Children’s Amendment Bill: Legal Advisor on status of ECD clauses that were not contested & summary of public comments

Social Development

07 May 2021
Chairperson: Mr M Gungubele (ANC)
Share this page:

Meeting Summary

Video: Portfolio Committee on Social Development

In a virtual meeting, the Committee was briefed on how to handle clauses relating to Early Childhood Development (ECD), in the Children’s Amendment Bill, since this function would be migrating to the Department of Basic Education by April 2022. The Committee was told, based on the Constitution, it had the power to accept or reject these clauses. Members asked if a technical team, which was proposed in a prior meeting, was formed, and if it submitted recommendations. The Committee agreed to reject all clauses relating to ECD in the Bill.

The Committee was informed of the key themes which emerged from summaries of submissions on the Children’s Amendment Bill.

The key themes with the most submissions were on definitions, adoption services, guardianship, parental responsibility, and parental rights.  

The Committee was updated on the upcoming national and provincial hearings on the Children Amendment Bill, and the logistics associated with it.

The Committee was also informed of a closed session with children which would be held in-person in Parliament.

Meeting report

The Chairperson asked the Committee Secretary, Ms Lindiwe Ntsabo, to do a roll call of the Members present. It was confirmed there was a quorum for decisions to be made in the meeting.

The Chairperson noted apologies from Ms D Ngwenya (EFF), Ms M Sukers (ACDP), Ms N Mvana (ANC), and Ms G Opperman (DA).

The Committee Secretary shared the agenda of the day. It was tabled, and adopted by the Committee.

The Chairperson said the Committee’s main defining features were humanity, social justice, inclusion, and shared prosperity. He said the Committee needed to take an informed decision on the action towards the educational aspects of the Amendment Bill.

The Committee was focusing on the deadline. However, the quality of the work was of more importance. The Chairperson was happy about the Committee getting an opportunity to visit provinces, as this was one Committee which had not been visiting communities. The Committee attempted to plan a visit the previous year, but it clashed with other existing engagements. A Committee such as this one was meant to spend a lot of time among the people.

The Chairperson wanted the committee members, during the duration of the meeting, to consider the possibility of taking one or two hours during the provincial oversight visits to visit a relevant institution. The Committee had not been visiting these institutions. The visits could be done prior to public hearings to get a sense of what was happening on the ground. He wanted to make this suggestion to committee members, so Committee Members could make good use of provincial visits.

Briefing by the Parliamentary Legal Advisor and Office of the Chief State Law Advisor

Mr Siviwe Njikela, Senior Parliamentary Legal Adviser, gave the Committee legal advice on the status of Early Childhood Development (ECD) clauses which were not contested. An opinion was circulated among the committee members, and he highlighted key features thereof.

The key question was if the Committee had the legal authority to amend or reject specific provisions in the Bill which related to ECD clauses. The regulatory framework which regulated the operations of the Committee included:

  • Section 44(1) of the Constitution, which vested the legislative authority of the Republic in Parliament, which the Committee is an extension of.
  • Section 44(4) said, in exercising the legislative authority, the Committee was only bound by the Constitution. It had constitutional power to make law on behalf of the Republic.
  • Section 57 empowered Parliament to determine and control its internal arrangements, proceedings, and procedures. This was the framework within which the Committee worked.
  • Rule 286(4)(k) said the Committee could recommend an approval or rejection of a Bill, present an amended or redrafted Bill subject to the overriding principle that the Committee could not extend the contents of the Bill beyond what was introduced, without obtaining permission from the National Assembly (NA).

This was the framework which regulated the operation of the Committee. The quick answer, based on the legislative authority, was the Committee had the power to amend the Bill. It could do so before it in any manner which it deemed appropriate, but subject to the limitation. If it intended to extend the Bill, it needed approval from the NA.

Regarding if the Committee was to reject all the provisions relating to ECD in the Bill, there were four issues the Committee needed to consider:

  1. The possible migration of the function of ECD from the Department of Social Development (DSD) to the Department of Basic Education (DBE). The question was what the purpose of the Committee passing legislation would be, if the legislation was moving to another portfolio.

