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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
17 October 2007
CHILDREN’S AMENDMENT BILL: DELIBERATIONS
Chairperson: Adv M Masutha (ANC)
Documents handed out
Child Justice Bill [B49-2002]
Children’s Amendment Bill [B19B-2006]
Latest version of the Bill [Insertion Chapter 8 In Act 38 of 2005&Chapter 12 Foster Care]
Children’s Amendment Bill Clause 139 Submission
DSD Presentation to Deputy Ministers of Department of Social Development &Correctional Services Transformation of Child and Youth Care Services
Audio recording of meeting
This report does not include the first ninety minutes of the meeting. The Committee continued to go through the Children’s Amendment Bill, guided by input from the legal drafters, the South African Law Reform Commission and the Deputy Minister, who attended part of the meeting. No final decisions were made as this round of the deliberations was geared to clarifying the wording. Matters discussed included the distinction between the “may” and “must” wording in relation to duties, the care facilities and registration, costs, the Early Childhood Development Facilities and the responsibilities in terms of these clauses, and child-headed households. In respect of corporal punishment, the Chairperson commented that the media reports did not correctly reflect the position as discussed by the Committee, which had noted that the Constitutional Court had already ruled on whether this should be permitted.
Children’s Amendment Bill (the Bill): Continuation of deliberations (from 11 am only)
Deputy Minister Dr Jean Swanson-Jacobs was welcomed during the Meeting
New section 76 and preceding clauses in Chapter 5
The Chairperson noted that the discretion essentially balanced one power against another. He believed that technical methods of consultation, giving authority to the Executive to negotiate, were preferable.
Ms J Semple (DA) wondered if the use of the word “prescribed” was giving the Minister rights and powers.
A member wished to know whether the giving of discretion was not adding profile.
The Chairperson asked whether such an approach was not raising the may/must debate once more
New Section 77
Ms Ronel van Zyl, Researcher, South African Law Reform Commission (SALRC), addressed herself, at the request of the Chairperson, to 77(3), in terms of which a Provincial MEC must compile a provincial profile from time to time in order to make the necessary information available for the development and review of the strategies referred to in subsections (1) and (2). She explained that this was powerful but still provided the MEC with an element of discretion.
Members expressed the opinion that both the Minister and the MECs must have an aligned approach, so that the MECs compiled the profile but the Minister determined the frequency of the determination of the profile, in which he would have a discretion.
Ms Semple asked what was a Secure Care facility.
The Chairperson replied that he was of the opinion that this Committee could not override an interpretation. A Secure Child care facility was defined in the 1983 Act. This was not re-defined in this Bill, and therefore he was of the opinion that the definition that had pertained in the 1983 Act would continue
Ms S Williams, Principal State Law Adviser, was of the opinion that that definition only applied to the previous Act and that there was “no train smash” in the current definition
The Chairperson added that there was also the question of partial care facilities. Of greater importance was the provision of early childhood development facilities
Ms Semple was of the opinion then that the sections must be reconciled.
The Chairperson mused whether partial care included or excluded overnighting, and whether partial care was not to be confined to instances where the families were unable to provide the basic requirements of good life.
Ms C Dudley (ACDP) then posed the question as to what were the basic necessities of life, how they were defined, and what was included in such definition. She felt that there might well be provincial disparities
Ms Williams added that prevention and early intervention amounted to similar wording
Ms H Bogapane–Zulu (ANC) was of the opinion that this required extensive debate. She felt that this was not the time to pursue this avenue of argument. She asked who was going to determine what the basic necessities of life were. She suggested that guidelines should be provided and felt that this was something the Departmental officials should be dealing with.
New Section 79
Ms van Zyl stated that there was no addition to the wording
Ms Bogapane –Zulu intervened that there were some matters in subclauses (1) and (2).
The Chairperson intervened and said that partial care had been debated extensively, and he was no ruling that this debate should not be re opened.
He added that the Committee must accept the two systems of care. The “gogo” system used the services of grandmothers. The more formalized system was care by external sources. He enquired whether the Department had, or would formulate this category.
Ms Bogapane–Zulu again interrupted to point out that therapeutic care, set out in 79 (3) had not been dealt with.
Ms van Zyl apologised for an oversight arising from the many notations of previous debates that she had made. She conceded that therapeutic care had indeed been overlooked but would be attended to by herself at a later time.
New Sections 80 and 81
Ms van Zyl continued with Clause 80 and emphasized that such facilities would have to be registered and NGOs would have to comply. This was, in her opinion, covered by Clause 81, which set out the application and possible renewal application for registration.
