but the same agreement had not been reached in respect of virginity testing.

Mr S Ngwenya (Gauteng Legislature) suggested that the argument was in the explanation that virginity testing hurt the girl child. Mr Thetjeng was stating that the same concern was not expressed for the boy child.

Dr Mabetoa suggested that the arguments were different, and suggested that an age limit be agreed upon.

Mr Setona emphasised the need to be cautious, but said that the anatomical argument was appealing.

Ms Mohlabi said that this was a highly debatable issue, but that the best interests of the child should be of paramount importance.

Mr Thetjeng interjected that, by the reasoning of the Department of Health, circumcision at a later age should be prevented, so that the procedure was done on physical and medical grounds.

Chapter 19: Surrogate Motherhood presentation
Ms van Zyl explained that the SALRC had completed a project on surrogate motherhood in 1993. It had been found that the original report had been inappropriately constituted in terms of gender and race, and some recommendations had not been in line with the 1996 Constitution. A comprehensive workshop had been held with experts, public hearings conducted, and study tours undertaken. It had been found that informal surrogacy was practised in most communities, and the overall view was that this should be practised within families only. The majority view was that the introduction of modern and scientific methods would be acceptable. Two types of surrogacy had been found, namely full surrogacy, where the birth mother was not the genetic mother, and partial surrogacy, where the birth mother was the genetic mother. There was a strong feeling that there should be a genetic link between the child and the commissioning parents. It was also important that the surrogate mother should do it for altruistic rather than commercial reasons.

It was found that surrogacy should be the last option by the commissioning parents, and an infertility problem necessitating surrogacy should be permanent and irreversible. Both the commissioning parents and the surrogate mother should be fit and proper persons. The rights and obligations of all parties would have to be clearly defined, and the legal status of children should be clearly defined in legislation. The commissioning parents and surrogate mother would enter into a formal agreement, and the surrogate mother should still have the right to undergo an abortion. The Committee had accepted the principle that the majority of people were in favour of surrogacy, and that surrogacy was a deep-rooted practice both formally and informally throughout South Africa.

The Committee had recommended that legislation to regulate surrogacy was required to prevent present and future legal uncertainties. It was unnecessary to legislate on informal surrogacy since it was done privately, but both the surrogate mother and commissioning parents should be fit and proper parents. Where the commissioning parent or surrogate mother was in a relationship, the respective partners should also give consent, and parties should enter into a written agreement to be confirmed by the court.

Mr de Jonge asked the situation for persons in same sex relationships.

Ms van Zyl replied that this was not prohibited. A single person or parents were allowed; the type of relationship was not referred to.

Mr Sulliman suggested that a person could be healthy when the agreement was entered into, but that anything could happen within seven months. What would happen if the surrogate mother was no longer in a position to give birth?

Ms van Zyl replied that provision had been made for termination of the agreement on a number of grounds, including medical. If the woman was also the genetic other, she would have the right to retain the baby and would have sixty days to decide this, in line with adoption practices.

Dr Mabetoa suggested that relatives, for example, might need educating on traditional practices.

Ms van Zyl noted that, even in the Bible, provision had been made for a brother to have a child with the wife of his brother. Informal surrogacy was widely practiced, but technology had caught up. There might be religious problems with natural surrogacy, and legislation very specifically did not outlaw informal surrogacy.

Ms Vilakazi noted that she had been on the Committee in 1995. Surrogate motherhood did not pose a problem traditionally, as if there was no child, the man was allowed to take the next woman, or the sister if the family agreed. The problem arose with modern culture.

Ms McKay said that she had recently become aware of two women trying for surrogacy because their husbands were HIV positive. There might be a trend developing for this reason as well.

Mr Coetzee asked whether incarceration would disqualify a person from being a "fit and proper parent", or result in a breach of the agreement.

Ms van Zyl replied that incarceration would be taken into consideration, but that the reason for incarceration would be investigated. The criteria for adoptions would probably be used.

Mr S Khandthela (Department of Provincial and Local Government) asked the Department to confirm that the proposals would not impact on traditional practices.