Committee resolutions; ICASA and broadcasters on state readiness for 2021 local government elections (LGE); SABC on Section 189 process:

  1. The possibility of effective legislation in the event of migration, because the Bill may be implemented in a different Department, over which this Committee had no oversight.
  2. The compliance to the court order which ordered the Committee to focus on the development of a comprehensive foster care system for the country. The Committee would be able to discharge its authority on the court order without engaging with ECD clauses.

Regarding law, the Constitution and rules of Parliament, the Committee had the power to reject, amend, or redraft a Bill, and recommend it to the National Assembly (NA) for adoption. The Committee’s decision to accept or reject the clauses was a policy decision which it had to deliberate on.


The Chairperson thanked Mr Njikela for the presentation, and said the Committee needs to be skilful and quick in managing the issue.

The Committee’s essential focus was foster care amendment, which had an approaching deadline. There was difficulty in managing existing foster care issues, and the Chairperson said the Social Assistance Amendment Bill intervened with this. The deadline was set by the Court. Time was required because of the difficulty in managing the situation. The Bill in its original sense was comprehensive. The Committee agreed to focus on the essential elements which deal with education, which is also migrating to the Department of Basic Education (DBE). The Committee was in the process of having a joint meeting with the DBE to discuss the migration. The functions on education are going to the DBE, whose legislation is primarily informed by the societal needs and the context of the Department within which it will be administered. The Committee could not deal with the ECD education aspect in full. Some provisions had to be rejected because of lack of consultation prior to being submitted through Cabinet. The legal advisor told the Committee it was allowed to make a decision on the matter.  Previously it was able to reject certain aspects of the ECD legal clauses, the question was what rationale should be used on remaining clauses which were consulted. The Chairperson felt this matter needed to be discussed, and the Committee needed to agree on a definite decision. The Committee should accept ECD was in transition to DBE, which had legal implications which could only be dealt with once it was established in the target department. The option was to acknowledge it, and not to work on anything regarding ECD. The associated logistical issues had to be kept in mind, or the remaining clauses which could not be divorced from those which were rejected had to be dealt with. This was the decision the Committee needed to make. The importance of legal advisors was to inform the Committee on its power regarding the Bill.

Mr Njikela said the Chairperson’s statement was correct.

The Chairperson asked the Members if the Committee should reject the clauses under discussion.

Ms A Abrahams (DA) thanked the Chairperson and Mr Njikela. The Committee found itself in a very difficult situation. There were questions which needed to be answered before making a decision. In a March 2021 Committee meeting, it was agreed a technical team comprising of stakeholders working in ECD, would look into the situation. Comments and input from stakeholders needed to be taken seriously. The question was if the technical team was established, and what its findings and recommendations were.  

She asked what a cost of Bill was, and asked if the sections on ECD were removed, if it would reduce the cost of Bill, or if the cost would stay the same. The Portfolio Committee on Basic Education needed to be asked what DBE’s commitment would be to the ECD sector once migration happened in 2022.

She asked what the timeline was for committing to the ECD sector on all the amendments the Committee would have to deal with. If the Committee decides not to deal with the amendments, she asked what the commitment of DBE to the ECD sector would be, and what the timeline would be to get it done as quickly as possible. This sector was neglected for a long time, and through this Bill it had an opportunity to deal with all its legislative and registration matters. It was once again on the back foot, because it had to wait for another year for the migration to happen. It was not certain the migration would happen by April 2022. She asked what happens if the migration was pushed further, and the ECD sector crumbles. COVID was hard on the ECD sector, and it was still waiting for funds from the Presidential Stimulus Fund. She felt the Committee kept pushing ECD aside, instead of dealing with its legislative issues. She needed the report from the technical team before she could commit to excluding the whole ECD sector.

