PROCEEDINGS OF THE NATIONAL ASSEMBLY

                                ____

      CHANGES IN PARTY MEMBERSHIP AS A RESULT OF FLOOR-CROSSING


                           (Announcement)

                     Municipal imbizo programme

    Representations regarding former Deputy President Jacob Zuma

                Application for presidential pardons

             Regional Progressive Governance Conference

 Sustained and adequate economic growth and development are dependent on
 the existence of various macroconditions, namely, inter alia,
 democracy, good governance, the rule of law and property rights.

     Promotion of the transformation and reconciliation process

          Effect of Second National Anti-Corruption Summit

 The saga of dishonest or inefficient auditors which further emerged
 during the course of the investigations conducted by the commission
 belied the generally perceived honesty, integrity, efficiency and
 independence of auditors.

 It became apparent that, with a few notable exceptions, the auditors
 involved seemed to believe that in addition to auditing the books of a
 company, their function was to assist and protect the management of
 such company as far as possible. They also seemed to believe that the
 end justifies the means.

 Governance does not mean mere government. It means the framework of
 rules, institutions and established practices that set limits and give
 incentives for the behaviour of individuals, organisations and firms.


 Without strong governance, the dangers of global conflicts could be a
 reality of the 21st century: trade wars promoting national corporate
 interests, uncontrolled financial volatility setting off civil
 conflicts, untamed global crime infecting safe neighbourhoods and
 criminalising business and the police.

            ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS

 (1)    The Minister of Finance


    Auditing Profession Bill [B 31 – 2005] (National Assembly – sec 75)
    [Bill and prior notice of its introduction published in Government
    Gazette No 27981 of 30 August 2005.]


     Introduction and referral to the Portfolio Committee on Finance of
     the National Assembly, as well as referral to the Joint Tagging
     Mechanism (JTM) for classification in terms of Joint Rule 160, on
     9 September 2005.


     In terms of Joint Rule 154 written views on the classification of
     the Bill may be submitted to the Joint Tagging Mechanism (JTM)
     within three parliamentary working days.

Membership status of the following members has in terms of Schedule 6A
of the Constitution (floor-crossing) changed, as follows:


  • Rev M S Khumalo and Adv Z L Madasa, on 6 September 2005, have left
    the African Christian Democratic Party (ACDP) and joined the
    African National Congress (ANC).

(a)     Report and Financial Statements of Vote 8 – National Treasury
    for 2004-2005, including the Report of the Auditor-General on the
    Financial Statements for 2004-2005 [RP 51-2005].

(a)     Report and Financial Statements of the Council on Higher
    Education (CHE) for 2004-2005, including the Report of the Auditor-
    General on the Financial Statements for 2004-2005.

(a)     Report and Financial Statements of the Nelson Mandela National
    Museum for 2004-2005, including the Report of the Auditor-General
    on the Financial Statements for 2004-2005 [RP 160-2005].

(b)     Report and Financial Statements of the South African Heritage
    Resources Agency for 2004-2005, including the Report of the Auditor-
    General on the Financial Statements for 2004-2005 [RP 182-2005].

(c)     Report and Financial Statements of the National Heritage
    Council for 2004-2005, including the Report of the Auditor-General
    on the Financial Statements for 2004-2005 [RP 157-2005].

 a) Accession of South Africa’s Membership of the International Centre
    for Scientific and Technical Information (ICSTI), tabled in terms
    of section 231(2) of the Constitution, 1996.

 b) Explanatory Memorandum Accession of South Africa’s Membership of
    the International Centre for Scientific and Technical Information
    (ICSTI).

(a)     Report and Financial Statements of the South African Medical
    Research Council (MRC) for 2004-2005, including the Report of the
    Auditor-General on the Financial Statements for 2004-2005 [RP 91-
    2002].

(b)     Report and Financial Statements of the National Health
    Laboratory Service (NHLS) for 2001-2002, 2002-2003, 2003-2004, 2004-
    2005, including the Report of the Independent Auditors on the
    Financial Statements for 2002-2003, 2003-2004, 2004-2005.

 a) Report and Financial Statements of the South African Sports
    Commission for 2004-2005, including the Report of the Auditor-
    General on the Financial Statements for 2004-2005 [RP 65-2005].

 b) Report and Financial Statements of the South African Institute for
    Drug-Free Sport for 2004-2005, including the Report of the Auditor-
    General on the Financial Statements for 2004-2005 [RP 161-2005].

The Portfolio Committee on Social Development having held a workshop on
the Children’s Bill (B70-2003)(Reintroduced) from 12-13 April 2005 at
the Cape Town International Convention Centre, reports as follows:

Introduction


The Portfolio Committee on Social Development held a two-day workshop
on 12 and 13 April 2005 in order to seek clarity on certain policy
issues related to the Children’s Bill [B70 – 2003 (Reintroduced)]. The
workshop was held at the Cape Town International Convention Centre, and
was attended by Members of Parliament, representatives of civil society
organisations, child protection practitioners, academics, legal
advisors and officials from the Department of Social Development.




   Day 1




Intersectoral cooperation



 Presentation by Ms Paula Proudlock, Children’s Bill Working Group
 (CBWG)


The presentation noted that it was important to ensure that the Bill
provides the necessary legal framework for the realisation of South
Africa’s obligations to children. It noted that not all of the
children’s rights in the Constitution are relevant to the Children’s
Bill, and argued that it would be important to list the right that the
Bill is trying to give effect to. This could be captured in the objects
clause, which will ensure that the substantive provisions in the Bill
flow from the statement of rights. It could also help identifying roles
and responsibilities on the side of the state and other service
providers, as well as clarify whether a service should be compulsory or
discretionary (the Minister must/the Minister may).


The presentation listed the rights that the Children’s Working Group
believes are directly relevant in the Bill. They include the right to:


• family or parental care, or appropriate alternative care
• social services
     • protection against maltreatment, neglect, abuse or degradation
• freedom from all forms of violence
• protection against exploitative labour practices
     • have a legal representative appointed at state expense in civil
       proceedings where appropriate
     • basic education (insofar as this right relates to early
       childhood development programmes)


In addition, the Bill should also address the constitutional imperative
that the best interests of the child are paramount in every matter
concerning the child. It was also argued that the Bill could indicate
that it was aimed at partially realising a right, as there are a number
of other vehicles for realising children’s rights, such as policy
documents, programmes and administrative action. The Children’s Bill
Working Group argued that the enumeration of rights should be followed
by a clarification of what the child is entitled to, who must take
responsibility for fulfilling the right, and what the nature and extent
of the obligation on the State is in this regard. It should further
follow that the substantive provisions that follow in the Bill are
based on the constitutional rights listed earlier.


In conclusion, the presentation noted that Parliament was bound by the
Constitution recognising children’s rights in legislation, and to hold
the Executive accountable for the implementation of the law. The
Children’s Bill should create the obligation on the Executive to
recognise children’s rights and to implement programmes and services
that will realise these rights, even if the law can only be implemented
in phases because of a lack of resources.



Discussion



Members noted that certain aspects of the chapter dealing with
children’s rights had not been covered in the presentation, and asked
how clauses 3 and 4, for example, should be dealt with. It was also
pointed out that the Committee wanted to establish a framework for the
interpretation of the rights mentioned. In response, the presenter
argued that the rights listed in the South African Law Reform
Commission (SALRC) version of the Bill included rights that do not
really fall within the ambit of the Children’s Bill. While it would be
best to retain a children’s rights chapter in some form, the inclusion
of the relevant rights in the long title and the preamble of the Bill
would go a long way to resolving the issue.


Presentation by Advocate Anne Skelton, Centre for Child Law, University
of the Witwatersrand
The presentation noted that an understanding of the need for a
children’s rights chapter could start “from the bottom up”, which would
clarify the need for the Bill to include a mechanism for intersectoral
cooperation.



  Discussion



Members noted that the question of how Government envisaged interaction
across the three levels of government and between departments, was
being addressed by the Intergovernmental Relations Bill, and that this
Bill could possibly have a bearing on how the Children’s Bill would be
implemented. Chapters 1 to 3 of the Bill should provide the tools with
which to drive its implementation, and are structured in accordance
with how the SALRC conceptualised it. However, it would be better to
follow the route suggested by the CBWG in that the Bill focuses on
realising particular children’s rights, and to state these rights in
the “objectives” clause. This would mean that the largest part of
chapter 3 could be omitted.


In relation to whether the Bill should provide for an intersectoral
committee, it was argued that Cabinet had clearly rejected this concept
for the Children’s Bill. The Office on the Rights of the Child had not
responded satisfactorily on the question of what responsibility they
could take to ensure intersectoral collaboration. Members expressed
their doubt about whether an intersectoral committee provided for in
the Bill would be the appropriate vehicle for the purpose of
implementing the legislation. A participant noted that the draft
intergovernmental relations Bill would speak to the relationship
between the three teirs of government, and not to the relationships
between government departments. It was further argued that Cabinet had
not necessarily rejected the concept of an intersectoral committee
being provided for in legislation, as the Child Justice Bill provides
for such a mechanism. Finally, it was proposed that this mechanism be
considered for inclusion in the Regulations to the Children’s Bill, and
that the Committee be empowered to create the policy framework that had
been envisaged with the National Policy Framework in the draft SALRC
Bill. However, the question was raised whether policymaking was not the
exclusive prerogative of the Executive.



   Protection of the rights and interests of minors: guardianship



Presentation by Mr Hendrik van der Merwe, Office of the Master of the
 High Court


The presentation set out the functions of the Master of the High Court
in relation to children, noting that it generally involved protecting
the rights and interests of minor children that are the heirs or
creditors in deceased estates. This includes appointing tutors or
curators to handle the minor’s affairs, holding funds on behalf of a
minor or handling claims for maintenance against a deceased estate. It
was further noted that the Master’s handling of matters where the
interests of a minor are concerned with great diligence and in strict
adherence to regulations.


In relation to the phenomenon of “property grabbing”, it was noted that
this happens generally not because children’s property is not protected
by law, but because people generally, and children in particular, are
not aware of their rights. The Master’s Branch is currently consulting
with the Department of Education on the possibility of including the
relevant information in the life skills curriculum.


The presentation further pointed out that the Master’s Office would
under no circumstances, appoint a child to administer a deceased
estate, as the requirement in this regard is that the person appointed
must be 21 and have legal capacity. It is only in the case of a minor
that has been emancipated, or when the age of majority is lowered to
18, that this will change. However, the growing number of orphans in
South Africa results in the Master’s Office regularly receiving
requests for the appointment of a guardian over minors, not so much in
order to administer children’s estates, but to act in the various other
capacities for which the consent of a parent or guardian is normally
required. The appointment of a tutor is not always the appropriate
response, as it might not serve the purpose for which the request was
lodged, and High Court applications for the awarding of guardianship is
a lengthy and cumbersome process.


In discussions between the Master’s Office, Social Services, Family
Advocates and the Registrar of the High Court, it emerged that the most
feasible solution would be for caregivers to apply to be appointed as
foster parents. This could also entitle the family to State support in
the form of the foster care grant.


Discussion


During the discussion, Members asked what the opinion of the Master’s
Office would be with regard to the proposal to award child-headed
households full legal capacity. In addition, the question of the role
of the Master’s office in cases where minor children inherit property
was raised. Members also wanted to know whether, in light of the fact
that services from the Master’s office are being made available at
certain magistrates’ courts, the Master would also deal with questions
of guardianship.


In response, the presenter said that where there are no parents, the
Master’s office must identify persons to take charge of the property,
for example, at a meeting of family members. In such cases, a tutor
could be appointed, but the options are limited by the relevant
legislation. Where a minor has been left with property, the Master must
appoint someone to act as tutor or caretaker. Tutors have limited
responsibilities, although there have been instances where tutors have
been allowed wider functions. When the sale or transfer of the fixed
property is at stake, any proceeds from such a transaction will be
transferred to the Master’s Trust. The person in whose care the child
is placed by the Department of Social Development is often the person
to whom money will eventually be transferred. However, there are no
clear guarantees that the money will be used for the benefit of the
child.


In relation to customary law, the presenter noted that there are some
issues around adoption that are proving to be a challenge. In terms of
current law and the Children’s Bill, only court-approved adoptions are
valid; however, the Bill does not address the de facto situation with
regard to customary adoptions.


Members raised the issue of whether magistrates’ courts would be able
to deal with issues of deceased estates, given the fact that until the
Moseneke case, the estates of black persons were as a matter of law
dealt with by magistrates. In response, the presenter said that there
are serious capacity limitations with regard to magistrates, and only
estates with a value of less than R50 000 are currently devolved to
staff at magistrates court level. It was also pointed out that the
“service points” referred to are currently in a pilot phase, and it is
not thought to be feasible at this point to devolve the responsibility
of appointing tutors and taking charge of children’s property rights to
this level of office.


Further discussion on the matter made it clear that the difference
between parental rights and responsibilities and guardianship must be
explored further. These questions must also be raised within the
context of possible conflicts between, for example, communal land
ownership and the statutes that guarantee property rights in an
individual capacity, the role of tribal authorities in implementing
laws regarding children, and the question whether the children are
protected. A further question of whether the law should allow for
automatic rights and responsibilities on the basis of blood, and
whether these rights and responsibilities should be awarded on the
basis of merit, irrespective of blood relationships. Once more, the
questions relate to how the new law will affect the customary practice
where people take care of children without undergoing formal processes
in the courts, and to the measures available to protect children should
disputes arise between different family members. Informal kinship
arrangements are being made every day, and the question is whether
these must all be formalised, given the difficulties people in rural
areas have in accessing courts.


Members noted that the issues around parental rights and
responsibilities introduce new dynamics into the common law as it
relates, for example, to custody. Clause 45(1) provides that the
magistrates’ court could deal with issues of custody, which raises the
question whether the Bill aims to amend the common law definition of
custody. It was also pointed out that the Recognition of Customary
Marriages Act provides for a magistrates court to issue a certificate
stating that a couple have been married. It could, therefore, be useful
to explore whether such a mechanism could not be introduced for the
purpose of facilitating customary adoptions or care situations.


The discussions on the manner in which guardianship is conceptualised
suggested that the relationship between guardianship, parental rights
and responsibilities and custody, and in what manner they should be
dealt with, needed to be revisited. However, some members expressed a
preference for awarding magistrates the authority to deal with
guardianship. The Bill needed to clarify the different concepts, and
ensure that there is harmony between the different practices and legal
frameworks that relate to children.


Virginity testing


Submission by the Commission on Gender Equality (CGE)


The submission, focusing on the interests and rights of the girl child,
noted that children’s rights are constitutionally guaranteed, including
the child’s right to bodily integrity. It also noted that Section 28 of
the Constitution provides that children should be free from violence,
coercion, discrimination, intimidation and abuse. The submission
further pointed out that Section 12 of the Constitution guarantees
freedom and security of the person, which again includes the right to
physical integrity, while Section 14 states that everyone has the right
to privacy. Against this background, it was argued that virginity
testing constitutes an infringement on the child’s constitutional
rights. Virginity testing, whether with the child’s consent or not, is
an invasion of privacy, while disclosing a child’s virginity status is
a further invasion of privacy. In this respect, the submission argued
that the Bill does not protect children adequately, as it does not
provide for non-disclosure of the girl child’s virginity status to
someone other than the child. The submission also questioned whether
children ever participate in the practice freely and through informed
consent, as it could be argued that parental coercion and social
pressure under the guise of culture could play an important role in the
process.


The next section of the submission explored the question of whether the
limitations clause in the Constitution (Section 36) could be invoked to
allow for the above-mentioned infringement on the child’s rights in a
context where social demands could override the child’s right to
privacy and bodily integrity. The submission argued that the
justification of practising virginity testing in the name of “culture”
is a contested issue, and that the results of the test can be
unreliable, as the hymen can be ruptured without sexual penetration. In
addition, with regards to using the practice as part of the fight
against HIV and AIDS, it was argued that there should be less invasive
means of addressing the pandemic, such as educating and empowering
children to make informed choices with regard to their sexuality.


The Children’s Bill does not prohibit virginity testing, but provides
that the child has the right to refuse testing. It was the view of the
submission that the Bill does not adequately protect children.


With regard to gender equality, the submission held that Section 8 of
The Promotion of Equality and Prevention of Unfair Discrimination Act
(Act No. 4 of 2000) prohibits any practice, including traditional,
customary or religious practice, which impairs the dignity of women,
and undermines equality between women and men”. These provisions must
be seen in the context of practices that place a higher value on women
who are virgins, while the woman who is not a virgin upon marriage, is
vulnerable to abuse from her husband because of the lower esteem in
which she is held. On this basis, it was argued that virginity testing
impairs the dignity of the girl child, and exposes her to
stigmatisation and abuse. It was also noted that while in some
instances, boys are also subjected to virginity testing, the practice
is far more prevalent in relation to girls, and therefore discriminates
against the girl child on the basis of gender.


The CGE raised concern about a number of specific issues in clause 12
of the Children’s Bill:


     • While the clause provides that a child may refuse to undergo a
       virginity test, the Bill does not require the child’s consent to
       be tested.


     • No penalties are stipulated for non-compliance with unhygienic
       virginity testing.


• No procedure is prescribed in respect of the test.


     • The Bill does not provide for confidentiality in respect of the
       results of a virginity test.


In conclusion, the submission noted that the CGE does not support
virginity testing, and while every person has the right to practise
their culture, this must be done in accordance with the Constitution.


Discussion
The presenter was asked whether children would have the option of not
being tested for virginity. In response, the presenter said that this
would be the case, but that it would have to be accompanied with the
appropriate information on the reason for doing a virginity test.


In the ensuing discussion, Members raised a number of questions
relating to the manner in which the clause had been phrased. 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. In addition, consideration should be given to whether
the practices must be prohibited below a certain age in order to allow
children to participate meaningfully in decisions around virginity
testing and circumcision. It was pointed out that the practice of
virginity testing was not necessarily an effective deterrent against
sexual activity among young girls, and that the labelling that was
associated with the practice could stigmatise a girl in a community. At
the same time, there has been evidence that being identified as a
virgin could make a young girl vulnerable to being raped by men who
believe that having sex with a virgin could cure them from HIV. The
Committee should therefore also consider whether the Bill should
address possible discrimination should a girl refuse to be tested, or
should the test reveal that she was no longer a virgin.


One of the participants noted that the original wording proposed by the
SALRC had been “potentially harmful practices” in order to make it
clear that there was divergence of opinion on the matter. The earlier
proposal also called for education programmes aimed at informing
communities about the different debates on these cultural practices. In
addition, the possibility was mentioned of removing the common law
defence with regard to virginity testing, and that someone could be
charged with indecent assault, should a girl be tested against her
will.


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.


Corporal punishment


Presentation by Ms Linda Mngomezulu, South African National Civic
Organisation (SANCO)


The submission by SANCO noted that corporal punishment is rooted in the
history of power-centred societies where some individuals retain power
and control over others through coercion and force. Although a
substantial amount of work has been done to develop methods that
provide an alternative to “smacks and spanks”, these have not been
translated into training programmes aimed at instilling a different
style of parenting. Child psychologists have also clearly shown the
emotional damage that corporal punishment causes young people, and the
paper argued that corporal punishment could be viewed as a precursor to
intolerance and violence in society. Some of the after-effects of
corporal punishment highlighted in the paper include repeating domestic
and family violence, road rage and unstable emotional relationships as
adults. The paper also warned that the immediate removal of corporal
punishment could cause serious problems, as the family is already under
tremendous pressure to cope with the changes in a society in
transition. Unless parents are assisted adequately to apply alternative
methods of disciplining children, they might feel that they are losing
control of their families completely, and this may lead to complete
disintegration of families.


Despite the caution mentioned, the presentation argued that there
should be no corporal punishment of any kind, and that South Africans
must find other, more effective ways of enforcing discipline. These new
methods should be phased in through the promotion of a different
lifestyle, rather than through a “dry legislative approach”. In
addition, the criminalisation of parents must be delayed until new
methods have adequately been absorbed and internalised by society.


Presentation by Carol Bower, RAPCAN


The presenter noted that, although corporal punishment has already been
banned in the public sphere, there are many people who believe that it
cannot be banned in the private sphere. RAPCAN argued that there are
many clear links between corporal punishment and difficulties later in
life. Given the fact that South Africans are trying to come to terms
with the remnants of a violent past, and given the high levels of
violence still prevalent in the country, children should be taught that
violence is not an appropriate response to a difficult situation.


In relation to the argument that corporal punishment is sanctioned in
the Bible, the presenter pointed out that many of the forms of
chastisement proposed in the Bible have already been outlawed, such as
cutting off the hand of someone who steals, or stoning to death someone
who commits adultery. It was more important, according to the
presenter, to explore what it is that corporal punishment teaches the
child. It does not teach the child discipline, but rather that violence
is an acceptable form of behaviour. Discipline should be a process and
not an event. Therefore, corporal punishment should be banned with the
clear realisation that discipline in the home is a difficult area, and
that a radical change of attitude is required from all parents. Parents
must be taught how to address discipline, and be provided with
alternatives to beating their child.


Discussion


Members said that there was not much disagreement on the principle that
corporal punishment must be replaced with alternative forms of
discipline, but noted that there would be questions around implementing
education and parenting programmes to deal with issues of discipline.
The presenter responded by saying that it is already a crime to assault
one’s child, but that parents still have recourse to the common law
defence of reasonable chastisement. Organisations are not calling for a
flood of criminal charges against parents, but for the start of a
process of changing attitudes. The starting point would be to recognise
that violence against the child is not acceptable, and that it is an
infringement on the child’s right not to be degraded.



Presentation by Dr Moses Thindisa



The presenter argued that there is a difference between abuse and
physical punishment that is appropriate. He called for legislators to
refrain from being prescriptive to the point where parents are not able
to decide for themselves how to raise their children. In the discussion
that followed his remarks, participants noted that when one says it is
in order to apply corporal punishment, one has to consider what is
appropriate and when it becomes abusive.


Children’s right to consent to medical treatment



Presentation by Dr Eva Seobi



The presentation focused on the difficulties experienced by medical
personnel when dealing with children who have to make decisions
concerning medical treatment such as termination of pregnancies or
access to contraceptives. The presenter noted that children below 16
are not equipped to make informed decisions on their own. When asked
about whether they are sexually active, children often reply in the
negative, and indicate that they are not interested in contraceptives.
However, the very same children often present at health facilities when
they are pregnant or when they have contracted sexually transmitted
infections. It was therefore argued that the provisions in the Bill
regarding children’s right to make decisions about medical treatment
and reproductive rights are inappropriate, and that children should
always make such decisions under the guidance of their parents or
guardians.


   HIV testing of children


Presentation by Dr Janet Giddy, Director of HIV Programmes at McCord’s
Hospital, KwaZulu-Natal


The presenter noted that the law had not kept pace with the HIV
pandemic, and that a    number of ethical dilemmas have already arisen
with regard to rapid testing for HIV. The greater availability of HIV
treatment has impacted on people’s willingness to come forward and seek
treatment. Treatment has also reduced the stigma attached to HIV and
AIDS, and the entire conceptualisation of the condition appears to be
changing.


Dr Giddy argued that the scope of who may consent to HIV testing of
children must be widened, and expressed support for the age limit of 12
as proposed in the Bill. However, one must also consider allowing
informal caregivers to assist children in making the decision, and to
give consent where the child is unable to do so himself/herself.
However, the question that arose was what rights the child would have
to refuse testing if he or she did not want to be tested.

Day 2



  Impact of the Children’s Bill on common and customary law


Submission by Professor Chuma Himonga (Faculty of Law, University of
Cape Town)



General comments


The submission noted that the Children’s Bill should not proceed on the
assumption that African traditional institutions do not and cannot be
expected to protect children because of the patriarchal nature of
traditional society. It argued that living customary law is, unlike
official customary law, dynamic, flexible and adapts to changing
conditions. Therefore, and because it should not be assumed that
traditional leaders are not influenced in their thinking by the values
of the Constitution, they should not be excluded by the Bill from
dealing with children’s issues in appropriate cases. This is especially
important because they are close to the communities where children live
in rural areas.


