Children’s Amendment Bill way forward; with Minister

Meeting report

The Chairperson noted an apology from the Acting Director-General, Linton Mchunu, from the Department of Social Development. The Committee has received correspondence from the Gauteng High Court, which would be dealt with according to the relevant timeframes.

Ms M Sukers (ACDP) wanted clarity from the legal advisor about the clauses dealing with the comprehensive legal solution for foster care.

The Chairperson replied that this is in the agenda and will be covered throughout the meeting.

Minister’s opening remarks
Ms Lindiwe Zulu, Minister of Social Development, indicated that she was attending a memorial service and would be brief with her remarks.

Due to the diligence of the Committee, the Children’s Amendment Bill has reached an advanced stage of the legislative process. The amendments made are aimed at improving the lives of the children of South Africa, as well as strengthening the care of children and the protection system nationally. The judicial outcome from the Gauteng High Court to the Department's request for a further extension had largely propelled the developments in the Committee. In November 2021 there were expectations that the Department would return to court with a plausible submission. She supports the proposal that foster care issues in the Children’s Amendment Bill should be fast tracked. This would ensure that substantive and meaningful changes are implemented.

She suggested to the Committee that the process is better off being considered a Section 76 Bill, taking into consideration the need for it to be processed by the Select Committee and the National Council of Provinces. She appreciated that the Portfolio Committee had set aside days to consider and finalise the Bill. Since the commencement of the provincial consultation process, the Bill is comprehensive in as much as it is complex, particularly when there is a need to find comprehensive legal solutions that address foster care challenges. She noted that there are already processes and tools in motion to support and reinforce efforts towards the actualisation of a comprehensive legal solution.

In addition, Cabinet had approved the National Childcare and Protection Policy, the Social Assistance Amendment Act, and its accompanying regulations. She assured the Committee that these are ready for implementation in conjunction with the Bill once it has been finalised.

There are ongoing discussions on a few critical policy issues such as baby savers. She is aware that neither the National Childcare and Protection Policy or the Children’s Amendment Bill initially submitted to Parliament is addressing these issues. She assured the Committee that with ongoing research there will be developments and great interventions will be implemented according to feasible policy options. It is important for the Committee to appreciate that within the journey of democracy in building strong institutions for civilian protection, there exists a Portfolio Committee which will provide the necessary oversight over the Department.

She welcomed the constant fruitful engagement by the Committee and is hopeful that there will be amicable discussions to finalise the Bill. She thanked the Chairperson for her personal investment, as well as the members of the Committee for their dedication to the Children’s Amendment Bill.

The Department would now provide a clause-by-clause presentation of the Children’s Amendment Bill and it had been agreed that it would not go through everything.

The Chairperson said the next agenda item would be the presentation of the legal advisor to provide a way forward. She insisted that the sole discussion in the meeting would be the Children’s Amendment Bill and anything outside of that would be discussed some other time. She highlighted that there is no possibility of a court extension that the Committee had previously requested due to the Covid-19 pandemic.

Parliamentary Legal Advisor briefing
Adv Siviwe Njikela, Senior Parliamentary Legal Advisor, announced he would be standing in for Mr Mjenxane who was currently incapacitated. As a stand-in, he may not have the background knowledge but he had consulted with Mr Mjenxane; the Committee secretary; the State Law Advisors office and the Department’s legal services. He is of the view that there is a consensus on how to approach the Bill.

The Department would need to comply with the court order and the Bill goes beyond the requirements of the court order. He referred to the presentation made by Mr Mjenxane on 1 April 2022 where he advised that there needs to be a focus on the subject of foster care as directed by the Gauteng High Court. Through his deliberations with colleagues from both the Office of the State Law Advisor and Department, there is a consensus that the focus should remain within this scope.

There may be differences in identifying which clauses of the Bill relate to foster care. Between the Parliamentary and State Law Advisors, there seems to be an agreement that the relevant provision in B18-2020 to comply with the court order would be clause 86. The Department has a wider view of which clauses need to be included and he cannot speak for the Department and would rather allow them to have the platform to outline this themselves.

The Department identified twelve clauses that need to be carried forward in the current Bill, while the Legal Advisors identified only one. There should be a thorough discussion between the legal advisors to resolve this issue and thereafter come back to the Committee with a recommendation.

