National Health Bill: final mandates; Electoral Laws Amd Bill; Alteration of Sex Description & Sex Status Bill: briefing

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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTOFORLIO COMMITTEE

SOCIAL SERVICES SELECT COMMITTEE
30 September, 2003
NATIONAL HEALTH BILL: FINAL MANDATES; ELECTORAL LAWS AMENDMENT BILL; ALTERATION OF SEX DESCRIPTION AND SEX STATUS BILL: BRIEFING

Chairperson:
Ms L Jacobus (ANC)

Documents handed out
National Health Bill [B32B-2003]
Amendments Agreed to by this Committee on National Health Bill
Department's Response to Negotiating Mandates of 23 September 2003
Final mandates from each of the 9 provinces on the National Health Bill (see Appendix 1)
Alteration of Sex Description and Sex Status Bill [B37B-2003]
Cape Town Transsexual/Transgender Support Group submission
Submission by Sally Gross
Submission Proposals on Alteration of Sex Description and Sex Status Bill (see Appendix 2)
Electoral Laws Amendment Bill [B54D-2003]

SUMMARY
The Committee voted in favour of the National Health Bill and passed the Bill with amendments. All provinces were in support of the Bill except for Western Cape, which abstained from voting. It was agreed that the amendments that were passed did not change the substance of the Bill in any major way but aimed to clarify some important issues and concerns raised earlier.

The Committee was briefed on the Alteration of Sex Description and Sex Status Bill. The Cape Town Transsexual/Transgender Support Group and Sally Gross (representing herself) were present and proposed a list of additional amendments to assist the Committee members in better understanding the concerns of the people for which the Bill was intended for (see Appendix 2 for a full list of questions and proposals).

The Committee was briefed on the Electoral Laws Amendment Bill. The most important amendments dealt with persons with disabilities, voting stations, special votes, and the question of rights of prisoners to vote.

MINUTES
National Health Bill
Department's response to Negotiating Mandates
The Chair proposed that the Committee first concentrate on the Department's response to the negotiating mandates of the nine provinces - this written response had been requested by the Chair at the meeting of 23 September (see document).

Gauteng negotiating mandate
The proposal that the Deputy Minister be included in the National Health Council, was agreed to.

Free State negotiating mandate
-
Clause 7(1)(b)
The province proposed that a guardian should be included in the list of persons who may give consent on behalf of the user who is unable to give informed consent.
The amendment was agreed to.

- Chapter 2 is administered by the National Department and deals with rights and duties of users and healthcare personnel. Although clause 89 of the Bill deals with offences, clause 89 does not indicate what follows in the event of non-compliance of chapter two.

Mr Hoon (State Law Adviser) said that the Cabinet had approved that part as they did not want to criminalise those actions. There were other ways to pursue civil law remedies.
The amendment was rejected.

- Clause 10(3) refers to 'an outpatient' and 'a user who is not an inpatient' seems to refer to the same thing. The committee proposed that from line 19 after outpatient to delete or 'user was not an inpatient use'.
The amendment was accepted.

- Clause 15 (1) before ' has access', to insert 'that' and before 'may disclose' to delete 'and'.
The amendment was accepted.

- Clause 19(b) states that a user must provide 'accurate information' about health status. If the user 'must' disclose any illness, the user must be aware of his or her health status. This requirement that the user must provide accurate information about his or her health status might be an undue burden on users who might not always be aware of their health status. Therefore the province, in line with the national departmental response to the provincial negotiating mandate proposed in line 25, after "accurate information" to insert "known to the user'. It is based on what the national department proposed.

Mr Hoon said that the amendment was not necessary.

Ms D Pearmain (Department legal drafter) said that providing accurate information could not be expected from a patient who had no previous knowledge of it. It was the doctor's responsibility to query the patient on any allergies. If the patient knowingly discloses that information the liability falls on the patient, however if the patient had no previous knowledge of having allergies, no one would be liable, as the doctor could not be expected to know that either.
The amendment was rejected.

- Clause 21(2)(g) of national provision does not provide for the promotion of health and healthy lifestyles as in clause 25(2)(r) applicable to provinces.
The amendment was accepted.

- Clause 21 (3) (a) to replace the word 'resources' with the word 'resource'.
Mr Hoon explained that the original formulation was grammatically correct.
The amendment was rejected.

