Children's Amendment Bill [B19B-2006]: Deliberations on Clauses 140 To 179

Meeting report

The Committee deliberated Clauses 140 to 179. The following is a report of the discussion that took place.

Clause 140
Lana Petersen (Minister's Parliamentary Liaison) why not other illicit substances?

Ronel van Zyl (SALRC) alcohol and tobacco legally sold other substances are banned for everyone cannot be sold, covered by other legislation.

Lana Petersen (Minister's Parliamentary Liaison) number of 50?

Ronel van Zyl (SALRC) clause aimed at large gatherings of people, came

Bangilizwe Solo (ANC) what about beaches?

Ronel van Zyl (SALRC) not enclosed children cannot be crushed.

Clause 141
Ronel van Zyl (SALRC) the Department of Labour raised several concerns wanted the Department of Social Development to insert mechanisms in this Law to effectively delegate their responsibilities to the Department of Social Development, met with the Department of Social Development to discuss.  Agreed on the protection of children being strengthened.

Department of Labour recommendations
(1) Cross-reference serves no purpose

Insert new clauses
Slavery, serfdom and compelled labour to be included

No person may commission a child for any offence listed in schedules 1 and 2 of the Criminal Procedures Act. (i.e. serious offences)

Common to use children for drug dealing or in robberies.

Make it an offence to use a child in crimes.

Department of Social Development supports the insertion of these clauses. 

Compel a social services professional to inform the Department of Labour of any infringements of this clause and vice versa.

Add another sub-clause to out law using a child to beg, scavenge or collect refuse dumps.

Cheryllyn Dudley (ACDP) want to see it written so that we can scrutinise the wording.

Bangilizwe Solo (ANC) want to see a draft of all the changes made the previous day.

Yolisa Nogenga (Researcher) read the Childline submission

Ronel van Zyl (SALRC) Begging and scavenges covered by the Department of Labour changes.

Adv Mike Masutha (ANC) what levels of policy discussions have taken place?

Musa Mbere (DSD) child labour action plan – interdepartmental meeting on the 17^th

Adv Mike Masutha (ANC) so the issue of begging has been covered in this forum?

Musa Mbere (DSD) yes.

Adv Mike Masutha (ANC) is there a law which criminalises begging?  This is using children to beg, which is different.  Using children to beg is a form of abuse.  This could become another controversial issue, must apply our minds.

Janet Semple (DA) very much against adults using children for begging, but who is responsible for the implementation, is this another DPLG issue?

Caroline Makasi (ANC) this happens often, but sometimes they are sent to school and then they go and beg.

Adv Mike Masutha (ANC) what happens to the child?

Caroline Makasi (ANC) sometimes the adults are not responsible the children decide to go and beg.

Dr Maria Mabetoa (DSD) children who beg are children in need of care and protection Clause 150.  Most of the time that children beg they are working for their parents.

Musa Mbere (DSD) Children on the streets some are street children, they have been there for a long time.  Previously not a child in need of care and protection Clause 150 changes this now if you find a child on the street they must be investigated.  This clause is about the children who are used by adults.  The child is dealt with in Clause 150, how do we deal with the adults?

Decision to circulate written version of the changes.

Adv Mike Masutha (ANC)
No person may require or permit a child for their own benefit to scavenge, beg or collect rubbish.

Caroline Makasi’s concern is what happens if the parent does not know.  This is a deliberate action by the parent.

Hilda Weber (DA) what about the person giving the money to a child that is begging?

Janet Semple (DA) in Kempton Park signs saying "do not give money to children".

Adv Mike Masutha (ANC) in some instances people lure children by offering them money.  May be this will curb that practice too.  Worry that new issues have not been consulted.

Musa Mbere (DSD) can raise this issue at the workshop with DPLG.