He suggested that the Committee should go through the Bill and decide on each clause based on the decision that seems to have already been made, in proceeding with foster care related clauses.

Adv Njikela suggested that there are three ways of going through the Bill taking into consideration that the Bill is quite substantial. Considering the size of the Bill, a clause-by-clause deliberation may be a slow-moving approach depending on the energy of the Committee. Other methods include approaching the Bill chapter by chapter or page by page. These three practices have been observed over time in terms of how parliamentary committees deliberate. The Committee needs to consider all the provisions of the Bill and the decisions made, irrespective of whichever approach adopted by the Committee. There needs to be evidence that minds have been applied and decisions have been made.

Adv Njikela said he would hand over to the State Law Advisor to substantiate the position taken.

Discussion
The Chairperson welcomed Adv Njikela's comments.

Mr D Stock (ANC) appreciated the briefing on the ways to approach the Children’s Amendment Bill. In line with the report from the Gauteng High Court, and the back and forth of the previous court time extensions there are implications for the children of the country who are to be beneficiaries of the Bill. The Portfolio Committee finds itself in a predicament, which results from sitting on the Bill and not being able to make decisions.

He noted the concerns raised in the public hearings in the different provinces during the consultation process. These issues are interrelated with foster care. There are matters that directly affect establishing a comprehensive legal solution.

Mr Stock proposed that the Portfolio Committee should make a decision to allow the Department and the legal advisors the time to sit and discuss this and thereafter brief the Committee on exactly how many clauses are to be considered to avoid confusion.

The Committee is in no way disregarding the issues raised during the public hearings. The Committee will be embarking on a process to consider these. He referenced the Early Childhood Development (ECD) migration to the Department of Basic Education (DBE).

He reiterated that the Committee should only deal with the clauses before them, and some concerns should be parked. The Committee secretary should advise on what the other concerns are. The focus should be on the clauses.

Ms B Masango (DA) thanked the advocate for the briefing. She agreed that there is a need to meet the deadlines of the High Court and of the importance of the separation of the clauses that consider a comprehensive legal solution.

Prior to the decision that the Committee would rather deal with a comprehensive legal solution for foster care, the Committee had already approved the motion of desirability for the Bill. She asked if that motion would cover this section of the Bill or if there would be a need for another motion of desirability.

Some of the clauses suggested to deal with a legal comprehensive solution are unclear to the layperson in how these are linked to foster care. There are clauses not included in the separate section that she would have thought should have been automatically included. She referred to sections 159 and 150 as not seeming to have any urgency.

She asked for clarity on whether all the clauses linked to the comprehensive legal solution would be included and whether those that are not, should not be included. for the Committee to thoroughly do its duty of responding directly to what the applicants put to the High Court in their application.

Ms M Sukers (ACDP) referred to her question at the start of the meeting about the clauses dealing with the comprehensive legal solution for foster care. These clauses were not clear as has become apparent from what the legal advisor has pointed out.

She said that Ms Masango has covered her question on the comprehensive legal solution.

Ms Sukers asked if it is appropriate to assume that the Foster Care clauses are all-inclusive of the comprehensive legal solution. As the Committee has to meet the deadline, there would need to be certainty of what the comprehensive legal solution has put forward.

She asked for clarity on the process to be followed once the comprehensive legal solution has been dealt with. Her understanding of the legal advisor’s suggestions was that the Committee needs to deal with the Bill in its entirety. This would impact the programme of the Committee.

Ms L van der Merwe (IFP) thanked the legal advisor for mapping out the road to be followed by the Committee. She agreed that the matter before the Committee is the foster care clauses. This Bill emanates from a court judgement pointing to a foster care crisis. The Bill is much wider than foster care, as it deals with adoption and other matters.

Since the court had requested that the Committee deal with the foster care crisis, they should move ahead and deal with the foster care clauses. The question that remains is what these foster care clauses are.

She agreed with Mr Stock that the Committee allow the legal advisory team to deliberate on how many clauses should be included as required by the court.

She asked for clarity on the implications of setting aside all the other clauses from a legal point of view. The Children's Amendment Bill had been presented to the public for comment on a variety of issues. There should be discussion on the way forward as a Committee. It should consider the legacy the Committee wants to leave at the end of its term in 2024. She asked if the Committee could devise a Committee Bill on the remaining clauses to finalise before the 2024 elections as a part of its legacy. It is important for the Committee to listen to the public and consider their suggestions and opinions. There needs to be concrete feedback.