- Clause 23(1)(viii) in line 17 to delete 'nongovernmental' and to substitute 'non-governmental'.
The amendment was accepted.

- Chapter Four, Clause 25 (2) after paragraph (f) to insert 'coordinate health and medical services during provincial disasters'.
The amendment was accepted.

- Clause 27 (1) (e) the committee proposes that after national to insert 'and provincial'.
The amendment was accepted.

- Clause 27 (2) it is proposed on page 17, line 42 after 'timeframes', to insert 'and guidelines'.
The amendment was accepted.

- Clause 27 (7), before 'nominee' to insert 'or her'.
The amendment was accepted.

- Clause 32 (1) ' every metropolitan and district municipality must ensure that municipal health services are provided in the respective areas subject to subsection two .

Mr Hoon said that it could not be subject to subsection 2, because the above were two different services. One dealt with current municipal health services as defined in the Bill, the other dealt with future health services.
The amendment was rejected.

- Clause 38 (2) (a), it is suggested that on page 2 in line 49 after, 'were' to delete 'given' and to insert 'made known to the applicant or holder'.

Mr Hoon said it would be more practical if the phrase "made known to the applicant or holder" was used, because there could be a lapse in time before it was delivered to the applicant or a holder. However, 60 days was a long time, hence the change was not crucial. If the letter was received late, the Director-General could be asked to extend the period.
The amendment was rejected.

- Clause 50 (3) (c), it is proposed that in line 40 after 'writing' to delete 'and' after 'Minister' to delete 'accepts the resignation'.
The amendment was rejected.

- Clause 50 (5) (b), the word 'advise' should be deleted and the word 'advice' inserted.
The amendment was accepted.

- Clause 50 (6) (b), it is proposed to delete the words 'the majority' and to insert the words 'at least half'
The amendment was accepted.

- Clause 72 (4) it is recommended that in line 17 after 'resigns or if' to delete the words 'requested by the Minister for good cause to resign', and to substitute 'the Minister terminates for good cause the term of office of such member'.

Mr Hoon advised that is the amendment was not necessary.
The amendment was rejected.

Eastern Cape negotiating mandate
- Clause 5, the term emergency treatment should be clearly defined and appear on the definitions list.
The amendment was accepted.

- Clause 7 (1) (b), the subclause does not take into account the role of guardians.
The amendment was accepted.

- Clause 14 (2) (a), the term serious threat should be clearly defined and the responsible person entrusted to determine the serious threat to illness should be known.
The amendment was rejected as serious threat was hard to clearly define.

- Clause 26 (3), line 6 add 'by the National and provincial organisation'.
The amendment was accepted.

- Clause 41 (6) (a), and the functions and procedures.

Ms Pearmain said that it could be a good idea to include "and procedures".

Mr Hoon agreed but said that the wording of the clause would however have to be changed and he proposed to prepare a more appropriate formulation.
The amendment was accepted.

Clause 41 (8), add "must not exceed five representatives".
The amendment was accepted.

Kwazulu-Natal negotiating mandate
No comments. (The Health Portfolio Committee had not supported the Bill because a 75% majority vote had not been obtained. The ANC had supported the Bill entirely and the NNP supported it with the exception of Chapter 6. The IFP and DA rejected the Bill.)

Limpopo negotiating mandate
No comments. Bill accepted.

Mpumalanga negotiating mandate
-
Emergency medical treatment, as envisioned in clause five must be defined.
The amendment was accepted.

- Clause (43) should make provision for the role of traditional healers at the initiation school.
The amendment was rejected.

- The Bill should prescribe enforcement mechanisms in case a user fails to discharge the duties provided for in clause 19.
The amendment was rejected.

- Because a Member of the Executive Council derives the authority to assign any power or function to municipal council from Section 126 of the Constitution, Clause 32 (3) should refer to section 126 (a) instead of section 156 (4) of the Constitution.
The State Law Adviser said that it was in fact correct to refer to section 156(4).
The amendment was rejected

- Clause 79 (1) should authorise the Office of Standards Compliance or its agents to inspect every health establishment and health agency at least once every 12 months.
The State Law Adviser said that it was physically impossible to achieve.
The amendment was rejected.

North West negotiating mandate
-
Emergency treatment should be defined.
The amendment was accepted.

- Chapter 3, section 22, A head of provincial department means accounting officer or superintendent.
The amendment was rejected.

