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SOCIAL SERVICES SELECT COMMITTEE
8 November 2005
CHILDREN’S BILL: DEPARTMENTAL RESPONSE TO SUBMISSIONS
Documents handed out:
Children’s Bill [B70B – 2003] NCOP Public Hearings
Proposed NCOP amendments to Children’s Bill
Summary of submissions
Children’s Institute Summary of Oral Submission
The Committee discussed proposed amendments to Clauses 233, 281, 286, and 292 to 303 of the Children’s Bill. They also discussed Clause 12 with the State Law Advisors and discussed issues pertaining to the Bill, such as Contribution Orders (Clause 164), unaccompanied foreign children (Clause 150) and the use of Magistrate’s Courts instead of High Courts for guardianship cases (Clause 122). The South African Police Service presented a proposal for the inclusion of a new Clause 35 in the Bill. This clause dealt with the refusal to exercise parental responsibilities and rights and its aim was to prevent violence occurring over such matters.
Department of Social Development (DSD) presentation
Mr Pierre Du Preez presented proposed amendments to the Children’s Bill made by organisations during the NCOP’s public hearings. Representatives from other departments also discussed the issues with the Members.
Clause 233(1): Consent to Adoption
The Johannesburg Child Welfare proposed that provision be made that a child of a minor may only be adopted with the assistance of the parents of the minor.
Mr Du Preez explained that there would be a problem if the minor had no parent or guardian. According to Clause 236 the consent of parents of guardian was not necessary in certain cases. In healthy family environments it was advantageous for the guardians to be involved when adoption was considered, but to make it mandatory would cause grave problems for young parents who did not have healthy relationships with their parents or guardians. Examples would be: were the guardian was dead; the mother has left home and where a guardian was exercising undue duress.
Mr Du Preez thought it was not necessary to change the clause, as all the proposals were covered.
The Committee noted his suggestion and decided that they would come back to it at a later stage.
Molo Songolo proposed that a further subsection had to be put in to give effect to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the African Child.
Mr Du Preez did not deem it necessary to insert the proposed subsection, as the first two subsections conveyed it adequately. The Committee agreed.
Clause 286: Assistance to Children who are victims of Trafficking
Molo Songolo proposed a provision to provide emotional, physical and mental support services to victims of trafficking, the immediate arrest of the perpetrator if certain, and setting up comfortable courts for victims of trafficking.
Mr Du Preez said courts fell under the jurisdiction of the Department of Justice and setting up new courts would have financial implications. A perpetrator’s immediate arrest would be automatic and support was already provided for in the clause.
Mr B Tolo (ANC, Mpumalanga) agreed with the Department regarding the arrests and the courts, but felt that the provision of support services had to be put more concretely in the clause. Mr Du Preez said Mr Tolo’s concern was dealt with in Clauses 6(2) and 7(1)(h).
Mr Govender (special delegate, KwaZulu-Natal) said he had found children in courts unaccompanied by parents or guardians without having had breakfast. He asked if the Department provided for the well-being of a child appearing in court. Mr M Thetjeng (DA, Limpopo) asked where children went once they were identified. Dr Maria Mabetoa (DSD Chief Director: Children, Youth and Families) said Clause 152 dealt with children who had to be moved to temporary care. The Bill provided for children who attended court. The issue was fully covered.
Mr Tolo asked if it meant that a child was covered when the Bill said a social worker had to investigate. Mr Du Preez said this was the case. Once a child was brought to the attention of a social worker, the child would be placed in a place of safety. It was a matter for the provinces. The Chairperson was concerned, because some places of safety have been closed.
Clauses 292 to 303: Chapter on Surrogate Motherhood
Mr Du Preez said a private person, Ms Vivienne Spiro, was strongly opposed to surrogate motherhood. She cautioned against human trafficking and the selling of babies. She proposed that:
- a register should be kept of all surrogate motherhood agreements by the Department of Justice;
- a social worker should be present when a baby was handed over to the parents;
- sex selection should be prohibited;
- surrogacy only be allowed for South African citizens;
- the adoption register should provide for surrogate adoptions;
- counselling for surrogate mother should be provided before and after birth; and
- adoptions by private social workers should not be allowed.
Mr Du Preez said the suggestion that social workers should be present when a baby was handed over to parents was something that could be included in the Bill. The other suggestions were already covered in the Bill.
Mr Tolo did not think the Committee should change anything.
Mr Thetjeng asked if it was safe to assume that the surrogate agreements reached in the High Courts would count as a register. Mr M Sulliman (ANC, Northern Cape) thought agreements would be kept safe by the people who reached them. He did not see the need for a register. Mr Du Preez said all agreements would be confirmed in the High Court and would be kept in their archives.
The Committee agreed not to accept the proposals.
The Chairperson asked for more information on Clause 12 from the State Law Advisors. Ms Ayesha Johaar, Senior State Law Advisor said Clause 12 should be removed. It could be slotted in under the cultural matters in the Constitution. Once an amendment has been proposed, it would have to be sent back to the Portfolio Committee for consideration. Ms Johaar proposed that the clause be excised from the Bill. It could be put in another Section 76 Amendment Bill.