Ms J Manganye (ANC) agreed that when dealing with the Bill clause-by-clause there should be clarity on which are the foster care clauses. After dealing with those clauses, the Committee should ensure that all the issues raised by community members are addressed. She echoed the sentiments of Ms van der Merwe about the legacy of the Committee.

Ms L Arries (EFF) agreed with the suggestions of the previous speakers. However, she does not want the public to feel that the other issues addressed in the Bill are less important. She understands that the Committee was meant only to consider the foster care crisis. There was no need to consult the public on the rest. It would have avoided the expectations that arose during public hearings that the other matters would be dealt with.

Ms K Bilankulu (ANC) agreed that it would be appropriate as a Committee to allow the legal advisors to sort out their issues. What needs to be done urgently is deal with the High Court matter.

The Chairperson said that although she wanted to give Committee members a chance to speak the questions are repetitive. Members agree on the way forward to deal with the matter. The DSD Responses to Submissions document highlights the public comments in column two for each clause and the DSD response. The suggestions raised by Members are covered in the document. The input of the public will not be thrown out; there are going to be collaborative efforts to produce solutions.

The Committee is currently stuck as the legal advisors are raising different opinions on the matter, and they should sit again and deliberate. The Committee should consider the information in the letter from the court. This would help the Committee determine if it is only clause 86 or the twelve clauses as per the Department's legal advisors, or four clauses from the previous meeting.

Ms van der Merwe asked the legal advisor why amending only section 159 would speak to addressing a comprehensive legal solution for foster care. The court letter noted that the applicant said the most important clause to deal with is section 151(a). However the Parliamentary legal advisors are saying something different - that it is only clause 86 that amends section 159.

State Law Advisor response
Adv Lisa Naidoo, Senior State Law Advisor, replied that when it comes to identifying clause 86 which amends section 159, it is the only clause in the Bill that explicitly deals with extending foster grant orders. The legal advisors had indicated to the Department that on their side they can see only clause 86. The Children's Amendment Bill was not the only Bill that would address a comprehensive legal solution to the foster care system as it was quite wide. The Social Assistance Act was recently amended and that Act dealt in more detail with the granting of foster care orders and foster grants.

She agreed that the Department is in a better position to provide an indication of the clauses it has identified. The legal advisors may not be able to see how the twelve clauses affect foster care directly and the Department would be able to advise and motivate on the matter. They are prepared to sit down with the other teams to reach an amicable decision on these clauses.

The Chairperson expressed some confusion about the response as it had previously been stated that section 159 was not urgent. She reiterated that the legal advisors should be allowed the opportunity to return and provide the Committee with accurate information. The document provided has all the clauses already mentioned previously.

She asked that the High Court letter be flighted as she had previously requested. Thereafter the Committee will decide on the way forward.

Department of Social Development (DSD) response
Adv Luyanda Mtshotshisa, DSD Specialist: Legislative Drafting and Review, shared the High Court order on the screen and briefly outlined its contents. It stated that the delay by the first respondent in preparing and introducing before Parliament amendment legislation to produce a comprehensive legal solution for the foster care system is unconstitutional, unlawful, and invalid.

The court declaration about "a comprehensive legal solution for the foster care system" was made in 2017. There is a need to understand what constitutes a comprehensive legal solution within the specs of the foster care system.

He agreed with Adv Naidoo and Adv Njikela on what they had presented.

He echoed that the three legal teams indeed need to sit again and identify the interpretations of these terms and what is understood as a collective. There was surely a reason why the court opted for the use of the adjective comprehensive legal solution. When the draft Amendment Bill was devised, the Department legal advisors understood “comprehensive” to be looking at the entire system, not only in legal aspect but also putting in place necessary mechanisms, structures and resources.

When twelve clauses were suggested by the Department there was an understanding that this could be the least that they could have. Most of the clauses are of an inter-related nature. An example is that it becomes difficult to talk about foster care solutions without discussing adoptions. If children are adopted, they have families; therefore those children will be alleviated from the foster care system.

