Implications of Children’s Amendment Bill : SALGA briefing; Content Advisor on public participation

Meeting report

SALGA on the Children’s Amendment Bill
Ms Jesta Sidell, Chairperson: Working Committee on Community Development and Social Cohesion at SALGA) said the briefing would assist in the implementation of childcare facilities. SALGA will raise important issues for consideration by the Committee.

Municipal mandate and Children’s Amendment Bill
Mr Mthobeli Kolisa, SALGA Chief Officer: Infrastructure Delivery, Spatial Transformation and Inclusivity, stated that the municipal mandate in relation to the Children’s Amendment Bill includes that municipalities have a developmental and constitutional mandate to promote Early Childhood Development (ECD) programmes. On the one hand, this mandate lies in the allocation of ECD specific childcare functions to municipalities. On the other hand, it also speaks to the more fundamental and wider developmental power, authority, capacity, and sustainability of municipalities to promote the development of communities through the provision of basic services. The Children’s Amendment Bill proposes the insertion of ECD centres, and it appears that the proposed section on ECD deals with childcare facilities. Municipalities currently provide the following services for this function: implementation of structural, health and safety standards in child and youth care centres and partial care centres (including ECD centres); powers of inspection for public facilities including ECD facilities; and provision of infrastructure for registration, support, resourcing, and monitoring of ECD services (including the provision of direct or contracted services).

Constitutionality of procedure of introducing the Children’s Amendment Bill
The Children’s Amendment Bill affects the status, institutions, powers, and functions of local government and as such it must consider section 154 of the Constitution on municipalities in cooperative government. Section 154(1) states that the national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions. Section 154(2) states that draft national or provincial legislation that affects local government must be published for public comment before it is introduced in Parliament or a provincial legislature, in a manner that allows organised local government, municipalities and other interested persons an opportunity to make representations on the draft legislation.

SALGA expressed concern that this meeting was the first time that it had the opportunity to engage with the Bill. The Children’s Amendment Bill was never published for public comment as far as SALGA was aware. SALGA did not have the opportunity to send out the Children’s Amendment Bill to all municipalities for comment, in line with the constitutional procedures for public participation.

Comments on proposed insertion of section 103A:
The Children’s Amendment Bill proposes the insertion of section 103A about the provision for ECD centres. It provides that the MEC for Social Development may, from money appropriated by the relevant provincial legislature, provide and fund ECD centres for the province.

SALGA commented that, in line with section 154(1) of the Constitution, this insertion should make provision for this funding to be directed to municipalities as a form of support to fulfil the functions. This will prevent a scenario in which any person can access the provincial funding for these purposes without having the necessary capacity and abilities to perform the functions.

Comments on proposed insertion of section 103B:
The Bill proposes the insertion of section 103B on provision for national norms and standard for ECD centres. It provides that the Minister of Social Development, after consultation with interested persons and other relevant ministers, must determine national norms and standards for ECD centres through regulations.

SALGA commented that this section must entrench values and principles of intergovernmental relations in dealing with the consultation process. This can be done by specifically requiring consultation with various MECs and officials or organisations from local government when determining the norms and standards.

Comments on proposed insertion of section 103C:
The Bill proposes the insertion of section 103C on the provision for ECD centres to be registered. It provides that any person, department, municipality, organisation, or Provincial Head for Social Development may establish or operate an ECD centre provided that the centre is registered with the provincial government, is managed in accordance with the set conditions and the ECD centre complies with the national norms and standards and any other requirements.

SALGA commented that this section must be made dependent on the condition that the proposed establishment is recommended by the affected municipality in accordance with its bylaws.

Comments on proposed insertion of section 103K:
The Bill proposes the insertion of a section 103K on the assignment of functions to a municipality for ECD centres. It provides that the MEC for Social Development may, by written agreement with a municipality, assign the performance of some or all of the functions in sections 103D, 103E, 103F, 103G, 103H, and 103J to the municipal manager, after consultation with the municipal council, if the MEC is satisfied that the municipality complies with the prescribed requirements and its capacity to perform the functions.