Mr de Jonge noted that there would be a problem with the registration of the child’s birth, as the mother could not be regarded as the biological parent, but the surrogate father would be regarded as the biological father.

Ms van Zyl concurred that there could be issues about real parentage. If the surrogacy was informal and private, the Department of Home Affairs was unlikely to find out about it. The parents were thus encouraged to reach agreement because of the problems that might arise at a later stage. It was not practical to outlaw informal surrogacy.

Mr de Jonge noted that the problem was that the mother’s particulars had to be included on the form.

Ms van Zyl replied that, if there was a surrogate motherhood agreement, it would be similar to the situation of adoption, and the child would become the child of the commissioning parents.

Dr Mabetoa noted that the Department of Home Affairs was moving towards registering children in hospital at birth, and suggested that this might create problems.

The Chairperson replied that delayed registration was possible, if the family had to be consulted.

Ms J Sishuba (Deputy Commissioner, Department of Correctional Services) noted that the emphasis of the Department of Correctional Services was necessarily on infants incarcerated with their mothers. South African needed to do a study on the effects of incarceration on these infants. One of the issues that the Department was motivating for was training on Early Childhood Development (ECD) in the Extended Public Works Programme to include these mothers, to train them to take care of their children, but also to give them a skill. Another issue was that of awaiting trial children, and the possibility that they were there because of dysfunctional homes. Correction was a societal problem. The new direction was to separate the person from the deed, and to move from criminals to people who had committed a criminal act.

Mr Setona noted that Ms Sishuba had raised two critical issues, which, while they did not need to be inserted into the Children’s Bill, might arise in the future.

Overview of the Children’s Bill
Ms van Zyl took the Committee through the Chapters in the Bill, reminding Members that there were 315 Clauses in the Children’s Bill, most of which were in the Section 75 Bill.

Points of note included the replacement of parental power with parental responsibilities and rights, and custody and access with care and contact. One of the biggest points of criticism aimed at government had been that there was no proper co-ordination between Departments. The original SALRC draft had proposed a National Policy Framework (NPF), but this had had huge financial implications. The Constitutional Court had also found that policy was not enforceable. Clauses 4 and 5 now placed an obligation on Departments to co-operate and integrate, and provided for a steering committee for the Children’s Bill.

Ms McKay expressed approval of the inter-country adoption provisions. Many organisations were looking after "AIDS orphans", and these children were leaving the country. Child Welfare had cases of parents looking for their children, and organisations replying that they had been unable to find the parents and had sent the children out of the country, using guardianship. A lot of money was involved, and this was a serious problem.

Ms van Zyl replied that the Department was aware that this was a problem. It would be possible to implement the Bill in stages, and if it took too long for the Bill to be passed, it would be possible to investigate the implementation of the adoption chapters, with possible minor amendments.

Dr Mabetoa noted that at present, children were leaving the country without being registered, via the High Court. The Department was trying to do an audit of all NGOs involved in inter country adoptions, and to see who else was involved. The Department had acceded to the Hague Convention, and there was a Central Authority. Because of the fluidity of the situation at present, not all children were captured. Unregistered children’s homes were a particular target, and public education was also important.

Mr Ngwenya asked for comment on the proposal by the SAPS. Ms van Zyl replied that there was only one Clause at issue, and in discussions with the State Law Advisor, it had been felt that parenting plans and agreements would cover the problem. The SAPS had then discovered how effective the measure was, and the drafters would now consider incorporating it into the Bill itself.

Ms F Mazibuko (ANC, Gauteng) asked what would happen if the mother refused consent to adoption. In South Africa, there was an influx of people, and women became involved with people from other countries. What would happen if the child was taken by such a boyfriend, or in a case where a South African man was living with a Lesotho woman, and the child was unable to get a birth certificate because the mother had no identity document?

Ms van Zyl replied that the Chapter on International Child Abduction could be used to force a child’s return, but the country would also have to be a member of the Convention, or there should be a bilateral agreement in place with that country. The case would have to be worked through the Department of Foreign Affairs. The question concerning the birth certificate would fall under the Department of Home Affairs.