But even in the case where traditional leaders still apply patriarchal
norms, the solution seems to be to educate them about the
constitutional values, rather than to exclude them from exercising any
jurisdiction over children under the Bill. In fact, it seems inevitable
that the Bill should make provision for education and awareness-raising
programmes concerning the specific roles for traditional leaders and
the staff of all other institutions charged with the responsibility of
administering the Act who do not have professional legal training or
training in human rights and values.


The submission argued that, in light of the inaccessibility of the
courts in broad terms, the emphasis for the protection of children must
be on community responses, for example, through families, local
community leaders and organisations operating at community level rather
than through courts as a primary approach. If courts are to be used, it
must be those that are close to the community in location and are
accessible in terms of procedures, cost etc.


The Constitution and other international children’s rights instruments
give recognition to the role of parents and the family in so far as
they place the primary responsibility for the upbringing and the
development of children upon the families of the children. Normal
parents know their children and their needs better than anyone else
does, and they ‘will be more concerned as well as better able than
anyone else to ensure that whatever action they take will serve their
children’s welfare. In addition, it was argued that the exercising of
parental rights and responsibilities in this context does not
necessarily undermine the idea of children’s rights generally. Since
society assigns child-rearing responsibilities largely to the family,
it could therefore be argued that it is reasonable to accord the family
as well some significant discretion in imparting its values to the
children within it.


The submission warned against the practice of simply adopting
approaches to the protection of children from other countries without
due regard to the special circumstances pertaining to South Africa as
an African country, with constitutionally protected diverse cultures
and religions. It was pointed out that the rights of the child in the
Bill of Rights are limited. Their protection should not be taken as
absolute, to the exclusion of other legitimate interest of society.
There is also a need for a healthy balance between the child’s autonomy
rights (i.e. rights that recognise self-determination) and the rights
and responsibility of parents to bring up children and to help them
develop into responsible adults.


In conclusion to the general comments, the submission argued that a
statute dealing with children should strive to avoid, as much as
possible, unclear and complex language that will require interpretation
by courts and consequent litigation, as many people will simply not be
able to afford litigation to the detriment of children. This would be a
difficult issue, as many of the topics dealt with in the Bill fall
within the ambit of constitutional rights, which would require
interpretation by courts and not by ordinary citizens or traditional
authorities etc.
The extent to which the Bill repeals common and customary laws
particularly in relation to certain cultural practices in customary law


The submission noted that the scope of the Bill was so wide that it
would not be possible to point to all the instances where common law
and customary law would be affected. The comments would therefore be
focused at a general level and at the level of specific reference to
clauses 8 and 12.


General


In the first place, the submission argued that, in light of the fact
that legislation takes precedence over common law, any rule of common
law which conflicts with the provisions of the Bill will be replaced by
the Bill, while rules of common law that do not conflict with the Bill
will remain in operation. If the intention of the Bill is to repeal all
common law rules concerning children this should be made clear by a
general provision in the Bill to the effect that the Act applies
notwithstanding any common law to the contrary.


There is, however, no rule of interpretation stating that in the event
of a conflict between customary law and any legislation, the latter
prevails, and it was argued that such a rule would be contrary to s 211
(3) of the Constitution which provides that ‘the courts must apply
customary law when it is applicable, subject to the Constitution and
any legislation that specifically deals with customary law.’ In so far
as the Bill does not ‘specifically deal with customary law’ it does not
exclude customary law from applying ‘when it is applicable.’ If,
therefore, the choice-of-law rules indicate that customary law applies
to a matter before the court, then it will be bound to apply customary
law and not common law or the Children’s Act. The factors that are
currently used to determine whether customary law applies to a matter
before the court include the agreement of the parties, the nature of
the transaction, the lifestyle of the parties, and the environment of
the transaction. Consequently, customary law continues to apply in most
areas covered by the Bill unless it is contrary to the Constitution.


The submission argued that the effect of this is, for example, that the
provisions of chapter 4 of the Bill on parental responsibilities and
rights would not prevail over customary law on parental
responsibilities and rights. One option for dealing with this difficult
area would be to include a general provision in the Bill stating that
the provisions of the Bill apply notwithstanding any rule of customary
law to the contrary. The effect of such a provision, it was argued,
would be to wipe out all customary law, including customary law that
does not infringe the Constitution. But this risks a constitutional
challenge against the Bill on the ground that it infringes ss 15, 30,
31 and 211(3) of the Constitution, all of which recognise customary law
subject to the Constitution and the Constitution only (or in the case
of s211 (3), subject to the Constitution and to legislation dealing
specifically with customary law).


The second option offered by the submission is to ‘integrate’ customary
rules that are consistent with the Constitution into the Children’s
Bill, thereby removing the separate co-existence of customary law and
the Bill.


The third option is to leave the position as it is and let the two
systems run parallel to each other, with people opting for whatever
system they choose to use. However, it was noted that this raises the
question of how to determine which children will continue to be
governed by customary law and which children will be governed by the
Children’s Act. It was argued that there is a need for the Bill to
provide for the application of the Act in terms of which children it
will apply to. The current choice-of-law rules for determining what
system of law to apply when there is a conflict between customary law
and the common have been developed by the courts, but the submission
argued that they are not appropriate for resolving the question of the
application of the Children’s Act.


Clauses 8 and 12


Clause 8 provides for the resolution of conflicts between other
legislation and Chapter 3, but not for the resolution of conflicts
between customary law or common law and the chapter. In the event of a
conflict between customary law and the rights of the child in Chapter 3
(which are similar to the rights of the child in Chapter 2 of the
Constitution), the latter should prevail unless the conflicting rule of
customary law can be given precedence in terms of s 36(1) of the
Constitution. This is because no customary right may limit a right
entrenched in the Bill of Rights unless the constitutional right is
limited by s 36(1). However, it was argued that in order to carry out
this intention, clause 8 would need to be expanded to include customary
law. The clause could also be expanded to the effect that in the event
of a conflict between a provision of Chapter 3 and any other
legislation or common law or customary law, the provisions of this
Chapter prevail (subject to the Constitution) except – (a) to the
extent that such other legislation or common law or customary law is or
could…’


 This amendment creates room for the preservation under clause 8(a) of a
 rule or principle of common law or customary law that, though contrary
 to the rights of the child guaranteed in Vhapter 3, is not contrary to
 the Constitution or is justifiable and reasonable, in terms of s 36 of
 the Constitution.


 With regard to clause 12 of the Bill, which clearly prohibits any
 harmful cultural practice that affects the well-being, health or
 dignity of the child, the submission argued that all customary
 practices that are harmful to the child are repealed, unless they are
 “saved” by clause 8(a) of the Bill. Whether or not the practices in
 question are covered by this clause will be a matter, presumably, of
 judicial interpretation. However, the need for judicial interpretation
 will increase the need for litigation.


 The next question posed by the submission was what the harmful
 practices contemplated by clause 12 are, since the Bill does not define
 them. The submission argued that this raises the danger that not all
 harmful practices are prohibited or that only practices of certain
 communities are targeted. It would appear that only the cultural
 practices of child betrothal, child marriage, marriage without consent
 of the parties to it, virginity testing and circumcision that are
 associated with customary law, and therefore with Black South Africans,
 are prohibited or regulated under clause 12. In comparison, the
 submission pointed out, other practices that could be termed harmful,
 depending on who is looking at them, are not prohibited. A related
 question is how the harmfulness of some of the specifically named
 cultural practices, such as virginity testing, has been established in
 the absence of scientific empirical research, as opposed to anecdotal
 research that shows that they are indeed harmful.


 The submission therefore recommended that a definition of harmful
 cultural practices be included in the Bill, and that practices
 identified as harmful be prohibited outright. Practices that are not
 covered by this definition should not be prohibited. The challenge
 would be how to define harmful cultural practices, and to consider
 whether it is the best interests of the child alone that must be taken
 into consideration, or the legitimate needs or interests of the child’s
 family or community as well.


Chastisement under customary law and common law


The submission noted that both customary law and the common law permit
chastisement as a method of disciplining children. In customary law,
this method is not always restricted to parents; other adult members of
the community may use it to discipline the child of another person as
well. The submission argued that reasonable disciplinary chastisement
by the parent should not be prohibited, and that no criminal or civil
liability should attach to reasonable chastisement. In addition, there
must be recognition of the need to educate parents on parenting and
alternative methods of disciplining children, as well as the need for a
protection mechanism at the local level to protect children from abuse
by community child councils (or such other name) comprising of, for
example, local chiefs, family members of the child, the abused child,
members of the South African police,
psychologists/psychiatrists/educationalists, social workers and members
of community-based organisations.


It was argued that this mechanism should be directed at a restorative
justice model with prosecution as a last resort. In areas with
customary communities, the councils should incorporate acceptable
customary methods of dealing with offenders. In cases where a parent
exceeds reasonable chastisement and admits his or her responsibility
for abuse to the police, such parents should be diverted from being
charged and prosecuted by agreeing to attend the community council with
the aim of reaching an appropriate undertaking. This option, however,
would also require a minimum definition of what is reasonable corporal
punishment, taking into account the nature of what is done to the
child, its duration, frequency and effect on the child, as well as the
child’s age, and the child’s personal characteristics. The option
avoids the criminalisation of ordinary parents as opposed to abusive
parents.


The submission argued that the idea that a parent cannot even smack a
child on the bottom to discipline him or her is not likely to be
readily accepted by a lot of parents, and that the consultative process
by the South African Law Reform Commission on the question of corporal
punishment found no clear support for the outright abolition of this
method of disciplining children. Legislation on children is of little
benefit if it does not enjoy the broad support of families and
communities, but relies instead solely on law enforcement agencies to
implement it.


It was further argued that the concept of reasonableness in relation to
chastisement seems to provide a balance between the cultural rights or
religious rights of families connected with the upbringing of their
children on one hand, and the other rights, including the rights of the
child in the Constitution and international law on the other hand. The
provisions of the Children’s Bill and of other laws that punish the
conduct of parents resulting in the ill-treatment and the abuse of
children, such as legislation against domestic violence, the common law
offences of assault, assault with intent to cause grievous bodily harm
and attempted murder will still be available to protect the child
against parental abuse.


The submission argued that an approach that outlaws chastisement was a
hard and uncompromising child-rights approach in line with article 19
of the United Nations Convention on the Rights of the Child, which
protects the right of the child from all forms of physical or mental
violence, injury or abuse, and in line with constitutional rights.
Corporal punishment as a judicial sentence and as a disciplinary
measure at school was abolished by the Constitutional Court, because
the court considered it to be inhuman, degrading and an affront to
dignity, and it could not be saved by the limitations clause of the
Constitution. The above approach would therefore hold that all forms of
corporal punishment, whether under common law or customary law or in
the family, should be outlawed.


It was the contention of the submission that it would be difficult to
determine where to draw the line between reasonable chastisement and
abuse, and to monitor the conduct of parents to ensure that their
disciplinary measures remain reasonable. Therefore, the prohibition of
all forms of corporal punishment could be seen as a more effective
mechanism for protecting the child.


In relation to the third option, namely a prohibition of corporal
punishment without criminal penalties initially, but accompanied by a
‘comprehensive public awareness and education campaign and the
provision of the necessary supportive services for parents and
children, the submission noted that the advantage of this option is
that it would ‘ultimately encourage ways of child rearing which promote
dignity, respect and self-discipline.


With reference to sub clause 142 (3) which reads: “any legislation and
rule of common law or customary law authorising corporal punishment of
a child by a court, including the court of a traditional leader is
hereby repealed to the extent that it authorises such punishment”, the
submission argued that the Constitutional Court has already decided
that corporal punishment as a judicial sentence is unconstitutional,
and there is already legislation outlawing it. In so far as traditional
courts are part of the judiciary, they are not exempt from this law.


Succession


The submission noted that the practice of “property grabbing” is
harmful to children to the extent that it deprives them of a source of
livelihood, especially in light of the general breakdown of traditional
support systems for individuals that were anchored in kinship
relationships, as well as the conditions of poverty under which the
majority of people live. In these circumstances, the property left by
parents is a critical resource for the support of their minor children.




It was pointed out that the Constitutional Court’s decision in the case
of Bhe has settled the question of children’s rights to inherit from
their parents, albeit temporarily. The effect of the decision is that
all children, whether male or female or extra-marital are entitled to
inherit from their parents in terms of the Intestate Succession Act of
1987. This legal position will continue until Parliament has enacted
legislation regulating succession under customary law.


It was recommended that the Bill should not only prohibit any practice
that prevents children from inheriting from their parents, but that it
should also provide for children to inherit from their parents along
the lines of the temporary scheme instituted by the Constitutional
Court in the Bhe case.


Parental rights and Responsibility under customary law and the Link to
statutory law


Guardianship


The submission held that the parental rights and responsibilities
provided for in the Children’s Bill are at variance with customary law.
In terms of customary law, children are affiliated to their mother’s
husband and his family if he paid lobolo for her marriage, regardless
of who the biological father is. On the other hand, children of an
unmarried woman are affiliated to the head of her family and his
family. The support of the children is primarily the responsibility of
the family to which they are affiliated. The father has no
responsibility towards the support of his child unless he has acquired
guardianship through the system of affiliation of children discussed
above. Underlying the customary law of the child is the welfare of the
child, which is embedded in the group responsibility of the family of
the parent to which the children are affiliated.


Relation to statutory law


It was further argued that the provisions of the Bill conflict with s
8(4)(e) and (5) of the Recognition of Customary Marriages Act, which
make explicit reference to the role of customary law and traditional
leaders in relation to provision for maintenance after divorce and to
mediation in disputes before the dissolution of the marriage
respectively. The submission noted that this Act does not exclude
matters relating to children from the application of these provisions.
Since the provisions of the Bill do not override customary law, it may
be assumed that they do not prevail over any legislation that deals
specifically with customary law either. Thus the provisions of the
Recognition of Customary Marriages Act above are unaffected by those
provisions of the Bill with which they are in conflict.


Section 28(2) of the Constitution states that the best interests of the
child are of paramount importance in every matter concerning the child.
This principle is applicable to customary law as well. This would mean
that if the affiliation of the child or the notion of the best
interests of the child under customary law stated above is contrary to
the best interests of the child as perceived from the point of view of
the constitutional principle, then the latter would prevail over the
former. The decision-maker would therefore be required to apply the
constitutional principle to determine the issue of custody of the child
contrary to the system of customary law of affiliation of children
discussed above.
With regard to the guidelines to the interpretation of the best
interests of the child provided by clause 6 of the Bill, the submission
noted that they apparently accommodate customary law to the extent that
they make reference to the factors listed in clause 6(1)(a), (f), (h),
(j) and (k). They do not therefore conflict with the acquisition of
parental power under customary law. The other factors are in one way or
another at variance with the basic principles of affiliation of
children under customary law.


Forums for deciding matters relating to children


The Bill provides that only the High Court has jurisdiction over issues
of guardianship of the child. The submission argued that the High Court
should not have exclusive jurisdiction on matters of guardianship.
Instead, matters of parental responsibility and rights should also be
dealt with by traditional leaders, provided that they are properly
educated on the constitutional principles and values underlying the
rights of children, as well as by other lower courts. In addition, it
was argued that, in light of the HIV pandemic, as a result of which
adults die in quick succession, it would be extremely cumbersome for
several people to go to the High Court in succession to be appointed as
guardians of the same child every time the child’s guardian dies.


The submission proposed that the Bill provide for the jurisdiction of
traditional leaders in matters of guardianship, alongside with the
provision that they be afforded the education that is relevant to the
discharge of their jurisdiction in matters of guardianship. The
traditional leaders’ jurisdiction in this regard could be linked to the
community child council referred to earlier by, for example, requiring
the participation of the council in the hearing of disputes on
guardianship by traditional leaders’ courts.


Along with this recommendation, it was recommended that the Bill also
provide for automatic guardianship of children after the death of both
parents of the child. For example, adult siblings, grandparents,
uncles/ aunts etc should be guardians in that order, unless the best
interests of the child suggest otherwise. This would help minimise
uncertainties on the question of guardianship and obviate unnecessary
litigation over guardianship.



  Conceptualisation of foster care




 Presentation by Jackie Lofell – Johannesburg Child Welfare Society



The definition of  “foster care” has important implications for social
security, for example, the foster care grant. There is a need to make
some state aid available to informal caregivers to alleviate the
pressures from the foster care grant, as well as on children’s courts
and social workers. In addition, there is no sign of any growth in
child and family welfare service infrastructure to accommodate the huge
increase in foster care placements, and there are regular complaints
that services are being closed or curtailed because of lack of funding.



It has been noted that the country’s foster care system has become an
“income maintenance system” for families offering kinship care who lack
access to other forms of state aid. By allowing our foster care
services to become predominantly a means of accessing income support,
we are not only short-changing the poor families whom the system cannot
absorb in the vast numbers who are presenting themselves, but are
instead destroying all hope of ever responding properly to the children
who are being referred due to rape, assault and every other form of
active maltreatment.


There is a need to resolve whether the definition of “foster care”
should maintain the existing status of a “foster parent” or whether it
should include some aspects of guardianship. Limitations on the right
of foster parents, especially where guardianship issues are concerned,
often hamper their ability to carry out their parenting functions.
Furthermore, there is a need to redefine custody, to expand it in order
to insure that some aspects of guardianship fall within custody, for
example, some responsibilities such as school placement can be dealt
with by the custodian. Recognition should also be given to new forms of
foster care, to allow for greater mutual support and increased
flexibility of care arrangements



  Discussion



There is a need to re-conceptualise what kind of competencies to be
given to non-governmental organisations (NGOs), social workers and how
much power should be given to neighbours and other adults to support
child-headed households. It was argued that foster care should not be
used as a means to address the issue of child-headed households, but
instead consider a whole range of programmes. A flexible approach is
advocated, recognising that while some children in child-headed
households will end up in foster care or residential care, other should
remain in their homes. In order to give affect to the Bill, issues
around financing of NGOs must also be sorted out, since statutory child
protection services cannot be at the mercy of discretionary rules. In
addition, the whole system of remuneration for social workers (also in
the NGO sector) must be looked at seriously.



   Parental rights and responsibilities




Presentation by Professor Julia Sloth-Nielsen – University of the
 Western Cape



 The presentation argued that there was a need to modernise large tracts
of the law relating to children, i.e. reflecting the shift away from
outdated concepts of parental power and absolute control over children
to a legal framework that reflects their rights and responsibilities,
as mandated by both the Convention of the Right of the Child and
Section 28(1)(b) of the Constitution. In addition, there is a need to
accommodate the diversity of family forms that are found in South
Africa, ensuring that the traditional bias of the family is limited.
The approach in chapter 4 is to focus on pathological problems, instead
of the recognition that most biological parents want to do what is best
for their children.


The principled position should be maintained that a child’s status
connections (biological and legal) where parents are married to each
other, both would have rights and responsibilities in respect of their
biological children. There is a need to recognise the reality of social
parenting and the functional connections that children may have with a
variety of care-givers over the course of their childhood.


Allocating different aspects of parental responsibility to adults who
are exercising different roles and functions towards individual
children creates a future that is characterised by enhanced
flexibility. The Bill does not provide equal rights for unmarried
parents of children, and there is a need to re-examine the position of
unmarried fathers. While clause 21 indicates that if the father takes
care of the child for 12 months, he qualifies automatically for full
parental responsibilities and rights, the Bill is not clear on how such
an automatic process would work.




  Discussion



Members proposed that the word ‘custody’ should be replaced by ‘care of
child’ and a list of what constitutes care should be provided. In
addition, the word ‘access’, which suggests the rights of the parent,
should be replaced by ‘contact’, which should allow children to have
the right to decide on who they want to see, especially from puberty
onwards. There was considerable debate about the need to unpack what
rights and responsibilities to confer on children heading child-headed
households, and this debate raised issues of the age of the child
heading such a household. An argument was raised that the Bill may have
to consider a cut-off age for children heading households, since
recognition has to be given to the fact that below a certain level of
maturity, children cannot cope with such complex issues. However,
clause 32 already provides recognition of the de facto child-carers,
including child-headed households. The Committee is faced with the
challenge of what the legal response should be to the fact that
children are already providing care of their younger siblings. It was
suggested that a way to deal with the issue is certainly not to bring
child-headed households into the children’s court, as this will add to
the pressure already on courts. Instead, it was recommended that a
flexible approach is needed to deal with child-headed households. Such
initiatives may include a mentoring programme to protect children from
financial exploitation, and provision may have to be made for more than
one guardian to deal with different issues affecting child-headed
households. It was further suggested that the Bill should make
provision for a category of child in a child-headed household that
requires special care.




There was some debate on the need for a partial foster-parent or
different types of foster parents to allow access for child headed
households to the foster grant. While the role of such a foster parent
could be explored further in the section-76 part of the Bill, it was
suggested that such a foster parent should act in consultation with the
child heading a household. In response, a counter-argument stated that
to give recognition to a person living outside the child-headed
household as a foster parent would essentially undermine the concept of
giving recognition to child-headed households. Instead, the Bill should
contain provisions that empower child-headed households, while
community services should be strengthened to support such households.


It was argued that the issue of unmarried fathers’ rights should be
revisited, and it was suggested that if a father lived with the child
for a period of 12 months after birth, the father should qualify for
automatic responsibility. However, a counter-argument raised suggests
that this issue of non-automatic rights of fathers has been tested in
court, and it was found that the current practice is based on fair
discrimination. One should also take into account the historical
disadvantage of women, and the dominant view is that granting such
automatic responsibility will further disadvantage women. The 12-month
period provided for in the Bill raises questions of how will be
implemented. Issues to consider include who will police this provision
and whether it would be implemented on the basis of an affidavit. There
is a need to look at the process for the screening of ‘supervisors’, as
contemplated in clause 136.




Child protection register




Submitted by Jackie Lofell – Johannesburg Child Welfare Society






Reporting and registration of incidents of abuse



The submission argued that the Bill was silent with regard to providing
unequivocal protection against criminal and civil charges for anyone,
whether or not included in the list of mandatory reporters, who reports
an incident of child abuse in good faith. It is suggested that such
informants be guaranteed confidentiality, irrespective of the provisions
of the Promotion of Access to Information Act.


The vulnerability of a child to abuse will be influenced by factors
including age, sex, rape and disability status, and a provision should
be included in the Bill for such information to be recorded in part A of
the Register.


Clause 105(c)(ii) of the Bill makes it mandatory that where a report of
abuse is substantiated, children’s court proceedings must automatically
be initiated, and this being the automatic duty of the relevant social
worker in the employ of the Department of Social Development or the
designated child protection organisation or clerk of the children’s
court who receives the report. While it is recognised that the clerk of
the court is relevant in this case, with regard to other potential
recipients of the report it is considered undesirable. The opening of a
court of enquiry would be counterproductive in the following cases:




    • Cases of sexual abuse that occur outside the home environment and
      in which there is no need to place the child in any form of
      statutory care.
     • Cases of abuse where a parent takes appropriate action to
       protect the child.
     • Cases where early intervention can work without the children’s
       court being brought into the picture.
     • Instead, it is suggested that the onus should be on the social
       worker or other responsible person to confirm that some form of
       action has been taken which can reasonably be expected to ensure
       the safety of the child. This may not involve court action, and
       defies the belief that a child is being done a favour by
       bringing him or her to court.



Section B of the Child Protection Register



Clause 122(2) provides that an offender may not be entered on Section B
of the Register until the time for noting an appeal or review has
expired, or while he/she has an appeal pending. Given the low rate of
conviction for such cases in this country, and the fact that it may
take years for an appeal to be finalised, it is unacceptable that even
someone found guilty beyond reasonable doubt by a court of law to have
abused a child should be able to stay off this register and hence gain
fresh employment in a child care setting, by virtue of having lodged an
appeal, or simply being entitled to do so. Entry on the Register would
in any case not be limited to cases in which guilt has been proven
beyond reasonable doubt and since the Register will be highly
confidential only children’s organisations will have access and it will
be limited to screening of staff and volunteers. Therefore, clause
122(2) is entirely uncalled for, and would reduce the effectiveness of
the Register. Instead, it is suggested that provision be made for
‘interim registration’ in which the pending appeal is noted, and which
can be cancelled if this is subsequently indicated.