Adv Mike Masutha (ANC) the thrust of child care legislation is protection not criminalisation.  We are not Justice the kind of interventions we must use are different.  Not about locking the parent up.  May be we have solved the problem by including the child who is begging is a children in need of care and protection.  The thought of losing child would be more of a punishment.

This is a case for a social worker not a police officer or a labour inspector.

Reluctant to create new offences.

Musa Mbere (DSD) I agree this is what I said earlier.  Must investigate the circumstances this could just be a matter of early intervention. 

Cheryllyn Dudley (ACDP) public awareness campaigns to stop people giving to children. 

Adv Mike Masutha (ANC) this is not a quiet act it is bound to stir up lots of debate.  Requires a lot of social re-orientation, the birth of a new baby comes with a lot of labour pains, this is a classic case.  Prevention and early intervention includes proper parenting skills.  Department of Social Development is going to set up programmes to teach parents.

This is not just about poor families.

Cheryllyn Dudley (ACDP) this is not about families, this is about the public becoming aware of the fact that they are harming children by not giving them money.

Adv Mike Masutha (ANC) some of the practices that were regarded as given are no longer acceptable.  Therefore, must be an effective public awareness drive.  Special assignment last night was about abandoned babies and the good work that is going on this is a good example.  That these programmes will happen is a given does not need to be in the law.

Dr Maria Mabetoa (DSD) communication is part of the implementation plan.  Need campaign programmes around specific campaigns.  Need to be able to slot things in the right place the legislation, the regulations, the policy, the guidelines etc.

Cheryllyn Dudley (ACDP) this concept will not jump out of the legislation. It will need to be raised specifically.

Adv Mike Masutha (ANC) the campaigns to educate the public about children in need of care and protection will capture this.  The campaign will focus on all the issues which will include the effect of begging on children. 

It is a whole package.

Crimes are a new issue this impacts on Justice they have not been consulted neither have the public.

Decision: No crime of begging – any child who begs is a child in need of care and protection and the relevant interventions will flow from the rest of the Bill.

Lana Petersen (Minister's Parliamentary Liaison) recommendation

Discussion with Dr Maria Mabetoa (DSD) during the tea break – the organisations that have made the submission see the insertion of a “must” into the provisioning clause as a guarantee of funding.  They will take Department of Social Development to Court if they do not get funding.  You could put the “must” into Gauteng, Western Cape and KZN, but the other provinces do not have the capacity.

Ronel van Zyl (SALRC) the Department of Labour is not going to amend the BCEA, it does not define worst forms of child labour, therefore South Africa does not comply with the ILO convention.  Department of Social Development should not be policing child labour.

Exploitation is ground for finding a child in need of care and protection but not prosecution in terms of abuse.

Read the definition of child labour.

Adv Mike Masutha (ANC) do we want to criminalise everything.

First part of 141(1) could be a criminal offence second part of 141 could be just subject to an investigation.

Child labour will be an offence we will elaborate on the behaviour that constitutes an offence. 

Social worker who picks up child labour must report to Department of Labour.  If they pick up the begging and scavenging that is not a criminal offence the social worker must investigate.

Ronel van Zyl (SALRC) there will be a second amendment bill to change the principle Act better to change there.

Adv Mike Masutha (ANC) this refers to the conduct of the adult, not the situation of the child. We do not want to criminalise the adult therefore it is different to the first part.

Ronel van Zyl (SALRC) exploitation does not cover scavenging.

Adv Mike Masutha (ANC) we can do a

Ronel van Zyl (SALRC) the content of the 141 does not make reference to exploitation – the heading incorrect – should be child labour and commercial sexual exploitation.  However, heading not part of the legislation for the purpose of interpretation. 

Adv Mike Masutha (ANC) how would you define begging and scavenging.

Ronel van Zyl (SALRC) the defined term ‘exploitation’ does not cover these things.

Adv Mike Masutha (ANC) lets amend the definition of exploitation to cover begging etc.  The definition is not a s75 matter just because it is in the principal existing act.

