Children’s Amd Bill [B19B-2006]: Department of Provincial and Local Government input

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
12 September 2007
CHILDREN’S A/B [B19B-2006]: DEPARTMENT OF PROVINCIAL AND LOCAL GOVERNMENT INPUT

Acting Chairperson: Mr M Masutha (ANC)

Documents Handed Out
Children’s Amendment Bill [B19B-2006]  
Department of Provincial and Local Government (DPLG) input on Children’s Amendment Bill

SUMMARY
The Committee will proceed with public hearings in Cape Town on the Children’s Amendment Bill, inviting interested parties to make oral submissions on 18 September. This was as a follow-up to the public hearings it had held throughout the country. The summarising of the provincial hearing submissions was not completed as the Research Unit was struggling with capacity, however, the Committee could not proceed without these inputs. The problem was that any further delay meant that the Bill would not reach the National Council of Provinces in time for it to be completed this year and would be delayed until next year. The Management Committee needed to discuss the implications of the framework presented in the letter from the Chair of Chairpersons and propose how the Committee should proceed.

The Department of the Provincial and Local Government spoke on its state of readiness to provide support in the implementation of the Children’s Amendment Bill. However the Committee was not satisfied that what they heard was sufficiently relevant to the Bill and asked the DPLG to study the Bill further and make a further presentation on the relevant sections of the Bill as the Labour Department had done the previous week. The Department was also advised by the Committee that it needed to accept it had the power to enforce legislation, in response to a statement in their presentation that it was not able to enforce legislation within municipalities. The Committee discussed issues of capacity, interdepartmental consultation, lack of monitoring, consultations with civil society in the context of the DPLG presentation.

MINUTES
Mr Masutha was appointed Acting Chairperson by the Committee as the Chairperson was away.

Mr M Masutha (ANC) informed the Committee that Ms I Direko (ANC) had been interviewed on radio about the Children’s Bill and represented the Committee very well.

Public Hearings and Time Frames for Children’s Amendment Bill [B19B-2006]
Mr Masutha reported that he had represented the Committee at a programme planning meeting of Parliament as the Chair had raised scheduling concerns about the Committee conducting public hearings. The Chair of Chairpersons, Mr Geoff Doidge, had agreed that the Committee could proceed with Public Hearings on 18 September from 9am to 1am. The Committee has issued a press release requesting oral submissions by interested members of public. The idea was to conduct them within one day, depending on the response. 

The Chairperson also reported on the progress of the transcription of the oral submissions that the public had made at the provincial public hearings. Parliament did not have the resources to transcribe these sufficiently quickly so outsourcing this work was being investigated. However, the Chairperson indicated that the Committee could not finalise the Bill without considering the transcriptions.

Mr Masutha informed the Committee that in order for the legislation to be completed this year, the National Assembly and the National Council of Provinces had to pass the Bill by 9 October. This would not be possible as information was still outstanding from the provincial public hearings. Another time frame was now being considered by the Programme Committee. It might be necessary for the Committee to sit during recess period.

The Chairperson also explained that in anticipation of controversy over sections of the Bill, especially that dealing with corporal punishment, the legal adviser had been requested to conduct a constitutional research on these matters.

Mr K Morwamoche (ANC) expressed his concerns about those areas that had not been visited for public hearings because the Committee did not visit all the areas that practised virginity testing.

Ms X Makasi (ANC) asked if the matter of virginity testing was actually part of the Children’s Amendment Bill.

Ms H Weber (DA) agreed with Ms Makasi that it was not part of the Bill. She said that extensive hearings on the subject of virginity testing had been conducted already.

The Chairperson clarified that the Committee needed to follow the legal opinion where the assertion was that more than 90% of the time, Parliament held its public hearings in Cape Town and only in exceptional circumstances had parliamentary committees gone out of Cape Town. This Committee was not the first committee to conduct public hearings outside Cape Town. The so-called customary practice of holding public hearings in Cape Town had developed into an expectation. The Home Affairs Portfolio Committee was also one of the few committees that had held public hearings outside Cape Town, returned and then held public hearings in Cape Town. There were requests to hold public hearings in Cape Town and the Committee was legally bound to accede to those requests. The Committee had decided that unnecessary litigation would only delay the legislation and the Committee had come to a compromise.

The Chairperson continued that it was not the mandate of the National Assembly (NA) to ensure involvement of the provinces. The National Council of Provinces was created to ensure representation of provinces in National Parliament. However, the National Assembly was not banned from sitting anywhere in the Republic of South Africa. He urged the Committee that it would be in that context that the Committee focussed on specific areas especially rural areas and target those areas that the NCOP did not go. He emphasised the point that it was not the responsibility of the NA to represent all the provinces unless members wanted to delay the process and still visit other provinces.