While clauses 123, 124 and 126 aim to ensure that prospective employees
and volunteers in children’s services are excluded if their names
appear on the Register, these clauses fail to include those employed in
social worker services by the Department of Social Development. Clause
128(3) makes provision for a person to be considered ‘rehabilitated’
and his/her name removed after five years. However, on the basis of
current knowledge, cases involving sexual abuse and severe assault
should be excluded from this provision. Rehabilitation of sexual
offenders against children has, as an essential component, a commitment
by the offender to permanently remain away from situations in which
opportunities for re-offending may arise.



  Discussion

The discussion suggested that there was a flaw in the Bill in the sense
that Part-B of the Child Protection Register does not clarify in what
instances and for what reasons a persons is to be included in the
register, but instead puts the obligation on the courts. The question
was raised whether the children’s court, as contemplated in clause 120,
is the most appropriate route to take.  It has to be taken into account
that these courts are already overburdened. There is a need to ensure
that there are legal forums within the Department of Education to make
an assessment that a teacher should be included on the register, even
when found guilty by an informal, non-legislative disciplinary forum at
school level. An issue was raised about the convergence between the
Register in the Sexual Offences Bill and the Register Part B of the
Children’s Bill.




  Children with disabilities




Submitted by Mr July Nkutha – Disabled Children’s Action Group




Children’s Rights



The presentation proposed that clause 11 be placed in the ‘principles’
chapter, thereby providing the foundation upon which all other chapters
are based. In addition, the following amendment should be made to
clause 11(1)(b) providing the child with special care and necessary
support services.



Harmful cultural practices



In the context of harmful social and cultural practices to which
certain children with disability are subjected, purportedly to exact a
cure, it was proposed that the following be added:



     • Clause 12 (6) Every child with a disability has the right not to
       be subjected to harmful social and cultural practices that
       attempt to “cure” them, but which are detrimental to their well-
       being, health or dignity. Such children must be allowed to
       receive adequate medical diagnosis and treatment.



Information on health care




Clause 13 does not specify information relating to a child’s
disability. It was argued that a child should also have the right to
access information regarding his/her health condition, which has
resulted in disability. In addition, the issue was raised whether this
information is available in a medium accessible to persons with a
disability, such as, for example Braille for the visually impaired.



Access to courts



While clause 42(7) and clause 14 refer to access to courts for
children, the submission expressed concern about the many barriers that
there are for children with disability in getting access to courts.
These would include aspects of communication (for children with hearing
or speech impairments), information and the physical environment. It
was, therefore, recommended that a clause be added to ensure that
children with disability have the same opportunities as those accorded
to other children, and that they are treated in a way that assures them
respect and dignity. This should include the appropriate awareness and
training programmes for court personnel.



It was recommended that the, now omitted, clause 70 of the draft Bill
of the South African Law Reform Commission (SALRC) be re-introduced. It
should also be mentioned that magistrates should have the ability to
communicate effectively with children with disabilities.



Parental rights and responsibilities



It was recommended that the interpretation of specific rights and
responsibilities of parents as contained in chapter 1 be amended as
follow:


“parental responsibilities and rights” in relation to a child, means
the responsibility and right-    a) to care for the child
         b) to have and maintain contact with the child, including
            learning of specific means of communication where necessary
            (such as Sign Language or Braille to communicate with a
            child with hearing or visual impairment)    c) to act as guardian for the child.



Protection of children



It was argued that children with disability remain among the most
vulnerable groups of children on account of their physical dependency
on carers and/ or barriers to communication that they experience. They
are, therefore, more at risk of abuse and neglect. Research indicates
that unless information is disaggregated, it is not possible to track
either positive or negative trends. It was, therefore, recommended that
that the following amendment is made:


Clause 114 Contents of Part A of Register
114(2) Part A of the Register must reflect-    a) in the case of reported incidents referred to in subsection (1) (a)-
                i) the full names, surnames, physical address and
                   identification number of the child
                 ii) the child’s age, gender and disability status


Children in especially difficult circumstances


The presenter argued that the assumption that programmes developed for
the general population of children will automatically benefit children
with disability is false, since disabled children do not have equal
access to resources and opportunities, and special measures are
necessary to ensure their full inclusion and participation. In
addition, children with disability or chronic illness are among the
categories of children in especially difficult circumstances and the
Bill needs to contain specific strategies aimed at:




        • Assisting children with disability to have access to social
          services (including ECD, education and health care);
        • Empowering them to develop their self-reliance and potential;
        • Empowering parents or care-givers of children with disability
          to support and nurture their children in the home environment
          and educating parents of care-givers of such children on
          matters affecting their children.



It was recommended that chapter 16 (children in Especially Difficult
Circumstances) of the SALRC draft of the Children’s Bill be re-
inserted.




Intersectoral collaboration



A coordinating mechanism for ensuring intersectoral collaboration and
implementation of the Children’s Bill should be explicitly provided for
in the Bill. With regard to children with disability, it is essential
that this mechanism:




           ▪ Is created in legislation to ensure that it has a clear
             mandate to co-ordinate services across departments, that it
             has representation from all relevant government
             departments, and that representatives are in decision-
             making positions;
           ▪ Includes parents of children with disability, and young
             people with disability, as well as NGOs and CBOs that are
             providing services for children with disability;
           ▪ Ensures sufficient provision by government for purchase
             of services by NGOs for children with disability;
           ▪ Ensures that service provision is coordinated and
             comprehensive, with each department or organisation
             recognised as part of a package of support services
             (including education, transport, housing, assistive
             device);
           ▪ Provides information and a resource list on services,
             which is easily available and accessible to children and
             their families;
           ▪ Ensures that local and traditional authorities assess,
             monitor and address the needs of children with disability;
           ▪ Establishes systems to monitor the extent to which
             children with disability are able to participate in
             activities and benefit from services.



  Discussion



Concern was raised about how the Bill defines ‘disability’. The
challenge is to draft a definition that is broad enough to encompass
all disabled children. It was recommended that the Bill should
explicitly provide for a coordinating mechanism. Concern was raised
about the inaccessibility of courts for disabled persons, for example,
the lack of facilities or knowledge of who to contact to translate in
Sign Language at courts. It was submitted that in child-headed
households where the disabled child is the eldest child, it would be a
challenge to determine what rights and responsibilities to confer on
such a child.



It was agreed that while there are a number of gaps in legislation in
the sense that it does not adequately address the needs of disabled
people, such as the Education Act, the Children’s Bill cannot,
necessarily, amend all shortcomings in other laws. However, it was
suggested that the Bill should include a provision that expressly
provides for the synergic implementation of different laws that affect
disabled children. It was suggested that in the area of the principles
and objects of the Bill, attention could be given to the needs of
particular vulnerabilities.





  Children’s Rights



Submitted by Jody Kollapen, Chairperson of the South African Human
Rights Commission (SAHRC).


It was proposed that reference to the constitution be placed in the
Preamble, Long title and the Objectives / Rights chapter in the Bill
(chapters 2 & 3). Support was also expressed for the idea that the
Preamble makes reference to the Convention on the Rights of the Child
and the African Charter on the Rights and Welfare of the Child. The
submission further supported a longer preamble that is firmly based
within our constitutional dispensation and obligations.



Clause 4(2) – reasonable measures within available resources



 Concern was raised about the language that is used in this section. The
 phrase ‘reasonable measures within available resources’ refers to the
 concept of progressive realisation of economic and social rights. The
 rights pertaining to children should not be subject to progressive
 realisation. In fact, certain subsections of section 28 are non-
 derogable in terms of the constitution (Sections 28(1)(d) and (e),
 28(1)(g)(i) and (ii), 28(1)(i) and are thereby specifically excluded
 from progressive realisation. The effect of the current use of the
 phrase ‘reasonable measures within available resources’ in clause 4(2)
 may introduce into the Bill a limitation on Section 28 that is not in
 the Constitution. Therefore, such a limitation would be open to a
 constitutional challenge.



Specific features of the Bill



 There are some inconsistencies in the Bill that need to be attended to:


        • Clause 10 refers to children meaningfully participating in
          decisions that affect them. Further on in the Bill, clause
          31(1)(a) has a good formulation in order to determine the
          appropriate instances in which children should participate in
          matters. These two sections should be revisited and brought
          into synergy and conformity with each other.
        • Clause 10 states that children can participate in any matter
          affecting them and goes on further to refer to proceedings.
          This language is on the one hand wide in reference to any
          matter yet on the other hand is qualified by reference to
          proceedings. This results in an inconsistency as proceedings
          limits the matters concerning a child where they ought to
          participate. Children’s participation in matters affecting
          them should not be limited to proceedings.
        • Clause 12 provides protection to children from harmful
          cultural and social practices. The SAHRC would prefer a more
          positive language construction in this section. Such a
          construction ought to affirm a child’s positive right to
          participate in the social and cultural lives of their
          communities. Thereafter the protection feature from harmful
          and cultural practices should be included.
        • The language in clause 14 is too wide. The word “any” should
          be qualified in relation to the child, the interests of the
          child and / or the welfare of the child.
        • Clause 16 refers to the duties of children in general
          language. It is proposed that the drafters should look at
          section 31 of the African Charter, which gives content to the
          nature of the duties. The SAHRC is not in principle opposed
          to duties being placed in the Bill. However, these must not
          be couched in language in which the impression is created
          that they are a trade off against rights.



Disability



The presenter argued that the Children’s Bill should deal with the issue of disability. The submission supported the inclusion in the Bill of a positive affirmation of the principle of non-discrimination. This could be placed in the Preamble, Long Title and objectives/rights chapter of the Bill. There is no reason to not mention disability specifically in the Bill as one of the grounds of discrimination. It was proposed that the section that deals with the ‘best interests standard’ should include reference to non-discrimination on the grounds of disability. Clause 42(7), which deals with courts, could also make specific reference to making courts disability friendly. Clause 11 could also make reference to disability.



Discussion



The Committee resolve to give attention to the technical aspects of the
Bill, such as the inconsistencies in the use of language. It was agreed
that the issue of children of non-nationals needed further unpacking,
and that there is a need to determine which Department is ultimately
responsible for these children. For example, the challenge remains on
how to place unaccompanied minor children in foster care since the
Department of Home Affairs will not provide a 13-digit identity
document to such children. There was some concern about how the Bill
defines ‘disability’, and it is suggested that the Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000 may
assist in how the Bill defines disability.


An argument was raised in favour of strong affirmative action for
disabled children and foreign minors, since they are from the most
disadvantaged groups. It was recommended that the Bill should expressly
provided for disabled children and unaccompanied foreign children. It
was also noted that there is a need re-instate provisions dealing with
foreign children, and such children should fall within the ambit of the
children’s court. While recognising that foreign children should be
dealt with by the children’s court, it does not necessarily imply
special services to these children. A question was raised why clause 4,
which deals with implementation of the proposed Act, makes to reference
to non-state actors in implementing the Act. The principles on non-
discrimination should form part of clause 5, and it should also be
referred to in clauses 6 and 9. In this way the ‘best interest’ clause
includes attention to the special needs of disabled children.



The need for all children in need of care of protection to referred to
Children’s court



Submitted by Denni Leppan – Commissioner Wynberg Children’s Court



The submission raised concern that children’s court commissioners were
not generally consulted during the drafting of the Bill. Support was
expressed for clauses 47, 68 and 152, which place no obligation on the
social worker to refer a matter to court, since it allows the social
worker to use discretion. It was submitted that the section 75 part of
the Bill would not be implementable without the re-inclusion of chapter
10 and 11.


The 24 hours provided for in clause 152(2)(b) to notify the provincial
department of social development or designated child protection
organisation, was regarded as being too short to be practically
implementable. The presenter further argued that it was not necessary to
report the matters identified in clause 105(1) to the clerk of the
children’s court, and therefore referral to no need for reference to the
clerk of the children’s court in clauses 105(1), 105(2), 105(3), 105 (5)
and 105 (7). Finally, it was noted that there is a need to determine if
there is sufficient clarity of instances where a child may be brought to
the children’ court.

Submitted by Jackie Loffel - Johannesburg Child Welfare Society



Social workers are one of the key categories of personnel who will be
required to implement the future Children’s Act, but should, however,
not be regarded as the dominant category. While social workers have a
critical role to play, they do share this role with arrange of other
workers, but it does not imply that they should necessarily supervise
other categories of workers. However, within formal child protection,
social workers are key, and they tend to work closely with child
auxiliary and youth workers. A core of skilled social workers is needed
order to ensure the implementation of the Children’s Act.



Submitted by Zeni Thumbadoo – National Association of Child Care
 Workers.


Child and youth care workers are regarded as critical practitioners to
fulfil the developmental needs of children and youth. These workers are
in daily contact with children, and their work can be regarded as youth-
focussed, relational, holistic, and contextual. While child and youth
care workers have traditionally been seen within the context of
residential care, their work are also expanding into community
programmes.



  Conclusion to proceedings



 At the end of the proceedings, it was felt that the Committee could not
 spend much more time debating policy issues, and that the next step
 would be for the Department’s legal drafters to provide the Committee
 with alternative drafts of those clauses that had been identified for
 further refinement. These drafts would be considered when the Committee
 next met after the recess.

The Portfolio Committee on Social Development having held Public
Hearings on the Children’s Bill (B70-2003)(Reintroduced) from 11-13
August 2004, reports as follows:




Introduction



The Portfolio Committee on Social Development held public hearings on
the Children’s Bill [B70-2003 (Reintroduced)] on 11 to 13 August 2004.
This report reflects those written and oral submission made on the
Section 75 version of the Children’s Bill.
The following organisations, and individuals, made submission:


Children’s Bill Working Group
RAPCAN
SA Society for the Prevention of Child Abuse and Neglect (SASPCAN)
South African National Council of Child Welfare
HIV/AIDS Sector
Dikwanketla – Children in Action
Southern African Catholic Bishops Conference
Community Law Centre – Children’s Rights Project
Alliance for Children’s Entitlement to Social Security
Save the Children
Wybrow-Oliver Attorneys (Adoption)
Law Society of South Africa
Robyn Shepstone
UNHCR
Education Law Project – Centre for Applied Legal Studies
Peoples Family Law Centre
Aids Law Project
Lawyers for Human Rights
Youth Action Group
Network Against Child Labour
Soul Buddyz
Childline
South African Council of Churches
Johannesburg Child Welfare Society
Early Learning Resource Unit
Bethany House Trust
Qhamani Educare
Valley Development Project
Nonceba Meyiwa
National Alliance for Street Children
National Association of Child Care Workers
Disabled Children’s Action Group
Molo Songololo
SA Aids Vaccine Initiative
Media Monitoring Project
Commission on Gender Equality
South African Prisoners’ Organization for Human Rights
South African Association of Social Workers in Private Practice



Chapter 1: Interpretation, Objects, Application and Implementation of
Act




Clause 1: Interpretation



Submitted by the National Alliance for Street Children (NASC)[2] Clause 129 specifies that the parent of “primary care giver” must consent to medical treatment or a surgical operation for a child under 12 year of age. However, the definition of “primary care giver” does not include a child and youth care worker at a shelter.

Chapter 2: General Principles



Submitted by the South African Aids Vaccine Initiative (SAAVI) The proposed clause 5(6) of Chapter 2 of the Bill provides that “a person who has parental responsibilities and rights in respect of a child and the child, where this is appropriate, having regard to the age, maturity and stage of development of the child, children must be informed of any action or decision taken in a matter concerning the child which significantly affects the child.” The submission argued that the aforementioned proposed clause does not recognise the fact that in some instances the Children’s Bill recognises the competence of children to act independently of their parents or guardians. The protection of children’s confidentiality with regard to their medical treatment, general health status and HIV status may be of utmost importance in encouraging children to access health services and to participate in research.

The following rights should be added: the right to be looked after and
have a home, the right to speak and be listened to, the right to be a
child (any person under the age of 18), the right to health and access
to information and health care, to equal opportunities, to be
themselves, to welfare, to be protected from drugs; the right to life,
information, to play and rest, to development, not to be stolen, bought
or sold, to foster and parental care, to food, water and clothing; the
right to privacy and their own religion; the right not to be subjected
to harmful social and cultural practices, and the right to participate
in judicial administrative decisions about children.


Submitted by the Education Law Project, Centre for Applied Legal
Studies, University of the Witwatersrand


The focus of this submission was Chapter 3 of the Children’s Bill, which
deals with Children’s Rights. The Education Law Project (ELP) is of the
view that the removal of the key rights clauses from Chapter 3 of the
current Bill, which formed part of South African Law Commission (SALRC)
draft, undermines the original intent, purpose and effect of Chapter 3.
The original intent, purpose and effect of Chapter 3 were to elaborate
on to the rights in the Bill of Rights insofar as they relate to
children. In particular, the ELP is concerned that the removal of the
clause dealing with the right to education will impede the potential for
the State to provide access to a basic education of an adequate standard
to all children living in South Africa, undermining their ability to
realise their full potential.
It was argued that Chapter 3 serves as a benchmark against which the
various State departments should be able to measure their obligations in
respect of children’s rights. The submission argues that original SALRC
draft Bill attempted to do this by identifying and elaborating on those
rights that have particular relevance for children in accordance with
South Africa’s international law obligations, and in accordance with the
particular needs of South African children. The current draft of the
Bill either omits key rights totally, or merely restates rights already
in the Bill of Rights. This status quo fails to enhance the full
realisation of children’s rights and defeats the purpose that the
inclusion of Chapter 3 in the Bill was meant to serve. Instead, it makes
the inclusion of Chapter 3 as a chapter dealing with children’s rights
meaningless since in its current form it is unable to fulfil the
objectives that it was meant to serve.


The right to education is probably the most widely recognised socio-
economic right in international instruments and in the constitutions of
individual countries. The underlying rationale for international
recognition of the right to education has been described as its
importance in enabling individuals to develop and realise their full
potential, and to learn good values and thereby make good citizens. The
unique history of apartheid education required that constitutional
drafters recognise the legacy of inequality and the need for redress
through the entrenchment of the right to basic education. Prior to 1994,
education was structured along racial lines so as to prepare learners of
different race groups for the roles they were expected to serve in
apartheid society. This legacy persists today despite Government efforts
to redress apartheid education and may be largely attributed to the
failure of the regulatory framework to sufficiently create an education
system that is of an adequate standard and that is both physically and
economically accessible to all.


 The regulatory framework provided by the South African Schools Act, Act
 84 of 1996, and the Education Policy Act, Act 27 of 1996, appears not
 to provide for an education that is of an adequate standard and that is
 economically accessible to all. Contrary to South Africa’s obligations
 in terms of international law, school fees are charged at both primary
 and secondary schools. While the regulatory framework attempts to
 alleviate the burden of school fees for the poorest parents by setting
 a mandatory ‘means test’ for the granting of full and partial
 exemptions that individual schools are obliged to abide by when
 determining their exemption policies, this exemption policy is widely
 acknowledged as inadequate.
Any education clause contained in the Bill must take cognisance of South
Africa’s obligations in terms of international law, particularly as
regards the guarantee to free education. Article 28(1)(a) of the
Covenant on the Rights of the Child (CRC) requires that State parties
“make primary education compulsory and available free to all”. Article
28(1)(b), however, provides that State parties make secondary education
“available and accessible to every child, and take appropriate steps
such as the introduction of free education and offering financial
assistance in the case of need”. This suggests that primary education
should be completely free and that steps such as the current means test
should only become a factor at the level of secondary education.


Recommendation


     • A comprehensive list of children’s rights is re-instated in
       Chapter 3 in accordance with South Africa’s international and
       domestic obligations and in accordance with the specific needs
       of South African children. In particular it is recommended that
       the education clause be re-instated in Chapter 3.
     • The proposed education clause requires the State to provide
       educational facilities of a reasonable standard for an adequate
       education. It is further recommended that the clause define
       South Africa’s obligations in terms of guaranteeing free
       education.
     • Other entitlements that ought to form part of the education
       clause may be determined in consultation with civil society and
       a thorough scrutiny of the international instruments that are
       binding on South Africa.





Submitted by the Children’s Institute



It is submitted that the Children’s Bill no longer contains a
comprehensive list of c     rights. Key rights have been omitted,
including the rights relating to education, refugee and undocumented
migrant children, children with disabilities and chronic illnesses,
leisure and recreation, prohibition against unfair discrimination, and
property.



Recommendation



That a Child’s Rights Charter is included in the Bill that:


     • Is comprehensive (includes all relevant rights as set out in the
       United Nations Convention of the Rights of the Child and in the
       African Charter on the Rights of the Child. The list should not
       be limited to “welfare protection rights” but should contain all
       the rights to which children are entitled. Accordingly, it is
       recommended that the following rights be included:
  o Prohibition against unfair discrimination.
  o Best interests of the child.
  o Child participation.
  o Name, nationality and identity.
  o Family relationship and alternative care.
  o Property.
           o Protection from maltreatment, abuse, neglect, degradation,
             exploitation and other harmful practices.
           o Protection from harmful social and cultural practices.
  o Protection from economic exploitation.
  o Education.
  o Health care.
  o Food and nutrition.
  o Water and sanitation.
  o Shelter.
  o Social Security.
  o Environment.
  o Social Services.
  o Refugee and undocumented migrant children.
  o Children with disabilities and chronic illnesses.
  o Leisure and recreation.
  o Access to child and family court.
     o Age of majority.
     • Is binding on all Government Departments.   • Elaborates on the rights in the Constitution using international law
adapted to South Africa’s particular circumstances, and challenges and
supplements those areas where the Constitution is silent.
Obliges all Departments in all spheres of Government to review
legislation, policies and programmes to ensure that the relevant rights
are both incorporated and adhered to.
Conduct child impact assessments before making decisions with regard to
policy, legislative and programme options.
That the “best interest’s right” be amended as follows in order to
oblige Departments to conduct child impact assessments:


“Best interest of child paramount”


(1) An organ of state, an official, employee or representative of an
organ of State, or any other person in authority who has official
control over a child, must, when acting in any matter concerning the
child, apply the standard referred to in section 28(2) of the
Constitution that the child’s best interest is of paramount importance.
(2) All national, provincial and local organs of state must be guided
by the principle of best interests of the child when making policy,
legislative, budgetary and administrative decisions that concern
children.


Recommendation
It is recommended that:


Annual plans are drawn up that indicate how they intend to promote and
protect children's rights through their policies, plans, budgets,
programmes and actions.
Reports are forwarded to the Minister of Social Development on the
implementation of such plans using prescribed performance indicators.
Table the plans and reports in Parliament to be considered by the Joint
Monitoring Committee on Children, Youth and Persons with Disabilities.
The draft Children’s Charter to read as follows:


“Children’s Rights”


Application


   1) The rights, which a child has in terms of this Chapter,
      supplement the rights that a child has in terms of the Bill of
      Rights.
   2) All organs of state in any sphere of Government and all
      officials, employees and representatives of an organ of state
      must respect, protect, promote and fulfil the rights of children
      contained in this Chapter.
   3) A provision of this Chapter binds all persons, natural or
      juristic, if, and to the extent that, it is applicable, taking
      into account the nature of the right and the nature of any duty
      imposed by the right.


“Conflicts with other legislation”


In the event of a conflict between a provision of this Chapter and any
 other legislation, the provision of this Chapter prevails except to the
 extent that such other legislation is or could be interpreted as a
 limitation of general application on such provision that is reasonable
 and justifiable in an open and democratic society based on human
 dignity, equality and freedom, taking into account all relevant
 factors, including those listed in section 36(1)(a) to (e) of the
 Constitution.