Ronel van Zyl (SALRC) cannot amend an existing definition – because that would be a content amendment, not a consequential amendment nor an insertion.

Decision:
Child labour and exploitation of children
141. (1) No person may—
(a) use, procure or offer a child for slavery or practices similar to slavery including but not limited to debt bondage, servitude and serfdom, and forced or compulsory labour or provision of services;
(b) use, procure, offer or employ a child for purposes of commercial sexual exploitation;
(c) use, procure or offer a child, or attempt to do so, for the commission of any offence listed in Schedule 1 or Schedule 2 of the Criminal Procedure Act, 1977;
(d) use, procure, offer or employ a child for child labour.
(2) A social worker or social service professional who becomes aware of instances of child labour or contraventions of the provisions of the Basic Conditions of Employment Act, 1997 must report it to the Department of Labour.

Clause 142
Ronel van Zyl (SALRC) 142(f) is now covered by s12 of the principal act and can be deleted here.

Adv Mike Masutha (ANC) cannot use concepts in the law which we understand but that are not defined in the law.  There needs to be a definition of child protection system.

Ronel van Zyl (SALRC) (a) is necessary to fulfil Clause 107
(b)
(e) relates to Clause 110

Clause 143
Public submissions:
Childline
DICAG
UCARC
HIV sub-group
Chain
SASPCAN

Responses from the Department

Ronel van Zyl (SALRC) a lot of the issues raised here were raised in the Department of Social Development’s own consultation some comments based on wrong version

Could switch (1) and (2)
The term services throughout has been dropped because programmes are what are also

Janet Semple (DA) are child-headed households included in families?

Ronel van Zyl (SALRC) there is no definition of family.  Definition of family member read out.

Adv Mike Masutha (ANC) the definition of family member would be used as the basis for en

Ronel van Zyl (SALRC) (f) could include exploitation

Janet Semple (DA) include it

Public submissions
HIV subgroup
MSTP
NSSWDF
JCSW
SASPCAN
SACBC
DICAG

Adv Mike Masutha (ANC) this is a shopping list, which items does the department wish to accommodate?

Dr Maria Mabetoa (DSD) includes reference to children with disabilities.  Must where necessary change, needs to be discussed by the Committee.

The other list is we can cluster.

Adv Mike Masutha (ANC) what kind of assistance is being offered to children with disabilities?  Do not want to create the expectation that we will be paying out grants that are not available.

Dr Maria Mabetoa (DSD) include the UCARC suggestion on corporal punishment.

Parenting skills on disability

Exploitation

Ronel van Zyl (SALRC) in terms of children with disabilities the assistance is not the issue is the support government needs to provide training and support programmes.

Adv Mike Masutha (ANC) who is responsible for running these programmes?

Dr Maria Mabetoa (DSD) mainly NGOs who run the programmes?

Adv Mike Masutha (ANC) are they multi-sectoral?  Do other departments get involved?

Dr Maria Mabetoa (DSD) nutrition, justice. 

Adv Mike Masutha (ANC) and the issue of provide support – is that sufficiently clear in terms of this clause.  Will they see this as money? 

Cheryllyn Dudley (ACDP) if we add the word programmes does that help.

Ronel van Zyl (SALRC) we can model the clause on 144(1)(b)

Dr Maria Mabetoa (DSD) early intervention for families affected by HIV

Cheryllyn Dudley (ACDP)

Dr Maria Mabetoa (DSD) home based care programmes are not legislated here.  That is critical. 

Adv Mike Masutha (ANC) legitimise those programmes.

Ronel van Zyl (SALRC) those basic needs are covered by (2) (a)

Dr Maria Mabetoa (DSD) not just about food.

Adv Mike Masutha (ANC) preventing the breakdown in the family so that children do not become vulnerable.