The Chair explained that the issue of virginity testing as pointed out by Ms Makasi, was regulated in Section 12 of the Children’s Act 2005. This section was one of several that had been brought into operation on July 1 this year. It was part of the law already. He commented that most public submissions referred to that law and not really to the Children’s Amendment Bill.

Department of Provincial & Local Government (DPLG) input on Children’s Amendment Bill
Dr Simphiwe Mngadi (Executive Manager: Equity and Development: DPLG) gave the briefing:

Status of Children in South Africa
The DPLG started with an introduction on the status of children in South Africa: Children (0-14years) constitute 32% of the population. Three out of five of South African children live in poor households. Fewer than 20% of pre-school aged children benefit from any type of government programme. Children in 33% of households are exposed to domestic violence.

DPLG Mandate in Relation to Children’s Bill
In the area of Early Childhood Development, provinces and municipalities are responsible for delivery. In the area of Children in Care and Protection, Municipalities are required to make provision for indigent debtors including child headed households. (Ward Committees an enabling structure). In the area of Child & Youth Care and Drop in Centres, municipalities have responsibilities and a coordinating role in terms of provision of child care facilities. For the inter-sectoral implementation of Children’s Amendment Bill, DPLG is responsible for facilitating intergovernmental relations (IGR) and the IGR framework is in place.

Service Delivery Successes Benefiting Children
The Department indicated that there were some successes in general areas, not directly related to the work of the Department, but that somehow benefited the children such as the progress made in access to water, electrification, provision of electricity and housing. For example, so far, the government had built 2 350 000 houses.

Policy and Legislation
The DPLG’s reported that its response to the Children’s Amendment Bill was guided by the Constitution of South Africa, the Municipal Systems Act No 32 of 2000, the Traditional Leadership and Governance Framework Act, No. 41 of 2003 and the Indigent Policy.

International, Regional and National Instruments on Children
The international instruments include the United Nations Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, Child Care Act (1983), the Films and Publications Act (1996) which protects the children from exploitation and the Children’s Amendment Bill.

Programme Mainstreaming
The Department was involved in the mainstreaming of children’s issues within the Integrated Sustainable Rural Development and Urban Renewal Programmes (ISRDP and URP), the Local Economic Development (LED) programme, the Municipal Infrastructure Grant (MIG) and Project Consolidate.

DPLG Response
The Department explained that its response so far in terms of children included establishing the Equity and Development Chief Directorate to support provinces and municipalities in addressing issues pertaining to designated groups. The Equity and Development Unit facilitated the mainstreaming of equity issues and issues of designated groups into provincial and municipal policies, plans, programmes and budgets to ensure that the two spheres of government are geared towards addressing the special needs of these groups. Furthermore, the Department was leading the 16/365 Days of Activism for No Violence against Women and Children Campaign.

State of Readiness
The Department reported that its state of readiness in terms of the Children’s Bill was illustrated by the process of restructuring and strengthening the capacity of the Equity and Development Unit to address service delivery to children by municipalities. The South African Local Government Association (SALGA) represented municipalities on the National Council on the Rights of Child. SALGA had undertaken capacity building in all provinces on children’s rights and mainstreaming efforts in partnership with Office on the Rights of the Child. In terms of provinces and municipalities, focal persons have been appointed in some provinces. The Integrated Development Plans (IDPs) of some municipalities also reflected service delivery targeted at children.

Challenges
The Department spoke of the limitations of its role, which was an advisory and guiding one, as they could not enforce implementation. It was referred to the inadequate capacity at provincial and municipality level. Its focus was on events-driven implementation. There was limited communication on available resources and targeted programmes for children and inexplicit reporting on the prioritisation of children. There was a lack of monitoring and evaluation mechanisms and limited documentation and sharing of best practice on interventions addressing the needs of children.

Proposed Solutions to Challenges
The Department proposed several solutions to the challenges it outlined. These included:
- expediting the restructuring of the Equity and Development Unit to enhance the department’s response,
- strengthen partnerships to support work on children’s rights service delivery in provinces and municipalities through Integrated Development Plans (IDPs),
- coordinating and collaborating with key role players to support provinces and municipalities to implement their responsibilities pertaining to children,
- encouraging the development and implementation of impact focussed and sustainable programmes addressing children’s needs,
- facilitating the development of monitoring, evaluation and reporting systems that address children’s issues,
- promoting the mainstreaming of issues pertaining to children in policies, plans, programmes and budgets of provinces and municipalities,
- facilitating mechanisms for knowledge and best practice sharing.