“Unfair discrimination”


   1) No organ of state, and no official, employee or representative of
      an organ of state, and no other person may unfairly discriminate
      directly or indirectly against a child on the ground of –
          a) The race, gender, sex, pregnancy, marital status, ethnic or
             social origin, colour, sexual orientation, age, disability,
             religion, conscience, belief, culture, language or birth of
             the child or of any parent, guardian, caregiver or family
             member of the child; or
          b) The family status, health status, socio-economic status,
             HIV status or nationality of the child or of any parent,
             guardian, caregiver or family member of the child.
    2) Discrimination on any of the grounds listed in subsection (1) is
       presumed to be unfair unless it is established by the respondent
       that the discrimination is fair.


“Best interest of child paramount”


         a) An organ of state, an official, employee or representative
            of an organ of state, or any other person in authority who
            has official control over a child, must, when acting in any
            matter concerning the child, apply the standard referred to
            in section 28(2) of the Constitution that the child’s best
            interest is of paramount importance.
          b) All national, provincial and local organs of state must be
             guided by the principle of best interests of the child when
             making policy, legislative, budgetary and administrative
             decisions that concern children.


“Child Participation”

“Name, nationality and identity”


Every child has the right –    a) To be registered promptly in terms of the Registration of Births Act,
  Act 51 of 1992; and    b) To the preservation of his or her identity and nationality, subject to
  the other provisions of the abovementioned Act.


“Family care or alternative care”


          1) The child’s parents and family have the primary
             responsibility to provide for the child’s care and
             protection.
     (2)     The State must render appropriate assistance to families
             in the performance of their child rearing responsibilities
             and must ensure the development of accessible institutions,
             facilities and services for the care of children.
     (3)     Where the child’s parents or family are not willing or are
             unable to fulfil their duty of care, the State has an
             obligation to step in and provide assistance to the child
             and family or appropriate alternative care for the child.


“Family relationship”


     (1)     Every child has the right not to be separated from his or
             her parents or family against the will of the parents or
             family and of the child where the child is capable of
             expressing a choice, except when that separation is in the
             best interest of the child.
     (2)     Every child separated from his or her parents or family
             has the right to maintain a personal relationship and
             regular contact with their parents or family, except when
             those personal relations and that contact are not in the
             best interest of the child.


“Property”


Every child who owns property or who is a dependent of a deceased person who owned property, has the right to the administration of that property in the best interest of that child.


“Maltreatment, abuse, neglect, degradation, exploitation and other
harmful practice


       1) Every child has the right to be protected, through
          administrative, social, educational, punitive or other
          suitable measures and procedures, from all forms of torture,
          physical violence, mental harassment, injury, maltreatment,
          abuse, neglect, degradation and exploitation.
       2) Every child who has been tortured, maltreated, harassed,
          abused, neglected, degraded or exploited has the right to
          have access to social services including counselling and
          medical treatment at state expense.


“Harmful social and cultural practices”


  (1)   Every child has the right not to be subjected to harmful social
       and cultural practices, which affect the well-being, health or
       dignity of the child.
  (2)   Every child –
       (a)   Below the minimum age set by law for a valid marriage has
             the right not to be given out in marriage or engagement;
             and
        (b)  Above that minimum age has the right not to be given out
             in marriage or engagement without his or her consent.
  (3)   Female genital mutilation or the circumcision of female children
       is prohibited.
  (4)   Every male child has the right –
        (a)  To refuse circumcision; and
        (b)  Not to be subjected to unhygienic circumcision.
  (5)   Every child has the right –
        (a)  To refuse to be subjected to virginity testing; and
        (b)  Not to be subjected to unhygienic virginity testing.


“Economic exploitation”


Every child has the right to be protected, through administrative,
social, educational, punitive or other suitable measures and procedures,
from –    a) Economic exploitation; and    b) Performing any work –
   i. That is inappropriate for a person of that child’s age; and
  ii. That places at risk the child’s well-being, education, physical
      and mental health, and spiritual, moral or social development.
“Education”

“Health Care”


Every child has the right to basic health care that promotes the child’s health, prevents acute and chronic health conditions and disabilities, adequately manages and treats acute and chronic health conditions and that provides rehabilitation after illness or injury. This right includes the right to -
 Confidential access to contraceptives and health-related information on
 sexuality, reproduction, termination of pregnancy, STDs and HIV,
 regardless of age.
 Confidentiality regarding his or her health status and the health
 status of a parent, caregiver or family member.
 Request and receive information on health promotion and the prevention
 of ill health and disease.
 Have access to appropriate assistive devices that are necessary to
 enable the participation of children with disabilities and chronic
 illnesses in community life.


“Social security”


   Every child has the right to social security, including access to
   social assistance if the parent or caregiver cannot or does not
   provide for the basic needs of the child.
   Every child with a disability has the right to have access to social
   assistance if such social assistance is needed to enable the child to
   survive, develop and participate to full potential.


“Water and sanitation”


    1) Every child has the right to have access to clean water within a
       reasonable distance from his or her home.
    2) Every child has the right to have access to sanitation services
       aimed at preventing infections and diseases.


“Environment”


Every child has the right to an environment that is not harmful to his
or her safety or health.


“Basic nutrition”

“Shelter”


Every child has the right to shelter that adequately protects the child against the elements.


“Legal representation” 1) Every child has the right to legal representation in criminal    proceedings affecting the child, and the state must assign a suitably    qualified practitioner to represent the child if the child cannot afford    his or own legal representative. 2) Every child has the right to legal representation in civil proceedings    affecting the child, and the state must assign a legal practitioner to    represent the child if the child cannot afford his or her own legal    representative and if substantial injustice would result if the child was    not represented.


“Social services”


Every child has the right to social services, including services that are aimed at:
Assisting the child’s caregiver or parent to provide for the child’s survival, development and participation needs.
Assisting the child and the child’s parent or caregiver to address social problems within the family and community that are violating the child’s rights.
Assisting parents and caregivers of children in especially difficult circumstances to provide adequately for their children’s needs.
Providing adequate protection for children who have been abandoned, abused or exploited.
           Providing adequate alternative care for children whose
       parents or caregivers are unable or unwilling to care for them.
           Providing adequate shelter and care for children living on
       the street or in child-headed households
           Providing adequate protection, care and humanitarian
       assistance to refugee and undocumented migrant children.


“Refugee and unaccompanied minors”

“Children with disabilities and chronic illnesses”


   (1) Every child with a physical, sensory, neurological, intellectual    or psychiatric disability and every child with a chronic illness, has the    right –    a) To enjoy life in conditions which ensure dignity, promote self-
  reliance and facilitate active participation in the community.    c) To receive support that contributes to and enhances the quality of
  life.    d) To receive financial assistance from the state to ensure a standard of
  living adequate for his or her development and equal enjoyment of his
  or her constitutional rights.


“Leisure and recreation”


Every child has the right to rest and leisure and to engage in play and recreational activities appropriate to the child’s age, including the right to have access to recreational facilities within reach of his/her home or school.
“Access to courts”


Every child has the right to bring a matter to court, provided that the matter falls within the jurisdiction of that court. A child may be assisted in bringing the matter to court according to the ordinary rules of law, however, may also do so in his or her own name.


“Age of majority”


A child, whether male or female, becomes a major upon reaching the age of 18 years.


“Enforcement of rights”

Submitted by Lawyers for Human Rights


Both domestic and international law recognise the special requirements of refugee children. Refugee children obtain rights accorded to children generally, and as refugees specifically. Similarly, foreign children who are not eligible for refugee status also have needs specific to their circumstances, particularly in the context of the possible removal from the Republic. Unaccompanied refugee and foreign children are the legal responsibility of the government.


Recommendation


That a clause dealing with the specific rights of unaccompanied refugee and foreign children is added to the Bill, reading as follows:
 “ Refugee and unaccompanied minors”

Submitted by the National Alliance for Street Children (NASC)


The NASC supports the inclusion of a comprehensive list of rights for children in the Bill, however are concerned that the revised version of the Bill no longer contains a comprehensive list of rights.


Recommendation
The Bill should be amended to include a comprehensive list of rights for children, and these rights should be formulated in a way that fleshes out the scope of the protection provided by the Constitution and that clarifies each roleplayers’ obligations[4].


The NASC also recommends that the following rights be included in the comprehensive list of rights[5]:


Education.
Health care.
Food and nutrition.
Water and sanitation.
Shelter.
Social Security.
Social Services.
Property.
Leisure and recreation.


Submitted by the Early Learning Resource Unit (ELRU) and the South African Congress for Early Childhood Development (SACECD)[6]
ELRU and SACECD endorse the Children’s Institute’s submission calling for the Child Rights Chapter to be reinstated into the Bill and support the formulation of the rights proposed in that submission.


Recommendation


The Bill should include a comprehensive list of rights, particularly including the right to social services, education and nutrition.


Submitted by Disabled Children’s Action Group (DCAG)


In the Children's Bill, coverage of children's rights is minimal. Children's rights, as contained in the Bill of Rights of the Constitution, are re-stated with no additional elaboration. One of the greatest concerns with regard to the Children's Bill is the exclusion of specific reference to the rights of children with disabilities and chronic illnesses. The Integrated National Disability Strategy calls for a rights-based approach to the development of services for children with disabilities and chronic illnesses, in line with the recognition that disability is a human rights issue.
The rights of children with disabilities and chronic illnesses need to be specifically addressed in the Children's Bill. This should refer to rights of children with physical, sensory, neurological, intellectual or psychiatric disability, as well as those with chronic illnesses, and should ensure access to basic social services.


In addition, a number of other specific rights need to be highlighted with regard to their application to children with disabilities and chronic illnesses[7]:


Protection from unfair discrimination due to their disability or chronic illness (including HIV/AIDS);
Protection from abuse and exploitation;
Prevention of disability through effective promotive and preventive programmes (e.g. Antenatal care, reduction of malnutrition, road safety campaigns);
Access to quality ECD services;
Access to a quality education;
Social security - the need to fast-track the fulfilment of this right, to improve efficiency of application and approval processes;
Right to own property - a parent of a child with a disability may make provision for them on the death of the parent. However, these provisions may not be recognised for children with disabilities and chronic illnesses, as they are considered to be "incompetent". In the absence of a will, the child may have no other source of security and may not be in a position to secure employment even when s/he reaches adulthood;
Registration - every child with a disability or chronic illness has the right to have a birth certificate and (at the age of 16) an Identity Document. Home Affairs officials must do these sensitively and effectively, even if the child has a severe and/or multiple disabilities.


Recommendation


The following are suggested amendments and insertions (underlined parts are proposed insertions):



“Unfair discrimination”



(1) No organ of state, and no official, employee or representative of an organ of state, and no other person may unfairly discriminate directly or indirectly against a child on the grounds of –
      (a) the race, gender, sex, pregnancy, marital status, ethnic or
  social origin, colour, sexual orientation, age, disability, religion,
  conscience, belief, culture, language or birth of the child or of any
  parent, guardian, care-giver or family member of the child; or
      (b) the family status, health status, socio-economic status, HIV-
  status or nationality of the child or of any parent, guardian, care-
  giver or family member of the child.
(2) Discrimination on any of the grounds listed in sub-clause (1) is presumed to be unfair unless it is established by the respondent that the discrimination is fair.


“Child Participation”

The CGE do, however, support clause 12(3), which outlaws female genital mutilation and female circumcision as a cultural practice. The CGE feels that this clause may to some extent seek to give effect to the standards stipulated in Clause 11.



                        “Corporal Punishment”




  Submitted by the Community Law Centre – Children’s Rights Project



The CLC pointed out that South Africa, by ratifying the United Nations Convention on the Rights of the Child (UNCRC) in 1995, committed itself to fulfilling all the obligations under the Convention. One such obligation is to protect children from all forms of physical and mental violence as outlined in Article 19 and this protection extends to corporal punishment and what happens in the family. Similarly, provisions of the Constitution also aim to protect children from neglect, maltreatment, abuse and degradation, provides for the right not to be treated or punished in a cruel, inhuman or degrading way, and provides that everyone has inherent dignity and the right to have their dignity respected and protected.


To date, South Africa has abolished the imposition of corporal punishment as a sentence by the court and in schools. The Constitutional Court has also ruled that corporal punishment of children infringes their rights to dignity and their right to be protected from cruel, inhuman and degrading treatment or punishment.


It was pointed out that, despite the existence of common law crimes such as assault, assault with the intention of causing grievous bodily harm and attempted murder in South Africa, parents charged with these crimes against their children can raise the defence of reasonable chastisement and avoid being held liable for physically punishing their children. This situation denies children the equal protection of the law and provides parents with the potential to violate their child’s bodily and physical integrity and dignity.


The submission also noted that the United Nations Committee on the Rights of the Child has gone beyond the condemnation of "excessive" chastisement by noting in its concluding observations that any corporal punishment of children is incompatible with the UNCRC citing, in particular, article 19. The Committee has criticised attempts by states parties to draw a line between acceptable and unacceptable forms of corporal punishment and has called for a clear prohibition of all corporal punishment including in the family, in other forms of care, in schools and in the penal system.


Advocating from a children’s rights perspective, the Community Law Centre submission argued that this version of the Bill did not comply with international law standards nor did it comply with the Constitutional provisions, among others, relating to human dignity and physical integrity. It left the current situation and common law rights which parents have unchanged at the expense of the rights of children.


The submission did raise the question of criminalising parents. However, it noted that experiences in most countries that have undertaken law reform prohibiting corporal punishment has shown that the change in law did not result in an influx of prosecutions of parents. Instead, it brought to the fore the more severe forms of abuse of children that was already occurring. In South Africa, prosecutors have the right to exercise prosecutorial discretion and can decline to prosecute petty or trivial incidents of corporal punishment. It is also doubtful whether every act of corporal punishment will result in a charge being laid and a prosecution being undertaken.


The submission therefore recommended that the clause on corporal punishment as contained in the SALRC version of the Bill be reinserted into the Bill as this had the effect of prohibiting corporal punishment by parents. The reinsertion would prevent parents who are charged with assaulting their children from escaping liability for physically punishing their children. In addition, it was recommended that an explicit ban on all forms of corporal punishment, including that which is imposed by parents, be included in the Bill. The prohibition should be accompanied with a sanction in terms of the existing common law criminal offences such as assault or assault with intention to inflict grievous bodily harm. The CLC also recognised that to change public opinion concerning corporal punishment in the home or by parents would require a long-term awareness and information campaign. In addition, the public will need to be informed of alternate disciplinary measures that could be used to discipline their children.


Clause 13: Information on Health Care


Submitted by the Aids Law Project (ALP) and Human Rights Watch


It is submitted that the current Bill is not sufficiently clear or comprehensive to safeguard children’s rights to medical care and treatment. In South African common law, parental consent or consent from a legally appointed guardian is required before medical treatment can be administered to a child. In cases where parental consent or consent from a legal guardian cannot be obtained, the High Court, as the upper guardian of all children, can be approached to provide consent. In terms of the Child Care Act, Act 74 of 1983, children above the age of 14 years are permitted to consent to receiving medical treatment without the assistance of a parent or legal guardian. In the case of children under the age of 14, where the consent of a parent or guardian cannot be obtained, the Minister of Social Development can provide permission for a medical procedure if, in the opinion of a medical practitioner, the procedure is necessary. In urgent cases, the medical superintendent of a hospital can provide consent.


The Child Care Act, enacted in 1983, did not anticipate that the HIV/AIDS epidemic would leave large numbers of children without parents or legal guardians. Nor did it anticipate that the dual epidemics of HIV/AIDS and sexual violence would threaten the lives of so many South African children. Consequently, the systems set up in terms of the Act are unable to cope with the large numbers of children that require assistance. The Aids Law Project (ALP) has found that, in practice, the current requirements regarding consent pose a serious barrier to children’s rights to life and to the highest attainable standard of health under the Constitution and international human rights law. In some instances, the ALP has had to resort to litigation to obtain consent for antiretroviral treatment for children living with HIV/AIDS.


Human Rights Watch and the ALP have found, however, that current consent requirements impede children’s access to post-rape medical care, including lifesaving PEP services and prerequisite HIV testing. Human Rights Watch’s research found, for example, that problems in obtaining consent on behalf of unaccompanied children and those whose parents or guardians refused to consent to medical treatment barred some children from receiving post-rape medical services, including lifesaving PEP. The ALP also has found that the lack of clarity regarding whether HIV testing constitutes “medical treatment” within the meaning of the Child Care Act has impeded some children from obtaining HIV prevention and treatment services. Some health care workers have declined to provide HIV testing to children above the age of 14 years without parental consent. It is only recently that the State Law Advisors have clarified in a legal opinion sought by the Department of Social Development that HIV testing does fall within the definition of medical treatment. It is, however, not clear whether any steps have been taken to ensure that this has been brought to the attention of health care workers providing services to child survivors of rape and sexual violence.


Submitted by the Law Society of South Africa 


The submission argued that the child’s right to make decisions about a range of health interventions may cause conflict between children and their parents.




                           Recommendation



It is proposed that the child’s maturity be taken into consideration when determining what is in the best interest of the child. 

           Chapter 4: Parental Responsibilities and Rights

Submitted by the Children’s Institute


Although South African law has no single definition of “family”, the “nuclear family form” based on the relationship of a married man and woman and their biological or adopted children is predominant. However, this does not reflect the reality of South African society where responsibility for children is by no means only linked to biological parenthood.


In reality, the nature of family life is far from static and is shaped by the historical and socio-economic conditions in society, amongst other things. In South Africa, the history of colonialism, the creation of a migrant labour system, the complex system of apartheid laws, and more recently the scourge of the HIV/AIDS pandemic, has had an enormous impact on family life. It is common for children to live apart from their parents in many types of family arrangements. The AIDS pandemic is likely to be a causal factor for larger numbers of children living without their parents. As a further consequence, children increasingly have to assume more significant roles of responsibility. Though not a new phenomenon, more children have to take care of younger siblings or other children while caregivers are sick and dying or when they have died already. These children have to perform all or some of the functions of a “primary care- giver” in a family environment, including procuring food, preparing it, dressing and feeding younger children, earning money and performing other household chores. Accordingly, these considerations should be taken into account when examining the Bill’s provisions relating to parental responsibilities and rights (PRR).


The new Children’s Bill will modernise South African Law as it takes a child rights approach, promotes mediation rather than conflict and recognises flexible and diverse family forms. These aspects converge to provide a shift in emphasis from parental power to parental responsibilities and rights (PRR). Parental power is historically rooted in private law and was used more to reduce conflict between parents on divorce; however this did not recognise the emerging self-determination of the child and the varied roles of “care-givers” in the lives of children.


Submitted by the Community Law Centre – Children’s Rights Project


The submission indicated that the chapter relating to parental rights and responsibilities was very progressive and would make strides towards modernising South African law relating to the parent-child relationship. However, it was felt that the Bill falls short of addressing many crucial issues relating to parental rights and responsibilities. These would include: parental rights and responsibilities in relation to child-headed households, children in statutory care, children being cared for through informal arrangements with relatives or others, as well as many issues relating to customary law. In particular, the chapter appears to steer clear of addressing issues that could potentially conflict with customary law. According to the submission, an ideal opportunity to ensure that children’s rights are not abused under the guise of customary practices has been lost.


Submitted by the HIV/AIDS Sector


The submission voiced its support for the proposed clause 32 of Chapter 4 which, along with the definition of caregiver, is a significant improvement on current legislative provisions, in the context of HIV/AIDS where many children are currently denied access to treatment because of requirements that parental consent or consent from a legally appointed guardian is required before medical treatment can be administered.


Submitted by Dikwanketla – Children in Action


The submission contended that children expect all caregivers to care for them in a manner that will promote their growth and development.


Clause 21: Parental responsibilities and rights of unmarried fathers


Submitted by the Children’s Institute


A particularly controversial provision in the Bill is the parental rights and responsibilities of unmarried fathers. The Bill provides for a biological father to have rights and responsibilities over his child if he is married to the child’s mother or if he was married to her at the time of the child’s conception, the child’s birth or any time between the child’s conception and birth. For those biological fathers who do not fall into the above categories, clause 21 provides that unmarried fathers may acquire parental rights and responsibilities in respect of the child, if the father has lived with the child’s mother for a period of 12 months or more consecutively, or for periods which together amount to 12 months; or if he has cared for the child with the mother’s informed consent for 12 months or more consecutively, or for periods which together amount to 12 months.


Clause 22 further provides that unmarried biological fathers may acquire parental rights and responsibilities by entering into an agreement with the mother or with the person having parental rights and responsibilities over the child.


It is submitted that simply leaving the determination as to whether the conditions listed in clause 21 exist up to the father and mother concerned may create great uncertainty. It is argued that it is likely that the father will simply make the decision as to whether the conditions exit or not, thereby putting the burden on the mother to challenge the situation in Court if she believes that the conditions do not exist.


Recommendation

Submitted by the Community Law Centre – Children’s Rights Project


The submission noted that while section 9 of the Constitution of South Africa provides that there may be no unfair discrimination based on inter alia marital status, gender or religion, the Constitution also provides in section 28 that the best interest of a child should be of paramount concern in decisions affecting the life of a child.


Recommendations


      21. (1) The biological father of a child who does not have
  parental responsibilities and rights in respect of the child in terms
  of section 20, acquires full parental responsibilities and rights in
  respect of the child after the child’s birth—
     [(a)] [ if at any time after the child’s birth he has lived with
 the child’s mother—
      (i) for a period of no less than 12 months; or
      (ii) for periods which together amount to no less than 12 months;]
      [(b)] [ if he, regardless of whether he has lived or is living
  with the mother, has cared for the child with the mother’s informed
  consent—
      (i) for a period of no less than 12 months; or
      (ii) for periods which together amount to no less than 12 months.]
     (a) the mother of a child whose father acquires parental rights and
 responsibilities in terms of section 21(1), or any other interested
 person, may apply to the children’s court for an order terminating the
 father’s parental responsibilities and rights if such application is in
 the best interest of the child.
      (2) This section does not affect the duty of a father of a child
  to contribute towards the maintenance of the child.


Submitted by the People’s Family Law Centre


This clause provides that an unmarried father automatically acquires parental rights and responsibilities if after the child’s birth he lives with the child’s mother for a period of no less than 12 months (or for periods together which amount to no less than 12 months). Alternatively, an unmarried father can automatically acquire parental rights and responsibilities if he has cared for the child for a period of no less than 12 months (or periods together which amount to no less than 12 months). In both instances, the acquisition of parental rights and responsibilities is automatic and does not need confirmation by a court order.


The submission is that the clause begs disputes of fact and places the mother in the position of having to disprove what the father is alleging. It is submitted further that children’s rights and interests are best protected by means of the certainty that a court order bestows.


Submitted by the Law Society of South Africa 


The Law Society argued that unmarried fathers should not have automatic access or rights with regard to their biological children, but that this provision should be harmonised with the provisions in the Natural Fathers of Children Born out of Wedlock Act. The father should either have to apply to the High court or Family court for access, although the submission noted that the family court structure it proposes could be equipped to deal with applications of this nature. The submission further questioned the stipulation that the father acquires parental rights dependent on a relationship that has lasted for at least twelve months, noting that relationships are fluid, and that such a period may be arbitrary.


Clause 22(3): Parental Responsibilities and Rights Agreements and Clause 23(2): Assignment of Parental Responsibilities and Rights by Order of Court


Submitted by the Children’s Institute


It is of great concern that the Children’s Bill retains the High Court jurisdiction as upper guardian of all children. This means that any matters related to the guardianship of children must be dealt with by the High Court, which reduces the original aim of improving accessibility to the courts for all. It is submitted that the High Court, divorce court and children’s court have jurisdiction to assign and terminate all parental rights and responsibilities, including guardianship.


Recommendation


That the following clauses be deleted:


Clause 22
[(3) Only the High Court may confirm a parental responsibilities and rights agreement that relates to the guardianship of a child.]