SALGA commented that this section is not about the assignment of functions to municipalities, but rather about the delegation of responsibilities to the municipal manager of a municipality. It proposed that an additional section be included for the adjustment of the assignment of functions to be added, and that it must make provision for the Capacity Assessment that must be done by the Municipal Demarcation Board and to include mediation in the decision-making.

Recommendation
SALGA recommended that the Bill be referred back to the Department of Social Development to publish for public comment in a way that allows organised local government, municipalities, and other interested persons an opportunity to make representations before it is introduced in Parliament.

Discussion:
Mr D Stock (ANC) appreciated the SALGA submission. He stated that collective support is necessary to ensure effective implementation of the Bill. All stakeholders must work together to ensure that the child’s best interests are at the core of its work. How can SALGA, together with DSD, use the theory of change to ensure that the country puts the best interests of the child at the core of the implementation of the Bill? The process of deciding which tasks must be assigned to municipalities requires thorough discussion with the involved municipalities. Does this mean that no support has been given to ECD services? He asked if this implied that the legislative mandate of municipalities, as per sections 152 and 153 of the Children’s Act, has not been implemented by municipalities. He requested that the Committee receives a detailed plan on how the DSD and SALGA are going to address the longstanding challenges that exist between the ECD community and local government, as this has a direct impact on the implementation of the proposed legislation and the rolling out of the services it allows for.

Ms L Arries (EFF) asked how SALGA deals with municipalities that do not fulfil their constitutional mandate on social programmes. She referred to SALGA’s recommendation that section 103C must be made dependent on the condition that the proposed ECD establishment is recommended by the municipality in accordance with its bylaws. Experience has shown that communities do not really participate in the process proposed. What alternatives (apart from individual people that want their ECD centres operational) are put in place to ensure people are not excluded from rendering good services to our communities?

Ms B Masango (DA) asked if the concern raised on the constitutionality of the process followed by DSD will affect its processing the Bill at a later stage in the law-making process. The Bill is a response to the call for a comprehensive legal solution to the foster care crisis in South Africa. The Committee must ensure that when the Bill is processed it will be able to adequately respond to the foster care crisis. This will ensure that the child’s best interests are the centre of the Bill. She asked for clarity on SALGA’s contention that it did not have the opportunity to send out the Bill to all municipalities for comment, in line with the constitutional procedure for public participation.

Ms A Abrahams (DA) asked if local municipalities have the capacity and the budget to implement the Bill. What are the challenges faced by municipalities for this? At some point, the Committee will have to engage with municipalities to get a sense of their challenges and concerns in the implementation of the Bill. It seems as if most of the responsibilities and functions are assigned to the provincial and not the local government. She asked what the extent of SALGA’s contention was that it did not have the opportunity to send out the Bill to municipalities for comment. What was the number of municipalities that would feel left out and not adequately consulted on the proposed amendments to the Children’s Act?

Ms T Breedt (FF+) agreed with the concern whether local municipalities have the capacity and budget to implement the Bill and the assigned functions. For example, most Free State municipalities do not even have the necessary capacity and finances to render basic service delivery without the added responsibilities of the Bill. How these municipalities would be able to fulfil additional functions remains a concern. How does SALGA propose that it is ensured that these functions are fulfilled when it involves failing municipalities and unsuccessful interventions by provincial governments? SALGA mentioned that it would support additional funding to the municipalities to enable them to perform these services that are already mandated by the Constitution. How does SALGA envision this, and would additional funding then be allocated to municipalities? How will the involvement and public participation of stakeholders be improved to ensure that valid and quality inputs are received for consideration by Parliament?

Ms G Opperman (DA) asked how the proposed process will be rolled out in the District Development Model of the Department of Cooperative Governance and Traditional Affairs. What resources and infrastructure will be put in place in the municipalities to ensure it can fulfil the functions proposed to be assigned to it under the Bill? Who will be the custodian of funding for this assignment of functions to municipalities? What are the clear functions that DSD has assigned to municipalities? She asked for clarity on how municipalities will enforce its bylaws to control emerging ECD centres given that there is already a discrepancy between the standards set by environmental health practitioners and DSD. Are the municipalities ready to implement these functions and goals as outlined?