The Department concluded that, all children including those with disabilities, existed in the space of Local Government and the Department should therefore be at the forefront of targeted children’s interventions. Children’s programmes and interventions should be part of and at the centre of service delivery across all spheres of government and programmes. Municipal and provincial planning tools – such as the IDPs and Provincial Growth and Development (PGDs) programmes should reflect programmes addressing children’s needs. Mainstreaming should be promoted as a strategy for addressing children’s issues in all sectors and spheres of government.

Discussion
Access to Water
Ms H Weber(DA) was concerned about the DPLG’s comments that many people had access to water, as her experience from where she came in the rural area was people usually had taps but no water and diarrhoea was rife. She asked the Department to elaborate on what it was doing about empowering ward committees. She also wanted to know if the employees of the expanded or extended public works were fully informed of their duties that were part of their job description.

Mr Morwamoche commented that he had seen tender advertisements but had never come across one that said there should be taps without water. He said that local government caused some of the challenges. There was some tension between province and local municipalities especially in poor rural areas as they would not receive the same benefits afforded to those in urban areas, such as electricity.

Capacity
Ms Weber asked who was responsible for capacitating the municipalities to do what they should be doing. She also wanted to know what was being done about the holding of too many workshops and if such a problem could be resolved by just having report-back sessions.

Ms J Semple (DA) said that focal persons were a “thorn in the flesh” as in her experience in the Joint Monitoring Committees for the Improvement of the Quality of Life for Women and for Children, these focal persons were not successful as they had no impact. Further, she requested the DPLG to provide timeframes for implementing solutions to the challenges it had outlined otherwise their successes would be difficult to measure.

Dr S Mngadi of the Department responded that DPLG was responsible for providing support to municipalities though it was difficult. Sometimes the infrastructure was there, but actual service not. In terms of focal persons for gender and children’s issues, the Department admitted that this was a challenge and it was aware of this. It had seen it in all forums but there also was no commitment to appoint people who had the power to implement. It needed to come up with a strategy to capacitate these people.

Ms S Molema of the South African Local Government Association (SALGA) explained that SALGA was aware of the issues around empowering ward committees. The question was, however, did South Africa understand volunteerism. SALGA did build capacity in the municipalities in areas it had identified. It was not only the responsibility of DPLG or SALGA but others hence the need to strike up partnership with the Office of Rights of Child.  In the case of this Bill, there was a need to engage with Department of Social Development (DSD) to determine what kind of capacity would be needed in the municipalities for these new issues. If it would be the Department of Education, for example, then it needed to work together with them to build capacity.

The Chair explained that the other point from the encounter with Treasury was that there was a serious lack of capacity at provincial level to deliver on this mandate. He asked the DSD what revolutionary interventions did the department plan to take because the point from the previous week, was, when social security services was removed from the provinces the understanding was, it would release some capacity at provincial level to enable service delivery they could not deliver before. But now that social services was out of the way, the Committee was hearing that there was no capacity.

Ms Musa Ngobo-Mbere, DSD Director: Children, admitted to the Chair that the assumption was correct that there was an expectation that there would be more capacity, but this was really a process because before, there were few people at local level and they also had to register. The Department had a recruitment strategy for social workers and had extended it to other areas such as community care, development workers, child and youth care workers and other volunteers to be trained to deliver services. For example, to expand ECD, the Department wanted to train young people at community level to assist the Department and continually use them.

The Chairperson referred to the Treasury comments that were made last week. It was said that the DSD had the funding and NGOs were lying there ready, like a ‘well oiled machine that did not have petrol’. He told the Department that it was not using the opportunities afforded to them effectively. He expressed concerns with the NGOs in the way they were making employment attractive in the civil services, meant moving away and indicating that not everything can be delivered by government.

NGOs
Ms Weber requested that the Department get local government to consult with non-government organisations (NGOs) in the municipalities. NGOs were performing under enormous constraints and local government needed to work together with them to get this communal work going.

Ms Gumede cautioned the Committee that not all NGOs were “holy”.

The Chairperson suggested that perhaps the Department was putting energy into the wrong place in delivering services themselves instead of unleashing resources.

Mr Morwamoche reminded the Committee that most NGOs operated from urban areas. In rural areas, they were not accountable.