Clause 23
[(2) Only the High Court may issue an order that relates to the guardianship of a child.]


Submitted by the Community Law Centre – Children’s Rights Project


The submission welcomed the inclusion of parental responsibilities and rights agreements. However, concern was expressed regarding the role of the courts in bringing such agreements into effect, as well as the need to revisit those instances where caregivers other than the biological father seek to acquire some aspects of parental responsibilities and rights in respect of a child in their care. This would provide caregivers (such as grandmothers, aunts, uncles or non-relatives) with the opportunity of entering into an agreement with the child’s mother regarding the exercise of parental responsibilities and rights, and could be extremely useful in instances where children are left behind in the care of relatives or friends when the parents seek work elsewhere away from home.


Recommendation


      22. (1) Subject to subsection (2), the biological father of a
  child who does not have parental responsibilities and rights in
  respect of the child in terms of either section 20 or 21, or the
  caregiver of a child, may enter into an agreement with the mother or
  other person who has parental responsibilities and rights in respect
  of the child, providing for the acquisition by the father or such
  caregiver of such parental responsibilities and rights in respect of
  the child as are set out in the agreement.
     (2) The mother or other person who has parental responsibilities
 and rights in respect of the child may only confer by agreement upon
 the biological father of the child, or the caregiver of a child, those
 parental responsibilities and rights which she or that other person has
 in respect of the child at the time of the conclusion of such
 agreement.
      (3) Only the High Court may confirm a parental responsibilities
  and rights agreement that relates to the guardianship of a child.
      (4) A parental responsibilities and rights agreement must be in
  the format and contain the particulars prescribed by regulation.
      [(5) Subject to subsection (3), a parental responsibilities and
  rights agreement—
      (a) takes effect only if—
      (i) registered with the family advocate; or
     (ii) made an order of the High Court, a divorce court in a divorce
 matter or the children’s court on application by the parties to the
 agreement; and
      (b) may be amended or terminated only by an order of the High
  Court, a divorce court or a children’s court on application—
      (i) by a person having parental responsibilities and rights in
  respect of the child;
      (ii) by the child, acting with leave of the court; or
      (iii) in the child’s interest by any other person, acting with
  leave of the court.]


Submitted by the Law Society of South Africa 


The submission argued that the authority before which a parental responsibilities and rights agreement is registered, must be required to ascertain that such agreement is in the child’s best interests before registering it. In addition, it was noted that the role of the Family Advocate in registering parenting plans should be clarified. 


Clause 24: Certain Applications regarded as Inter-Country Adoptions


Submission by the United Nations High Commissioner for Refugees


The submission notes that refugee status protects non-citizens from persecution by the authorities of their country of origin. The procedures that accompany inter-country adoptions require that permission be obtained from the country of origin. Thus, the submission expresses concern that the procedures that accompany inter-country adoptions may expose refugees and refugee children to personal danger or persecution from such a country.


Recommendation


Clause 24 should be amended to include a proviso exempting refugees applying for partial or full responsibility of refugee children from being treated in terms the laws relating to inter-country adoption.


Submitted by Wybrow-Oliver Attorneys


The submission pointed out that, in view of the gap in terms of legislative provisions regulating inter-country adoptions, attorneys have been approaching the High Court for the awarding of guardianship and full parental rights to non-citizens. This effectively enabled those persons to adopt the South African child in the country of the adoptive parent’s origin or current residence. It was argued that clause 24, in providing that all applications by non-South Africans for the assignment of guardianship or full parental rights and responsibilities in respect of a child must be regarded as inter-country adoptions, thereby removing the application from the High Court, infringes on the High Court’s inherent jurisdiction. However, clause 45(4) provides that “(n)othing in this Act shall be construed as limiting the inherent jurisdiction of the High Courts as upper guardians of all children”, which the submission suggests represents a contradiction to what is provided for in clause 24.


It was also argued that not all prospective applicants want to adopt the child in respect of whom they apply for guardianship, but rather want the permanency and security of guardianship while allowing the child to retain his or her South African birthright. Therefore the submission recommended that the presumption that all applications by non-South Africans for guardianship or permanent transfer of parental rights and responsibilities are deemed adoptions, be removed from the Bill. This would enable the High Court to exercise its discretion as to what would be in the best interests of a particular child.


Clause 26 (1): Assignment of parental responsibilities and rights to parent substitutes


Submitted by the Children’s Institute


The issue of passing on guardianship and custody through a document or a formal will is also of grave concern in the context of many parents and caregivers dying due to the AIDS pandemic. The provision in clause 26 allows for parental rights and responsibilities to be assigned to other caregivers via a written document or as part of a will is thus welcome and allows parents to plan ahead for the care of the children they will leave behind in the event of their death. It is submitted that it is important that caregivers may be appointed through a mechanism that is easily accessible and does not require the intervention  of the courts. There is however, an increased need for education of people in order to ensure that they make provisions for their children upon their death. Mere legislation is not enough.


Recommendation


That regulations provide that home-based caregivers and social workers be instructed to make succession planning part of their duties when caring for and attending to sick and dying parents.


Submitted by the Community Law Centre – Children’s Rights Project


Support was expressed for the inclusion of clauses relating to parent- substitutes. However, the submission argued that the assignment of parent- substitutes should also be allowed when both parents are still alive in order for them to make a joint decision. This would protect children whose parents die simultaneously or where the surviving parent dies without having made such an assignment.


The current draft of clause 26 implies that the acceptance of the assignment is only made after the death of the sole natural guardian. Should the parent-substitute decline to accept the assignment after the death of the parents, the children would be left without a guardian. It is submitted that acceptance of the assignment should be made prior to the death of the natural parents to provide certainty as to the status of the children after the parents death as well as to provide the parents with an opportunity to appoint someone else should the parent-substitute decline the assignment.


The assignment by both parents may be revoked by one of the parents after the other’s death if it appears that the assigned parent-substitute is no longer suitable to act as the parent-substitute. However, the parent- substitute assigned by both parents and who has accepted the assignment when both parents were alive, may challenge the assignment of the new parent-substitute by the surviving parent in a children’s court if it is in the best interest of the child or children concerned.


           26. (1) A parent who is the sole natural guardian and who
       has parental responsibilities and rights in respect of a child
       or both parents jointly, may appoint a suitable person as a
       parent-substitute and assign to that person his or her parental
       responsibilities and rights in respect of the child in the event
       of his or her death.

    (2) An appointment in terms of subsection (1)—
    (a) must be in writing and signed by the parent or parents jointly;
    (b) may form part of the will of the parent or parents;
    (c) replaces any previous appointment, including any such
appointment in a will, whether made before or after this section took
effect; and
    (d) may at any time be revoked by the parent or parents by way of a
written instrument signed by the parent or parents.
    (3) A parent-substitute appointed in terms of subsection (1)
acquires parental responsibilities and rights in respect of a child—
    (a) after the death of the parent; and
    (b) upon the parent-substitute’s express or implied acceptance of
the appointment.
    (4) If two or more persons are appointed as parent-substitutes, any
one or more or all of them may accept the appointment except if the
appointment provides otherwise.
    (5) A parent-substitute acquires only those parental
responsibilities and rights—
    (a) which the parent had at his or her death; or
    (b) if the parent died before the birth of the child, which the
parent would have had had the parent lived until the birth of the
child.
    (6) The assignment of parental responsibilities and rights to a
parent-substitute does not affect the parental responsibilities and
rights which another person has in respect of the child.
    (7) In this section ‘‘parent’’ includes a person who has acquired
parental responsibilities and rights in respect of a child.


Clause 32: Care of Child by Persons Not Holding Parental Rights and Responsibilities


Submitted by the Aids Law Project (ALP) and Human Rights Watch
It is submitted that clause 32 of the Children’s Bill, together with the definitions of caregiver and primary caregiver, represents a significant and welcome departure from the current law that will benefit large numbers of children. The clause imposes an obligation on anyone who cares for a child to safeguard the child’s health and well-being and permits care-givers, including those who have no parental rights or responsibilities in respect of a child, to consent to medical examination and treatment of the child if such consent cannot be reasonably obtained from the child’s parent or primary caregiver will remove major impediments to medical treatment for children, including children living with HIV/AIDS and child sexual violence survivors.


However, concern was raised that neither clause 32 nor the current draft of the Children’s Bill more generally are sufficiently clear or comprehensive in safeguarding children’s rights to medical care and treatment. It is submitted that many children are unlikely to benefit from the provision of antiretroviral drugs, unless the definition of consent is broad enough to address their needs. A prior version of the Children’s Bill included several provisions regarding consent that expanded the definition of consent. Although it is likely that these provisions will be included in the section 76 version of the Bill, there is concern that if they are not adequately addressed in the current Bill, some children will still not be able to obtain access to potentially life-saving medication.


Recommendation

         Clauses 135 and 237 of the consolidated Bill permit a hospital
    superintendent to consent to medical treatment in certain emergency
    situations, and on behalf of a street child or a child in a child-
    headed household.


         Clause 136 specifically addresses HIV testing. The clause
    states that consent to an HIV test may be given by a child over 12
    years, by a child under 12 years if the child is of “sufficient
    maturity to understand the benefits, risks and social implications
    of the test,” the child’s parents, care-givers or a designated
    child protection agency arranging placement of the child or a
    hospital superintendent in certain defined circumstances. A child
    and family court can also give permission for an HIV test if the
    consent is being unreasonably withheld or the child’s parent or
    caregiver is incapable of giving consent.  • Clause 32 of the Bill, as well as the clauses contained in the    consolidated Bill pertaining to consent, is enacted immediately to ensure    that all children have access to PEP and antiretroviral medicines.


Submitted by the Community Law Centre – Children’s Rights Project


The granting of limited parental responsibilities and rights to persons who voluntarily care for a child was welcomed. However, the submission held that problems may arise with the interpretation of the requirement of medical treatment being ‘reasonably necessary’, in which case is may be best that the decision should either be left with the medical superintendent of the hospital or with the person in charge of the institution where the child is being taken care of.


Recommendation


The following deletions and insertions were recommended:


           32. (1) A person who has no parental responsibilities and
       rights in respect of a child but who voluntarily cares for the
       child either indefinitely, temporarily or partially, including a
       care-giver who otherwise has no parental responsibilities and
       rights in respect of a child, must, whilst the child is in that
       person’s care—

    (a) safeguard the child’s health, well-being and development; and
    (b) protect the child from maltreatment, abuse, neglect,
degradation, discrimination, exploitation and any other physical or
mental harm or hazards.
    (2) A person referred to in subsection (1) may exercise any
parental responsibilities and rights reasonably necessary to comply
with subsection (1), including the right to consent to any medical
examination or treatment of the child if such consent cannot reasonably
be obtained from the parent or primary care-giver of the child.
    (3) The medical superintendent of the hospital where the child is
to be treated may decide whether the proposed medical treatment is
reasonable or not.
    (4) A court may limit or restrict the parental responsibilities and
rights which a person may exercise in terms of subsection (2).
    (5) A person referred to in subsection (1) may not—
    (a) hold himself or herself out as the biological or adoptive
parent of the child; or
    (b) deceive the child or any other person into believing that that
person is the biological or adoptive parent of the child.


Part 3: Parenting plans


Submitted by the Community Law Centre – Children’s Rights Project
The submission noted that some of the formalities for the drafting of the parenting plans appear to be unduly onerous and in some cases will place a heavy burden on already under-resourced family advocates and social workers. Families who have the financial resources may opt to seek the assistance of a private psychologist and could thus be unfairly advantaged. In addition, it was pointed out that the provisions relating to parenting plans do not clearly set out the procedure to be followed when a parenting plan has to be amended.


Clause 33: Contents of Parent’s Plans


Submitted by the Community Law Centre – Children’s Rights Project


The submission recommended the following amendment:


           33. (1) If the co-holders of parental responsibilities and
       rights in respect of a child are experiencing difficulties in
       exercising their responsibilities and rights, those persons,
       before seeking the intervention of a court, must first seek to
       agree on a parenting plan determining the exercise of their
       respective responsibilities and rights in respect of the child.

    (2) A parenting plan may determine any matter in connection with
parental responsibilities and rights, including—
    (a) where and with whom the child is to live;
    (b) the maintenance of the child;
    (c) contact between the child and—
    (i) any of the parties; and
    (ii) any other person; and
    (d) the schooling and religious upbringing of the child.
    (3) A parenting plan must comply with the best interest of the
child standard as set out in section 6.
    (4) In preparing a parenting plan the parties [must] may seek—
    (a) the assistance of a family advocate, social worker or
psychologist; or
    (b) mediation through a social worker or other appropriate person.


Submitted by the Law Society of South Africa 


The submission argued that when making decisions in terms of a parenting plan, the child’s "cultural upbringing" and "generally anything affecting the best interests of the child" should be included the list of in matters considered while


Clause 34: Formalities


Submitted by the Community Law Centre – Children’s Rights Project


The submission recommended the following amendment:


34. (1) A parenting plan—
    (a) must be in writing and signed by the parties to the agreement;
and
    (b) subject to subsection (2), may be registered with a family
advocate or made an order of court.
    (2) An application for registration of a parenting plan must—
    (a) be in the format and contain the particulars prescribed by
regulation; and
    (b) be accompanied by—
    (i) a copy of the plan; and
    (ii) may be accompanied by a statement by—
    (aa) a family advocate, social worker or psychologist contemplated
in section 33(4)(a) that the plan was prepared after consultation with
such family advocate, social worker or psychologist; or
    (bb) a social worker or other appropriate person contemplated in
section 33(4)(b) that the plan was prepared after mediation by such
social worker or person.


Clause 35: Amendment or Termination of Registered Parenting Plans


Submitted by the Community Law Centre – Children’s Rights Project


           35. (1) A registered parenting plan may be amended or
       terminated only by an order of court on application—

    (a) by the co-holders of the parental responsibilities and rights;
    (b) by the child, acting with leave of the court; or
    (c) in the child’s interest, by any other person acting with leave
of the court.
    (2) Section 29 applies to an application in terms of subsection
(1).


Submitted by the People’s Family Law Centre


It is submitted that it appears contradictory that a parental rights and responsibilities agreement relating to guardianship requires confirmation by the High Court whereas, unmarried fathers can automatically and unilaterally acquire parental rights without any court involvement.





 Clause 40: Rights of children conceived by artificial fertilisation



Submitted by the Community Law Centre – Children’s Rights Project


The Community Law Centre agreed with the provisions relating to the rights of children conceived through assisted conception. However, it was submitted that the terminology ‘artificial insemination’ be used rather than ‘artificial fertilisation’.


Recommendation


The following deletions and insertions were recommended:


           40. (1) (a) Whenever the gamete or gametes of any person
       other than a married person or his or her spouse have been used
       with the consent of both such spouses for the artificial
       [fertilisation] insemination of one spouse, any child born of
       that spouse as a result of such artificial [fertilisation]
       insemination must for all purposes be regarded to be the child
       of those spouses as if the gamete or gametes of those spouses
       were used for such artificial [fertilisation] insemination.

    (b) For the purpose of paragraph (a) it must be presumed, until the
contrary is proved, that both spouses have granted the relevant
consent.
    (2) Subject to section 290, whenever the gamete or gametes of any
person have been used for the artificial [fertilisation] insemination
of a woman, any child born of that woman as a result of such artificial
[fertilisation] insemination must for all purposes be regarded to be
the child of that woman.
    (3) No right, responsibility, duty or obligation arises between a
child born of a woman as a result of artificial [fertilisation]
insemination and any person whose gamete or gametes have been used for
such artificial [fertilisation] insemination and the blood relations of
that person, except when—
    (a) that person is the woman who gave birth to that child; or
     (b) that person was the husband of such woman at the time of such
 artificial [fertilisation] insemination.


Clause 41: Access to information concerning genetic parents


Submitted by the Community Law Centre – Children’s Rights Project


           41. (1) A child born as a result of artificial
       [fertilisation] insemination or surrogacy is entitled to have
       access to—

    (a) any medical information concerning that child’s genetic
parents;
    (b) any other information concerning the child’s genetic parents
but not before the child reaches the age of 18 years.
    (2) Information disclosed in terms of subsection (1) may not reveal
the identity of the person whose gamete or gametes have been used for
such artificial [fertilisation] insemination or the identity of the
surrogate mother.
    (3) The Director-General for Health or any other person specified
by regulation may require a person to receive counselling before any
information in terms of subsection (1) is disclosed.



Chapter 5: Children’s Courts




“Overall cohesion of the children’s courts chapter”



Submitted by the Community Law Centre – Children’s Rights Project


It was the opinion of the CLC that Chapter 5 contained a combination of the present provisions of the Child Care Act and some of the provisions of the SALRC draft of the Bill. The SALRC version formed a comprehensive structure for children’s courts. The attempt to include some of the provisions therein in a chapter that is essentially the same as the present Child Care Act court system has resulted in poor, illogical and incohesive drafting.


Submitted by the Community Law Centre – Children’s Rights Project



Clause 42: Children’s courts and presiding officers



The submission held that there are serious problems with the manner in which Children’s courts currently function. These were summarised as follows:


training and appointment of Commissioners of Child Welfare


training and appointment of children’s court assistants


quality of service of social workers


interpretation differences between Commissioners of Child Welfare


section 11(2) removals and Form 4 removals


legal representation of children


The submission therefore expressed concern about the fact that a number of provisions in earlier versions of the Bill have been omitted. These include provisions relating to the appointment and training of presiding officers, the power to decide on parental rights and responsibilities, guardianship, age of majority, contractual and legal capacity of the child, parent substitutes as well as the removal, departure and abduction of a child from the Republic.


The CLC recommended that the provisions concerning qualifications and training for staff in Children’s courts be re-inserted into the Bill.


It was argued that clause 58(1)(w) should not be included as it relates to delictual claims and the adjudication of these matters would not only overburden the children’s court’s roll, but are also more suitably dealt with in the civil courts.



       Clause 45(1): Matters Children’s Courts May Adjudicate



Submitted by the Community Law Centre – Children’s Rights Project


The submission pointed out that Clause 45 fails to contain certain key matters that a children court should have the power to adjudicate on, namely:


The care or guardianship of or contact with the child


The assignment, exercise, restriction, suspension or termination of parental responsibilities or rights


Artificial procreation of a child, excluding a dispute between contraction parties regarding compensation


Children in need of care and protection or in especially difficult circumstances


Domestic violence affecting a child


The departure, abduction or removal of a child from the Republic


A social security grant to or in respect of a child


The age of majority or the contractual or legal capacity of a child


Safeguarding of a child’s interest in property


These matters, in terms of the present Bill (with the exception of matters dealing with the child in need of protection), remain within in the jurisdiction of the High Court. The submission argued that these provisions would be best suited for a Children’s court in order to increase access to justice.


The Community Law Centre noted that chapter 10 of the 12 August version of the Bill has been removed from Bill 70 of 2003 with the exception of clause 150. it was argued that this is a critical error as the provisions of chapter 10 deal directly with the functions and responsibilities of the children’s courts in relation to children in need of care and protection.


Submitted by the Lawyers for Human Rights (LHR)


LHR submits that the Children’s Courts are best placed to serve as an initial point of entry into the protection framework for foreign children. This becomes particularly necessary in respect of issues relating to the determination of the resident status of the children and, thereafter, the departure and removal of children who are declared illegal foreigners in terms of the Immigration Act, from the Republic.


Recommendation

      “Any matter which relates to the manner in which children, who had
  been declared to be illegal foreigners in terms of the Immigration
  Act, are detained and removed from South Africa”.


Submitted by the Law Society of South Africa 
The Law Society expressed concern about the manner in which Children’s courts are envisaged in the Bill. With reference to the issue of child support, the submission noted that it should be clarified what the relationship would be between the Children’s court and the Maintenance court in terms of jurisdiction. It further pointed out that the divorce court does not have jurisdiction over the guardianship of any child, as this is the exclusive purvey of the High court. This error in the Bill must therefore be corrected.  


Clause 46: Orders which Children’s Courts May Make


Submitted by the Lawyers for Human Rights (LHR)


It appears that foreign children are regularly detained pending their removal from the country. This is in contravention of section 28 the Constitution and the provisions of the Child Care Act, provide for the protection of children in need of care, which are totally ignored when such children are foreigners.


Recommendation

         “An order instructing the circumstances when and the manner in
    which children, who had been declared to be illegal foreigners in
    terms of the Immigration Act are detained and removed from the
    Republic”.



Clause 47: Referral of Children to Children’s Courts by Other Courts



Submitted by the Law Society of South Africa 


With regard to suspending proceedings in order to investigate whether a child is in need of care and protection, the submission proposed that such suspension of proceedings be valid for a period of no longer than fourteen days. 



Children in need of care and protection




  Submitted by the Community Law Centre – Children’s Rights Project



The submission pointed out that the chapter on children in need of special care and protection has been removed from the present Bill. It noted that there are two groups of especially vulnerable children that children’s courts should have jurisdiction to deal with, namely, children affected and effected by HIV/AIDS and refugee children.



Clause 50: Investigations




  Submitted by the Community Law Centre – Children’s Rights Project



The submission argued that children could be highly traumatised when being removed from a parent or caregiver, even where this is necessary. Therefore it was argued that there needs to be a provision in this section setting out that a social worker or police official should be mindful of the child’s presence and vulnerability in exercising their power of removal or entry into the premises by force and should exercise their power in such manner that takes the child’s state of mind into account.



             Clause 55: Legal representation of children



Submitted by the Community Law Centre – Children’s Rights Project


Although the current legislation makes provision for the child’s right to legal representation, it was pointed out that this often occurs only at the discretion of the magistrate. The submission argued that earlier versions of the Bill provided a comprehensive set of provisions allowing for children’s representation in forums when children have a right to participate and have a constitutional right to representation and are often not in a position to exercise that right. The provisions gave substantive guidelines to presiding officers to allow for such representation. Concern was therefore expressed that this clause will not allow for the constitutional right that is afforded to children and will result in many children not having adequate representation in proceedings that go to the heart of their rights contained in section 28(1)(b) and (d) of the Constitution.



                           Recommendation



The CLC recommended that the provisions regarding children’s legal representation as in the original SALRC draft Bill be reinstated.



Clause 60: Conduct of Proceedings



Submitted by the Law Society of South Africa 



                           Recommendation



With reference to the conduct of proceedings in the children’s court, the Law Society proposed that the following be inserted as sub-clause 4 after clause 60(3):


      "The presiding officer has the discretion to refer any matter at
  any stage before or after commencement of proceedings for mediation by
  an impartial mediator or mediators. Such mediator(s) shall not have
  the power to make findings or recommendations, but shall be required
  to assist the parties to settle their dispute. The mediator(s) shall
  certify whether or not the dispute has been settled and if the dispute
  has been settled the mediator(s) shall summarise the terms of the
  settlement”. 



Clause 63: Evidence




  Submitted by the Community Law Centre – Children’s Rights Project



The submission noted that previous versions of the Bill allowed for hearsay evidence, evidence of previous similar conduct and the power of the court to dispense with any rule of evidence. This has been removed from Bill 70 of 2003.


It was argued that to remove the provisions relating to hearsay, similar fact evidence and dispensing with the rules of court, runs contrary to the move to make the court more user friendly. The submission therefore recommended that the provisions of clause 86(1) of the SALRC version be reinstated.



 Clause 67: Appointment or designation of clerks of children’s court



Submitted by the Community Law Centre – Children’s Rights Project


The CLC pointed out that the provisions concerning the role and qualifications of Children’s court assistants, clerks and registrars have been changed considerably since the SALRC proposals were tabled. The submission argued that it is essential is that the clerk, assistant or registrar needs to have the proper qualifications and suitable training to operate in Children’s courts. Therefore it was proposed that the provisions of clauses 81 and 82 of the June version be incorporated into Bill 70 of 2003.



Clause 73: Other Functions



Submitted by the Law Society of South Africa 


The submission also raised questions with regard to the qualifications of persons appointed as Clerk of the Children’s court. 