Mr Sulliman said that the Bill seemed like a mixed Bill, if this was the case. He was confused on how to deal with it.
Mr Tolo thought the State Law Advisors was unfair in asking that the Bill should be changed at this stage. He proposed that the Committee should continue with the Bill as it was. If the State Law Advisors felt very strongly about it, they should go to the National Assembly.
Mr Thetjeng agreed that the clause should be kept. The NCOP was a house separate from the National Assembly. Clause 12 would affect each province differently. The Committee should not just accept what the National Assembly has done, and they should say so.
Mr Tolo said they could not criminalise something only in certain provinces. There should be a general law. The rights of people in the Bill of Rights should not be delegated to provinces.
Adv Silas Nawa, Legal Advisor, Department of Education, said if something affected the provinces it was for the NCOP to indicate proposed amendments to the Bill. There was a need for the NCOP to help the National Assembly.
Mr Sulliman said what made the situation unique was that the Bill was halfway through the process. It would mean that the Committee would have to ask the Department to split the Bill if Clause 12 was omitted.
Mr Tolo said if the Department had to split the Bill, it meant that the Bill would have to go back to the Department. This would mean the withdrawal of the Bill. He said they should amend the Bill and take it back to the National Assembly. It would be a futile exercise to take out the clause.
Mr Thetjeng said it seemed as if the Committee was only there to endorse the National Assembly’s decisions. He said he was not there only to endorse; he was there to represent his province. Mr Thetjeng proposed that they should take the whole of Clause 12 and put it in a Section 76 Bill if it was not kept in the Children’s Bill.
Mr Du Preez said the final decision on the retention of Clause 12 would be with the Committee. The possible implications could be, that according to Section 75 of the Constitution, the Bill would have to go back to the National Assembly, who could then reject all the Committee’s suggestions. If it carried on, people could win court cases against it.
Mr Tolo suggested that the Committee finalise the matter the next day. Mr Thetjeng wondered why they have dealt with the issue in terms of Section 75 of the Constitution. He agreed that the Committee should leave the matter until the following day.
Contribution Orders (Clause 164)
Mr Thetjeng said the proposal that the Children’s Court must make contribution orders had to be included in the Bill. He asked if money should be used to assist children.
Mr Du Preez said they had looked at the proposed amendment and had something similar in mind. They would deal with it.
A Member asked if there was a provision in the Bill that a contribution order could be used to pay for the expenses of a child. The Member suggested that the reference to the court clerk should be taken out in order for the money to go directly to the child.
Adv Nawa suggested that the words "such other" should be removed. Mr Sulliman said they should capture it correctly.
Mr Govender said they should add institutions to those who would receive the contribution orders. Ms Ronel van Zyl, Researcher, South African Law Reform Commission, said in legal terms the word "person" included institutions, so it would not be necessary to put it into the clause.
Mr Thetjeng said Clause 164 covered his position, but he would have preferred use of the word "must" instead of "may".
Mr Tolo said the court would have to assess the situation, because it could be futile in some cases to grant contribution orders, for instance when the perpetrator did not have the means to pay.
Mr Thetjeng said he wanted to see that money that the state obtained from criminals be used when an offender could not pay.
Ms Van Zyl said the Court should have discretion to grant contribution orders. She had a document prepared with the proposed wording. Adv Nawa agreed that one could not say the court "must" make a contribution order. It would mean that the executive would be telling the court what to do. Therefore one should be very careful of the word "must".
Dr Mabetoa said the state provided for the medical expenses of all children in foster care and in places of safety. Children with their families also went to the state’s hospitals.
Unaccompanied foreign children (Clause 150)
Mr Tolo enquired about the provisions for unaccompanied foreign children.
Ms Van Zyl said an unaccompanied foreign child was not necessarily in need of care and protection. It had to be investigated by a social worker. They could not go straight to the court procedure.
Mr Tolo said that such a child could need care while the social worker was investigating the case. He asked what would happen with the child in the meantime. Dr Mabetoa said all children referred to social workers were placed in care units until it had been determined by the social workers where the child should go.
Mr Tolo said the people at the higher levels were not aware what happened on the ground. What was supposed to happen did not always happen. The Chairperson said there had to be a monitoring mechanism.
Ms Van Zyl said the problems Mr Tolo referred to were under the current legislation, which is why there will be a new Act. The minute such children were discovered they would be taken care of.
Dr Mabetoa said the Members had to read Clause 62 carefully. Regarding monitoring, it stated that every matter had to be reported to the Department of Social Development. Not everything should go to courts. Some cases should remain within the jurisdiction of social workers.
Ms Vilakazi was worried about the shortage of social workers. On a point of order, Mr Sulliman said that the shortage of social workers had nothing to do with the consideration of the Bill. Ms Vilakazi did not appreciate being interrupted and said social workers were mentioned in the Bill, but yet there was a shortage of social workers. The Chairperson said her concern was noted.