Decision:
Add programmes to promote alternative discipline
Remove (d) from (1) add to (2)
Add early childhood development and support to families with disabilities to (2)

Clause 145
Musa Mbere (DSD) include the DPLG in consultation
Cheryllyn Dudley (ACDP) time to time to be reviewed
Adv Mike Masutha (ANC) don’t we have a general thing as to how we include the municipalities.  Do we have a system of delegation in this act?

Ronel van Zyl (SALRC) MEC not in the same line of government therefore they can assign but not delegate functions.

Adv Mike Masutha (ANC) so we are not creating system of concurrency.

Cheryllyn Dudley (ACDP) should we not be involving civil society more than just interested persons.

Ronel van Zyl (SALRC) 'interested persons' covers civil society.

Cheryllyn Dudley (ACDP) civil society tells us that ‘interested persons’ doesn’t make it happen.

Adv Mike Masutha (ANC) don’t we assign specific functions

Ronel van Zyl (SALRC) that relates to DCPO

Adv Mike Masutha (ANC) is it a systemic organised sector that has been accredited or could it be that organisations are out their teaching their children to spank their children.

Musa Mbere (DSD) with prevention and early intervention there is no system.  We are starting the training last year.  Money is given after an application has been made and the programme assessed.

Cheryllyn Dudley (ACDP) people who are doing the job should be included in the strategy.

Adv Mike Masutha (ANC) organisations.  Not generally civil society - should be designated organisations.
Ronel van Zyl (SALRC) designated child protection organisations do not deliver prevention and early intervention.

Adv Mike Masutha (ANC) sector representatives. 

Cheryllyn Dudley (ACDP) if not accredited then recognised.  Recognised service providers are consulted…

Adv Mike Masutha (ANC) Are we talking about service provision or consultation?

Cheryllyn Dudley (ACDP) consultation.

Adv Mike Masutha (ANC) the development of policy is the preserve of policy in terms of the Constitution.  There must be consultation, department will be dragged through the courts if there is no consultation. 

Cheryllyn Dudley (ACDP) this is not about policy it is the strategy that the NGOs are going to implement.

Adv Mike Masutha (ANC) Strategy is policy.  Anything that is not law is policy. 

Musa Mbere (DSD) we have a developed a process for engaging with civil society.

Ronel van Zyl (SALRC) there are numerous judgements now based on the current legislation.  If civil society feels they have not been consulted they have recourse to the courts.

Janet Semple (DA) Ministers DICAG recommends inclusion of Minister of Transport. 

Adv Mike Masutha (ANC) why?

Janet Semple (DA) access to the services depends on transport.

Dr Maria Mabetoa (DSD) prevention and early intervention includes early childhood development and partial care, therefore, this is important.

Cheryllyn Dudley (ACDP) flag 144(2) must be a “must”.

Janet Semple (DA) Dr Maria Mabetoa mentioned but we did not discuss it.

Adv Mike Masutha (ANC) aren’t these things dependent on the circumstances?

Cheryllyn Dudley (ACDP) government still has to be the connector, don’t have a choice as to whether to connect people to the services.

Adv Mike Masutha (ANC) don’t see why this has to be a “must”?

Cheryllyn Dudley (ACDP)

Adv Mike Masutha (ANC) if in the process of providing the services

Ronel van Zyl (SALRC) add to the shopping list in (1) that they

Adv Mike Masutha (ANC) don’t want to create another grant here. 

Cheryllyn Dudley (ACDP) assist the families to connect to the services not provide the services. Could change to

Ronel van Zyl (SALRC) no obligation on a social worker to help families to access services.  This says you could expand the list under (1). 

Adv Mike Masutha (ANC) do not courts have said that “may” means “must”.  This is not a social security act. Nor does it provide housing that must be obtained under the Housing Act – this is going to stay as is.

Public Submissions
UCARC
SASPCAN
JCWS

Community Safety

Ronel van Zyl (SALRC) no Minister of Community Safety

Adv Mike Masutha (ANC) at MEC level.  Think they mean Minister of Safety and Security.