- Chapter 3, section 23, the National Health Council shall also include the traditional healers.
The amendment was accepted.

- The structure of forums must cascade into the provinces as well as into the districts
The amendment was rejected.

- Under Chapter 5, in the phrase "District health system for the Republic", the Committee proposed deletion of 'Republic' and in section 29(1) "for the Republic" should also deleted.
The amendment was accepted.

- Clause 61 (3) of Chapter 8, the committee proposed that authorisation in writing by the Minister might take long, in the interim life may be lost. We rather look into a structure that will shorten the authorisation
The amendment was rejected.

Western Cape negotiating mandate
Abstains from voting on the Bill.

Northern Cape negotiating mandate
-
To insert after Clause 35, the Minister shall establish tertiary and secondary health establishments in all provinces, based on the distance and location of communities.
The State Law Adviser said that this obligation could not be placed on the Minister to do that in every province.
The amendment was rejected.

Voting on the National Health Bill
The Committee voted on the National Health Bill [B32B-2003] and it was passed with the above amendments that had been accepted by the State Law Adviser. All provinces were in support of the Bill except for Western Cape, which abstained from voting.

The Chairperson thanked the Committee members, the representatives of the provinces and of the Department, for their participation is the legislative process of the Bill. The Bill will be sent back to the National Assembly Portfolio Committee. It was agreed that the amendments did not change the substance of the Bill in any major way but clarified some important issues and concerns raised.

Alteration of Sex Description and Sex Status Bill
The Chairperson invited the Cape Town Transsexual/Transgender Support Group and Ms Sally Gross (representing herself) to make submissions on proposed amendments to the Bill:
be considered, which were not included in the list of amendments from the Portfolio Committee.

Cape Town Transsexual/Transgender Support Group submission
Mr Estian Smit, who presented, explained that he was born as a female and three years ago had decided to change his female physical characteristics by taking male hormones to eventually become a man. He is presently living the life of a male. He argued that the Alteration of Sex Description and Sex Status Bill in its current form would only accommodate a relatively small number of transsexual persons. The Bill's current formulation focused on the alteration of "sex organs" resulting in a "sex change". By using these two phrases together the Bill would require any applicant to undergo a whole range of genital surgeries. However, the majority of transsexuals (90% of those transitioning from female to male, but also many transitioning from male to female) could not have or did not desire genital surgery. She asked the Committee to consider its proposed amendments to the Bill in order to make it possible for more transsexual persons to obtain correct ID documents (see submission for more details).

Submission by Ms Sally Gross
Ms Sally Gross stated that she was born intersexed. The concern raised by her related to the use of the phrase "sex change" in section 1 (1) of the Bill. In her opinion, the term was in common colloquial use, but it was probably common cause that while such surgery or medical intervention could confirm and support a change of gender role, no surgical or medical procedure could literally change a person's biological sex. There was an abundance of case-law which hinged upon this. Retention of the loose phrase "sex change" could likely lead to complications when the measure was tested in courts of law. It might therefore be better to substitute a phrase "gender reassignment" or "gender realignment" for it, in connection with surgery (see submission for more details).

Discussion
Mr J Vilikazi (IFP) asked the presenter to elaborate on the meaning of the term "intersexed" and whether that implied having two genitals (both male and female).

Ms Gross replied that some degree of duality in the internal structures of sex organs was possible by having two different bodies of tissue but with the external genitalia there could only be one body of tissue caused by different hormonal triggers, or the absence of them, to develop differently. It would be physically impossible for a child to be born with two sets of fully developed external genitalia tissue, although in some cases it might appear so.

Adv Mogotsi (Legal drafter: Department of Home Affairs) explained that the Alteration of Sex Description and Sex Status Bill provided that the alteration of sex description shall be accompanied by a birth certificate of an applicant. The purpose of the Bill was to accommodate a person who would wish to undergo a sex change and was not intended for intersexed people. Such person could then approach the Director-General and request his or her identity be altered accordingly to what he/she wanted to become.

Mr Kellner (State Law Adviser) agreed with Adv Mogotsi and stressed that this particular Bill did not deal with intersexed people.

The Chair suggested that it would be better to ensure that the Bill encompassed a larger group of people (i.e. included the intersexed people) rather than to produce a second piece of legislation some time in the future dealing specifically with similar issues.