The Chairperson emphasised that there was a need to speak more about Community Based Organisations (CBOs) and not NGOs. Perhaps they needed to be forced into partnerships with CBOs.

Ms Weber suggested that there needed to be clarification on how many there were. She also pointed out that the fact remained that there were only 14 000 inspectors and there needed to be a reform there.

Dr Maria Mabetoa (DSD Chief Director of Children, Youth and Family) reminded everyone that in rural areas NGOs were not there and that was where government needed to be visible. Local Government was well positioned to deliver services to children and it was critical to work with them to deliver services.

Ms Gumede repeated that NGOs were there for themselves and not for anyone else. She indicated that she had never attended a meeting called by an NGO and that they just sneaked into other people’s meetings. All that NGOs did was paperwork and not groundwork. If there was talk about strengthening relationships, they needed close monitoring.

DPLG’s Lack of Monitoring
Mr Morwamoche also challenged the DPLG about its claims about access to water in rural areas, this was not the reality. Also services like electricity for example only benefited those in the urban areas and not the rural ones. He also referred to the lack of monitoring on services.

Ms M Gumede (ANC) agreed about the lack of monitoring on Local Government. She referred to the example of children who do not have parents and have made an application for RDP houses. There was no one to stand up and fight for them. She remarked that Local Government must have a special monitoring service for housing. For example if one lived in a shack and then moved into an RDP house, the shack they left behind would soon have filled up again with even more people. The number of shacks therefore would not diminish but on the contrary increase despite people moving into new houses.

The Department responded that at this stage, it was involved in the government-wide monitoring and evaluation system. As Local Government was working closely with municipalities, it would come up with indicators to monitor all of this.

DPLG ability to assist in implementation of the Bill
The Chairperson advised DPLG that it needed to go back and look at the Bill in detail and then come back to the Committee with some comments just as the Labour Department had done the previous week.  He further clarified that the Child Care Act of 1983 had not dealt with municipalities directly but had provided social services in relation to children. One of things sorted out in the new Children’s legislation, was that municipalities were not a “by-the-way thought”. The Committee would like to know whether it had the Bill right within the municipal context. Therefore, DPLG should go away and reflect on the Bill in consultation with SALGA and perhaps get a sense on how this sector felt about the implications of the legislation on itself. He had met with the magistrates of the Justice Department and they would like the municipalities to be ready and understand the legislation, be willing and on board. The Chair further invited the Department of Social Development to comment on their interaction with municipalities on this matter.

Ms Gumede expressed concern about the statement in DPLG’s presentation that they could not enforce implementation. Also, she requested the DPLG to state when it had attended similar meetings like this with the DSD or other departments.

Indigent Policy
Mr L Nzimande (ANC) questioned the indigent policy and asked what regulated the policy between two departments. He wondered about the fact that children just above the age of 15 were granted the right to be the Head of the Household and expressed concerns about the issue of age majority in terms of land ownership and that DPLG and SALGA must assist. There needed to be a worker helping them as there was added burden. He requested the Department to explain its role in the move to give powers to municipalities for water services, education etc. Further, what was synergy between the Community Development Worker (CDW) and Youth and Childcare Workers. He asked for elaboration on urban renewal and the IDP. He referred to the KZN province as a rural province that needed 246 bridges to link children to schools as there was a high number being killed trying to cross the river to get to school. This monitoring should tally with the IDPs of local government.

Ms Molema (SALGA) explained how the indigent policy related to municipalities and DSD. She said that the municipalities had to develop an indigent register but the policy was from DSD. The challenge was not being sure whether the municipalities were reviewing their policies.

Mr Nzimande emphasised the need for access to indigent policies by child-headed households. He had heard the answer from SALGA saying that municipalities just compile a register. The purpose of the indigent policy is that it should serve as safety net. He also emphasised the constitutional role of local government. There was a need to do more with indigent policies. The question was, what was the legislative framework and who qualified. There was a need to get clarification on the progress of municipal authorities with regard to water, education, health and if the policies were fully in operation. This request related to host of child and youth care centres, structure for children living on streets and the desire to understand who was transacting on these functions on becoming service authorities.

DPLG – no power to enforce
The Chairperson referred to the statement made by the DPLG that they had no power to enforce policy. His understanding was that national government and local government had been given constitutional powers to make interventions. He urged the DPLG that before it makes such assumptions, it needed to clarify if such assumptions were right.

Dr Mngadi of DPLG clarified that when they said they could not really enforce implementation, this was because the Department was responsible for providing guidance but there was not really anything concrete they could do if municipalities did not want to comply.