Ms B Masango (DA) thanked the Chairperson and apologised for not having her video on, as she was experiencing connectivity issues. She thanked Mr Njikela for making the presentation, which answered several questions she had. He clarified the issue of effective legislation, which she discussed with someone the previous day. She was worried by the waste of legislative processes which would have gone into this, when it was known ECD was going to DBE. She appreciated the concerns raised by Ms Abrahams.

She based her recommendation on the DSD, and the purpose for which this legislation was being made. It was the comprehensive legal solution which was outstanding for a long time. Considering the care given on a legal level, and the very strong issues raised, the most important aspect to her was the migration and effective legislation. She agreed each and every aspect, or clause of the Bill which related to ECD, should be taken off the Bill. The Committee has deadlines, and it wants to legislate effectively. The migration, which also has its own deadline, is ongoing.

The Chairperson asked Ms Masango if she wanted the Committee to dispense with the remaining aspects of ECD, to which she agreed. She wanted both the disputed and non-disputed ECD clauses removed.

Ms J Manganye (ANC) thanked the Chairperson and greeted the Committee Members. She commented on Ms Masango’s statement, and said one cannot say one wants a baby, get pregnant, then during the pregnancy decide it was a mistake and abort. The Committee needed to do what would benefit early childhood. It could not finish something it would not oversee. She agreed with Ms Masango regarding the focus which ought to be on the court order, only if it had nothing to do with early childhood. The Committee should focus on foster care, which had been a stumbling block.

Committee Secretary, Ms L Ntsabo, replied to the question raised by Ms Abrahams about the technical team. She said it was the resolution taken by the Committee. The technical team was scheduled to appear before the Committee on 19 May.

The Chairperson told Ms Abrahams her questions would still be attended to, but it could not change the fact that ECD was not going to be implemented. Awaiting full implementation of the ECD Bill remained illogical, he felt. There was certainty regarding the Bill.

Ms Abrahams asked if the technical team was presenting on 19 May. She asked if the Committee had the national public hearings, and if the stakeholders would be presenting on ECD. She wanted to know if the Committee would still listen and make decisions after 19 May; and if the stakeholders would still present on ECD in the coming week.

The Chairperson agreed it was a major question which needed to be answered. He asked if the Committee was going to chase people away, and asked Ms Ntsabo to reply.

Ms Ntsabo said the Committee took a decision to listen to all the submissions, regardless if it was ECD related or not. When it came to the formal stage of the Bill, all the ECD related clauses would be removed. The technical consultation team would consist of the South African Local Government Association (SALGA), DBE, and the State Law Advisor (SLA). It would not include the stakeholders at large. The Committee would have its public presentation process accommodating all submissions, including those from the ECD sector. The technical team was more of a legal guide to help the Committee with its decision making.

The resolution was clear; the Committee would reject all ECD matters and would participate when DBE took over the full legislation. This Portfolio Committee would always have an interest in the state of the children, if ECD remained or not, due to the nature of its work. He thanked Mr Njikela for his work.

Briefing by the Content Advisor on Summaries of Public Comments on the Children’s Amendment Bill [B18 – 2020]

Ms Yolisa Khanye, Committee Content Advisor, presented a summary which provided key themes emerging from summaries of submissions on the Children’s Amendment Bill.

There were 3 629 submissions from 1 645 signatories, 150 of which were organisations, and the remaining 1 495 were individuals. Dear South Africa accounted for 1 693 submissions, with the remaining 291 submissions being from individual organisations and individuals. 

The key emerging themes were:

  • Definitions
  • Parental responsibilities and rights
  • Guardianship
  • Children’s rights – rights to privacy, child marriages, genital mutilation, virginity testing, corporal punishment
  • Child protection services (alternative care) – foster care, child and youth care centres, drop-in centre
  • Partial care – ECD
  • Programme funding
  • Adoption services
  • National Child Protection Register
  • Intersectoral implementation of the Bill
  • General comments on the Bill


The Chairperson said Ms Khanye’s work was wonderful. The intention was not for the Committee to debate its views. It was intended to provide clarity. The presentation empowered the Committee to fast-track going through the multiple submissions, so when it goes to public hearings it had a sense of what it was going to engage with. Public hearings were about listening to the people and seeking clarity on the issues raised.

