Choice on Termination of Pregnancy A/B & Traditional Health Practitioners Bill: preliminary negotiating Mandates
SOCIAL SERVICES SELECT COMMITTEE
5 September 2007
CHOICE ON TERMINATION OF PREGNANCY A/B & TRADITIONAL HEALTH PRACTITIONERS
BILL: PRELIMINARY NEGOTIATING MANDATES
Chairperson: Ms J M Masilo (ANC)
Documents handed out:
Choice on Termination of Pregnancy
Amendment Bill
Northern Cape ;
Western Cape ; Eastern Cape ; Free State ; Mpumalanga
Limpopo;
Kwazulu-Natal; Gauteng
Traditional Health Practitioners Bill
Northern Cape ;Western
Cape ; Mpumalanga
Limpopo ;Eastern
Cape ;Free State ;Gauteng ;Kwazulu-Natal
SUMMARY
The Committee met to hear provisional provincial mandates on the Choice on
Termination of Pregnancy Amendment Bill and the Traditional Health
Practitioners Bill. The indications were that both Bills were supported,
although some provinces requested that further amendments must be included.
Others had made recommendations, both from the provincial portfolio committees,
and for consideration of various issues that were raised in the public
hearings. Members discussed whether the correct procedure had been followed and
whether there was sufficient deliberation time within the provinces for the
Bills. The Department of Health
indicated that before commenting in full, it would need further time to study
the mandates. It was agreed that the matters would be discussed at a future
meeting.
MINUTES
Choice on Termination of
Pregnancy Amendment Bill
The Members indicated what the mandates were in respect of their provinces
Eastern Cape
Ms A Qikani (UDM, Eastern Cape) stated that the provincial Committee
conducted public hearings around the province for the period of one week. The
committee had resolved to support the amendment bill as proposed. However, a
number of matters were raised during the public hearings and these were
summarised for the attention of the Select Committee.
These included :
-The need to include a specific provision regarding conscientious objection by
a medical or health practitioner
-Minors should not be allowed to terminate pregnancy without the consent of the
parents
-The Bill should make provision for mothers contemplating abortion to receive
compulsory counselling before and after abortion at the expense of the State
-Strong feeling were expressed that any health care practitioner who was to
partake in Termination of Pregnancy practices should also be able to manage
potential complications such as bleeding, infection, kidney failure, uterine
rupture/perforation. Despite the request or permission of the pregnant woman, a
termination was still intervention in the life of a healthy individual and any
complications should be the responsibility of the health practitioner
-Provision should be made to keep all records of pregnancies terminated,
including those in the third trimester
-An express provision should be made for counselling people who were performing
terminations of pregnancy
-Section 3 of the Amendment Act fails to distinguish between medical and
surgical abortions, thus having unintended consequence of requiring that
medical abortions need to be performed at a designated facility meeting the
requirements of section 3.
Free State
Mr T Setona (ANC, Free State) noted that the Province's portfolio committee
had been briefed. That Committee had supported the amendments. However, it
wished to place on record its observation that during the public hearings: an
over whelming amount of input in the public hearings never dealt with the bill
as currently presented but rather sought to address the concept of abortion.
-The committee noted the constant issue of Conscientious Objection and resolved
to invite the Department of Health for further clarity on internal processes in
this regard. -The committee also noted the vehement objection to termination by
minors without their parents consent. Therefore it proposed a revisit of
section 5(3) of the Principal Act and further proposed that consultation with
parents must be mandatory
The committee supported the amendments as proposed
Gauteng
Ms F Mazibuko (ANC, Gauteng) stated that the Health Portfolio Committee and
the Gauteng Department of Health supported the principle and detail of the
Choice on Termination of Pregnancy Amendment Bill. Public hearings had been
held and there had been interaction with stakeholders. The comments were fully
set out (see attached document), under the headings of implementation by MEC,
counselling, conscientious objection, record keeping, age of consent, reasons
for termination, those performing terminations, and implementation proposals.