Mrs Vilikazi agreed with the Chair and added that intersexed people should be prioritised in the Bill.

Mr D Kgware (ANC) asked if there was any possibility of broadening the spectrum of people included in the Bill.

Adv Mogotsi replied that the final decision on that would be made by the Committee.

The Chair requested that the presenters prepare a number of possible definitions for the terms that in their opinion needed to be included in the Bill, so that the next time the Committee meets, it could vote on these proposals.

Electoral Laws Amendment Bill
Adv Malatji (Legal drafter: Department of Home Affairs) said that the two Act that were being amended were the Electoral Act of 1998 and the Electoral Commission Act of 1996. He then discussed some of the most important amendments made by the Portfolio Committee.

Section 9 stated that the only people eligible for special votes would be the physically impaired, disabled or pregnant persons, as well as individuals outside of the Republic on Government service or those remaining outside of their voting districts.

Section 24(b) regarding prisoners, stated that only those serving a sentence with an option of a fine could vote. Those who were sentenced to imprisonment without an option of a fine would not be allowed to vote.

Section 6
A person of 16 years of age or older could apply for registration to vote but could not be allowed to vote until reaching the age of 18.

Discussion
Ms E Gouws (DA) suggested, in the interest of all disabled people being able to enjoy their constitutional right to vote, that a phrase "handicapped person" was replaced with "persons with disabilities" in the Preamble. She also suggested an amendment to Clause 11: Substitution of section 39 of Act 73 of 1998, by an addition "all voting stations shall comply with all necessary legislation and regulation pertaining to environmental accessibility by disabled person including the code of practice or regulation of the South African Bureau of Standards".

Mr D Kgware (ANC) said that the use of "region" in Schedule 1A was unclear and requested an explanation. The Chairperson added that the word "region" referred to provinces but it could be misinterpreted as only a part of a province (e.g. Gauteng has six regions).

Mr W Kerfoot (Legal Resources Centre), speaking on behalf of the Civil Society Prison Reform Initiative, asked that the Committee reconsider giving the right to vote to prisoners serving a sentence without the option of a fine.

Adv Malatji argued that if in the name of law a prisoner serving a sentence without the option of a fine could not be a candidate in the elections, it would only be fair that that the same person was not given the right to vote. Prisoners should not be seen as having more rights than the law abiding citizens.

Mr van der Merwe (IEC) said that the change of the wording in the Preamble from "handicapped person" to "persons with disabilities" would be attended to. On the issue of voting stations he assured them that every effort was made to accommodate all people with disabilities as best as possible under given circumstances. He was not ready, however, to support an amendment that would oblige voting stations to comply with all the requirements.

On the misunderstanding between the use of the terms "region" and province", Mr van der Merwe explained that the reason behind using those two words alternatively was to make a distinction between the regional list for the election of the National Assembly as opposed to the national list. The word "province" was used in the case of the election of the provincial legislature. In addition, a term "region" was defined in the Act as being a province.

He commented on Section 9 by spelling out that the special votes were given to people with physical disabilities, pregnant women, persons working for the government who are outside of the Republic, or those being on duty as a member of the security service. No additional categories were intended for the Bill. The Commission was given the authority by the Parliament to prescribe other categories of persons who might be allowed to vote. However the Commission had asked that that privilege be taken away and instead assigned to Parliament.

On the question of the right of prisoners to vote, Mr van der Merwe said that that matter had been dealt with as far as constitutionality was concerned.

Ms Gouws inquired why South African citizens temporarily staying overseas could not be allowed to vote at the embassies and whether the problem was the lack of sufficient financial resources.

Ms J Vilakazi (IFP) asked why those people who know that they will be outside of the country for the elections could not register to vote. She also noted instances when people had been discriminated against in certain rural areas by not being able to register their votes, however, she was not willing to provide any details on those cases at that stage.

The Chair said to Ms Vilakazi that if she knew of any cases of a department doing something wrong, it was her duty to report that information in writing to the IEC for further follow-up.

Mr Kerfoot asked who had motivated for the exclusion of right of the prisoners to vote and what was the reason given. He questioned the rationale of taking away the inherent worth and dignity of a person in addition to punishment by imprisonment.

Mr van der Merwe commented on Ms Vilakazi's example of a person who had approached a Municipal Electoral Officer with a request to be registered and had been turned away. He said it would be a grievous matter and should be reported. He pointed out that there would be targeted registration for areas with low registration numbers on 8 and 9 November 2003.