Ms Masango thanked Ms Khanye for the presentation. She said the presentation confirmed what she sensed was a move which attempted to stay away from ECD related aspects of the Bill.

Ms Arries said according to the Sexual Offences Act, consensual sex began from age 16. It was worrying because it meant at the age of 16 someone could become a parent. This was something the Committee needed to be aware of, since a 16-year-old was still considered a minor.

The Chairperson said the matter Ms Arries raised was not simple, especially when dealing with the sense of judgement related to age. Over 60 to 100 years ago, a child of a particular age would have the child’s judgement assessed, to determine if the child was capable of analysing and making informed decisions on particular aspects of life. These things changed. The Committee may need to consider hearing from some psychologists who are established in matters of age and making informed decisions. The Chairperson said he has grandchildren, and some things his grandchildren understood scared him. It took him going through Matric to understand what his grandchildren know now.

The Committee needed guidance regarding the issue Ms Arries raised. The Committee should not make an emotional decision. There must be a domestically and internationally established norm before deciding.

The Chairperson welcomed Mr D Stock (ANC) who had been on a flight, and thanked Ms Khanye for the work.

Update by the Committee Secretary on National and Provincial Public Hearings

Ms Ntsabo updated the Committee on the national and provincial public hearings. The process of public engagement to listen to submissions from stakeholders would occur virtually from Tuesday 11 May to Thursday 13 May.

Two organisations submitted a request to hold a closed session for children, which was approved by the Speaker of Parliament of the National Assembly. On Friday 14 May, the Members were required to go to Cape Town for a closed session at the Good Hope chambers from 3 – 7 PM. Members were requested to arrive at 2 PM for screening, registration, and possible group photos with the children.

The last public hearings would be on Tuesday 18 May.

An application for a provincial public hearing was approved, but with certain conditions and amendments. Parliament scheduled a three-line whip for Friday 4 June, meaning all Members were required to attend the session from 10 AM, up till about 5 PM. The Committee would start its public hearing in Limpopo on 6 June, leaving 5 June for Members to travel. There were no flights from Johannesburg to Limpopo. Members would fly to Johannesburg and drive 4 - 5 hours to Limpopo. She already circulated the programmes for the public hearings.


The Chairperson asked if the travel to Limpopo included logistic transport organised by individual Members.

Ms Ntsabo said Parliament would fly Members from Member’s respective locations to Johannesburg. In Johannesburg, transport would be arranged by the Committee for Members to drive to Limpopo.

The Chairperson asked Members if Member’s needed clarity on the logistics.

Ms Masango had no concerns on the logistic arrangements. She asked Ms Khanye if the comprehensive submissions document was being sent to Members, because she did not have it in her inbox.

Ms Khanye said Members were provided with a summary of the comprehensive document. The comprehensive document would be forwarded to Members and the Department after it went through peer review.

The Chairperson asked how much time the Committee would spend in Limpopo.

Ms Ntsabo said Members would be there for four days. Members would start with public hearings in Limpopo, from Sunday 6 June to Wednesday 9 June. Due to the proposed amendments, it was impossible for Members to return to Member’s various home provinces and resume the process. For the Committee to be in sync with its original plan, Members would drive from Limpopo to Mpumalanga, and start the Mpumalanga public hearing from 11 to 14 June. Thereafter, Members return to Member’s homes and continue with travels to other provinces.

Ms Abrahams asked Ms Ntsabo to send Members a schedule indicating which days Member’s were travelling, and which days Member’s would not be in Member’s home provinces. Members were often told Member’s could not park Member’s cars at the airport, due to high tariff rates. She asked if it was possible to get an indication from the relevant office if Members could park Member’s cars there. The Chairperson previously indicated, if Members committed to a hearing in a province, and did not follow through, Members would be liable for accommodation. Ms Abrahams wanted to know if, for every Province and accommodation, Members would be asked to RSVP, and take it one hearing at a time, or if Members would RSVP for everything and let Ms Ntsabo know if the Member could make it or not. She was concerned because Members could get sick last minute, and with COVID risks, Members should not be held liable if the Member falls ill. Members should not travel if the Member is ill.