               Chapter 7: Early Childhood Development



Clause 91: Definitional provision of Early Childhood Development (ECD)


Submitted by the Early Learning Resource Unit (ELRU) and the South African Congress for Early Childhood Development (SACECD)


ECD is defined by all current Government policy documents as an umbrella term, which applies to the processes by which children from birth to at least 9 years grow and thrive physically, mentally, emotionally, spiritually, morally and socially.


The Department of Education focuses on children aged 5 and 6 years, with grade R-provisioning as its key policy priority. Children aged 7-9 years are seen as part of the formal schooling system (grades 1-3). There is a definite gap in ECD provisioning for children aged 7-9 years, as they are not explicitly covered within current ECD policy. For many reasons, most of them, related to poor socio- economic conditions, children 7-9 years may find themselves out of the formal primary schooling system (grade 1-3) and so not benefit from any ECD programmes. Similarly, even though children in the 0-5 year category are covered in policy, many of them do not have access to centre based ECD facilities.


Recommendation


The definitional provision of ECD in clause 91 of the Bill should be changed to the following:


      91(1) Early childhood development, for the purposes of this Act,
  means the process of emotional, mental, spiritual, moral, physical and
  social development of children from birth to school-going nine years
  of age.
      91 (2)(b) provided by a person, other than a child’s parent or
  primary caregiver, on a regular basis to children up to school going
  nine years of age.


Chapter 8: Protection of Children


Submitted by Dikwanketla – Children in Action


Recommendation


All members of society should be obligated to report cases of child neglect and abuse so that protecting children is a community’s responsibility and that removing children from their environment away from family and friends should be the last resort. In the event of a child being removed, the first option for places of safety should be in the community, enabling the child to attend the same school and to have the same friends. In addition, support structures such as counselling and parenting classes should be provided in cases of neglect.
Other measures to protect children from abuse should include:
Empowering children to look after and protect themselves, even though the primary responsibility lies with the care-giver.
Making court processes easier for children to access e.g. going to court should be free.
The court must stop abusive care-givers from seeing their children.
Government must bring more social workers nearer to communities where they are needed.
Government must create a 24 hour toll free number in different provinces (and different languages) where children can call to report abuse.


Submitted by the SA Society for the Prevention of Child Abuse and Neglect (SASPCAN)
The provision previously made for an intersectoral mechanism to see to the proper planning, resourcing and coordination of the child protection system has been entirely omitted. All of its tasks are now simply omitted, without any attempt to reassign them. The lack of a secure basis in the law for the financing and carrying out of these tasks creates a situation in which the current disarray in the child protection system, with all the harm it does to children, is liable to continue ad infinitum.



   Clause 123: Consequences of entry of name in Part B of Register



Submitted by the National Alliance for Street Children


While the NASC supports clause 123, read together with clause 126, which ensures that a person whose name appear in Part B of the National Child Protection Register may not be employed, operate or manage a children’s or youth care facility, the NASC is concerned about whether the office of the Registrar will have adequate resources to respond to request for screenings[8].


Submitted by the HIV/AIDS Sector


The HIV/AIDS sector supports the important provisions (clauses 130, 132 and 133) but emphasise that they have obvious direct implications for health workers.


Recommendation


The provisions should be mirrored or cross-referenced in relevant health policy and legislation. It is also imperative that the provisions for an integrated National Policy Framework (or equivalent) be reinstated.
While the sector also supports the recognition within the Bill of child- headed households as a family form in South Africa, there is not yet consensus as to the appropriateness of the definition, given some of the potential implications for children and their caregivers. If CHH include households in which the parent or primary care-giver of the household is terminally ill, how would "terminally ill" be defined, and what would the adult caregivers roles or responsibilities be in this household? Furthermore, there is no clarity as to whether the provisions for child- headed households are only applicable to those households recognised as such by a provincial head of social development. Another concern highlighted by recent research indicates that child headed households, while clearly existing in small numbers, are frequently a transitional or temporary household form, existing for a period for example, just after the death of an adult and prior to other arrangements being made for children’s care. How would this impact on continuity of care and support for the children within these households?
Suggested amendment(s)


136. (2) A child-headed household must function under the general supervision of an adult designated by organ of state or non-governmental organisation –
      (a) An organ of state or non-governmental organisation determined
  by the provincial head of social development; or
      (b) designated by a children’s court.
(3) The organ of state or non-governmental organisation adult person referred to in sub-clause (2) –
      (a) may collect and administer for the child-headed household any
  social security grant or other grant or assistance to which the
  household is entitled; and
      (b) is accountable to the provincial department of social
  development, or the children’s court, or to another organ of state or
  a non-governmental organisation designated by the provincial head of
  social development, for the administration of any money received on
  behalf of the household.
(4) The organ of state or non-governmental organisation adult referred to in sub-clause (2) may not take any decisions concerning such household and the children in the household without consulting –
      (a) the child at the head of the household; and
      (b) given the age, maturity and stage of development of the other
  children, also those other children.
(5) The child heading the household may take all day-to-day decisions relating to the household and the children in the household as if that child was an adult primary care-giver.
(6) A child-headed household may not be excluded from any aid, relief or other programme for poor households provided by an organ of state in the national, provincial or local sphere of government solely by reason of the fact that the household is headed by a child.
(7) The Minister must include in the national policy framework [or equivalent], a comprehensive and intersectoral strategy aimed at identifying, assisting and promoting the best interests of children living in child-headed households.



Chapter 9: Prevention and Early Intervention


Submitted by Dikwanketla – Children in Action


The Children’s Bill rightfully states that there should be interventions put in place to help children and their families before their problems become too serious.


Recommendation


The Children’s Bill should state that an effective prevention service would require Government service personnel such as nurses, psychologists, social workers, educators and the police to work together with the community, i.e., home-based care-givers, churches and non-governmental organisations. It will also require the existence of support mechanisms such as rehabilitation centres, parenting classes, community leisure activities, such as play grounds, sports fields and transport facilities to get people where they need to go to ask for assistance.


Chapter 10: Children in need of Care and Protection


Submitted by Dikwanketla – Children in Action


Dikwanketla was convinced that removing children from their environment away from family and friends should be the last resort and that only when children are cared for by caregivers other than their biological parents would it be logical to remove such children and take them to places of safety. Children who have been neglected and abused must receive counselling.


Submitted by the Lawyers for Human Rights (LHR)


A child is unaccompanied if no person can be found, either by law or custom, to have primary responsibility for that child. It is submitted that unaccompanied refugee and foreign children should be recognised as children in need of care and protection and that they should therefore be dealt with in terms of children’s court proceedings.


Recommendation


It is recommended that the following sub-clause be added to clause 150 of the Bill:


“(j) is an unaccompanied foreign child”.


Clause 150: Child in Need of Care and Protection


Submitted by the Community Law Centre – Children’s Rights Project


The submission pointed out that clause 150 only refers to clause 47 of Bill 70 of 2003, namely referral of children to children’s courts by other courts. It was argued that there should also be reference to clause 68, namely, referral of matters to the children’s court by the clerk of the children’s court and clause 46 relating to child protection orders and alternative care orders. In addition, clause 166 of the SALRC version provided for additional circumstances in which a child could be found in need of care and protection. The CLC recommended that the provisions of clause 166 of the SALRC version of the Bill be reinstated.


Submitted by the United Nations High Commissioner for Refugees


The submission notes that in accordance with Article 22(2) of the Convention on the Rights of the Child, refugee children whose parents or family members cannot be traced must be treated as nationals would be in a similar situation. Accordingly, the Government has an obligation to assist such children in tracing their families, and in ensuring that they are afforded the same treatment and status as nationals during their stay in South Africa.


Recommendation


That clause 150 of the Bill is amended to include provisions protecting foreign and refugee children whose families prove untraceable.
That the Department of Home Affairs must provide refugee and foreign children whose families prove untraceable with the necessary documentation to regularise their stay in South Africa.



              Chapter 12: Children in Alternative Care



Submitted by the National Association of Child Care Workers (NACCW)


The sector commends the Department of Social Development for much of the contents of Chapters 12 and 14. It considers that these chapters lay a strong and comprehensive foundation for effective services to children placed in residential facilities. It particularly welcomes much of the contents of Chapter 12 as limiting the power of the court and other bodies to transfer children within the child and youth-care system. It also is strongly in favour of much of the chapter on “Child and Youth Care Centres”.


The NACCW, however, raises a concern, which relates to the excision of the provision for free state services to children in statutory care, originally included in clause 188 of the SALRC draft of the Bill. Should child and youth care centres be required to provide for such services, funding for these services would need to be provided in addition to the funding for the residential care. It must be noted that children placed in child and youth care centres are by definition the responsibility of the state, and it is the responsibility, therefore, of the state to provide sufficient resources to enable legislative requirements to be met. If it were incumbent on child and youth-care centres to fund educational and health services for children in their care, this is likely to seriously impact on their capacity to adequately provide for the requirements of the legislation in respect of therapeutic programmes.


Submitted by the HIV/AIDS Sector


The HIV/AIDS Sector contended that while there are many orphans who, as a result of abuse, neglect, abandonment or exploitation, are in need of care and protection by the State, the vast majority of children who have been orphaned are cared for by the extended family and kinship networks. The legislation, therefore, needs to make adequate provision for children who are being cared for in kinship or extended family networks and who simply require financial support or poverty relief in order to maintain their current care arrangements. Failing the full extension of the child support grant to all children, it is likely that the provisions within the Bill will lead to massive pressure on the courts and social workers to process court-ordered kinship or foster care. The HIV/AIDS Sector argued that, in addition to an effective formal child protection system, the best way of ensuring blanket financial provisions for all vulnerable children is the full and immediate extension of the Child Support Grant, with additional needs met through the provision of free basic services and special grants.


Recommendation


A provision within the Children’s Bill is recommended to allow for amendments to the Social Assistance Act which, as it stands, fails to adequately address the needs of children in the context of HIV/AIDS.



              Chapter 15: Shelters and Drop-In Centres



Submitted by Dikwanketla – Children in Action



                           Recommendation



The Government should build places of care and safety in all communities so that children have a place to go to when they need protection and shelter. Also, Government must create a system of funding the NGOs that run child and youth centres so that they are better able to provide for children.




Chapter 16: Adoption


Clause 229(c): Purposes of Adoption


Submitted by the Johannesburg Child Welfare Society


Respect for cultural, ethnic and religious diversity is not in itself a purpose of adoption, but rather a principle to be followed as far as possible when arranging it. At times these considerations have to be made secondary to other factors such as the availability of suitable adopters, or pre-existing bonds between an applicant adopter and the child in question.


Recommendation


It is recommended that the aforementioned clause be deleted.


Submitted by the Law Society of South Africa 


The submission argued that the purpose of adoption as a means of conferring “rights and responsibilities on the adoptive parent and child” must be spelt out in the legislation. 


Clause 231: Persons Who May Adopt Child


Submitted by the Johannesburg Child Welfare Society


A glaring omission is that of provision for the child’s consent to be required for his or her adoption, provided that he or she is capable of understanding what is involved. The right of a child aged ten years or more to give or refuse such consent has been in place for decades. It is unthinkable that this should now be removed. The SALRC, in line with the principle of participation by the child in decisions concerning him or her, expanded this provision to cover all children capable of understanding the implications of adoption and of the consent being given.


Recommendation


That the wording of clause 259(i)(c) of the SALRC draft Bill be added to clause 231 of the current Bill.


Submitted by the Law Society of South Africa 


The Law Society stated that the reference to being "unsuitable to work with children" should be spelt out in greater detail, stipulating, for example, that persons whose names appear as perpetrators in a child protection register would be considered unfit to adopt a child. 


Clause 232: Consent to adoption


Submitted by Robyn Shepstone


The Bill makes no provision for a child ten years of age or older, to consent to his or her adoption. Given that a child of that age has established relationships, it is essential that he or she be involved in any plans for his or her future. At present a great deal of weight is given to the child’s view.


Recommendation


It is recommended that the relevant provisions in the Child Care Act, Act 74 of 1983, requiring a child of ten years of age or older to consent to his or her adoption be retained.


Clause 232(5)(a)(i): Consent to Adoption


Submitted by the Johannesburg Child Welfare Society


The present Child Care Act requires that the consent to adoption be signed in the presence of the Commissioner of Child Welfare (section 18(5) of the Child Care Act, Act 74 of 1983). The Bill affords this responsibility to the clerk of the court, a shift that is dangerous, especially in a context where reports of parents being pressured or offered incentives to consent, without necessarily understanding their rights, are surfacing from time to time.


Recommendation


It is recommended that the words “clerk of the children’s court” in the aforementioned clause be replaced with “presiding officer of the children’s court”.


Clause 233(4)(a): Freeing Orders


Submitted by the Johannesburg Child Welfare Society


This clause provides for a “freeing order”, which would enable a biological parent to hand over his or her parental responsibilities to a designated child protection organisation or an adoption social worker pending the adoptive placement. This would apply in a situation where an adoptive family has still to be found and relieves the biological parent from having to continue to carry responsibilities for the child after having made the immensely difficult decision to distance herself or himself from that child. It is also designed to give the adoption agency or social worker authority to make whatever decisions are required and to reduce the insecurity experienced by adopters before the adoption order is finalised. As it stands the clause provides that a freeing order will lapse if a single application to adopt the child has been turned down. It is submitted that other prospective adopters may be available, and it could defeat the purposes of this clause to simply cancel the order.


Recommendation


It is recommended that this clause be replaced with the words “a freeing order may be terminated by the court if after 12 months since the issuing of the order there appears to be no reasonable prospect of adoption of the child, and the order no longer appears to be in the best interests of the child”.


Submitted by the Law Society of South Africa 


With reference to freeing orders, the submission argued that freeing orders should only be permitted if the parent is replaced by a third party as the person responsible for the child in law. The granting of a Freeing order may be permissible where the obligations are placed on the adoptive parent-to-be, prior to the adoption being finalised. There could be an assignment of parental responsibilities or foster care rather than placing the burden on the State while the child has not yet formally been adopted. 


Clause 234(2)(c): When Consent is Not Required


Submitted by the Johannesburg Child Welfare Society


This clause provides that an unmarried father, who has been convicted of raping the mother, which rape has given rise to the conception of the child concerned, will not be required to give his consent before such a child can be adopted. It is argued that it is of no use to include a conviction of rape as a basis for removal of a biological father’s right to prevent the adoption of his child. Conviction rates for rape are extremely low and if they occur at all, this may be after several years. It is submitted that this clause may lead to an appalling situation for those women and girls who fall pregnant due to rape, and for the babies themselves.


Recommendation


That the current requirement, as introduced by the Adoption Matters Amendment Act, is for a finding by the court on balance of probabilities that the child was conceived as a result of rape. This principle was fought for very hard by NGOs delivering adoption services, and it is recommended that the present clause be replaced accordingly.


Submitted by the Law Society of South Africa 


The Law Society indicated that consent to adoption should not be necessary if the biological father of the child has not exercised parental responsibilities in terms of sub-clause (1)(b). 


Clause 235(1)(b) and (4): Gathering of Information of Proposed Adoptions


Submitted by the Johannesburg Child Welfare Society


The aforementioned clauses require that the court take all reasonable steps to establish the identity and whereabouts of any person whose consent is not required to the adoption, and that a social worker who becomes aware of such information must supply it to the court. This would in practice apply to certain biological parents and unmarried fathers, who have forfeited their rights.
It is not clear why the court would have to do its utmost to obtain the address of a person, who does not have to be notified of a pending adoption. It is argued that there is merit in naming the person and giving reasons why he or she does not have to be notified, but not for the court to be required to insist on having further details. It is also not clear why a social worker who is in confidence provided with information which is not relevant to the proceedings, should be obliged to pass such information on to the court.


Recommendation


It is recommended that the aforementioned clauses be deleted.


Clause 248(1): Access to Adoption Register


Submitted by the Johannesburg Child Welfare Society


This clause provides for an adopted child over 18 years of age and the adoptive parents, and in some circumstances the biological parents of such a child, to access information contained in the adoption register. An order of court is required to access such information for a person under 18 years of age. It has, however, been pointed out that if such information is required for medical reasons and if a medical emergency arises, the expense and delay involved in obtaining a court order could have severe and even fatal consequences for the child. Good adoption practice requires that all available medical background information be obtained by the social worker processing the adoption, and that this be handed over to the adoptive parents, and that adoption agencies will generally supply such information on request by the adoptive family. However, in situations where the relevant information has not been recorded or is not being made available, provision needs to be made for it to be obtained without delay.


Recommendation

Clause 249: No Consideration in Respect of Adoption


Submitted by the Johannesburg Child Welfare Society


This clause addresses the issue of “consideration” that change hands during adoptions, especially those managed by private practitioners in various disciplines. Although these “considerations” are illegal, the meaning of the law is being distorted and many children’s courts appear to be turning a blind eye to such practices. It is submitted that a number of aspects of the present formulation are problematic.


Recommendation

Clause 250(1)(d): Only Certain Persons Allowed to Provide Adoption Services


Submitted by the Johannesburg Child Welfare Society


The stipulation that inter-country adoption practice is restricted to the Central Authority and designated child protection organisations is strongly supported. It is believed that perverse incentives exist for private practitioners in virtuous professions to arrange inter-country adoptions when local options exist, and to engage in practices which are not in keeping with the spirit of the Hague Convention on Inter-country Adoption. This problem can be solved in a situation in which there can be seen to be no link, either direct or indirect, between the income earned by the practitioners involved and the decisions they make with regard to applications to adopt children. It is suggested that this principle should be further clarified, as there is concern that some individuals will form loose arrangements with NGOs in order to be permitted to arrange inter- country adoptions, while themselves collecting the fees paid by adoptive parents.


Recommendation


It is recommended that a clause be included to the effect that all fees with regard to inter-country adoptions be collected in their entirety by the management of the accredited organisation, and that no payments be paid by that organisation to any individual practitioner except in the form of a standard salary.



Standards of national adoptions



Submitted by Wybrow-Oliver Attorneys


The Wybrow-Olivier submission argued that the standard for all adoptions be raised by making oral and affidavit evidence mandatory. It was argued that the system followed by the High Court as upper guardian of children required, inter alia, very rigorous investigations, detailed affidavits made under oath and social workers’ reports relating to various aspects of the lives of both the child and the adoptive parents. According to the submission, judges with years of experience apply these rules uniformly. The submission argued that the same rigorous standards did not apply across the board in the Magistrates courts, as the majority of Children’s Commissioners do not have the necessary experience. This results in placements that are not in the best interest of the child, and, as suggested by the submission, abuse of the system.


Therefore the submission recommended that local adoptions be dealt with in the Children’s Court, national adoptions in the Regional Court and inter- country adoptions in the High Court. This recommendation does not take into account that neither the current legislation nor the Children’s Bill provides for a distinction between “local” and “national” adoptions; nor does the submission clarify what the distinction would be. It was further proposed that the standards in the Children’s Courts and the Regional Courts be substantially raised, and that detailed evidence on affidavit must be required from all relevant parties, in addition to those parties having to be present in the court to provide oral evidence.


Chapter 17: Inter-Country Adoptions


Submitted by the Community Law Centre – Children’s Rights Project


The submission argued that, as South Africa has recently acceded to the Hague Convention on Inter-country Adoptions, it was imperative that mechanisms be put in place to give effect to the Hague Convention as a matter of urgency in order to afford those children affected by these types of adoption the necessary protection. For this to be successful, the necessary resources (both human and financial) need to be provided to the Central Authority to ensure the adequate protection of children affected by inter-country adoption. Furthermore, the submission cautioned that the processing of inter-country adoptions not be viewed by opportunists as a potentially lucrative trade, and expressed support for the inclusion of clauses relating to accreditation of persons or organisations processing inter-country adoptions. It was noted, however, that excluding attorneys from performing inter-country adoptions would result in a vast resource of expertise being lost. The submission recommended that these requirements be clearly spelt out with a similar list of requirements to be applied to applications by attorneys and social workers.



                  Vulnerability of foreign children



With regard to unaccompanied refugee children, the submission noted that these children might easily be targeted for adoption. Although it is always desirable that a child is placed within a family structure, the placement of refugee children pose added dilemmas. Within the debate of inter-country adoption of refugee children, international agencies advocate a ‘hierarchical approach’ to permanent placement. Inter-country adoptions are seen as a last resort for the long-term placement of a child. The question of whether an adoption is in the best interest of an unaccompanied minor must also be viewed in the context of the cultural, religious and ethnic background of the child to be adopted. As far as possible, attempts should be made to place such a child within an environment that is familiar to him or her lest extensive psychological harm result. Placing a child within a family structure with values, norms and cultures alien to this child should be considered only when it is in the best interest of that particular child which should be considered on a case-by-case basis.


Currently, s19(b)(ii) of the Child Care Act allows a Commissioner to approve an adoption order without first ascertaining parental consent. The submission held that the Children’s Bill needs to address this issue explicitly by conforming with Article 22(2) of the UNCRC which mandates Contracting States to trace the family members separated by conflict.


Submitted by Wybrow-Oliver Attorneys


The submission by Wybrow-Oliver Attorneys argued that the permanent placement of a child through the adoption process changes the child’s legal status, and that it was therefore advisable that legal counsel should be involved in every adoption. It was not adequate, the submission argued, to rely on the legal expertise of the judge or magistrate hearing the matter, because by the time the matter reaches the court, a number of processes involving the child and the prospective family have already taken place. Halting the adoption at that stage because of unforeseen legal issues would be detrimental to the child. The submission argued that inter-country adoptions especially involved complex legal processes, and the presenter noted a number of legal issues that come into play in inter-country adoptions. These include:


immigration laws in both the sending and receiving countries
legal status of the parents (biological, foster and adoptive)
the status of the child in terms of medical and social security benefits in the receiving country
whether the consent of the biological parent/s may be legally dispensed with
the appropriate wording of the Court order so as to fully comply with the laws in the receiving country.


In view of these issues, it was argued that specialist attorneys could play a very important role in the inter-country adoption process. In addition, it was argued that it would be both discriminatory and unconstitutional to refuse specialist attorneys the right to apply for accreditation to perform adoption services.


In support of its argument for the accreditation of attorneys to provide adoption services, the submission points out that Article 10 of the Hague Convention on Inter-country Adoption would make such accreditation advisable. The Convention, which is binding on South Africa, stipulates that accreditation should be granted only to bodies that demonstrate their competence to carry out properly the tasks with which they may be entrusted. According to the submission, there are a number of specialised attorneys who have experience in local and inter-country placements and who have demonstrated their competence in this area, and who should therefore be granted accreditation to perform adoption services. The submission also argued that all inter-country adoptions should be dealt with in the High Court.


During the discussion after the presentation, Members expressed concern about the increase in the number of inter-country adoptions in recent years, noting that is appeared at least in some cases that such adoptions were becoming a lucrative business. It also appeared that children from particular communities were being “exported” to particular types of countries. Members asked whether the argument for the inclusion of legal professionals in the process of the inter-country adoptions meant that children needed extra protection in this process, and exactly what percentage of the process would have to be dealt with by a lawyer. The presenter was also asked to explain what implications would be for the process if lawyers were included, especially in light of reports that exorbitant fees were being charged for such adoptions. Members also asked whether the proposal intended lawyers to be added to the list of persons accredited to offer adoption services, or whether the presenter felt they should replace the list in the Bill.


In response to the questions, the presenter argued that it was in the best interest of the child to ensure legal representation at every step of the adoption process. It was exactly because of the complexities at play in inter-country adoptions that the presentation proposed that inter-country adoptions be dealt with in the High Court. In relation to the relationship between the different role-players involved in the adoption, the presenter argued that the adoption should be dealt with by a multi-disciplinary team. While the social worker probably does 20% of the work, the bulk of the process had to be managed by lawyers who should play a coordinating role.


It was also noted that national guidelines on fee structures for adoption services could provide the necessary safeguard against people abusing inter-country adoptions as a “source of easy money”.


In follow-up questions, members noted that the 1997 amendments to the Childcare Act (Act 74 of 1983) was aimed at ensuring that a social worker’s report be required before any adoption was disposed of. This did not negate the role that lawyers would play in the process; however, does the presentation suggest that lawyers should be allowed to recommend adoptions? Another member asked whether adoption agencies currently made use of lawyers, and what the effect of the proposal would be on the Bill.


The presenter said that agencies sometimes do make use of lawyers, but the point of the presentation was that by the time a legal problem arises in court, the process has advanced considerably, and expectations on the side of both the child and the adoptive family have been raised. In addition, the presenter argued that if the Bill ruled out an active role for lawyers, this would mean that lawyers would not be able to approach the High Court in order to facilitate placements. The intention was not for lawyers to replace social workers in the adoption process, but rather to allow lawyers a role in facilitating the complex process of inter-country adoption.


Clause 257(1): Delegation of Functions


Submitted by the Community Law Centre – Children’s Rights Project


           257. (1) The Central Authority of the Republic may in terms
       of section 303 delegate any powers or duties of the Central
       Authority under the Hague Convention on Inter-country Adoption
       to an officer of the rank of Director or higher in the
       Department.

    (2) Any powers or duties of the Central Authority in terms of
Articles 15 to 21 of the Convention may, to the extent determined by
the Central Authority, be performed by –
    (a) another organ of state; or
    (b) a designated child protection organisation accredited in terms
of section 258 to perform inter-country adoption services.


Submitted by the Johannesburg Child Welfare Society


The submission notes that the official in the Department of Social Development, who would be responsible for the management of the Central Authority dealing with inter-country adoptions, was specified in the SALRC Bill as being at least of the rank of Director – now he or she is merely “an official”.


Recommendation


It is recommended that the wording as in clause 284(1) of the SALRC draft Bill be restored.


Clause 258: Accreditation of Child Protection Organisations for Inter- Country Adoptions


Submitted by the Community Law Centre – Children’s Rights Project


    258. (1) The Central Authority may, on application by a designated
child protection organisation or attorney–
    (a) accredit the organisation or attorney to perform inter-country
adoption services; and
    (b) approve adoption working agreements contemplated in section
259, provided the prescribed requirements are met.
    (2) The Central Authority may accredit a designated child
protection organisation or attorney to perform inter-country adoption
services for such period and on such conditions as may be prescribed.
    (3) A designated child protection organisation or attorney
accredited in terms of this section to perform inter-country adoption
services –
    (a) may receive the prescribed fees and make the necessary payments
in respect of inter-country adoptions; and
    (b) must annually submit audited financial statements to the
Central Authority of fees received and payments made in respect of
intercountry adoptions.



Submitted by Robyn Shepstone




The burgeoning AIDS epidemic has given rise to large numbers of orphaned or abandoned children, particularly so in KwaZulu-Natal (the Province in which the presenter carries out her work). The response from welfare authorities, especially in the case of orphaned children, has been to try to arrange foster care with extended family members or other members of the child’s community. Placing abandoned children in foster care with extended family members or other members of the children’s communities is less easily achieved. It is submitted that while the principle of trying to preserve family ties, wherever possible, has resulted in many successful placements, there are placements that are not in the child’s best interests. Where foster care placements are not possible, these children are placed in places of safety of orphanages for lengthy periods of time. It is submitted that no matter, how good the care is in an orphanage, children are better off being raised in a loving and nurturing family to whom they belong.



It is also submitted that State Departments have not traditionally been involved in providing services for very young children, and that social workers employed by the Department seldom arrange adoptions. In addition, child protection organisations in KwaZulu-Natal scaled down specialist services such as adoption. Thus, private social workers with adoption experience have to a large extent filled the gap left by the transformation of traditional adoption agencies. Consequently, it is submitted that child protection agencies have few social workers with the necessary expertise and experience of adoption wok. In addition, huge staff turnovers mean that social workers seldom remain in these organisations for long enough to build the necessary skills. Neither the Department nor child protection organisations in KwaZulu-Natal perform inter-country adoptions.


Since inter-country adoptions became legal in July 2000, private accredited adoption social workers have been at the forefront of this work in South Africa. They have contributed to setting standards and procedures in adoption practice in accordance with the Hague Convention, and for some time several private accredited adoption social workers have had working agreements with licensed inter-country adoption organisations in counties that are signatories to the Hague Convention. It is submitted that if private accredited adoption social workers are excluded from performing inter-country adoptions in the future, their skills, expertise and the networks that they have established will be lost to the profession. It is further submitted that as the formal welfare sector has been unable to fully service the needs of its potential clients, this is an opportunity for the Department of Welfare to work with the private sector, thereby meeting the needs of those children who would benefit from inter-country adoptions.


In conclusion, adoption is never the first option when placing a child but that for some children it is for the best. Once it has been established that adoption is the best permanency plan for that particular child, it is imperative that the placement is arranged without undue delay. Should same- culture and local placement prove unsuccessful, cross-cultural and inter- country adoptions are regarded as a preferred option to institutional care.


Recommendation


It is recommended that private accredited social workers be permitted to apply for accreditation to perform inter-country adoptions.


Clause 259: Entering Into Adoption Working Agreements and
Clause 261: Adoption of Children from Republic by Persons Working in Non-Convention Countries


In the SALRC draft Bill there was provision for agreements only with agencies in Convention countries, or in “prescribed overseas jurisdictions”. This was changed to allow for adoptions by persons from African countries, including neighbouring states, as although these are not Convention countries, they could be regarded as destinations preferable to countries on other continents for purposes of maintaining a child’s identity and heritage. It is submitted that there should not be restrictions; otherwise the Hague Convention loses its teeth. In addition, the field is left open to countries where questionable practices are common. Perhaps there could be a reference to “prescribed foreign jurisdictions” and a system for designating countries from or to which children may move for purposes of adoption, or at least a system for excluding a country where circumstances so indicate.


Recommendation


That clause 259 be expanded to include provision for working agreements with “a prescribed foreign country”, subject to regulation, and that the words “non-Convention country” be replaced with “prescribed foreign country”.
That such restrictions need not apply in the case of children who are to be adopted by family members or by the spouse of a biological parent.
That a procedure for the prescribing of non-Convention countries and the development of the necessary regulations be added to the Bill.


Submitted by the Community Law Centre – Children’s Rights Project


           259. (1) A designated child protection organisation or
       attorney accredited in terms of section 258 to perform inter-
       country adoption services may enter into an adoption working
       agreement with an accredited adoption agency in [another] a
       prescribed foreign country.

    (2) A child protection organisation or attorney referred to in
subsection (1) –
    (a) must provide the Central Authority with certified copies of all
adoption working agreements entered into by that child protection
organisation or attorney for approval thereof; and
    (b) may not act in terms of any such adoption working agreements
before it has been approved by the Central Authority.


Clause 267: Recognition of inter-country adoption of children from non- convention countries


Submitted by the Community Law Centre – Children’s Rights Project


    267. (1) The Central Authority may issue a declaration recognising
the adoption of a child in a non-convention country if –
    (a) the adoption is in accordance with and has not been rescinded
under the law of the country in which the adoption order was made;
    (b) the adoption in that country has the same effect it would have
if the order was made in the Republic.
           (i)     A children’s court may, on application by an
       interested person, refuse to recognise an adoption to which this
       section applies if the procedure followed, or the law applied in
       connection with the adoption-
involved a denial of natural justice or of a person’s fundamental human rights; or
did not comply with the requirements of substantial justice.



Clause 268: Effect of recognition of inter-country adoption



Submitted by the Community Law Centre – Children’s Rights Project


      268.    If the adoption of a child is recognised in terms of
  section 265 or 267, the adoption has in the Republic the effects as
  set out in section 240.


      Order terminating legal relationship between child and parents


     XXX. If the laws of a country do not provide that the adoption of
 child terminates the legal relationship between the child and the
 persons who, immediately before the adoption, were the child’s parents,
 a children’s court may, on application by any of the parties to the
 adoption, make an order terminating the legal relationship between the
 child and those persons, if-
the child was or is habitually resident in that country
the child was adopted by a person who is habitually resident in the Republic;
an adoption compliance certificate issues in the country is in force for the adoption;
the child is allowed to enter the Republic and to reside permanently in the Republic; and
in he case of a refugee child, sufficient provision is made for the child to retain ties with his or her family, tribe, and country of origin.


Chapter 18: Child Abduction


Submitted by the Community Law Centre – Children’s Rights Project


The submission recommended that the issue of trafficking for the purpose of inter-country adoption be dealt with in the separate legislation around trafficking in general that would deal with penal sanctions imposed, etc, although the Children’s Bill should make it clear that trafficking for the purposes of inter-country adoptions is unlawful and would be subject to the sanctions imposed by the trafficking legislation.


Submitted by the People’s Family Law Centre


The submission notes with concern the following omissions from this Chapter:


Clause 273 states that a purpose of the Chapter is “to combat parental abduction”, yet the Chapter provides little guidance to the Courts, SAPS, etc. as to how to deal with parental child abductions within the country.


A clear definition of abduction or, in the terminology of the Hague Convention, on International Child Abduction, “an unlawful removal or retention of a child” is required. The Hague Convention defines the unlawful removal or retention of a child within the parameters of “custody”. However, the Children’s Bill has introduced the concept of parental rights and responsibilities in a departure from the traditional concept of “custody”.


Furthermore, the Bill needs to provide recognition that a holder of parental rights and responsibilities can in fact “abduct” his or her children from a caregiver. In addition, children are vulnerable to being snatched by one and then the other parent in circumstances where the parents are separated and no court order exists that states with which parent the children should live.


Recommendation

                  Chapter 22: Administration of Act



Submitted by the National Alliance for Street Children


Clause 305 makes provision for the outsourcing of services. The NASC welcomes this provision, however stresses that currently the State does not have a realistic uniform financing model. In most instances, services provided by the sector are under-funded[9].


General


Submitted by the Johannesburg Child Welfare Society


The SALRC draft Bill provided for an application to a court to terminate the relationship between a child and his or her biological parents in the country of origin if this had not already transpired in terms of the law of that country. This clause also provided for sufficient provision to be made for refugee children to retain and foster ties with family, tribe and country of origin, which is a concern that arises in some of the literature pertaining to foreign children.


Also omitted from the present Bill are clauses 297 and 300(3) of the SALRC draft Bill. The first provides for the adoption of a child from a prescribed jurisdiction to be recognised in SA, and the second allows for placements to be refused by a court if a denial of natural justice or a non- compliance with the requirements of substantial justice has occurred, even if the relevant procedures have been followed.


Recommendation


It is recommended that clauses 295, 297 and 300(3) of the SALRC draft Bill be reinstated.


The overall thrust of the original draft as it relates to foster care and kinship care has been significantly altered, with very negative consequences. Relevant changes include the following:

Recommendation

Submitted by Vivian, a member of the public, on Surrogacy


The submission focused on the fact that while egg donation is encouraged, it should be borne in mind that hormone treatment and drugs used for fertilisation are dangerous and may even cause cancer in later life. There is a lot of misinformation on the issue of surrogacy, which has now become “big business” in South Africa. Currently, there are no checks and balances on this phenomenon in South African law. In the meantime, Internet fertility safaris are undertaken advertise “the baby business” as a commercial one, and there are even cases of sex selection. This calls for controls since it has now become possible to buy human life. The submission contended that if a human carriers triplets, for instance, it could be regarded as a human rights violation, because women are not baby factories. In some instances, surrogacy promotes human trafficking, for example in East European countries.


Submitted by Save the Children Sweden


The submission by Save the Children Sweden argued that corporal punishment breaches the fundamental human right to respect for human dignity and physical integrity. The submission noted that the United Nations Convention on the Rights of the Child (UNCRC), to which South Africa is a signatory, protects children from all forms of mental and physical violence, and that this protection extends to corporal punishment. Similarly, the African Charter on the Rights and Welfare of the Child prohibits all forms of mental and physical abuse of children.


In support of its argument, the submission further pointed out that the United Nations Committee on the Rights of the Child, which monitors the implementation of the UNCRC, has recommended that South Africa takes effective measures to prohibit by law the use of corporal punishment in the family. In addition, the Committee has recommended that such a provision in law be accompanied by campaigns aimed at raising awareness and educating parents and caregivers on positive discipline. Save the Children Sweden also noted that a similar provision in Swedish law does not carry any penalty, but is believed to have had a positive impact on changing attitudes among Swedish parents and caregivers.


It was noted that South African law already prohibited corporal punishment of children in schools, in care institutions, foster care and in the juvenile justice system. The proposals contained in the draft Bill produced by the SALRC did not prohibit corporal punishment explicitly, but addressed the issue of parents invoking the defence of “reasonable chastisement” in cases where they are charged with the assault of their children.



Recommendation



The submission strongly recommended that the Bill provide for the prohibition of corporal punishment in all forms. The provision should also reiterate the prohibition that already applies to all schools and care facilities. Even if the explicit prohibition was not linked to a penalty for violating the law, it must give a clear message that corporal punishment is not an acceptable way of child rearing. In addition, the provision could, provide a clear legal basis for awareness raising and training. The submission further recommended that the clause abolishing the defence of reasonable chastisement be reinserted into the Bill, thus preventing parents charged with assaulting their children from escaping liability for physically punishing their children.


Intersectoral implementation of the Act (The National Policy Framework) and strategies for children in especially difficult circumstances


Submitted by the National Alliance for Street Children


Chapter 2 of the South African Law Commission’s (SALRC) draft bill, provided for a legislated intersectoral National Policy Framework that was aimed at guiding the implementation of the Act by all Government Departments.


The SALRC also envisaged that the National Policy Framework (NPF) would provide an intersectoral umbrella policy for the various strategies aimed at protecting the different categories of children in especially difficult circumstances. Street Children were one of the categories of children that were singled out for special protection and a dedicated strategy in chapter 16. The SALRC Draft Bill specified in clause 232 that the strategy must be aimed at:
Preventing children from leaving their home environment to live and work on the streets.
Providing street children with access to basic nutrition, basic health care services and shelter, including drop-in centres.
Providing outreach programmes for and counselling to street children, rehabilitating them and reunifying them with their families.
Integrating street children into the education system that includes both education and other services to meet the needs of street children.
Providing impoverished children free access to primary and basic health care services, including at shelters and drop-in centres and through the use of mobile clinics.
Providing impoverished children with free primary and secondary education.
Setting out the responsibilities of and participating roles for municipalities and provincial organs of state in the development and implementation of programmes and projects giving effect to those strategies.
Promoting the engagement of non-governmental organisations in the development and implementation of programmes and projects giving effect to those strategies


Recommendation


Chapter 2 and 16 of the SALRC Draft Bill should be reincorporated into the Children’s Bill.


Submitted by the Early Learning Resource Unit (ELRU) and the South African Congress for Early Childhood Development (SACECD)


Most of the problems in the ECD sector are due to the lack of intersectoral collaboration. The SALRC Draft Bill addressed this problem by including a chapter aimed at ensuring better intersectoral co-ordination through the introduction of the NPF which would co-ordinate and bind all Government Departments and all civil society organisations providing services to children. Furthermore, the SALRC Draft Bill included a clause [106(A)] in the ECD chapter that called for a national intersectoral ECD strategy aimed specifically at ensuring better co-ordination and resourcing of ECD. This strategy would fall under the umbrella of the NPF.


Recommendation


The chapter(s) in the SALRC Draft Bill dealing with the NPF  should  be reintroduced. Also, clause 10 106A (1)  should  be  reintroduced  so  as  to replace clause 92 of the Bill, which would read as follows:


      92  The  Minister,  after  consultation  with  the   Minister   of
  Education, must include in the departmental strategy  a  comprehensive
  national strategy aimed at securing a properly resourced, co-ordinated
  and managed early childhood development system.
Insert:
      (1) The Minister, in consultation with the Minister for Education,
  must include in the National Policy Framework a comprehensive national
  strategy aimed at securing  a  properly  resourced,  co-ordinated  and
  managed early childhood development system, which must include –
      (a) mechanisms for the planning, development and implementation of
  designated early childhood development services and programmes;
      (b)  strategies  for  expanding  the  range  of  early   childhood
  development services and programmes;
      (c) criteria for the selection and designation of early  childhood
  development services and programmes;
      (d) minimum standards for early childhood development services and
  programmes;
      (e) mechanisms to ensure impartiality in the provisions  of  early
  childhood development services and programmes; and
      (d) measures to ensure that budgetary requirements and  procedures
  are complied with to secure adequate funds for the provision of  early
  childhood development services and programmes.


Submitted by the Disabled Children’s Action Group (DCAG)


Provision for an intersectoral NPF has been removed from the Children's Bill. Such a framework (as proposed by the SALRC), would be binding on all government structures with responsibilities for children and are critical to ensuring co-ordinated and holistic approaches to the issues faced by children. The removal of the integrated framework is a serious threat to increased provision of services. In addition, responsibilities for local and traditional authorities to monitor and address the needs of children in their areas have been removed.


In keeping with an intersectoral approach, and under the umbrella of the NPF, the SALRC had recommended that municipalities be required to:


Keep statistics of children in the area (including children with disabilities and chronic illnesses)
Monitor their location and socio-economic conditions.
Conduct a needs analysis at least every 3 years.
Submit these statistics to provincial and local government and use the statistics and needs analysis to budget for services, including access to basic nutrition, shelter, health care and social services.


It is a matter of great concern that the provisions for a needs analysis and monitoring of the protection of the rights of children with disabilities and chronic illnesses have been removed from the Children's Bill.


Recommendation


Chapter 2 of the SALRC Draft Bill, containing the NPF should be re- incorporated into the Bill and the clauses obliging local government to monitor and do needs analyses must be re-inserted into the Bill.



Submitted by the HIV/AIDS Sector



Recommendation


It is recommended that the provisions for the NPF be reinstated to guide the implementation, enforcement and administration of the Act and to ensure that responsibility for the well-being of children is shared across relevant departments.




Strategies for children in especially difficult circumstances


Submitted by the Disabled Children’s Action Group (DCAG)


The Bill does not contain provisions designed to address the situation of children in especially difficult circumstances. Both the clause identifying children with disabilities and those with chronic illnesses as being those in especially difficult circumstances, as well as specific strategies concerning these children, which were to be included in a National Policy Framework, have been omitted from the Bill. The SALRC draft Bill contained a chapter on Children in Especially Difficult Circumstances (Chapter 16). This Chapter defined certain categories of children as being especially vulnerable. It further contained a list of strategies aimed at providing for these children’s needs. The chapter identified vulnerabilities of each group that are specific to South Africa’s situation and then specified that strategies would need to be drafted and incorporated under the umbrella of the National Policy Framework to ensure intersectoral coordination and service delivery.
Chapter 16 identified children with disabilities and chronic illnesses as one of the categories of children in especially difficult circumstances and then specified that the Minister of Social Development must draft strategies to provide for the needs of this category of children. These include strategies aimed at –


Assisting children with disabilities or chronic illnesses to have access to educational, rehabilitation and health care services and empowering them to develop their self-reliance and potential.
Empowering parents or care-givers of children with disabilities or chronic illnesses to care for their children in the home environment and educating parents or care-givers of such children on matters affecting their children.


The Bill no longer contains this chapter and therefore removes the much- needed provisions and strategies that would have helped ensure a more co- ordinated and intersectoral approach to delivering services to children with disabilities and chronic illnesses.


Recommendation


The strategies and provisions to address children in especially difficult circumstances should be re-inserted into the Bill.



4. Report of the Portfolio Committee on Sport and Recreation on Study Tour to France, dated 6 September 2005:




                             Background



   The Portfolio Committee on Sport and Recreation undertook a study    tour visit to France in order to gather more facts in preparation of the    2010 World Cup. The Committee intends to vigorously play a vital role as    watchdog over the entities they practice oversight on with valuable and    informative facts. The visit took place from 1 to 10 June 2005, dated 6    September 2005.


2.      The main objectives were:


How France succeeded in 1998 World Cup and the spin-offs remained as the legacy so that even South Africa would be able to identify and learn from.
Role-played by government and private sector towards preparations.
Effective legislation and kind of security that could prevent and provide the safety at stadium and widespread of the games.
The benefits/gains experienced by the community after the event.
Effective method used to mobilize local community support and buy-in.



      Composition of the multiparty delegation was as follows:



Mr. B M Komphela ANC (Chairperson and leader of delegation)
Mr. M M Dikgacwi (ANC)
Mr. C T Frolick (ANC)
Ms D M Morobi (ANC)
Mr. T D Lee (DA)
Mr. B W Dhlamini (IFP)
Rev M S Khumalo (ACDP)
Mr. R B Bhoola (MF)
Ms N Mbuqe (Committee Secretary)





                  4.       STRUCTURE OF THE REPORT



      The report reflects the activities undertaken by the delegation in
  relation to the objectives with various presentations made to the
  delegates by the various stakeholders, site visits, formal
  interactions and experiences identified by the Committee during the
  visit. Two-day activities were affected by the referendum results that
  caused the delegation not to have fruitful programme.


   The delegation met with the South African Embassy officials to    determine amongst other things political issues so that the delegation    should be aware of exactly where the delegation needs to thread during    the visit. The delegation sketched the objectives of the visit and sought    information on how to sensitize issues politically especially after the    referendum. The officials present were:  Mr. Enrico Kemp the counselor;    Mr. Seraki Matsebe, 3rd Secretary on bilateral affairs; Mr. Mvuyisi    Matiwane 1st secretary; Ms Pule Bosilong, 1st secretary on multilateral    affairs and Mr. Ronnie Kubjane 1st secretary on consular affairs. The    counselor apologized on behalf of the Ambassador who was engaged in    mission affairs.


   The delegation promised not to compare South Africa with France    taking into account that SA is a developing country that is not at the    same level as France in terms of economy. Mr. Kemp sketched a brief    scenario of the past successful event indicating that France is the    largest 5th economy member of the European Union. It was also indicated    that SAFA proposed cooperation with French federations. Mr. Kemp also    noted that the team that won the French World Cup was prepared for 5    years in advance. Zinedine Zidane also suggested that if Tsetse Flies    could be trained by a good soccer academy they would build a good team.


   During the meeting with the officials from the Ministry of Sport and    Youth, the delegation was advised on the role of the ministry in    preparation of a major international event. The Ministry officials also    noted that sport policy is divided into three (i) the state (ii) local    entities and (iii) sport movements and national Olympic committee. The    role of the state is to orientate and give directions. The main business    of the federations is to educate and train elite sport.



4.1          Questions/concerns



What type of incentives is given to federations and clubs?
What happens if there is no development after money has been given for assistance?
How does government make sure that Lotto fund is allocated?



4.2     Response



The state is involved three years in advance in organizing events
especially the international ones.
The second main reason of deficit is the TV broadcasting rights
especially because those unpopular sport codes and national leagues not
associations manage them.
The ministry has a good relationship with federations and every
federation is bound by legislation so even the wealthy clubs abide by
the rules.


  The Ministry thought that in 2002 youth should belong to Education
  but changed in 2004 after noticing that 55% of all clubs consist of
  youth so the Ministry that changed the department to Ministry of
  Youth, sport and voluntary clubs. The Budget is €497m Euros including
  the Lotto funds and the allocation is as follows:
€290 m is for promotion of sport of 15 million for mass participation
€126m is for elite sport with 6 000 people
€54 m – for education and training of civil servants e.g. managers
€27m – for prevention and protection of athletes i.e. antidoping


5.      STATE INVOLVEMENT IN BIDDING PROCESS


  France has an experience in organizing big events; the state was
  involved during the bidding that created private and public entities
  in terms of funding. This was the situation also in 1998 on what FIFA
  designed that the government was not satisfied of the terms and
  regulations. FIFA asked for certain standards and equipment but the
  state had no problem as they were looking at investing and also to
  host more events with perfect infrastructures.

7.      Role of Members of Parliament during preparations



      It was clearly noted that Members of Parliament don’t have
  specific role but were to be opened to ideas of allocation of
  benefits. They participated in their constituencies by networking and
  advertising the event.