IT was suggested that an amendment be made to Clause 10.
Kwazulu-Natal
Ms M Mkaba (ANC, Kwazulu-Natal) stated that the province had suggested, in
reference to the proposed amendments to Act 92 of 1996 that there should be:
-A new clause inserted on conscientious objection
-Amendment to section 2 of the principal Act – circumstances in which and
conditions under which pregnancy may be terminated
-Amendment of Section 4 of the principal Act – Counselling
-Amendment of Section 5 of the principal Act – Consent
-Amendment of Section 7 of the principal Act – Reporting
-Amendment of Section 10 of the principal Act – Offences and Penalties
The proposed amendments to the Amendment Bill included:
-Clause 1 of the Amendment Bill (Amendment of Section 1 of Act 92 of 1996) –
Definitions including the definition of a registered nurse
-Delete any reference to registered nurse as opposed to midwives
-Clause 2 of the Amendment Bill (Substitution of Section 3 of Act 92 of 1996)
this would include amending section 3(1) and inserting a new subsection 2 after
subsection 1.
-Clause 6(1)(a) of the Amendment Bill (Amendment of section 10 of Act 92 of
1996) by deleting the word “or registered nurse” in line 31
-Clause 7 of the Amendment Bill (Substitution of certain expressions in Act 92
of 1996) and deleting this clause
The Kwa Zulu Natal delegation was broadly mandated to support the Bill, subject
to the amendments being made as suggested. Further, the delegation was mandated
to consider any further additional amendments, provided that these did not
alter the essential elements of the Bill
and that consensus was reached on the proposed amendment/s by the Kwazulu-Natal
delegation.
Limpopo
Ms F Mazibuko (ANC, Gauteng) stated that Limpopo had held public hearings.
There was concern that the Bill was not translated into local languages. The
submissions made at the public hearings were set out.
The following recommendations were made:
-The Bill should make it necessary for minors to exercise right to choose and
the consent of their parents should be considered. Furthermore, fathers of the
unborn (to be terminated) should also have the consent
-Those who conduct the termination of pregnancy have the right to object,
informed by Bill of Rights as enshrined in the Constitution of the Republic of
South Africa
-Pre and post abortion counselling should be mandatory
-The pre Termination Of Pregnancy training selection should exclude
conscientious objectors
-That stringent penalties for carrying out illegal termination of pregnancies
be applied
The Province supported the Bill.
.
Mpumalanga
Mr B Tolo (ANC, Mpumalanga) noted that public hearings had been held, as
listed in the attached document. He noted who had made written submissions. The
concern was raised by people in the public hearings that the Bill should be in
a language that the people of the province could understand. There was generally support for the Bill. However,
general comments were raised, as set out in the attached document, around the roles
of parents, the need for sex education in schools, the eligibility of nurses,
and counselling. Many of the issues raised in the public hearings were directed
at the principal Act, and not at the Bill. There were not substantial issues
raised against the Bill.
The province recommended that the delegates be mandated to negotiate in favour
of the Bill..
Northern Cape
Mr M Sulliman (ANC, Northern Cape) stated that public hearings were
conducted in all constituencies and summarised briefly the public input
received on the Bill. After due consideration the Province indicated that it
would support the Bill, taking note of the concerns raised by the committee and
public stakeholders concerned. It was stated that it would be appreciated if
the Department of Health would respond to all the issues.
North West
Mr B Tolo (ANC, Mpumalanga) stated on behalf of the North West permanent
delegation that public hearings were held and the views expressed there were
considered. The delegation had been mandated to support the Amendment Bill.
Western Cape
Ms F Mazibuko (ANC, Gauteng) stated on behalf of the Western Cape that they
supported the Amendment bill subject to amendments to Clause 2 (there must be a
clear distinction between medical and surgical abortions) and that there should
be support for nurses who objected to performing terminations as well as those
who did perform the procedure. There should be more community involvement in
this area of health.