New Section 82
Ms van Zyl added that sub-clause (2) (e) would be amplified by the insertion of the words “and training” after “skills” in line 26. In sub-clause (b) the person concerned was not only to be fit and proper but had to have had the prescribed technical training. She reminded all present that there had been long and extensive discussion on this aspect of the conditions to be imposed.
The Chairperson felt that there should be a certificate to show compliance and Ms van Zyl said that she saw no problem including reference to this.
Ms van Zyl said that the success of the application would in all practical terms depend upon the money available for care that the intended caregiver had at his/her disposal.
Ms Dudley said that she felt that this was opening up the may/must debate once more.
New Section 83
Ms van Zyl said that there was no change contemplated.
Ms H Weber (DA) questioned the use of the word “prescribed” in 83(c).
Ms van Zyl replied that this referred to the applications either for a new certificate or the renewal as set out in new sections 81 and 82.
New Section 84
Ms van Zyl pointed out that there were now some technical changes. Training was amplified by “technical” and provisions would be given in the singular form provision, in accordance with drafting procedure and the general approach to interpretation of statutes.
New Section 85
Ms van Zyl noted that the Notice referred to was required to be written and conform to other law, such as the provisions of Promotion of Administrative Justice Act
Ms Bogapane–Zulu raised a query on the provision, in new Section 85(4), on costs.
The Chairperson stated that he was of the opinion that costs were provided for as a measure of consistency. In terms of the Rules of Court the State was entitled to its costs of the action, and although the Court has a discretion regarding the awarding of costs, they would generally follow the result. Therefore the successful party would be reimbursed for its costs in bringing or defending any application or action brought against the unsuccessful litigant.
Ms Williams said that her understanding of costs was that there is no hard and fast and rule. The Court had a discretion, which was decided upon the merits of the case, and the successful party had the right to ask for costs and address the Court on this point
Ms van Zyl added that the Court Order or Judgment usually contained a reference to costs, which would be ordered in terms of the Rules of that court.
The Chairperson then stated that such reference should be retained in the Bill.
New Section 86
Ms van Zyl explained that the provisions of this Clause were in line with the Constitution and other specific laws for an appeal. It was a fairly standard wording.
New Section 87
Ms van Zyl stated that this provided for inspections of partial care facilities at intervals, although the intervals were not stated
Ms Bogapane–Zulu wished to know what the degree of regularity might be .
The Chairperson added that the frequency would be a matter set out in the regulations.
Ms Dudley expressed the opinion that 87(2) had a danger that some decisions might fall outside the provincial decision.
The Chairperson emphasised once again the need to prioritise the requirements.
Ms van Zyl drew the attention of the Committee to the fact that unfortunately there were wide discrepancies between facilities in the country, and particularly between the rural and urban areas. What might be usual in one province might be regarded as an unnecessary luxury in another province with different resources. She drew the attention of the Committee to the fact that municipalities could have functions assigned to them.
New Section 88
Ms van Zyl noted that the new section 88(3) provided for the delegation by a Municipal Manager to a Social Worker. However, knowing that there was a shortage of social workers, clause 88 made provision for liaison with the provincial head of social development. . She added that new sections 82, 83 and 84 would all ensure good administration.
New Section 89
Ms van Zyl noted that the heading of new Section 89 required amendment to read “Abuse, injury, or death” and she proceeded to outline what would happen in the unfortunate event of the death of a child whilst in such facility. The members discussed what was the usual or customary procedure followed after the death of anyone in South Africa and were content to accept the procedures as currently laid down in terms of the Inquest Act.
New Section 90
Ms van Zyl noted that this provided for the making and enactment of regulations. There was no discussion
Chapter 6: Early Childhood Development (ECD)
Ms van Zyl reminded the Committee that the definition had been expanded as a result of earlier debate.
New Section 92
This provided for the Minister and MECs in the provinces and the role players in local government to liaise with one another, and sub-clause (3) required profiles to be produced at intervals.
New Section 93
New Section 93 required the provision of early childhood development programmes and prioritisation, in terms of sub clause (4), for families lacking the means to provide shelter. She noted that this was further to be expanded for children suffering from disabilities.
New Section 95
This was to be amplified by the addition of “organisation” between “the” and “person”.
The Chairperson was concerned that organisation did not seem to be defined.
Ms van Zyl noted that in 95(3) there were to be no exceptions or exemptions from registration, even if by another Department of State, whether Education, with the Grade R programmes, or Correctional Services.
Members expressed concern that there might well be conflict between departments but wished the department of Social Welfare to be pre eminent in the concern for the well being of the child.
Ms Semple wished it to be specifically stated that no State Department, not even Education, was to be exempt from the registration of early childhood development programmes by the Department of Social Welfare.