The Chairperson suggested the Committee deal with situations as it arises. He did not want to plan for absence. Members could raise Member’s unique issues. He asked if it was okay to do it this way.

Ms Abrahams agreed.

The Chairperson said he did not want to spend time on the topic of how to ensure Members do not pay when Member’s do not avail themselves. If someone was sick, nobody would debate it as long as it was truthful. One cannot debate when people will be sick.

Ms Ntsabo told Ms Abrahams parking was the Members responsibility, but she would confirm with Mr Fungile Bulawa, Committee Assistant, if Parliament had special arrangements for Members to park at the airport.

The Chairperson did not know of any change regarding parking at the airport. He said he did not know where this came from, but did not want to undermine Ms Abrahams question. He asked Ms Ntsabo to seek clarity on it.

Ms Ntsabo spoke to the issue of flight changes. If a flight was booked and a Member wanted to make changes, any differences in the flight charges due to these changes would be charged from the Member’s account. She asked Members who were alternate Members to indicate who would be attending the hearings. A travel form containing the dates and provinces to be visited was being circulated among Members, to indicate attendance. It would provide information on which Members were going to which province. The alternate Members needed to indicate if the permanent or alternate Member was attending. The Committee allocated specific attendance numbers for each party. If all the available allocations were filled by the permanent Members and the alternate Member still wanted to attend the hearings, it would be at the Member’s own cost.  

Ms K Bilankulu (ANC) said flights in Limpopo were suspended. In the event the Committee was going to Johannesburg, she wanted to know if she was required to drive, or if the Committee would send her transport to take her from her area to Johannesburg, or to other provinces. She asked how she was to attend the public hearing, if she advised she was available for oversight in those provinces.

The Chairperson said from his understanding, all transport needs outside normal parliamentary work between provinces, were taken care of by the State. Accommodation was also taken care of by the State. He asked Ms Ntsabo to clarify.

Ms Ntsabo confirmed, but said Mr Bulawa is the expert in the area.

Mr Bulawa said the Chairperson was correct. If Members were travelling for work, Parliament would reimburse the Member. This applied to these public hearings.

Ms Bilankulu asked if Mr Bulawa was speaking about reimbursement or transportation.

The Chairperson asked Mr Bulawa to explain again.

Ms Bilankulu clarified her question. If the oversight was in North West, and there were no flights from Limpopo to North West, she would have to drive. She asked if she should use her own transport, or if the Portfolio Committee would send transport to take her from Limpopo to the North West.

The Chairperson said the transport from Limpopo to Mpumalanga would be taken care of by the State. He asked what Ms Bilankulu would do if she could not attend the hearing in Limpopo, or attended it, but left for home early and was attending the next hearing in Mpumalanga.

Mr Bulawa said if Ms Bilankulu went to Limpopo, she would join other Members on the Members way to Mpumalanga, the cost of which would be covered by Parliament.

The Chairperson asked if Ms Bilankulu drove from Limpopo to Mpumalanga in her personal car, and wondered where she was to keep her car. If there was a meeting in another province, she could not leave her car in Mpumalanga. He asked if Parliament would take care of these costs.

Ms Ntsabo said Parliament ferried its Members from Member’s respective provinces to where public hearing took place. The same would happen for Ms Bilankulu. If flights were operational, Parliament would have booked her a flight from Limpopo.

Ms Bilankulu said her question was answered.

Ms Ntsabo said arrangements would be made for Ms Bilankulu’s travel.

The Chairperson said the travel logistics would be left to Ms Ntsabo. He and Ms Ntsabo went through the order of the meetings again. On 19 May there was the meeting with the technical team as well as the adoption of the budgetary report on Annual Performance Plans because the debate was scheduled for 25 May.

The meeting was adjourned.

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: