Ms JM Masilo (Chairperson): North West (ANC)

Mr TS Setona: Free State (ANC)

Mr MA Sulliman: Northern Cape (ANC)

Ms F Mazibuko: Gauteng (ANC)

Mr M Thetjeng: Limpopo (DA)

Ms JN Vilakazi: KwaZulu-Natal (IFP)

Rev. E. Adolph: Western Cape (ID)

Mr. JO Thlagale: North-West (UCDP)

Ms X Tom – Chairperson Standing Committee on Social Services: Eastern Cape

Mr SN Skosana: representing Mpumalanga

Ms P Mackay: representing KwaZulu-Natal

Mr Ngwenya: Chairperson Standing Committee on Social Services: Gauteng

Ms Sithole: Chairperson Standing Committee on Social Services: Limpopo

Department of Social Development:

Department of Correctional Services

SAPS

Department of Home Affairs

National Treasury

Department of Health

Department of Provincial and Local Government

UNICEF

Dr Mabetoa briefed the Committee on the:

• Process of Section 75
• Virginity testing
• Access to medical treatment
• Circumcision
• Surrogate motherhood
• How provisions in the Bill affect issues relating to Customary Law

The Bill was approved by Cabinet in July 2003, and was submitted to Parliament in August 2003 and was returned to DSD with the request of splitting it into Sections 75 and 76 Bills, then resubmitted, returned again in Jan 2004, resubmitted and finally sent to the Portfolio Committee on Social Development for further deliberations. Section 75 deals with national competencies and 76 with provincial direct service delivery responsibilities.

The presenter stated that the split has led to the moving of all Section 75 chapters and clauses to a revised Children’s Bill. Other chapters and clauses were going to be inserted in the Children’s Amendment Bill once the Children’s Bill is approved.

Briefings to the PC on Social Development were held in November 2003 before the elections and the new PC was briefed during August 2004 and public hearings were held on 11-13 August 2004. A workshop was held in December 2004 to identify existing responsibilities, policy and legislation as well as gaps in the different departments. Another workshop was held in April 2005 to deal with unresolved issues and after the PC on Social Development was satisfied that it had gathered all the relevant information, all the clauses were reviewed, scrutinized and amended where necessary. The presenter said that significant changes were made to the original Bill and the Bill was passed on 22/06/2005.

• Traditionally it was meant for girls and young maidens to preserve themselves for their future husbands-they would be tested before marriage. Emphasized in religious practices-purity
• Prestigious for the girl and her family to be a virgin at marriage-
• More lobola would be paid for the bride who was a virgin
• Recently this practice is seen as a means of restoring traditional values, preventing early pregnancies and the spread of HIV and AIDS.

• Originally virginity testing was never practiced on small children
• Age of marriage in accordance customary law is 18
• Prestigious thing for the family to have a daughter who is a virgin at marriage

• While the clause provides that a child may refuse to undergo a virginity test, the Bill does not require the child’s consent be tested.
• No penalties are stipulated for non-compliance with unhygienic virginity testing.
• The Bill does not provide for confidentiality in respect of the results of a virginity test.

The first focused on whether there was a shared definition of what "harmful cultural practices" means, and whether the issue is that the Bill should protect children against practices that are harmful in a medical sense, in which case the formulation of the clause was perhaps inappropriate.

Does the Bill address possible discrimination should a girl refuse to be tested, or should the test reveal that she was no longer a virgin.

Members of the Committee proposed that the entire clause

Be redrafted to remove the negative associations of

"Harmful cultural practices", and to ensure that there is

Clarity about what the Bill intends protecting children from.

• Consequences of testing on the child
• Confining to the girl child only- gender discrimination
• The issue of age
• Health and hygienic aspects of testing
• If prohibited, to what extent

Virginity testing does not promote gender equality. It creates the basis for stigmatisation of girls who do not pass, many of whom are likely to be sexual abuse victims.

Further, this practice negates preventive messages about the right to body privacy.

It can spread infections and given the myth that sex with virgin cures HIV and AIDS – it is likely to lead to girls being targeted for abuse.

• The revival of discriminatory practices in the name of Culture undermines the Constitutional Bill of Rights.
• Section 28 of the Constitution states clearly that the best interest of every child should be of paramount importance in every matter concerning the child.
• This therefore includes the child’s right and respect to bodily integrity, which includes issues around virginity testing and health care.

• Section 9 Equality 9(3) and (4)
• Section 10 inherent dignity
• Section 12 freedom and Security of person 12(1) e 12(2)(b)
• Section 14 right to privacy 12(a)
• Section 30 language and culture-No one exercising these rights may do so in a manner inconsistent with any of the provision of the Bill of rights

• The Constitution also states that everyone has the right to privacy. Virginity testing as a practice, infringes these rights in the following respects:
• Virginity testing of children without their informed consent is an invasion of bodily and physical integrity and an invasion of privacy.
• The question however remains if children can give informed consent, under the guise of culture. The reality of issues such as coercion, parental compulsion, duress, as well as social pressures needs to be acknowledged.
• Disclosing the girl child’s virginity status to someone else, without her consent is also an invasion of privacy.

• The revival of old-style local practices to address a modern global pandemic such as HIV/AIDS will do more harm than good, as long as marked gender inequalities, sexual violence and hegemonic, masculine sexualities are left unchallenged.
• Virginity testing makes girls more vulnerable, as it exposes them to a greater risk of rape and other forms of abuse.
• Sexual offences are highly gendered and they are a cause of disempowerment and the practice of virginity testing will in all likelihood further victimize the girl child victims of sexual offences, who are they already suffering from the consequences inequality.
• The primary victims of sexual offences are women. Virginity testing exposes victims of sexual crimes and on the other hand, the marking of virgins does not afford protection to girl children against sexual crimes.

Recently according to media reports there appears to be an upsurge in the number of boys and young men who suffer severe infection after circumcision. They had to undergo drastic and traumatic surgery or die, due to procedures being carried out ineptly or with un-sterile instruments.
 
The SA Law Reform Commission stated that the Islamic Medical Association of South Africa commented on the following:
 
Advantages of Circumcision

Complications of circumcision

our concern as Practitioners

Our concern as Muslims

In order to promote and fulfill the right to basic health care services as set out in Section 28 of the Constitution, the national Department of Health is providing free health care services to children under the age of six years old. At provincial level, the Department of Health has introduced various measures to promote and fulfill the right of children to basic health care services. Some provinces are serving children in rural areas and informal settlements by way of mobile and container clinics. Homeless children are referred to places of safety where primary health care services are rendered.

Access to termination of pregnancy services
In South Africa the "law against abortion" has been radically altered by the Choice on Termination of Pregnancy Act 92 of 1996. Under this Act the focus of the law has shifted away from abortion", with its connotation of criminality, to a woman’s right of choice with respect to reproduction including the right to choose to terminate a pregnancy in the early part of the gestation period. Prior to this development in our law, South African common law permitted lawful abortion only in the care of necessity, the only clear instance of which was to save the mother’s life. Some measure of reform was introduced by way of the Abortion and Sterilization Act 2 of 1975.

• In order for young persons to make informed choices regarding the age of initiating sexual activity and protecting themselves against unwanted pregnancies and sexually transmitted diseases, they need access to appropriate family planning services.
• This raises a number of issues relating to the age at which they may utilize such services and the family and parental involvement in this process.
• Reality regarding the sexually active children
• Provision for children without parents and guardians

Members raised concern regarding the formulation of regulations after section 75 is approved. The department stated that the development of regulations could be a parallel process with legislation. If there are amendments to the Section 76 Bill, the regulations would be amended accordingly. The substantive services were already provided and the issue was to improve on these.

The department stated that the regulations would be bulkier than the Bill. Although the drafting of the regulations had started, they could not be promulgated until the Bill was passed. The department stated that they are aware of the time required to develop regulations and that they were being pro-active. They further noted that regulations pertaining to the part of the Bill already passed would be developed first.

Members enquired whether the costing would be would be completed by the promulgation of the Bill in 2006. The department stated that the service provider would present a full report by the end of February 2006, and would have a draft report by the end of the year.

The representative from the KwaZulu-Natal (KZN) expressed concern regarding the implementation of the Bill given the lack of capacity. The department stated that the costing process would help identify infrastructural and human resource requirements. The department is also busy with the implementation of the retention strategy for social workers in government and the Financial Award Policy for social workers in NGO’s. The Service Delivery Model outlines the role of the department as far as services to vulnerable groups are concerned.

Members asked for clarity on the position of the Bill in respect of Customary Law. Ms van Zyl stated that the SA Law Reform Commission (SALRC) was reviewing several aspects of customary law. The Department of Justice stated that the whole court system was in fact currently review. In the case of conflict, legislation would take precedence. The fact that legislation regulated something did not mean that customary and common law had been completely done away with.

Members emphasised that the issue of virginity testing required broader consultation. It was not a compulsory practice, and nothing would happen to people who did not go. It was not easy to rape a virgin, so it would not lead to a greater vulnerability of the girls identified as virgins. It would be easy to regulate a healthy and constructive way of doing the testing. The people of Kwazulu-Natal would be very resistant to a ban on the practice.

Ms McKay remarked that there had been a big consultative workshop on virginity testing five years previously. This had concluded that, although virginity testing was traditional and backed by the king, it was a violation of children’s rights. Just because something was customary it was not always right, the realities had to be addressed, and unhygienic methods were a definite concern.

Ms Vilakazi concurred that even now testing was not done on children, but on people who had just reached puberty. Once a child reached puberty, she entered a very vulnerable stage, and was then taught about sexuality.

The department noted that the original draft had not mentioned an age, and asked whether the Clause should exclude virginity testing for children under the age of 16. The Portfolio Committee had decided to prohibit virginity testing, ranking it similarly with female genital mutilation. The Department had agreed, but looked to this Committee to take it forward. The issue of age could be introduced.

Mr Setona requested clarity on the definition of majority, both in terms of marriage and indigenous law, asking whether 18 was consistent with traditional African indigenous law.

Ms van Zyl replied that the Constitution had been used as a guideline, together with international instruments, and this had set the age of majority at 18.

The Chairperson asked why the Bill was silent on lobola.

Dr Mabetoa replied that it had been a common practice for a virgin to get additional lobola, and compensation for "deflowering". The Bill only dealt with one aspect of the practice, and in all cultures, virgins were held in high regard.

The Department of Provincial and Local Government (DPLG) stated that virginity testing was not only limited to rural areas. They stated that older women believed they were helping young women by doing virginity testing.

The Department of Health stated that all Department of Health programmes were culture-sensitive, and the Department had taken a stand not to defy culture, but to see what was in the best interests of the child within the cultural practices. Virginity testing was of concern. A programme had been shown on television, showing 12 to 13 year-olds being subjected to virginity testing in the open veld. If cultural practices were preserved, they must be for older children in general.

SAPS stated that they believed that many children in conflict with the law should rather be dealt with in terms of the Children’s Bill as children in need of care. Once the Child Justice and Children’s Bills had been promulgated, there would be a definite shift in the way in which children were dealt with in the country. One aspect of the Children’s Bill was of concern to the SAPS, however. In terms of Schedule 4, the General Law Amendment Act of 1962 was repealed. This dealt with situations where one parent was granted custody of a child. Provision had been made specifically for the other parent to have access to the child. This was normal in divorce proceedings. The provision in the General Law Amendment Act provided that, once a parent had been granted custody, that parent had a duty to inform the other parent of any change of address, and provided that if a court had granted rights of access, a person who refused this access was guilty of an offence. This was a very common situation, and the law allowed police to act, and to open a case, which usually resulted in emotions being calmed. Lack of knowledge of rights could have serious consequences, including death. The SAPS submitted that the repeal should be reviewed, to allow SAPS to have the ability to deal with instances of this nature. On the fact of it, the Children’s Bill addressed the issue through the introduction of parenting agreements, but this only applied to divorces after promulgation of the Bill. There was also no provision for enforcement of a parenting agreement that had not been made an order or court. Between 2000 and early 2005, 10 787 cases of this nature had been registered, and this was a strong argument for the retention of that provision.

Department of Correctional Services noted that the Child Justice Bill was more applicable to the Department, but said that Section 20 of the Correctional Services Act provided for incarcerated mothers to have their children with them, up to the age of 5 years. The Department provided the necessary services to these children, and access to services within the Department. In respect of children awaiting trial, everyone was assessed on admission, and referred accordingly, for example for medical treatment.

Department of Home Affairs emphasised the need for care when dealing with culture and tradition, as these formed the foundation for the future. How would the circumcision of, for example, Jewish boys be handled, as these children were too young to consent?

National Treasury raised two areas of concern. In terms of the Public Finance Management Act (PFMA), all Bills had to be costed. The Section 75 Bill raised a number of issues about national competencies, but other Departments were not really involved in service delivery, and there had to be juxtaposition. Provincial treasuries did not necessarily budget for one priority, but for a range, so there were competing interests. There were also serious reform questions. The Children’s Bill clearly wanted a different way of dealing with children, and a new cadre of personnel was needed. This was not just a new cadre of social workers, but included sociologists, criminologists and psychologists. It was important to identify the basket of services to be provided, both statutorily and non-statutorily. It was imperative to find a way to legislate on a progressive realisation plan.

Mr Setona expressed concern that the Committee might assume that the Section 76 Bill should deal with everything discussed. The Section 75 Bill was in fact laying a broad philosophical framework and the Section 76 Bill would talk about institutional arrangements within this context. All issues should be engaged at the Section 75 stage. Dr Mabetoa concurred that the Section 75 Bill dealt with the rights as contained in the Constitution and set up the principles relating to the care and protection of children, giving effect to international instruments. It laid the basis for the Section 76 Bill. It was important that any changes take into account the cost implications, however.

The department emphasised that the NCOP was responsible for all Regulations pertaining to the Children’s Bill. The age of testing for virginity testing should be looked at, and a cut-off point established. Everyone had the same aim, to protect children, and procedures had to be established. Although children’s rights were substantive, there had to be some measure of progressive realisation. Mr M Thetjeng (DA, Limpopo) suggested that there was inconsistency in the treatment of virginity testing and circumcision. Mr M Sulliman (ANC, Northern Cape) concurred, and reminded the Committee that circumcision was not only a cultural practice, but also a religious requirement in some faiths.

The Department of Health noted that, from a health point of view, the earlier circumcision was performed, the better. As the child grew, the nerves became more sensitive, and botched circumcisions were seen in older boys. As the child grew older, the foreskin could also pull back and the child might experience pain and be unable to urinate. There was also a hygiene aspect to circumcision.

Mr P du Preez (Legal Services, Social Development) noted that the Portfolio Committee had approved the Bill on 22 June 2005. It was now in the hands of this Committee, but whatever changes were made would have to go back to the Portfolio Committee. A workshop had been held in April with the purpose of hearing the traditional leaders, but they had not attended, so there were some issues remaining. It was crucial for these leaders to be invited soon. The issues could not be dealt with in the Section 76 Bill. In terms of the Regulations, the Department was in the process of appointing people to draft them. Mr Plaatjies had mentioned progressive realisation, but the President would sign the Bill and it would have to be operationalised. This was unlikely within the next two to three years.

Mr Setona noted that at some point, the Committee would have to conceptualise a way forward, and the Department would have to assist with data on stakeholders on contentious issues. It may not be sufficient to simply call the House of Traditional Leaders.

Dr Mabetoa emphasised the sense of urgency regarding the Bill. Only a few clauses were being debated, and these could surely be dealt with within the given timeframe, so that the Committee could start work on the Section 76 Bill in 2006. There were major problems with protecting children in South Africa, and the Bill was needed. The Chairperson noted the intention of the Committee to go through the Bill before December 2005. Mr Sulliman emphasised the need for caution.

Mr Thetjeng took Mr Setona’s point about shareholders, but reiterated that there was no consistency in the protection of girl and boy children.

Dr Mabetoa replied that, in 1998, there had been wide consultation on the Children’s Bill, and that circumcision and virginity testing had been on the agenda. There were two warring factions in terms of virginity testing, namely those who felt that it was a violation of girl child, and those who felt it was good for the child. There was overwhelming agreement that circumcision was all right, but the same agreement had not been reached in respect of virginity testing.

Mr S Ngwenya (Gauteng Legislature) suggested that the argument was in the explanation that virginity testing hurt the girl child. Mr Thetjeng was stating that the same concern was not expressed for the boy child.

Dr Mabetoa suggested that the arguments were different, and suggested that an age limit be agreed upon.

Mr Setona emphasised the need to be cautious, but said that the anatomical argument was appealing.

Ms Mohlabi said that this was a highly debatable issue, but that the best interests of the child should be of paramount importance.

Mr Thetjeng interjected that, by the reasoning of the Department of Health, circumcision at a later age should be prevented, so that the procedure was done on physical and medical grounds.

Surrogate Motherhood
Ms van Zyl explained that the SALRC had completed a project on surrogate motherhood in 1993. It had been found that the original report had been inappropriately constituted in terms of gender and race, and some recommendations had not been in line with the 1996 Constitution. A comprehensive workshop had been held with experts, public hearings conducted, and study tours undertaken. It had been found that informal surrogacy was practiced in most communities, and the overall view was that this should be practiced within families only. The majority view was that the introduction of modern and scientific methods would be acceptable. Two types of surrogacy had been found, namely full surrogacy, where the birth mother was not the genetic mother, and partial surrogacy, where the birth mother was the genetic mother. There was a strong feeling that there should be a genetic link between the child and the commissioning parents. It was also important that the surrogate mother should do it for altruistic rather than commercial reasons.

It was found that surrogacy should be the last option by the commissioning parents, and an infertility problem necessitating surrogacy should be permanent and irreversible. Both the commissioning parents and the surrogate mother should be fit and proper persons. The rights and obligations of all parties would have to be clearly defined, and the legal status of children should be clearly defined in legislation. The commissioning parents and surrogate mother would enter into a formal agreement, and the surrogate mother should still have the right to undergo an abortion. The Committee had accepted the principle that the majority of people were in favour of surrogacy, and that surrogacy was a deep-rooted practice both formally and informally throughout South Africa.

Clarity seeking, comments and discussions

Members enquired whether surrogate motherhood is also applicable to same sex partners? Ms Van Zyl stated that surrogate motherhood is not prohibited for same sex partners.

Ms van Zyl stated that if a surrogate mother becomes medically unfit, the agreement may be terminated.

The registration of the child’s birth may be done at a later stage out of hospital with the child being registered as the child of the commissioning parents.

There are screening procedures for all applicants for surrogate motherhood. Those who are incarcerated will be subject to screening to establish their suitability. If an incarcerated person applies they will be screened as well.

Ms van Zyl took the Committee through the Chapters in the Bill, reminding them that there are 315 Clauses in the Children’s Bill, most of which are in the section 75 Bill.

The department stated that that there are definite awareness regarding inter country adoptions. The department noted that they are trying to get establish a register of who is responsible for inter-country adoptions the reason being that they are unable to monitor the number of children leaving the country. The department stated that an audit was needed and that Public education needed to be prioritised as well. The department further noted that SA is seen as source for the adoption of children. In some cases foreigners consult unregistered children’s homes to access these children. Exhaustive measures are not taken to trace families or relatives before these children are given up for inter-country adoptions. Some children are taken out of the country through the guardianship route.

The Chapter on trafficking deals with foreigners abducting children, however the foreigner in question needs to be from a country which is a member state to the Hague Convention, or a state in a bilateral agreement with SA.

Members enquired what the position with the proposal from SAPS is. The department stated that parenting plans and agreements should be able to address that. It might be incorporated into the Bill where non-compliance with the parenting plan or agreement is criminalized.

The Bill gives rights to unmarried fathers, looking at the best interest of the child. Parental roles and responsibilities can be removed by court. If a stepfather wants to adopt a child, the biological father has to give consent. Parenting plans seek to regulate contact between the child and parents.

Members stated that there are issues that cut across a wide spectrum of legislation, for example consent to medical treatment in relation to termination of pregnancy and surgical procedures. . It appears the Acts are not talking to one another!

The department responded that the definition of "child" in the Bill is in line with the Constitution. All other legislation needs to be in line with the Constitution.

The National Health Amendment Bill covers consent broadly, and the Bill specifies consent to medical treatment with regard to children.

The Matrix explains clearly how different Departments are affected by which legislation. (Ms Van Zyl explained that she was busy updating the current matrix report and she will make it available as soon as she is done).

The Committee proposed that they must engage or invite the Portfolio Committee on Social Development to present their reasons on certain amendments so as not to duplicate the process that the Portfolio Committee (PC) went through. The Public Hearings must be held to address only those aspects that are controversial and were not exhausted by the PC.

The Chairperson thanked everybody for attending and participating in the workshop.

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