Discussion
Mr T Setona (ANC, Free State) stated that the Western Cape submission was
incomplete.
The Chairperson stated that the provinces had come up with some new issues. The
State Law Advisor was not present. However, a representative of the Department
of Health, Ms N Matsau, was present, and was asked to comment.
Ms Nthari Matsau, Deputy Director General for
strategic health programmes, Department of Health, noted that some time
would be needed to study the mandates' comments in depth, but that the
Department could comment superficially.
Ms F Mazibuko (ANC, Gauteng) commented that the provinces submitted amendments
to the Principal Act and not to the Amendment Bill as was currently being
discussed. The provinces needed to be
briefed appropriately according to the current issues.
Ms N Madlala-Magubane (ANC, Gauteng) stated that the submissions by provinces
seemed to indicate that there were no public hearings in the North West
province and also in Kwazulu-Natal, and no stakeholders took part.
Ms J Vilakazi (IFP, Kwazulu-Natal) stated that she was present during public
hearings that were held in Kwazulu Natal, when all matters were explained
thoroughly according to the Amendment Bill.
The people expressed the view that they were not involved in the
principal Act and appreciated that they were now involved in the Amendment Bill
and this is why the Province had come to this consensus.
The Chair stated that the DOH should be acknowledged for attending all the
hearings and that they would follow-up on the pubic hearings.
Mr Tolo stated that some of the provinces were commenting on the current issues
of the Amendment Bill and not on the Principal Act.
Mr Setona raised the point of procedure, noting that the meeting was on
negotiating mandates. Particular
provinces had raised issues outside the Amendment Bill currently being dealt
with and all provinces agreed on the response of the DOH. Issues that had arisen were the objections to
the Amendment Bill. The Children’s Bill would cover the rights of children
already. The time frame needed to be
certain.
The Chairperson raised the concerns expressed by the Constitutional Court in
relation to the public participation in the hearings.
Ms N Matsau asked whether the Department would need to comment on all the
submissions or only those pertaining to the current Amendment Bill. A
consideration of time frames was needed to follow the correct procedure. The
process in 2003 was found to be problematic at that time.
Mr Sulliman stated that it would be helpful to communicate to the provinces by
Friday 7 September, and allow the provinces to study the comments on the
outcomes of the present meeting.
Ms Madlala-Magubane stated the Department need not start afresh on the Bill, as
the only consideration previously was that they had not followed proper
procedures and had full consultation with the public on the Bill. What needed
to be looked into now was whether the provinces had followed the right
processes and whether meetings with stakeholders had been held properly
Ms Mazibuko stated that she agreed and that possibly the provinces needed
clarity on the issues. The Department of Health (DOH) should flag the issues
coming from the amendment. This was a
process to allow provinces to have public hearings and ensure that all issues
raised that pertained to the amendments could be considered. Other comments not
relating to the Bill were not relevant to the present discussions.
The Chairperson stated that public participation was the only issue and that on
21 September the matter would be debated in the House.
Mr Setona confirmed that legal services would check the Bill before it was
signed.
Traditional Health Practitioners Bill
Representatives of the provinces detailed their negotiating mandates as
follows:
Eastern Cape
Ms A Qikani (UDM, Eastern Cape) stated that the Legal Advisor of the
Legislature briefed the Portfolio Committee on the content and effect of the
Bill and the Committee further conducted public hearings around the province
for the period of a week.
The negotiating mandates were as follows:
-Clause 7(a) of the Bill: for the Traditional Practitioner to qualify for
appointment as the chairperson or the vice-chairperson of the Council, he
should have practised as a traditional practitioner for a period of not less
than five years prior to the date of appointment
-Clause 7(e) of the Bill: this clause should be reworded to refer to admitted
Attorney or Advocate with at least five years experience related to Traditional
Health Practises
-Clause 7(h) of the Bill: the community representative referred to in this
clause must have knowledge of Traditional Health Practises
-Clause 7(i) of the Bill: the representatives referred to in this clause must
be practising as such in the specific categories for a period of not less than
five years prior to the date of appointment
-Clause 9(g) the organised Traditional Healers of the Eastern Cape have also
strongly suggested that this clause be removed
-There should be provision that required the rehabilitation of the land after
digging of the herbs.
