Western Cape Commissioner for Children Bill: consideration

Premier & Constitutional Matters (WCPP)

12 February 2019
Chairperson: Mr D Michell (DA)
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Meeting Summary

Documents: Western Cape Commissioner for Children Bill

The Committee received a briefing from the Department of the Premier on proposed amendments to the Western Cape Commissioner for Children Bill.

The Department of the Premier reported that various comments were received on the amendment Bill via public participation. The proposed amendments were a reflection of public opinion. The Department proposed that the word ‘functions’ in the Bill should be replaced with the words ‘power and functions’. An amendment to the preamble to make provision for the Commissioner for children to assist the Western Cape Government was also proposed. The preamble is a high-level statement of intention and it helps to give clarity to the law and makes law more accessible to the public. The Department of the Premier reiterated that the preamble is like an executive summary. Therefore, it cannot be loaded with every minute detail of the legislation as this will result in ineffective drafting. The fine and imprisonment should be based on the discretion of the Magistrate, Commissioner or the Court. Fixing the fine and/ or imprisonment will be inconsequential due to the possibility of inflation and different forms offenses might take.

Members argued that fine and imprisonment should be comparable with what obtains in other Chapter 9 institutions. Fine and imprisonment should be increased so that people take the Office of the Commissioner seriously. Also, the independence of the Commissioner from the Executive must be ensured in order to maintain the power of the Office of the Commissioner.

 

Meeting report

The Chairperson indicated the meeting agenda was to consider the Western Cape Commissioner for Children Bill [B4-2018]. The comments matrix and oral submissions were available. He invited inputs and clarity-seeking questions from Members.

Mr C Dugmore (ANC) sought clarity on the offenses and associated penalties, which were specifically noted during the public hearings. Failure to consider these penalties will weaken the ability of the Commissioner for Children to perform his/her duties. The penalties should be comparable to those of other Chapter 9 institutions, especially at the national level.

The Chairperson said the question has been addressed in the matrix. He, however, asked the Department of the Premier to answer Mr Dugmore’s question.

Ms Anita Vosloo, Director of Legislation, Department of the Premier, said that the Department of the Premier proposed a fine of imprisonment not exceeding six months to offenders. This is comparable to what obtains in other Chapter 9 institutions.

Mr Dugmore sought clarity on the penalties issued to people who refuse to co-operate with public institutions or with the Commissioner for Children.

Ms Ammaarah Martinus, Director: Policy, Research and Analysis, Department of the Premier, said that anyone, who refuses or fails to furnish information or an explanation to the Commissioner, or furnishes information that is misleading knowing that it is false and misleading, is guilty of an offense and on conviction is liable to a fine not exceeding R100, 000 and imprisonment not exceeding twelve months.

Mr Dugmore suggested that the fine and imprisonment should be increased so that the Office of the Commissioner is taken seriously.

Ms Vosloo said the extent of fine or imprisonment is determined by the magistrate commissioner or the court based on the intensity of the offense committed.
Mr Dugmore asked the Department of the Premier to indicate the exact wording of the proposed amendment to the Bill.

The Chairperson said that the proposal will be considered during the discussion of the clauses.

Adv Romeo Maasdorp said that the extent of fine and or imprisonment should be left to the discretion of the Presiding Officer. The fine and or imprisonment should be open-ended since it is difficult to predict the severity of offences that may or may not be committed.  He said that the extent of fine and or imprisonment cannot be fixed as these will be inconsequential.

Ms Vosloo said the proposed amendments by the Department of the Premier aim to provide clarification and improvement to the Bill. She confirmed that the proposed amendments were discussed with Parliamentary Legal Adviser, Adv. Maasdorp.

Adv Maasdorp confirmed that all concerns raised during the public hearings were properly considered and effected in the proposed amendments. He confirmed that his office and the Department of the Premier consulted extensively on the amendments.

Ms Vosloo said that the Department of the Premier proposed an amendment to paragraph 2. The Department of the Premier proposed the commissioner must protect and promote the interest of children.

Mr Dugmore said that the preamble, as it stood in the Bill, was adequate. He raised concern on the proposed insertion. He suggested that the preamble should remain as it is to maintain the independence of the Commissioner. The proposed insertion that the Commissioner should assist the Western Cape Government could potentially weaken the power of the Commissioner. Also, the insertion may contravene section 78 of the Provincial Constitution.

Ms Martinus said the proposed insertion was informed by public participation. The insertion aims to provide clarity on the role of the Commissioner for Children.

Adv. Maasdorp said the role of the proposed insertion is to make a law that is accessible to the public. The preamble speaks to section 78 at the discretion of the Commissioner for Children. It is a welcome amendment as it improves the constitution and helps members of the public to easily understand the rule of the Commissioner for Children.