Mr Thetjeng said the definitions regarding "unaccompanied foreign child" needed to be correct. He said it was still not dealing with refugees. When "child" was defined, it had to include "foreign child" and "refugee child".
Ms Van Zyl said it was only important for the Department of Home Affairs to distinguish refugees. For a child in need of protection it did not matter if the child was foreign, an illegal immigrant or a refugee. A refugee child was a kind of foreign child. The definition took care of every child that was not a South African child.
Dr Mabetoa said an unaccompanied foreign minor could be defined in the Bill. Mr Thetjeng said it would be fine. Dr Mabetoa said she would come to the Committee with a definition. The Committee agreed to her suggestion.
Register (Clause 120)
Mr Govender was concerned that witnesses’ details would be placed on a register and that this would deter them from coming forward. Mr Tolo said it would not be the witness who would be put on the register.
Mr Tolo wanted to reiterate his point of an earlier meeting that he did not want the Committee to be people who condemned forever. He believed in rehabilitation. He thought a five-year period to be on the register would be punishment enough for a person who only offended once. He said there were more serious crimes where people believed in forgiveness. He proposed that the Committee take what was in the Bill.
Mr Thetjeng believed most people could be rehabilitated, but not all. Children have for long been neglected. A serious deterrent was needed. If it happened once, it was one time too many. The damage to the child would last a lifetime. They were now protecting the offenders, not the victims. The Chairperson noted his point.
Adv Nawa realised that the Members were talking about serious offences, but there should be a balance. It could happen that a teacher slapped a child under provocation, and if the teacher were not removed from the register after five years it would mean he/she could not go back to teaching after five years.
Mr Du Preez said that would not necessarily be the case. In terms of section 120(4)(b) the offender must be unsuitable to work with children.
Dr Tertius Geldenhuys, Assistant Commissioner: Head of Legal Services and Legislation, from the South African Police Service (SAPS), said in South Africa two forms of assault were distinguished. The one was normal assault and the other assault to do grievous bodily harm.
The Chairperson ruled that the matter should be left until the following day.
Mr Tolo took over as Chairperson.
New Clause 35: Refusal to exercise parental responsibilities and rights
Dr Geldenhuys said the new clause was drafted to address issues raised at an earlier workshop held in Gordon’s Bay. It dealt with an extremely emotional issue. They wanted to prevent violence by having a mechanism for recourse to assess parental rights. They would also want it to be a criminal offence if the parent who had care of a child changed his or her residential address without notifying another parent with access, or with parental responsibilities and rights, in writing about the change in address.
Ms Van Zyl said it would be better to have this clause in the Children’s Bill and to repeal the other, insufficient General Law Amendment Act.
Mr Tolo was concerned, because it looked like they were going "to and fro" with the Bill. He said the Bill has already been presented to Cabinet. He was worried that the Bill would not be completed. Dr Geldenhuys said the South African Police Services made submissions long before the legislation went to Cabinet. They thought the clause could be included in the Divorce Act. They then approached the National Assembly, but the proposal somehow fell through the cracks. They have now come to the NCOP, because the matter was very important. The South African Police Service wanted to protect people.
Ms Johaar said the State Law Advisors had no objection to the clause being inserted.
Mr Du Preez said the Department of Social Development supported the new clause.
Adv Nawa also supported the new Clause 35, but said the current Clause 35 could not be replaced. Another number for the clause should be found.
High Court versus Magistrate Court for changes of guardianship (Clause 122)
Mr Thetjeng asked if the referral to the High Court could be changed to the Magistrate’s Court, so that it would not be difficult for rural poor people to access the court. Mr Tolo also asked if it had to be the High Court.
Mr Lawrence Bassett, Department of Justice, said the Portfolio Committee decided that it should stay a matter for the High Court, who was the upper guardian of all minors. It should stay at the High Court level because magistrates did not have sufficient experience.
Mr Tolo could not agree to this.
Dr Geldenhuys said the Committee should take the implications into account. The chances of there being applications to change guardianship were very slim. Complex legal issues were involved and required very important status decisions. It was a very serious matter. The circumstances when it would happen were so few that there was no need for concern.
Mr Thetjeng asked if this meant that magistrates were not trained to deal with the matter.
Mr Tolo said legislation had to be made as simple and as accessible as possible. He proposed that the matter be referred to the lower courts.
Dr Mabetoa said the Portfolio Committee was also adamant that the guardianship matter should go to the lower courts. But the Deputy Minister of Justice asked to be given time to investigate the functioning of the court system. They could always make an amendment at a late stage.
Mr Bassett said the Department of Justice was in the process of rationalising all courts. They were looking at the development of family courts which would be more accessible. There was something in the Bill referring to the pending family courts.
Mr Tolo said the Committee needed to get some clarity from the Department of Justice.
The meeting was adjourned.
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