Ms van Zyl pointed out that even municipalities ran ECD programmes.
A representative from the Department then added that both the social welfare and education legislation provided for early childhood development programmes, and that it was preferable that there be uniformity with these programmes.
Ms Dudley was adamant that no one, whether Department, provincial government, municipality or NGO, should be exempt from this requirement.
The Chairperson noted that the purpose of this meeting was merely to familiarise the Committee with the proposal, and proposed additions to the Bill, and the vote on it, would be taken on the next day.
New Sections 96 to 99
Ms van Zyl then proceeded through the new Section 97 and reminded all that references to prescribed referred to training and that sub clause (4) was amplified by the replacement of “suitably qualified person” for the current words “a social service professional”.
Ms van Zyl stated that there was a technical correction by the use of the singular
New Section 100
This related to matters of enforcement.
Ms Semple expressed concern about service providers, and Ms van Zyl replied that service providers were obliged to provide early childhood development programmes.
New Section 101
Ms van Zyl reminded the Members that the draft new section had been repositioned as sections 97(6) and (7) and that the new section 101 related to Appeals and Reviews. It set out rights established in terms of the Constitution and amplified by the Promotion of Administrative Justice Act (PAJA), but these were to follow the separate rules regarding procedures in the (High and Constitutional) Courts.
Ms Williams explained the provision of time periods in the Court Rules.
At this point the Deputy Minister, Dr Jean Swanson Jacobs arrived, and was welcomed.
New Section 102
Ms van Zyl noted the deletion of the words “designated social worker” and the replacement by “social services professional”. She noted also that sub clause (6) was to be amended so as to correctly reflect that it was the decision which was appealable or reviewable.
New Section 103
Ms Weber asked a question as to who had responsibility, and Ms Lana Petersen, Parliamentary Officer, Department of Social Development, stated that this fell under the South African Police Service and/or Department of Safety and Security
Changes to New sections 105 and 106
New Section 105 was to be amended by a change of heading, and it was to be designated in conformity with previous Clauses.
New section 106 set out norms and standards, wherein concern had been expressed about child-headed households. Ms van Zyl noted that there would be supervision and the possible assigning from one institution to another.
New sections 107 and 108
The new sections 107 and 108 were accepted with little comment..
New Section 110
The new section 110 related to reporting of a child in need of care. Ms van Zyl said that immigration officials and SAPS officials would be included in the category of persons required to report suspicions of child abuse, as well as any member of the public. She reminded Members, in answer to a query, that square brackets and bold type meant attention to the wording.
Section 110 (4) provided a reasonable time period during which the SAPS should take action to secure the welfare of a child.
Ms Dudley expressed concern that statutory rape was not included.
The Chairperson pointed out that statutory rape had been the subject of long debate on the Sexual Offences bill and it was believed that it had been satisfactorily handled.
Ms van Zyl conceded that the wording at present required many technical improvements, with regard to singular and plural and gender, and that these would be attended to before the time for voting.
Members expressed concern was expressed that between households headed by a child of between 15 and 16 years of age might fall between the cracks in the provision of assistance.
The legal advisors assured Members that, with the definitions set out in the respective Acts, this was unlikely.
The Deputy Minister, Hon Jean Swanson-Jacobs, noted that any child headed household was to be temporarily cared for by a ‘fit and proper’ person.
Ms Dudley then asked that the legal advisors from the Department review the Bill as currently worded in an effort to minimize unintended consequences.
Ms H I Bogapane–Zulu wanted clarity on the question of whether a temporary caregiver would be staying with or supervising a child headed household.
Ms van Zyl explained that the Bill contemplated that either a department of State or an NGO would be supervising such households, but the day to day decisions would be taken by the child head. Provision was already made for cases of dissatisfaction with the supervising adult.
The Chairperson said that there was no attempt to change the Law of Guardianship, but rather an attempt to provide palliative care where necessary, and that there must be satisfactory compliance with agreed standards before an adult carer was appointed.
The question of corporal punishment was then addressed.
The Chairperson summarized this as being a battle between the abolitionists and those arguing for retention of corporal punishment, as had Ms Dudley.
Ms Williams stated that corporal punishment had been ruled upon by the Constitutional Court, in line with the Constitution, and the Court found that corporal punishment was unacceptable, and so could not be countenanced in this Bill.
The Chairperson remarked that the media had picked up the matter of corporal punishment, and, as so often happened, had distorted the effects of the proposals so that it seemed that the minors were being instigated to act against parents. Whatever the reasons for this distortion, the actual position was far different from the media explanation. He added that the Committee was not going to re-debate policy decisions.
PMG covered the meeting until 17:30, but the meeting continued until 01:30 the following morning.
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