Also the children’s courts should be granted the jurisdiction to deal with issues of guardianship. This clause states that the more access to guardianship parents have, the less the possibility of clogging the foster care system. If unmarried fathers are to have parental rights and responsibility with this Bill, it is more likely to have fathers taking care of their children and therefore children will not fall into the foster care system.

The DSD legal advisors accept that due to the Bill's urgency, there are identifiable clauses on foster care that are linked.

Discussion
Ms Sukers referred to point 2.2 of the High Court order. It is clear that the comprehensive legal solution should not be designed by Parliament, but rather by the Minister and the Department. The High Court order binds the Minister and not Parliament, therefore it is not only the DSD legal department that needs to caucus but also the Department. She asked if the Committee is to assume that what was brought forward is the Department’s comprehensive legal solution and will it address the High Court order. She asked what solutions the Department has brought forward and that it should not then be the duty of only the DSD legal team to give direction.

Ms A Abrahams (DA) said to the Chairperson that it is as if the Committee is going around in circles. This discussion has taken place before. It is unacceptable that every time the Committee convenes, it is as if the Department has not spoken to the Legal team. She pleaded that both parties should speak to each other before attending these meetings as it is a waste of time to sit and listen to the confusion.

She requested a content document explaining the comprehensive legal solution and the clause that is to be amended and how it affects the foster care crisis. The Committee has not received a standard presentation on the foster care crisis, and how it currently looks.

Ms P Marais (EFF) echoed the sentiments of the two previous members. She was of the impression that the two parties would have come together and come to a solution.

Another Member agreed that Mr Stock had already outlined what needs to happen as a way forward. She thought everyone would be present and there would be solutions. She proposed that at the next meeting everyone should be present physically and it should not be a hybrid meeting.

Ms van der Merwe stated that she would like to respectfully disagree with Adv Naidoo’s opinion about amending only clause 86. South Africa has a foster care crisis and there should not be a blanket approach when dealing with such issues. The court indicated that there is a need for a comprehensive solution and amending one clause will not provide that. She referred to the extension of foster care grants as well as the child support top-up. By only amending one clause there is no justice being done to the request by the court.

She agreed with Ms Abraham about getting the Department and legal advisors on the same page.

Mr Stock reiterated his earlier proposal. He agrees with his colleagues. He sees the frustration of not having reached a solution in the meeting.

The Chairperson handed over to the Minister to give a way forward and suggest a date best suitable for a meeting.

Ms Masango asked if the legal team would discuss further the motion of desirability at the next meeting.

Ms Manganye suggested that everyone should be in the same room at the next meeting.

Ms van der Merwe repeated her request for guidance from the legal team and Department on what happens to the clauses that are being parked. Will they be brought back as a Committee Bill?

The Chairperson handed over to the Minister to give a way forward and a timeline on all the processes to follow.

Minister Zulu said that it is not correct that there is this constant back-and-forth shuffle on issues of legality. Her expectation was that the Department, Parliament, and all relevant legal teams should have been in communication. She therefore requested the minutes of the meeting from the Chairperson as soon as possible, so that she may consistently drive the legal team to produce the required results.

The Chairperson concluded the meeting by expressing her frustrations with the meeting outcome.

Ms Manganye added that the Department and Committee should assist one another in getting a bigger venue, as the work needs to be done.

The Committee secretary advised that she had spoken to Mr Mjenxana and that there would be no need for a new motion of desirability. The Committee report would indicate that on a particular date the Committee took a decision to consider only the foster care clauses in the Bill. Thereafter it will go to the National Council of Provinces (NCOP). The legal advisor will draft a Committee Bill and thereafter this will carry all the outstanding clauses not considered in the foster care Bill. It will be advertised for public comments. The clauses will not be lost. For that, another motion of desirability will be adopted.

On the need for a bigger venue, she replied that Parliament has limited venues for a hybrid meeting. Meetings need to be accessible to the public, which is the reason for virtual access for the public. She listed all the bigger available venues for the Committee. The next meeting would be Wednesday 11 May, should the legal teams be available.

The Chairperson said that it is not a choice but a directive for the legal teams to return and give a clear way forward.

There was a further discussion around the availability of venues and the possible time frames of the next meeting. Inaudible from 2:44:00 - 2:46;00.

The Chairperson tasked the Committee to look at the clauses highlighted in the meeting.

The Committee adopted the minutes from the previous meeting.

Meeting adjourned.