Mr J Tlhagale (UCDP) asked what was the position for people who had been temporarily overseas during the 1994 and 1999 elections.

The Chairperson replied that according to her recollection, during the first democratic elections of 1994 a one-time special case was made to include all South African citizens all over the world.

Mr van der Merwe confirmed that the 1994 elections had been a special case and added that it was considerably easier to arrange for that then than it would be now. In 1999 the IEC had introduced a special category before the elections that received special permission to vote. That limited group included students, businessmen, people working temporarily overseas. He concluded that the issue was not about enabling people to vote in general but about enabling them to vote on another day than the voting day, and to vote at another place. It would be impossible even for people living inside the Republic. The voting system had been created in such a way so that voting would be done on the same day and at the allotted voting stations. The reason behind that decision was to ensure proper monitoring and control over the process. Another element that contributed to such terms was the financial burden. It would not be justifiable to spend large sums of money on small number of voters in certain areas, nor adjust election timetable nor to build a whole new infrastructure for a voting system for people overseas.

The Chairperson noted that all the comments made by the public and members would be taken under consideration during the final deliberation process scheduled for 2 October 2003.

The meeting was adjourned.

Appendix 1
The following are the final mandates from each of the 9 provinces on the National Health Bill
:
1 Gauteng supported the Bill.
2 Free State supported the Bill but asked to consider the following amendments:
Clause 19(b)
Clause 19(b) states that a user must provide 1accurate information' about health status. If the user 'must' disclose any illness, the user must be aware of his or her health status. That requirement that the user must provide accurate information about his or her health status might be an undue burden on users who might not always be aware of their health status. Therefore the Committee, in line with the national departmental response to the provincial negotiating mandate proposed in line 25, after "accurate information" to insert "known to the user'9 It is based on what the national department proposed.
Clause 32(1)
The Committee noted that whilst clause 32(1) places an obligation on the municipality to ensure that municipal health services are provided in their respective areas, sub-clause (2) provides that such health services by a municipality under sub-clause (1) must first be assigned by the MEC in accordance with section 156(4) of the Constitution.
In the negotiating mandate, the Committee had proposed that clause 32(1) be read In conjunction with sub-clause (2) as follows- "Every metropolitan and district municipality must ensure that municipal health services are provided in their respective areas subject to subsection (2)" The Committee had however not received a full response from the NCOP regarding the proposal.
3 Eastern Cape supported the Bill.
4 Kwazulu-Natal supported the Bill.
5 Limpopo supported the Bill.
6 Mpumalanga supported the Bill.
7 North West supported the Bill.
8 Western Cape abstained from voting on the Bill.
9 Northern Cape supported the Bill.

Appendix 2
List of proposals/questions from submissions on Alteration of Sex Description and Sex Status Bill

Proposals:
1. Include a Definition section.
2. change the terms "sex organs" to "sexual characteristics"
3. Change terms "sex change" with gender reassignment or "sex reassignment"
4. (1) after in a sex change" add "or any person who is intersexed"
5. 2(c) After "in every case" add "in which sexual characteristics have been altered resulting in gender reassignment"
6. Add a new section 2(d) in the case of a person who is intersexed, be accompanied by medical reports corroboratin2 that the applicant is intersexed;
7. Add new section 2(e) in the case of a person who is intersexed, be accompanied by reports from a qualified psychologist or social worker corroborating that the applicant is living and has lived stably and satisfactorily for an unbroken period of at least two years, in the gender-role corresponding to the sex description under which he or she seeks to be registered.

Terms that needs defining:

1. evolvement through natural development
2. sexual characteristics
3. gender reassignment
4. intersexed persons

Questions:
1. Why is there not a section which deals with terminology in this bill? In most bills a definition section is included to give clarity to the terms used in the bill. A case in point is the National Health Bill.
2. What is involved in cases where persons who want to change from one gender to another? Briefly described a "textbook" case.
3. Are all people who make the decision to change sex status, generally considered for surgery, hormone therapy and the like?
4. What are some of the constraints?
5. What percentage of people applying for the operations would be granted them through public hospitals?
6. How would the department go about granting the change in status to a potential applicant? What sort of documentation would the applicant need? Briefly describe the procedures.
7. What does an intersexed person mean? Briefly describe.

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