Clause 146
UCARC
SASPCAN
JCWS
The submission says “MAY”
DICAG
CWSA
SACBC
LRC missing, RAPCAN missing
NACCW

Ronel van Zyl (SALRC) the “must” and the “may” gave us a lot of discussion earlier. 

Adv Mike Masutha (ANC) not sure what to do here. Or the meaning of the “may” and the “must” could be provide service or spend money allocated by national. Unavoidable ambiguity, therefore be cautious, where the law creates a “may”, established principal in jurisprudence.  Fear of ambiguity – could be creating an obligation to provide.

Cheryllyn Dudley (ACDP) if so sure that “may” means “must” then use “must”.

Adv Mike Masutha (ANC) what will make the difference – potential duality of meaning embedded in this kind of clause – could mean set resources aside, once those resources have been allocated then they must be used for that purpose.  Our “must” is intended to ensure that they

Cheryllyn Dudley (ACDP) the argument by Ronel was that we could use a “must” for child protection because that is in the Constitution.

Janet Semple (DA) could we use from money already appropriated

Ronel van Zyl (SALRC) what I said is that there are two areas which we could justify the “must” because it has easy constitutional backup those are child protection and child and youth care centres.  If in early childhood development we insert the word “must” in the early childhood development chapter government would have to provide early childhood development for everyone. 

For the first time we are put prevention and early intervention into the legislation, this will

The Department of Social Development must express itself here whether prevention and early intervention is seen as part of protection.

Cheryllyn Dudley (ACDP) the MEC hands will be strengthened by the “must”.  "May" will kiss goodbye to funding.  Ronel has said that she doesn’t know if prevention and early intervention has anything to do with protection, and we know that it has everything to do with protection.

Adv Mike Masutha (ANC) we know that it will be uneven.  Very different with grants you have equal access everywhere.  We do know that this right is not being fulfilled.  We do know that there are many children that need this service because they are in a desperate situation.  Strong obligation created by the rights of the children in crisis.  There could be a range of services very broad.  If we could create a responsibility to spend the funds.  Do not want to create an obligation to appropriate.  This is a new programme.  Do not open the flood gates, to litigation.  This could be interpreted to mean that the appropriation must be done. 

Cheryllyn Dudley (ACDP) because of the crisis in protection services, prevention and early intervention are not getting funding, which leads to more pressure on protection services. Not a big leap to link to the constitutional rights.  We could easily justify in terms of the Constitution.

Adv Mike Masutha (ANC) if situation where the problem is already simmering then it is a “must”. Separate out prevention and early intervention.

Decision: Ronel van Zyl (SALRC) change the funding Clause 146(1) change “may” to a “must” but move 144(1)(d) to 144(2)
Change (c) to promote

Cheryllyn Dudley (ACDP) agree that will work

Dr Maria Mabetoa (DSD) we have a winner!

Clause 147
Public submissions read out. 

Dr Maria Mabetoa (DSD) therapeutic is included; education provisions should be in the Education Laws.

Caroline Makasi (ANC) there must be something concerning local government.

Adv Mike Masutha (ANC) not sure the department has applied its mind to the role of local government in the implementation of this act. 

Ronel van Zyl (SALRC) we could provide in Clause 145 that local government must also have a strategy. 

Hendrietta Bogopane-Zulu (ANC) agree with Ronel that you need to include local government.

Adv Mike Masutha (ANC) is there provision for the synergy between these strategies – what if there is conflict?

Ronel van Zyl (SALRC) s4 and s5 of the act covers implementation and inter-sectoral co-operation. 

Hilda Weber (DA) include early childhood development.

Cheryllyn Dudley (ACDP) under early childhood development there is norms and standards – cross-reference would be sufficient.

Dr Maria Mabetoa (DSD) we have already provided for early childhood development in the norms and standards.

Hendrietta Bogopane-Zulu (ANC) it would be lost.