-The Council should be cascaded down to the level of the provinces and
municipalities so that it could be accessible
-Provision should be made for a referral system from the traditional health
practitioner to western practitioners, and vice versa, and traditional health
practitioners should have access to the use of medical aid funds
General Concerns that were raised during the public hearings without any
specific reference to a particular clause were:
-Traditional healers will have a status similar to that of medical doctors even
though they did not have any training
-There was no measurable standard for qualification or training of a
traditional healer
-The Bill precluded accountability on the part of traditional healers by
providing communications with ancestral spirits in traditional health practice
-Traditional health practise did not have to be supported by science
-Traditional medicine did not have to be registered, nor did the contents have
to be disclosed and there was no provision regulating or at least encouraging
transparency regarding the contents of traditional medicine
-Traditional Healers should be held to the same laws and standards that
governed all aspects of society in relation to the treatment of human life
-Unidentified and untested substances should not be approved for human use.
Free State
Mr T Setona (ANC, Free State) stated that authority for the adoption of the
Bill was conferred.
Gauteng
Ms N Madlala-Magubane (ANC, Gauteng) stated that public hearings were held
on the 14 August, which involved nine stakeholders and members. It was negotiated that the Health Portfolio
Committee and the Gauteng Department of Health supported the principle and
detail of the Traditional Health Practitioners Bill. Details of the public
submissions were contained in the document
Kwazulu-Natal
Ms J Vilakazi (IFP, Kwazulu-Natal) stated that there was support for the
Bill, subject to the amendments set out. These were -
- Insertion of a new subclause 6(o)
- Amendment of Clauses 7(a), (b), (h) and (i)
- Amendment of Clause 9 (g)
The delegation was further mandated to consider any additional amendments,
provided that the amendments did not alter the essential elements of the Bill,
and that consensus was reached by the KZN delegation on those amendments.
Limpopo
Ms F Mazibuko (ANC, Gauteng) stated on behalf of Limpopo that the
negotiating mandate was given to the delegates to negotiate in favour of the
Bill. However, certain recommendations were made in relation to Clause s7(1),
(b), (c) and (h), as more fully set out in the attached document.
Mpumalanga
Mr B Tolo (ANC, Mpumalanga) stated that after public hearings Mpumalanga
conferred to the mandate.
Northern Cape
Mr M Sulliman (ANC, Northern Cape) stated that the committee was briefed on
the 7 August by himself and public hearings were conducted in the different
regions. The committee also received
written public input from other stakeholders and the legislature mandated the
representatives to indicate this province's support of the Bill.
North West
Mr B Tolo (ANC, Mpumalanga) stated on behalf of the North West their
position to confer the mandate in favour of the legislation.
Western Cape
Ms F Mazibuko (ANC, Gauteng) conferred the authority in their absence to
support the Bill subject to amendments mentioned and confer the mandate to vote
in favour.
Discussion
Mr Setona (ANC, Free State) stated that this was a Section 76 Bill and
that if the National Assembly chose to amend it, it would have to come back to
the NCOP. At this point only two weeks
were left before the closing of the term.
With regard to the Traditional Healers there was both a constitutional
and legal question. Thorough consideration would need to be given to all
parties involved if the legislation would be delayed.
Mr Sulliman concurred with Mr Setona and suggested that the committee have a
meeting before the final consideration of the Bill.
Ms Matsau stated that for the Department to give their input would be useful.
Input from the National House of Traditional Healers would be useful as well.
The Chairperson stated that a further meeting would be arranged to discuss all
the issues.
The meeting was adjourned.