8.      Youth involvement



      Two years was dedicated to find spirit of the Cup from the people.
  The youth were invited to the renovations and construction of the
  stadiums that made them felt important and owned the facilities so
  they could not bother of being in the field during the match.  Also
  the community around the facilities felt the spirit of ownership.



9.      Benefits of the event for the youth



Young people could identify themselves with the players that were very encouraging after the event. Social and ethnic values were encouraged and people were more united after the games. The most interesting and encouraging thing was to see the flag lifted even by those coming from the poor areas and the tone was high when France won the Cup.



10.     School involvement



The schools were also involved with national operations of exhibitions on the question of the World Cup. They had stamps exhibiting football and other things. All schools made preparations with drawings on challenges about the event. The delegation was notified that during preparations for the event was not for money but for the people and schools to have an idea about the event. During interaction the delegation noticed that the tickets given to France were only for the organizing committee and big screens were available for young kids and poor communities who could not afford tickets. There was strong mobilization from schools that took place six months before the event to shift the focus on ticket prices and that worked very well.



11.     Benefits of the event to the community



Spin-offs continues and small villages still have money from the event. Benefits would be for all and if there were deficit then it would be left for the state.


12.     Key challenges for the success and problems experienced by clubs and coaches.


Mr. Jacques Lambert, the director-general of the French Football Federation and the president, Mr. Escalettes presented on how their football structures are formulated. Mr. Lambert further briefed the delegation on intensive training course developed that has been recognized as one of the best. French programme and is not automatically transferable to other countries but have to think of how to reinforce training in other countries that are interested.


The delegation had questions and concerns after being briefed such as:


Is the management of football association able to make football successful or is there any problem experienced with coaches. What problems are there when calling national players? Is national team popularized as being the national asset?
What are key challenges as far as infrastructures; level of interaction and legislation expected from FIFA? In the operations of the World Cup what were possible pitfalls/dangers to deal with the challenges/expectations? What were the real benefits?
Were there specific programmes to develop the current stars?


12.2    The response was as follows:


The president noted that there are problems in relation to players who are playing abroad. The country then identified with the national team that the national team is very important but it is not a problem for France players to come back for national games. Also playing abroad has made some of the players became stars because of the experience they acquire from outside the country. Jacques elaborated with more details on the preparations for 1998 event on technical, financial and market related issues. The three key challenges were:


Quality of stadiums
Professional organization of the national team
To make the event national interest


He mentioned lots of changes imposed by FIFA after 1998 on federations but it will differ with SA because FIFA has even imposed tougher conditions.  Jacques advised the delegation that SA government and federations should remain firm with FIFA because the requirements from FIFA are increasing and SA must look at its own interest e.g. finances.


On security, France had difficulty in controlling the hooligans from the neighbouring countries. Specific provisions were made and there were minimal violence incidents.
The pitfall is financial risk and government should be very careful because most of benefits go to FIFA. The only benefit France gained was the image of the country.


There was no need for legislation. Regarding communication, it should be a joint venture with the federation, government and relevant role players. The sites need to be visited 18 months before to show the media the venues and how security operates and work together to showcase the good image of the country.



12.3    Resources and infrastructures



The delegation visited Stade De France the national stadium built during the event that invited lot of publicity and involvement of the community. Mr. Michel Poussau presented on the construction until the completion of the infrastructure. It’s a multipurpose stadium with 18 entrances, 3 levels of stand; 67 bars and foodstalls. The lowest level have 25 000 movable seats. France was chosen in 1992 to host 1998 16th Soccer World Cup. The construction began on 30 April 1995 and finished in December 1997. There were 5 000 people employed.


Stade de France accommodates 2 500 journalists; security centre with 120 video cameras that can zoom in during suspicious acts. One exit evacuates 1000 people but for the whole stadium it takes 8 minutes to evacuate in 80 exits, gates open automatically by the security in cases of emergency.


13.     Meeting with the organizer of the World Cup event.


Lattes Deon-Lichel noted that the major stadium is called Stade Toulouse owned by local authority in an island in the middle of the river. The major interest is that it is isolated for security reasons. The problem is that it cannot be easily accessed. Important games during the World Cup were organized and played there.



13.1    Methods used during organization



All actors participating were gathered i.e. state representatives; sport federations and local participants comprising authorities, district and regions.


First aid is done by police services and complimentary services are for marketing.


Only bus shuttles go to the venue because it was easy to manage buses better for traffic and security reasons.
The first meetings are gathered 18 months in advance to determine where the system is failing and be tested on small games like quarter finals.
The key point is to manage gathering of all participants to work together. The participation and integration of public transport is vital because the event depends on it.
Communication programme needs to train personnel well in advance and the drivers became the organizers of the event through certain training.
Seven years later they are still talking about the event and imagined their jobs as very important. The drivers now are doing their jobs with pride. They had dedicated lane on the road and itinerary was done well in advance and had to conform to it.


The roadblocks were conducted by traffic, national police, municipal and state officials in charge. The cars had special stickers for identification.


14.     Conclusion


The delegation appreciated the hospitality and support given by the South African Embassy in France, specifically Mr. Matsebe, 3rd Secretary on Bilateral Affairs in Paris. There were many other lessons learnt by the delegation that are stated on a detailed report to be discussed by the Committee and provincial counterparts.


15.     KEY FINDINGS


Constant change of regulations by FIFA for the hosting country is a concern.
The issue of tight security and working relationship with other government departments is a dire need.
Preparations for the World Cup should be communicated through all the people of the country including disadvantaged communities for buy-in and ownership of the event. The event would focus mainly on bringing the country together.
The creativity of the youth and their involvement during construction of facilities should be one of the main focuses.
The country should look at building and training of a good team that would mean that a national academy would play a vital role.
Sport in France has a mission to get federations to develop sport with the assistance of local authorities.
Release of players to play for national team, a player is entitled to refuse when called by national team as long as it is not within the agreement or within the calendar of IRB.
Gambling and Lotto is contributing 5% taxation to sport.
Department of Education develops kids at school until they are ready for professional level and have already left high school.
Coverage of the game by big screens for poor communities and those who cannot afford tickets.


 16.    RECOMMENDATIONS


The Committee therefore recommends that:


List of co-operation agreements signed by French Government and some municipalities in South Africa should be pursued by the Committee to facilitate its implementation.
A need exists for overarching policy and legislative formulation for sport. Legislation at this nature will guide all stakeholders in sport to realize the constitutional imperatives on social cohesion, nation building and patriotism. The Committee thus recommends a legislative framework for sport in South Africa.
When the stadiums are announced for hosting the event the Committee should oversee the adherence of safety standards and proper access control.
The plan France had during the World Cup on youth development to involve children at school level should be embraced.
Schools must be mobilized to support the 2010 World Cup campaign, which must include visits during the construction phase of stadia.
The Committee should engage the department to explore ways of involving France NGO, Sport without Boundaries in South Africa’s rural areas.
Proposal for partnership by European Business Women with South African women in business should be pursued.
Taxation on all gambling and lottery entities should be pursued in South Africa; the role of the Ministry of Sport and Recreation in processes with relation to disbursement of such proceeds must be discussed further.


Report to be considered.


5. Report of the Portfolio Committee on Sport and Recreation on Northern Cape Oversight Visit, dated 6 September 2005:



A multiparty delegation of the Portfolio Committee on Sport and Recreation undertook an oversight visit to Northern Cape from 31 January to 02 February 2005, dated 6 September 2005.


1. Purpose


The purpose of the visit was:


To liaise with the Head of the Department on the programmes of the Department
To be briefed about information on mass participation programmes
To be briefed on plans of school sport and how those plans relate to the
     Department for Education’s plans
The Department should brief the Committee on key federations active in
     the province and meet with USSASA officials
   To meet with CBOs i.e. local sport council on what they have for
    rural areas
To find out what plans the province has for indigenous sport
To meet with municipalities to intensively discuss issues of monitoring,
     maintenance and building of facilities
To meet with Metro and local government Chairperson of EXCO dealing
     with sport matters
To look at one or two completed built facilities completed and how are    they utilized


2. Composition of the delegation


The multiparty delegation was composed as follows:


Mr Frolick (ANC)
Mr Reid  (ANC)
Mrs Ramakaba- Lesia  (ANC)
Mr Dlamini (IFP)
Mr Herandein (NNP)
Ms N Borotho (Committee Assistant)




3. Meeting with MEC and the Head of the Department


Ms T Madikane, MEC of Sport, Arts and Culture welcomed the delegation.
Mr. Frolick, leader of the delegation introduced the members of the
delegation and made some introductory remarks.  He then briefed the MEC
about the purpose of the visit.


The MEC made a presentation on the program, priorities and other
challenges of the Department.  She explained that the Department has
done an audit of all facilities in the province, preparing for the 2010
World Cup and submitted the audit report to the SAPA office.  She
mentioned that the team from FIFA was supposed to come to their
province for inspection of facilities between 30 December 2004 to 29
January 2005 but there were some delays.  She also mentioned that part
of the department’s mandate was to develop a plan on how to deal with
the issue of facilities.


Ms Madikane mentioned that the most important aspect was that their
province was the small province and was disadvantaged primarily because
they do not have the provincial team.  She noted that they have a
soccer stadium in Galeshewe.  The stadium’s capacity is eight thousand.
 She also mentioned that their province was not really a soccer
province.  She mentioned that the Department and the stakeholders would
work together for the province to stand a chance for the 2010 event and
that would give FIFA or SAFA a reason to go to Northern Cape.


Ms Madikane further mentioned that the department had put aside money
to build a stadium.  The Department had identified a site, but they
were still negotiating with Debias for a site to build the stadium on.
She also mentioned that the ABSA stadium was privately owned by the
rugby fraternity and had a capacity of twenty thousand.


Ms Madikane mentioned that they had two programmes, namely Sport and
Culture.  However, the department had combined these programmes because
of the remoteness of the province and for the area to benefit.  In
2004, the province launched  sport council and discovered that the
regions were not ready.  The Department had also opened the stadium in
Kgalagadi region and was planning the mass participation launch to be
held in Kgalagadi.  The department had a project that identifies all
problems in facilities, maintenance and the utilization of facilities.




Challenges


The department’s biggest challenge was that of connecting the feasibility study and making sure that the identified land was suitable.
There are no stadiums with enough capacity
The province has very remote areas
Lack of transport
Mining Houses problems have not been attended to by the department
High fees charged for utilizing the facilities
Lack of personnel
Lack of sport equipment
Little budget for school sport


Mr Esau, Head of the Department, mentioned that the province was
prepared and ready for inspection regarding the 2010 event.  He also
mentioned that the biggest concern in the province was the budget.  The
province was in the process of cutting the budget for 2004/2005 which
stood at R6.4 million.  The budget was cut down to R5.9 million.  The
estimate budget for 2005/2006 was R8.3 million and R1.46 million was
for personnel expenditure.


He mentioned that the department had built facilities which became
white elephants.  Physical study is very important in the province, and
the mass participation program is reaching the rural areas.  They have
one sport commissioner in each region, and they would be appointing
more officials in April 2005.


Successes
The department has transformation programmes
There is a committee responsible for school sport
They have mass participation programmes that also address social problems in the communities.  The mass participation funds were from the national department’s conditional grant
They have training for Sport and Recreation coordinators.  They have increased the number of committee coordinators and coaches.  They intend signing incorporating agreement
They have the Facility Audit Project, which assists the department with the municipality and privately owned facilities.  This project had also assisted the department in identifying the problems regarding the facilities
They signed co-operative agreement with municipalities involved with the usage of sport facilities
They had successfully launched the mass participation national programme that was inaugurated by the Minister
They have thirty-three activity coordinators and they had exceeded the required targets stated in the blue print of Sport and Recreation
The activity coordinators went to the national training in various mass participation sport codes, the training was conducted jointly with national federations and the department
They had also conducted courses for the coaches and referees.  The federations in the province assisted in the process
They had established clubs in the communities where there were no clubs existing.  They introduced those clubs to organized sport structures and to the federations
The equipment tenders were done nationally and were not done successfully, and in 2005 were given to the province
They had a committee coordinator appointed for basketball in Siyanda and the coordinator managed to get the sponsorship from the sport shop
In 2005/2006 financial year they would increase the number of coordinators from thirty-three to seventy and would also include the three sporting codes in the existing code, which would be: street volleyball, street netball and street baseball.
In the current financial year the department of sport had an agreement with the Department of Education that sport involving both departments, eg winter and summer games divide the payment
They have school sport and sport officials working together, preparing for SA Games and they also worked together in launching the rural and farm school programmes
One-on-one meeting with the federations namely Rugby, Soccer, Cricket, Hockey, Swimming, Netball, Athletics and Boxing were held.
The department has a good relationship with cricket.  Cricket is the only federation reaching the rural areas.  Cricket has developing officers in Namaqua land
They have the amateur league in the province, the women sport and a large number of women participating in sport, especially in rural areas


The department urged the Committee to raise the issue of schools sport
budget with the national Department


      4.  Meeting with sport federation


Mr Frolick welcomed the federations and expressed concern on the issue
of Mayors who were not present at the meeting.  He briefed the
federations about the purpose of the visit.  He then gave an
opportunity to the federations to share their views, challenges and
successes.


Soccer Challenges/Successes
The district was running the soccer leagues, but not all of them were
         functioning due to lack of sponsorship
The regional office was also running the SAFA Castle Regional
         League sponsored by SAB and the SAFA Regional Woman ‘s League
         without a sponsor.
There was a SAFA Vodacom Provincial League and its offices were
         at the Galeshewe stadium.  This League was played throughout
         the entire Northern Cape
They have a good relationship with the department
Teams’ major problem is lack of transport
The region has a bus that is only used for the developed teams
Facilities in town are not accessible are charged a fee of R200 per
         day to utilize the facility
Racism is a problem
There are eighteen district associations, and each has a district
         league running


Boxing Challenges/Successes
They have a good relationship with the Department and other
         federations.
There are only two facilities that are accessible for boxing and have
         started with female boxing.
Lottery had assisted with funds for equipment
Most boxers are in Frances Baard Municipality
They have training programme for woman boxing, coaches, referees
         and administrators
Lack of transport
The main problem is USSASA that takes their established boxers
A tournament was held in 2004, five medals were won


Athletics Challenges/Successes


They have a good relationship with the Department but lacks
         transport
They have a problem with coaches and officials who attend the
         training course and then disappear
They established clubs in the regions
They have training programme for athletes


Cycling Challenges/Identify Success


Problem of exorbitant fees paid to the traffic department to host
         events every weekends
Lottery had granted them 54 bicycles for the development of
         previously disadvantaged areas.  These bicycles are worth
     R5000.00
         each.  They were insured for R180 per month each.  However, it
     is
         difficult to afford this as the riders, the clubs and the
     provincial
         bodies do not have the necessary funds
Their province was the only known province to host interclub events
         at the different club levels throughout the province
Transportation of the development riders
Most of the development riders are from the underprivileged
         communities
Lack of funding
They have consulted the local traffic department for funds but were
         unsuccessful


Cricket Challenges/Successes


The taking away of Professional Cricket in Griqualand West and the
         Northern Cape by the United Cricket Board due to the awarding
       of
         six franchises throughout the country (2 in Gauteng; 1 in the
         Western Cape; 1 in the Eastern Cape; 1 in KwaZulu-Natal; 1 in
       the
         Free State)
The lack of funding for Amateur Cricket from the United Cricket
         Board due to the awarding of the franchises
Loss of sponsorship for both Professional and Amateur Cricket due
         to the fact that there is no professional brand to attract
       sponsors
The drop in interest in club/schools cricket due to the fact that these

         cricketers no longer have a professional team in the province
Difficulty in sustaining Amateur/Development programmes due to
         lack of funding
Potential retrenchment of staff and subsequent curtailment of all
         amateur/development programmes due to lack of funding
Vast distances and shortage of facilities in outlying areas
Rated by the United Cricket Board to have the best Development
         Programme in the Country
Very positive report from National Transformation Monitoring
         Committee, chaired by Mr John Smith
Overwhelming support and buy-in from Provincial and Local
         Government
A very successful and sustainable development programme
All representative teams in the province have met and surpassed the
National Transformation targets as set by the United Cricket Board
         of SA, ie. all teams are chosen on merit
Locally produced players constitute in excess of 75% in both
         Amateur and Professional teams
Highly successful Amateur and Professional team results over the
         past five years
Facilities are of international standard (for professional cricket - De

         Beers Oval) and first class (Amateur -Yorkshire Cricket Oval –


         Galeshewe)
More black teams in Premier League than white teams - totally
         merit


Rugby Challenges/Successes


They have six regions
They have a council dealing with transformation issues
They received funds from lottery to build a multipurpose facility
Their facilities were accessible and they charge low fees
Their problem is security in facilities, especially during big matches
They were negotiating with soccer to renovate the stadium that fit
         40.000-50.000 people


Comments and Questions


The delegation expressed its concern about the absence of the
          Mayor and the rugby federation at the meeting
The delegation sought clarity on the issue of lack of transport and
         also on what was SAFA doing to assist other than sponsoring
         one bus
There were no disabled sport mentioned by the federation and there
         were no facilities for the disabled


Responses
Cricket caters for the disabled and blind, and they are preparing for
         blind cricket tournament
The deaf people who were interested in playing soccer approached
         soccer federation


The delegation proceeded to visit the cricket facility.


Day Two - 01 February


1.   Meeting with Sports Academy


  Mr. Reid, member of the delegation welcomed members from the sport
  academy and briefed the meeting about the purpose of the visit.


  Mr. Coetzee, the Manager of Sport Academy mentioned that the Academy
  is situated in the Department of Sport, Arts and Culture.  The Academy
  has signed an agreement with the National Institution for Higher
  Education for a suitable location. In the past two years they had the
  rough time because of the resignation of managers.  The Academy has
  thirteen priority codes but only seven codes are actively involved.


  Mr. Coetzee mentioned that the satellites would be situated in the
  following regions; Frances Baard (Kimberley), Siyanda (Upington),
  Pixley Ka Seme (De Aar) and Namaqua (Springbok).  Meetings were also
  held in Siyanda and Namaqua for the establishment of the satellites.
  Municipalities were requested to provide a co-ordinator to assist in
  establishing satellite academies and no response was received from
  these municipalities.  Follow-up meetings are scheduled to fast track
  the matter.


  The satellite will work with the schools, local clubs and regional
  sport structures and will be a feeder to the provincial academy.  The
  provincial Academy will concentrate on the elite athletes.  He also
  mentioned the issue of service providers; he said this was still a
  challenge in the province.  The academy makes use of the testing
  center in Free State, but is in a process to register local
  professional people as service providers, as well as the SANDF.


Mr Coetzee stated that the academy board was in a process of
establishing Financial Committee, which will deal with all the
financial matters of the academy.  The funders of the academy are:  The
National Lottery Board, Department of Sport, Arts and Culture and South
African Sport Commission.  This committee will also help to secure
funds and sponsorship for the academy.


He also mentioned the role of the following stakeholder:


Federations:
They have to identify and provide the respective squads for the academy.  These
squads will receive service from the academy as is spelled out in the Blue Print.


School Sport and Department of Education:


This component should provide athletes to the satellite academies.  All relevant
services will be provided to these athletes.  This process of establishing these
satellites has already started.


National Lottery Board:
This is the head funder for the academy.  At this stage Provincial Department of
Sport, Arts and Culture helps also with the funding of the academy e.g. the
administration and certain programs like disabled and women sport


South African Sport Commission:
The Sport Commission gives strategic direction to the academies and monitoring
the progress of the academies.  It also assists with the funding of the academy.


The following questions were raised:


Which six codes were not actively involved?
Which programmes are in place?
What was the participation of women?
Did they involve the private sector to assist them with funds?


Responses
The non active codes were Hockey, Netball, Tennis, DISSA,
         Amateur Golf, Table Tennis
Programs and services are in place for the seven active codes
         namely, Athletics, Boxing, Cricket, Gymnastics, Rugby, Soccer,


         Table Tennis
They had women soccer, squash and most codes are 50/50 male and
         female
Yes, they did contact private sector for assistance but they were
         unsuccessful




   Recommendations
The government (the Premier and MEC’S) should meet with service
         providers and request them to provide the academy with
      equipment
They should get the cooperate sector on board
They should work with the Department to solve the problem of
         transport
The Portfolio Committee should have a joint meeting with the
         Portfolio Committee on Labour to deal with the issue of mining


         houses
The MEC should form the sub-committee to deal with the critical
         issues in sport including the issue of racism and facilities
      in the
         province


2.  Meeting with the Provincial Interim Sport Council


Mr Reid, the leader of the delegation welcomed the members present and
briefed them about the purpose of the visit in the province.


Findings


Each town in the province has a sports council and the town sports council was elected by the sports clubs and schools
Their funding was taken because of financial constrains of the province
They are funded by the sports academy
They are working very closely with the schools in sport
They had elected the provincial sports council on the 25 February 2005
The province would be hosting the Sport Award on the 26 February 2005
They are in the process of formulating the constitution policy and they had compiled the constitution of SASCO, NEC and Sport Council to assist them
Lack of funding
Lack of Transport
Lack of governing body
Lack of equipment
They had indigenous programmes in schools
They had training programmes for teachers to train children
The facilities in the mining houses were not utilized


It also came to the attention of the delegation that there are mass
participation programmes throughout the province at all levels.


3.   Meeting with Phokwane Municipality


The Mayor welcomed the delegation and Mr Reid briefed the meeting about
the purpose of the visit


Findings


Lack of closed ground in schools
Stadiums were utilized by school children
Lack of office structure
Their schools were not part of USSASA
The community participate in the budget
Facilities are maintained by the municipality
The fee charged for the facilities was agreed by the community and
         the municipality
They had only six sporting codes, namely soccer, netball, rugby,
         cricket, baseball and volleyball
They have programmes of integrating and transformation
They have only two integrated sport codes, namely karate and
         basket ball and most teams are integrated in schools
Last year the lady from London (Score) had a program to mobilize
         people in sport but people were not interested
Youth participate in sport and they were in the process of mobilizing mothers and grannies
They had applied for lottery fund but were unsuccessful
They had requested funds from the district municipality for lights
         and tracks in the stadium and they were unsuccessful
They had one facility that was vandalized, namely Ice Water
There was no progress in swimming and facilities for swimming
         were not accessible
They do not have the indigenous sport
Facilities in town are available, but there is racism




Day Three

The Mayor welcomed the delegation and introduced members. Mr Reid
briefed the meeting about the purpose of the visit.


Findings


 They do not have sports council
 Soccer is the main sport played
 In schools, all sporting codes are played and the district is
 affiliated to USSASA Rugby is played but only in white areas
 The De Aar golf course is developed but due to lack of funds, is not
 developing
 They had boxing and consists of white and black
 They had soccer and netball played in one place
 They had cricket but only at school level
 They had no indigenous sport
 They had received funds from lottery and they built cricket pitch but
 not completed
 They are in the process of transforming the white sporting codes
 Sport was not a priority
 They had developed a relationship with Love-Life to interact in sport
 and to assist them to make sport their priority
 Facilities are accessible
 They had spent R400.000 to renovate the multipurpose center
 They had a programme of going to the community to listen to their
 problem
 They was no progress with DISSA
 They had a good relationship with the Department
 They had a problem of responsibility and accountability
 Lack of transport
 The department does not participate in their forum meeting
 They had a sport activity coordinator


 Recommendations


 There is lack of transport for disabled persons as well as capacity
 building.
Department of Provincial and Local Government together with Sport and
Recreation South Africa in the advent of the new dispensation of
Municipal Infrastructure Grant that a special reservation be made for
building basic facilities. MIG must be able to tell how many facilities
are built in the country and the funds meant for building must be ring
fenced.
National department must assume responsibility that rural areas
especially poverty stricken areas are provided with resources
Prioritization of sport codes should be biased to the disadvantaged.




Report to be considered.