Cheryllyn Dudley (ACDP) because early childhood development is a very important prevention and early intervention programme the link needs to be made.

Hendrietta Bogopane-Zulu (ANC) the link would be established either under 143 or 144 not here.

Adv Mike Masutha (ANC) I like people who give me a “yes” or a “no”.

Ronel van Zyl (SALRC) 144 that is our shopping list – question is does it come under the “must” part 144(1) or the “may” part 144(2).

Adv Mike Masutha (ANC) it has to be a “may”.

Ronel van Zyl (SALRC) the reference will then be included in 144(2)

Clause 148
Public submissions
Ronel van Zyl (SALRC) can the Department of Social Development impose obligations on Department of Education in this legislation?

Adv Mike Masutha (ANC) No.

Clause  149
No public submissions
No comments
No changes.

Amendment to s156 of Act 38
No public submissions
No comments
No changes.

Chapter 11 Alternative Care

Clause 167
No public submissions
No comments
No changes.

Clause 168
No public submissions

Clause 169
(2) change “prescribe” to “determine”

Clause 170
No public submissions

Janet Semple (DA) unhappy about police officials going in without a warrant.

Agnes Muller (DSD) sometimes it is unsafe the parents are under the influence of alcohol and then it is unsafe and you must go with a police officer.

Clause 171
Ronel van Zyl (SALRC) must remove the word “primary” Clause 171(4)(b) primary care-giver is not defined in the act only caregiver is defined.

No public submissions

Comments

Hendrietta Bogopane-Zulu (ANC)

Dr Maria Mabetoa (DSD) identifying a gap here there are three forms of alternative care = foster care, child and youth care centre, and temporary safe care.  Not sure that foster care is covered.

Hendrietta Bogopane-Zulu (ANC) is covered by the “person in whose care”.

Ronel van Zyl (SALRC) could insert “foster”.

[Further decisions included below]

Appendix: Decisions taken at this meeting

Clause 140
Change cross-reference (5) (b)

S141
DoL recommendations
(1) Cross-reference serves no purpose delete (1)(a)

Insert new clauses
Slavery, serfdom and compelled labour to be included

no person may commission a child for any offence listed in schedules 1 and 2 of the Criminal Procedures Act. (i.e. serious offences)

Make it an offence to use a child in crimes.

Social workers must report infringements to Department of Labour and the police.

Clause 142
Decision (f) is out

Clause 143
No changes

Clause 144
Add programmes to promote alternative discipline
(1) Change (c) to promote
(1) Remove (d) from (1) add to (2)
Add early childhood development  and support to families with disabilities to (2)

Clause 145
Musa Mbere (DSD) include the DPLG in consultation
Cheryllyn Dudley (ACDP) time to time to be reviewed
Ronel van Zyl (SALRC) we could provide in s145 that local government must also have a strategy. 

Clause 146
Ronel van Zyl (SALRC) change the funding s146(1) change “may” to a “must”

Clause 147
No changes

Clause 148
No changes

Clause 149
No changes.

Amendment to s156 of Act 38
No changes.

Chapter 11 Alternative Care
Clause 167
No changes.

Clause 168
(5) line 25 grammatical change request that the child “be returned to”

Clause 169
(2) change “prescribe” to “determine”

Clause 170
No changes

Clause 171
Clause 171(1)Ronel van Zyl (SALRC) could insert “foster” after care
(4) (a)  add according to maturity
(4) (b) remove “primary”

Clause 172
No Changes

Clause 173
(1)(a) Insert “foster” before care
(2)(c) Insert “foster” before care

Clause 174
(4) (b) delete “or permanently line” 20

Clause 175
No changes

Clause 176
Change to title

Clause 177
No changes

Clause 178
Prioritise informing the parents
(2) to be reworded so that the police official must investigate if death was not from natural causes.
(3) Typo “if” should be capitalised.
Line 17 insert “foster”
person in whose foster care the child has been placed

Clause 179
No changes