Mr Ngwenya asked what fundamental problems the Portfolio Committee had had with the Bill. Ms van Zyl argued that it would assist the Committee to meet with the Portfolio Committee on Social Development. Mr Setona concurred that this would assist, and would avoid repetition in public hearings.

The Chairperson asked whether the Committee was bound to hold public hearings on a Section 75 Bill. Mr Setona noted that the NCOP was also a House of Parliament, and that the debate should be broadened in the interests of the Bill.

Mr du Preez explained that the Committee was not bound to hold public hearings, but that nothing prohibited them from having them.

Ms van Zyl noted that, when the Bill had originally been split into the Sections 75 and 76 Bills, some aspects had been returned to the Section 75 Bill. No public hearings had been held on these issues, which included the Register, medical treatment and virginity testing. Public hearings could perhaps be held on parts of the Bill, rather than on the entire Bill. Mr Setona and Dr Mabetoa concurred.

Mr Thetjeng asked how the definitions would impact on each other, for example the definition of a child as being under the age of 18. Would there be a situation where the government was taken to court because there was no consistency between Acts of Parliament?

Mr Setona noted that this was crucial, because it was not addressed in the clause on conflict with other legislation.

Ms van Zyl noted that the Constitution defined a child as being under 18. Other legislation would also have to follow the Constitution. There could be exceptions, for example in the case of the child support grant, where the age of 14 had been set as a maximum. The Children’s Bill zoomed in on children specifically. The Choice on Termination of Pregnancy Act, for example, created exceptions to the general rule. This was one of the things that the State Law Advisors checked specifically, i.e. harmony with other legislation. In a sense, the Clause on conflict with other legislation was not necessary, as there was a topic in law dealing with the interpretation of legislation.

Mr Thetjeng asked what would happen to a child born out of wedlock, where the mother married another man, but the biological father had paid for the child. Could the stepfather take over, and would he get custody?

Ms van Zyl replied that, under current legislation, if a child was born to married parents, the law presumed that the husband was the father. In the case of unmarried fathers, the mother was the guardian and the father had no rights. This was one of the things that would change with the Children’s Bill. The new husband would not be the guardian of the child, and the only way in which this could be changed would be a court order or the stepfather adopting the child, but the consent of both parents would then be required.

Mr Thlagale asked whether the father could go to the house of his ex-girlfriend to see the child. Ms van Zyl replied that this was the reason behind parenting plans. The mother, as guardian, could decide who could see the child and when. Parents had to agree on the parenting plan.

Dr Mabetoa noted that the issue of maintenance was also very important. The father should also contribute to the child. Ms van Zyl concurred that both parents had equal responsibility, pro rata to their income.

Ms S Sithole (Limpopo Legislature) remarked that there was a high level of illiteracy on Western legal issues in her province. A young woman might be with a man and have his child. Even if lobola was not paid, her family would call the man their "prospective son-in-law", but he would buy napkins and be considered the child’s father. The girl might later fall in love with and marry another man. For the sake of dignity, he would take the child and the child would use the surname of the new father. The biological father would then not be allowed to see the child.

Ms Ditsebe noted that there was a limit to the issues that could be covered by the Bill, and suggested that there was also a responsibility to enhance the capacity of communities to resolve conflicts.

Dr Mabetoa replied that the Bill covered this scenario, and that the child’s surname could not be changed. This was also in Home Affairs legislation. This Bill ensured that the consent of the father was required.

Ms van Zyl replied that under current law, the mother was the guardian of the child and could refuse the father access. Where a bond had been built, the father could go to court. This Bill now changed the need to go to court. There might be a loophole in Home Affairs legislation regarding the change of surname.

Ms McKay asked for clarity on the resolution regarding the NPF. Dr Mabetoa replied that there had been considerable deliberations at Portfolio Committee level, and it had been agreed that policy could not be put in a Bill. Clauses 4 and 5 had been inserted, and the onus was on the Departments to start to develop the policy framework.

Ms van Zyl noted that the NGOs had wanted the NPF to be an overarching framework. Departments were now compelled to co-operate and integrate, so the same end had been achieved without the cumbersome details of the NPF.

The meeting was adjourned.


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