Ms A Motaung (ANC) asked to what extent has SALGA and DSD considered mobilising communities to assist in and advance the legislative mandate of ECD centres. Has there been an intervention to resolve the poor working relationship between environmental health practitioners and the ECD coordinators in DSD? If so, has there been an improvement? If not, what are the reasons why such measures have not been implemented? What is the way forward to repair the working relationship between the two parties?

Ms K Bilankulu (ANC) stated that the underlying principle of the Children’s Act is that the child’s best interests are paramount in every matter concerning the child. Have there been attempts to ensure that this principle is upheld in the engagements and decisions of DSD and the municipalities? Why has DSD, as the custodian of the Children’s Act, not ensured that there is a memorandum of understanding or service level agreement in place between DSD and the municipalities?

The Chairperson stated that there was an assertion by SALGA that proper public participation was not followed before introducing the Bill in Parliament. It stated that there was an imperative for consultations with local government that was supposed to be followed. This was a legal and procedural issue that needs clarity. He requested the Parliamentary Legal Advisor respond to Members’ concerns about the constitutionality of the process followed to introduce the Bill.

Parliamentary Legal Advisor comments
Adv Nathi Mjenxane, Parliamentary Legal Advisor, responded that SALGA is correct that when an Executive Bill is introduced that a pre-introduction consultation process must be followed. This is conducted by the department involved. In the process that leads to Cabinet’s approval for the introduction of the Bill, a consultation of interested and affected stakeholders must be conducted. SALGA is correct in averring that this process was not followed for the Bill. In addition, Parliament itself has its own public consultation process and requirements. However, the public participation process referred to by SALGA refers to the pre-introduction consultation process. DSD can advise the Committee on the extent to which the pre-introduction consultation process and other inter-governmental relations processes are required by the law.

The Chairperson asked about the legal consequences if DSD did not follow the pre-introduction consultation required by law.

Adv Mjenxane replied that, in previous instances, committees have sent the department back to ensure that it observes the steps it is required to do. This allowed departments to limit potential challenges to the constitutionality and legality of the legislation.

The Chairperson stated that SALGA has recommended that the Committee refer the Bill back to DSD to publish it for public comment in a way that allows organised local government and municipalities an opportunity to make representations before it is introduced in Parliament. He asked Adv Mjenxane to look at SALGA comments on the Bill and respond to them later in the meeting.

SALGA response
Ms Sidell welcomed the input from by Members. SALGA is cautious to respond to the questions that are more causally linked to DSD. SALGA has made numerous requests to DSD to ensure that organised local government is represented without success. She asked if the Committee could assist SALGA in obtaining adequate and timely responses from DSD.

The Chairperson stated that SALGA concerns about the lack of response from DSD is concerning and that matter must be followed up.

Mr Kolisa agreed with Ms Sidell that SALGA is still having challenges in obtaining recognition and being allowed to participate actively on such matters. These challenges persist despite the Intergovernmental Relations Framework Act that requires the participation of organised local government in the deliberations of amendment legislation that will affect local government. The problem is unique to SALGA’s dealings with DSD. It was this lack of adherence to the Intergovernmental Relations Framework Act that has resulted in SALGA recommending the Bill be referred back to DSD to publish for public comment that allows organised local government to make representations. SALGA needs time to consult with municipalities and obtain feedback on the Bill before it is introduced in Parliament. SALGA has submitted this request to the Minister of Social Development and has not yet received a response other than an acknowledgement that the letter was received in November 2020.

On local municipalities having the capacity and budget to implement the Bill, Mr Kolisa replied that the fiscal framework for local government recognises two main streams of funding for local government. This is the municipal revenue such as property rates and service charges and subsidies for local government for provision of services to poor households. SALGA acknowledged there is inadequate funding of local government for this. This is what formed the rationale for SALGA’s comment on the insertion of section 103A in the Children’s Amendment Bill as this insertion should make provision for this funding to be directed to municipalities as a form of support to perform this function. This funding could assist municipalities in the event that it is not allocated money to support its function from provincial and national government. When there is a mechanism to allow establishments meeting the requirements for ECD centres to apply for funding from municipalities, this can be done through the allocation within the province. SALGA has recommended that the Committee refer the Bill back to DSD to be published for public comment to ensure that the challenges identified by the Committee can be adequately discussed and considered by the stakeholders. Amending the Children’s Act requires a much fuller and deeper engagement process.