Mr R McKenzie (DA) corroborated the view of Adv. Maasdorp and Ms Martinus. The insertion gives clarity to the Bill.

Mr Dugmore said both Sections 78 and 79 should be considered in the preamble. The role of the Commissioner is to assist the Western Cape Government and hold government accountable for its actions. Non-consideration of section 79 of the provincial constitution would weaken the power of the Commissioner.

Adv Maasdorp said that the preamble is a level statement of intention of the legislation. The preamble should not be loaded with every minute detail as this will result in ineffective drafting. The word 'assist' encapsulates monitoring research and investigation. The Commissioner assists the Western Cape Government to protect children, for example, if the recommendation made by him is implemented.

Mr Dugmore insisted that the preamble remain as it is.

The Chairperson ruled in favour of Mr Dugmore.

Consideration of the Commissioner for Children Bill clause by clause

Clause 1
Ms Vosloo proposed a grammatical correction to Clause 1 of the Bill. The ‘of’ should be replaced with ‘to’.

Clause 2
Mr Dugmore suggested that the civil society be given the opportunity to interact with candidates before final selection into the Office of the Commissioner. This adds credibility to the entire selection process. This would be a welcome innovation.

The clause remained unchanged because one Member raised an objection to Mr Dugmore’s proposal.

Mr McKenzie said it would be difficult to include members of the civil society in the appointment and vetting processes because it is not easy to know the organisations with legitimate interests in children.  More so, there are thousands of NGOs, for example, and this will make selection of representatives of civil society tedious.

Mr Dugmore insisted that members of the civil society should be given the opportunity to interact with candidates that appear before the Committee.  

The clause remained the same because a Member raised an objection to Mr Dugmore's proposal.

Ms Vosloo pointed attention to clause 3(2). The ‘or’ in paragraph (c) should be moved to paragraph (d). Also, a new paragraph (e) should be inserted to address all offices that may cause conflict of interest. She also proposed the insertion of sub-clause 3 to consider people that may not be appointed or nominated to be Commissioner for Children if the person has committed an offence associated with dishonesty or violence or related offences as stipulated in Section 1 of the Criminal Law and other related Laws. Also, unrehabilitated insolvents will not be considered. The amendments emanated from public participants and this helps to strengthen the appointment process.

Discussion
Mr McKenzie expressed satisfaction with the amendments. He, however, sought clarity on the nature of the appointment. Is it a full-time appointment? Does the Bill prohibit the Commissioner from engaging in other businesses just as it is with other Chapter 9 institutions and the Land Claims Commission?

Ms Martinus, in response, said that the appointment is full-time. The Commissioner will not be involved in any other business during his/ her tenure.

Clause 4
The Clause was agreed to without any amendments.

Clause 5
The Department of the Premier proposed that the content of Clause 5, sub-sections 1b and 1c be deleted. The reason is that Clause 4 has process to remove or suspend the Commissioner in case he commits certaffence(s).

Ms D Gopie (ANC) wanted to know if the amendments proposed to clause 3 were covered in clause 5.

Ms Vosloo said that Clause 3 deals with qualification. Disqualification has been inserted as well. Clause 4 deals with the removal and/or suspension of the Commissioner. The Commissioner might be suspended by the Premier initially. The Parliament can then investigate the matter, after which the Commissioner might be reinstated or removed. Clause 5 deals with the processes involved if the office of the Commissioner becomes vacant.

Members agreed to Clause 5 with the proposed amendments.
Clause 6

Ms Vosloo said the proposed amendment deals with the replacement of the word ‘functions’ with ‘power and duties’. These are consequential amendments that allow for consistency in the Constitution.

Members agreed to Clause 6 with the proposed amendments.

Clause 7

Members agreed to Clause 7 without any amendments.
Clause 8

Ms Vosloo proposed an amendment to clause 8(1a). She said that the proposed amendment deals with the replacement of the word ‘functions’ with ‘power and duties’. These are consequential amendments that allow for consistency in the Constitution.

Members agreed to Clause 8 with the proposed amendments.
Clause 9

Ms Vosloo proposed an amendment to Clause 9(a) (i). The proposed amendment deals with the replacement of the word ‘functions’ with ‘power and duties’. These are consequential amendments that allow for consistency in the Constitution. She also proposed a grammatical correction to Sub-clause (a) (ii). The word ‘is’ was replaced with ‘are’.
Members agreed to Clause 9 with the proposed amendments.

Clause 10
Sub-paragraph (b) was proposed to insert the Provincial Constitution.

Ms Vosloo proposed the replacement of the word ‘functions’ with ‘power and duties’ in paragraph (e). These are consequential amendments that allow for consistency in the Constitution.