The Chairperson explained that the DPLG did have a stake in enforcement - based on the Constitution. The spirit of raising this issue was to sensitise and to build a solid and closer working relationship amongst sectors in the sense that all had an agenda in this and in winning over more partners.

The Chairperson advised DPLG that he did not buy the story about their not having the power to implement. It was not satisfactory for DPLG to say they did not have the power and he told them that it did have the power now if they had not known it before.

More Interdepartmental & Civil Society Consultations Needed
The Chairperson explained that a lot more work needed to develop in consultations amongst DSD, DPLG and SALGA to tighten this in terms of the Constitution. He remarked that DPLG had the competence for child care services and also in term of other existing legislation. The Committee had met with Treasury the week before. The Committee had communicated its concerns about allocation of resources in light of the incident several years before where over R2.5 billion was allocated to Early Childhood Development and it was not totally used for that purpose. This incident called for tighter monitoring of financial expenditure. What was even more disturbing was the lack of capacity to even ask for it. Treasury said that they had to help provinces to ask for money. This was a depressing fact. The cooperation between provinces and civil society in actually delivering services was not satisfactory and there were many problems associated with it.

Housing
Mr Morwamoche commented that local government was controlled by the Municipal Finance Management Act (MFMA). If it was not properly implemented, then the people affected were those who fell under their jurisdiction. However Provincial Government gave Local Government funds to provide houses and some contractors got full payment before the completion of the houses. This was a serious challenge

Department of Social Development Response
Dr Maria Mabetoa responded that it has been difficult for the DSD to work together with DPLG as they did not have a focal person for children’s issues. The provincial implementation plan also talked to involvement of Local Government. In Gauteng, there was full involvement of DPLG through their specific programme but it was different in other provinces. If there was desire to standardise, there was a need to go to national DPLG. The way forward, may be that there needed to be a workshop with DPLG and the provinces to look at the Bill and how to rationalise service delivery across the board.

Ms Ngobo-Mbele remarked that when the Portfolio Committee had met with Tshwane Municipality, the issue raised was the tension between municipalities and provincial governments. This needed to be addressed and she hoped that from here on, DSD could work together with DPLG. Local Government was everywhere and if they did not cooperate, they could not deliver services.

DPLG explained that the way they had gone through this Bill was to make sure they have done the groundwork. The first thing they did was to ask provinces to comment on their state of readiness and only one came back. The Department needed to engage with provinces on the implementation of the Bill.

The way forward
Mr Masutha read the contents of a letter to the Committee from the Chair of Chairpersons, Mr Geoff Doidge, which said that the Portfolio Committee on Social Development had scheduled deliberations on the Children’s Amendment Bill for the 12 and 18 September. It was reported in the National Assembly Programme Committee meeting of the 12 September 2007 that it was unclear when the Social Development Committee would finalise the Bill. At the Portfolio Committee meeting held on the 06 September 2007, it was ascertained that if the Portfolio Committee were to amend the Children’s Amendment Bill then the National Council Of Provinces (NCOP) would have to process the amendments within six weeks if the bill was to be finalised this year. In order for the NCOP to process and finalise the Bill within six weeks, the Bill would have to be transmitted from the National Assembly by the 09 October 2007. The internal deadlines were based on the premise that the National Assembly would require four weeks to finalise a section 76 Bill. The alternative was that the National Assembly could pass the Bill by the end of the Fourth Term giving provision to the NCOP to finalise the Bill by the end of the first quarter of 2008.

According to the NCOP programming officials, if Portfolio Committee on Social Development were to finalise the Bill before the end of the fourth term this year, the NCOP would still be able to conduct briefings at the province legislatures which normally occur over a two-day period. Then two weeks would be set aside for public hearings, two weeks for provinces to negotiate mandates and report on the Bill. Another week would be utilised for plenary sessions on the Bill. Provincial legislatures would only be able to schedule the Bill for consideration after the opening of legislature and the State of Nation address.

The Chairperson summarised the letter by stating that if they could not pass the legislation - which was seemingly impossible to do - that meant the Bill would not be able to be transmitted to NCOP soon after the September/October recess, on the 09 October. The legislation would therefore not be finalised this year. If the Bill was passed by the National Assembly by the end of the last quarter then the NCOP would pass the Bill early next year. The Chairperson requested the letter be left to the management committee as they would consider the implications of the framework presented and when the Committee convened on the 18 September, they would propose the programme for finalisation of the Bill.

The Committee agreed.
 
The meeting was adjourned.