On how SALGA deals with municipalities that do not fulfil their constitutional mandate on social programmes, Mr Kolisa replied that the intervention process is provided for this where provincial administration takes over the functions not being fulfilled. Section 155 of the Constitution provides for national and provincial governments to have the legislative and executive authority to ensure the effective performance by municipalities of their functions. This responsibility must be strengthened.

Adv Mjenxane stated that SALGA was the only entity to come forward with grievances. If the Committee decides merely to implement the SALGA proposals it would benefit the entity as the only one to present concerns to the Committee. However, the legal obligation for a proper consultation process still rests on DSD and the concerns of other stakeholders must be considered. To properly remedy the defect in the public consultation process, he advised that DSD be held accountable for the inadequacy with which it complied with public consultation. He advised the Committee to send the Bill back to DSD to cure this defect. DSD must, as a first step, be called to account to the Committee on the public participation process that it followed and how the concerns of stakeholders were considered. The Committee can then make an assessment on how to proceed with the Bill. These defects cannot be corrected by the Committee if DSD did not discharge its legal obligations in ensuring adequate public participation.

The Chairperson thanked SALGA and for Adv Mjenxane's advice on the public participation defect.

Concept paper for public participation: briefing by Content Advisor
Ms Yolisa Khanye, Committee Content Advisor, said the concept paper puts forward a framework to guide the Committee by outlining options to ensure reasonable public participation. The concept paper gives various scenarios and options for public participation in the context of the COVID-19 pandemic, outlines the advantages and disadvantages of each option, provides the Committee with recommendations, and highlights the work of the Parliamentary Public Education Office, Parliamentary Communication Service, and the Parliamentary Democratic Offices for this.

Overview of the proposed key amendments:
The proposed amendments to the Children’s Act relates to parental responsibilities, child marriages, unaccompanied migrant children, establishment and operationalising of ECD centres, a Child Protection Register, foster care orders, funding of partial or alternative care centres, adoption services, and highlights the role of municipalities for this.

Key concerns on the Bill:
The ECD functions are currently in the process of being moved from DSD to the Department of Basic Education. There are a number of questions that emanate from this move. What impact will this have on the implementation of the Bill? Is there a plan to manage the impact of potential disruptions in the provision of ECD services and resources? Does the Bill provide an adequate legal solution to ensure that foster care orders do not lapse in large numbers again or create another backlog? Have capacity challenges at DSD and the courts that previously caused a backlog been adequately addressed to prevent a reoccurrence? Is there adequate social worker capacity to perform adoption services? What is the state of readiness for this? The social development sector has a serious shortage of social workers, which has had a significant impact on service delivery. To what extent does the Children’s Amendment Bill adequately address all the complexities in the adoption process? What is the capacity of municipalities to implement the Bill? In essence, the question before the Committee is if the Bill is able to be implemented by all entities tasked with responsibilities.

Overview of processing the Bill by the Committee:
The Bill was tagged as a section 76 Bill, which affects the provinces. A section 76 Bill can be introduced in either the National Assembly or the National Council of Provinces. The Bill was introduced by the Minister of Social Development on 31 August 2020, and the Committee was briefed on 6 October 2020. The Minister of Social Development briefed the Committee on 17 February 2021 on the implication of the Bill for adoption services. The SALGA briefing on the Bill’s implications for municipalities was the purpose of this meeting, and the Minister of Home Affairs will brief the Committee on 3 March 2021 on its implications for Home Affairs. The Minister of Basic Education will brief the Committee on 16 March 2021 on the implications of the Bill for the migration of the ECD programme and its impact on service delivery.