Members agreed to Clause 10 with the proposed amendments.

Clause 11
Members agreed to Clause 11 without any amendments.

Clause 12

Mr Dugmore raised concern about Clause 12(2). He requested that the Department of the Premier stipulate the time-frame concerned individuals were expected to comply with the recommendations of the Commissioner. This will allow people to know what they should comply with.

Ms Vosloo said that timeframe will be determined on a case-by-case basis.

Members agreed to Clause 12 without any amendments.

Clause 13

Ms Vosloo proposed the replacement of the word ‘functions’ with ‘power and duties’ in Sub-clause 1 of Clause 13. These are consequential amendments that allow for consistency in the Constitution.

Members agreed to Clause 13 with the proposed amendments.

Clause 14

Ms Vosloo proposed the replacement of the word ‘functions’ with ‘power and duties’ in paragraph (a) of Clause 14. These are consequential amendments that allow for consistency in the Constitution.

Members agreed to Clause 14 with the proposed amendments.

Clause 15

Ms Vosloo proposed insertion of Sub-clause 1 to provide for the word ‘contemplate’ in Section 8. She also proposed insertion of Sub-clause 4 to protect those who give evidence to the Commissioner. The evidence provided to the Commissioner may not be used against the person who gave the evidence, except in the case of perjury and related offenses.

Members agreed to Clause 15 with the proposed amendments.
Clauses 16 and 17

Members agreed to the Clauses without any amendments.

Clause 18

Ms Vosloo proposed the replacement of the word ‘functions’ with ‘power and duties’ in Sub-clauses 1 and 3 of Clause 18. These are consequential amendments that allow for consistency in the Constitution.

Members agreed to Clause 18 with the proposed amendments.

Clause 19

Ms Vosloo proposed the replacement of the word ‘functions’ with ‘power and duties’ in Sub-clause 1 of Clause 19. These are consequential amendments that allow for consistency in the Constitution. She also suggested that the word ‘Province’ should be spelt correctly. She proposed the insertion of Sub-clause 2 so that the principles that apply to the Commissioner in Clause 6 also apply to all workers under the Commissioner.

Members agreed to Clause 19 with the proposed amendments.

Clause 20

Ms Vosloo proposed the replacement of the word ‘functions’ with ‘power and duties’ in Clause 20. These are consequential amendments that allow for consistency in the Constitution.

Members agreed to Clause 18 with the proposed amendments.
Clauses 21, 22, 23 and 24

Members agreed to the Clauses without any amendments.

Clause 25

Mr Dugmore said there is a problem if the Bill empowers the Premier to make laws on any matter that he/ she feels necessary without proper consultation with the Legislature. This may undermine the power of the Commissioner. He proposed that the Premier consults with the Legislature before any law is made.

Mr McKenzie seconded the proposal.

Ms Vosloo said there are provisions for the Premier to consult with the Legislature before such laws are made. She urged the Committee to give the Department of the Premier time to propose the amendments so that the resolutions are tabled before the Committee before finalization by the Premier.

Members agreed to Clause 25 with proposed amendments.

Clause 26

Ms Vosloo proposed that the penalty should be in form of fine and imprisonment not exceeding six months.

Mr Dugmore argued that the fine should be stipulated. This will make people take the Office of the Commissioner seriously.

Ms Martinus said that fixing the fine will be inconsequential given the possibility of inflation and different forms offenses could take.

Mr Dugmore accepted Ms Martinus’ view as a valid agreement. He proposed that imprisonment should be twelve months in order to serve as a deterrent to those who may choose not to co-operate with the Commissioner.

Members agreed to Clause 26 with proposed amendments.

Clause 27

Members agreed to Clause 27 without any amendments.

Consideration of minutes

The minutes of the 29 January 2019 meeting were adopted without any correction.

Quarterly report

The quarterly report was adopted with a minor correction.

Committee Report on Western Cape Commissioner for Children Bill

The Chairperson noted that the preamble and all Clauses were agreed to with the amendments as discussed. He went further to read the motion of desirability associated with the Bill. Also, he read the Draft Report of the Standing Committee on the Department of the Premier on the Western Cape Commissioner for Children Bill [B4-2018] dated 12/02/2019. The Standing Committee on the Department of the Premier having considered the Bill of the Commissioner for Children referred to it in terms of Standing Rule 171 agreed that the report be considered.

The Committee unanimously agreed to support the Bill.

The Chairperson said the report will be referred to the House for debate. He thanked the Department of the Premier, the Legal Adviser, Committee Members, Parliamentary Support Staff, logistics team and everyone in attendance.

The meeting was adjourned.

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