The public participation process commenced on 16 October 2020 with an advertisement inviting public comments with a 27 November 2020 deadline. The receipt and analysis of all submissions are scheduled to be completed by 28 February 2021. There was significant mobilisation for increased public involvement during November 2020. Provincial public hearings are scheduled from 9 to 12 March 2021, and national public hearings are scheduled for 17 to 19 March 2021. Finalisation and adoption of the Committee Report on the Bill is scheduled for completion by 30 June 2021.

Guiding principle of the Bill:
As recognised in the discussions of the Committee, the guiding principle for processing the Bill is that the best interest of the child is paramount in every matter concerning the child. This includes principles of transparency and accountability, as well as respect, sensitivity, and inclusivity.

Options for public participation:
The first option is hosting virtual public hearings using Zoom or Microsoft Teams software for online meetings. It must be ensured that the proceedings are broadcast on the various television channels and social media platforms used by Parliament. The Committee must decide on the number of district municipalities to participate in the public hearings per province. The recommended number is three to four districts per province, which will be selected based on research conducted on the geographic profiles of each district. The Committee will decide on the number of participants allowed each day and the number of days for public hearings. This must be guided by the Parliamentary Term programme, as well as the Committee programme. The Committee must decide on the number of days allocated per province. The advantage of this option is that it will give the Committee more time and more participants can be involved. The disadvantage is that it will require nine days for provincial hearings and nine days for national hearings. The advantage of the second option is that the Committee will have to spend less time while still acquiring a reasonable number of participants. A third option is that the Committee is split into two groups and each group can conduct virtual public hearings with different provinces to reduce the work overall.

The second option for public participation is the hosting of regional workshops with a maximum of 50 participants. This involves gathering selected members of the public at venues that Members will travel to. The maximum of 50 participants would consist of 11 Members of Parliament, the Committee’s support team, media crew, and communication crews who must travel between provinces.

Virtual public hearings will entail two to three weeks of national and provincial hearings, and the mobilisation of teams to identify members of the public interested in making oral submissions to the Committee. The logistics (which includes the rationing of participants and drafting programmes) must be arranged by the Committee Secretary together with the support of the Parliamentary Communication Service and the Parliamentary Democratic Offices.

Discussion
Ms Masango said the concept paper has helped the Committee concretise the way forward on public participation. How will the migration of the ECD programme to the Department of Basic Education affect the processes of this Committee which is focused on the Social Development sector? She asked for clarity on the National Assembly conducting provincial hearings as this is a process that the National Council of Provinces will ensure. She asked if SALGA’s concern on the constitutionality of the Bill covered only the ECD clauses or it tainted the entire proposed legislation. Are the other Bill provisions constitutionally compliant?

Mr Stock appreciated the concept paper. He asked the Content Advisor to elaborate on the logistics of the virtual public hearings and if Members would be expected to be in their provincial constituencies during this time or all together in one place. What effect would a lower lockdown alert level have on this plan to conduct virtual public hearings?

Ms N Mvana (ANC) expressed concern that the hosting of virtual public hearings would prevent a deep analysis of submission at the ground level of provinces.

Ms Abrahams asked when the Committee will receive a detailed breakdown of the submissions received per province, and how many organisations or individuals would like to make oral submissions. Those intending to make oral submissions during the virtual public hearings will require assistance.

Content Advisor response
Ms Khanye replied that there will be national public hearings for those who have indicated in their written submissions that they require the opportunity to make oral representations. The difference between national and provincial public hearings is an individual or organisation indicating in their written submission that it needs the opportunity to make oral submission as well. Approximately 2 000 written submissions have been received based on the national call for comment and a number of people indicated the need to make oral submissions during public hearings.

Mr Nyiko Bandi, Parliament Unit Manager: Committee Support Services, stated that the national hearings refer to submissions made in response to the national advert calling for comment. The provincial hearings are oral representations and these hearings will include the districts within each province. The purpose of this approach is to ensure that as many people from all corners of the country are provided with an opportunity to make submissions at the scheduled virtual public hearings.

The Chairperson thanked the Content Advisor for the presentation.

The meeting was adjourned.