Stakeholders consulted

1. -Presentation-Comments on Children’s Amendment Bill, 2019-Luyanda Mtshotshisa-Specialist: Legislative Drafting & Review

2. PurposeTo provide feedback on comments received from stakeholders after the gazetting of the Children’s 3rd Amendment Bill, 2018

3. Stakeholders consulted • Internal stakeholders • Technical committees • JCPS Cluster • Social Protection Cluster • HSDS • MinMec • Cabinet • General stakeholders • Exco • State Law advisers

4. Nature of comments • Foster care orders • Reasonable chastisement • Adoptions • Parliamentary process • Discretionary v mandatory powers • Early childhood development • Genital mutilation/circumcision • Protection of identity children in court • Etc.

5. Guiding principles and instruments • Constitution of the Republic of South Africa, 1996: Rule of Law – sections 1(c), 2, 14, 28, 39 and 233 • Principles of Legislative Drafting – G Thornton/C Botha, Helen Xanthaki, V.C.R.A.C Crabbe. • Commonwealth Legislative Drafting Manual and other similar instruments • Common law principles (Legislative Drafting) • Case law

6. 1. Withdrawal of the Bill from Parliament • North Gauteng High Court ordered the Minister to develop the Bill. • The Bill is therefore a court based amendment. • Minister cannot willy-nilly withdraw the Bill. • Request to withdraw should be directed to Centre for Child Law to apply for the rescission of the North Gauteng High Court Order. • Any action outside that process will imply that the Minister is in contempt.

7. 2. Conditional Registration of ECDs • Applications are strictly for full registration of ECDs. • There is no such application as an application for conditional registration. • Conditional registration is a discretion of the Director-General or the HOD. • Conditional registration and registration with conditions is a question of semantics. • The Director-General or the HOD can never be confused by these terms because the Act is clear on how these terms find application the registration process.

8. 3. Transfer of ECD to Basic Education • This matter is not part of the amendment. • There is a parallel process dealing with the envisaged transfer. • The Children’s Act will not be amended because of the transfer. • DSD shall continue to register and provide ECD services for children 0-4 and thus every reference to ECD in the Children’s Act shall be construed in the context of 0-4 age cohort. • Only Basic Education will amend their South African Schools Act in order to cater for grades R and RR. • The status quo shall therefore remains.

9. 4. Reasonable chastisement • There are sufficient legislative instruments dealing with curbing of violence in the country: Domestic Violence Act, Protection from Harassment Act and so on. • Reasonable chastisement as a common law defence was declared unconstitutional by the South Gauteng High Court and referred to the Constitutional Court for confirmation. • The outcome of the Constitutional Court will determine whether reasonable chastisement is still part of South African law or not. • Whatever the outcome of the Constitutional Court is, that will be the new common law position and therefore there is no need for it to be part of the Children’s Act.

10. 5.Protection of identity of children in court Criminal procedure Act, 1977 (Act No. 51 of 1977)154.(3) No person shall publish in any manner whatever any information which reveals or may reveal the identity of an accused under the age of eighteen years or of a witness at criminal proceedings who is under the age of eighteen years: Provided that the presiding judge or judicial officer may authorize the publication of so much of such information as he may deem fit if the publication thereof would in his opinion be just and equitable and in the interest of any particular person.

11. 6.Jurisdiction to hear applications for guardianship • This provision like many other similar provisions is part of provisions that require a certain procedure to be followed and a determination to be made as to the steps to be followed and the relevant court to be used. • Because of its nature the word “prescribe” has been used as a guiding word in the proposed legislation so as to develop regulations for all the incidental information that is necessary. Regulations will therefore clear that confusion.

12. 7.Expanding access to ECD for children living in poor communities • This matter is best dealt with in the Constitution of the Republic of South Africa, 1996. Section 156(1)(a) read with schedule 4 Part B. • It is a concurrent function but the municipalities have a mandate to administer ECD facilities. • As the municipalities are closer to the people they are better placed to ensure that access to ECD facilities is spread throughout all the communities. • However, DSD, in terms of section 92 of the Children’s has a mandate to include in its strategy a comprehensive national strategy concerning early childhood development.

13. 8. Regressive, anti-poor amendments • Prohibition of infrastructure improvement on private facilities: public funds cannot improve provide dwellings. Property to be transferred to another entity on closure of an ECD but that becomes impractical when it relates to a private setting. • Discretionary power to provide funding: limited resources and certainty. Must v May and the limitation of rights in terms of section 36 of the Constitution of the Republic of South Africa, 1996. • Discretionary power does not mean anti-poor. • Soobramoney v Minister of Health (Kwazulu-Natal) (CCT32/97) [1997 ... • Government of the Republic of South Africa and Others v Grootboom and Others

14. 9. Adoptions • Harmonisation of the service with the rest of the services in the Children’s Act, 2005 • Accessibility • DSD social workers to provide the service • Alternatives to adoption • Consideration of own family first • Child protection measure • Adoption is not a commercial transaction • No bar for private social workers or attorneys to provide the adoption service.

15. 10. Foster care • Both the Children’s Amendment Bill and the Social Assistance Amendment Bill have addressed the issue of foster care backlog. • The Department is also exploring other options that may not necessarily be legislative but administrative in nature to deal with foster care backlog. • Judiciary will also be engaged as some magistrates are fingered as a hindrance to the eradication of the foster care backlog. • Provinces have given an undertaking that the backlog will be addressed come 30 November 2019. • The Department has filed its detailed plan which addresses exhaustively the approach to foster care orders with the court.

18. 11. Way forward • Bill not to be withdrawn from parliament unless CCL applies to the court to rescind the North Gauteng High Court Order if possible. • There will still be an opportunity to address some concerns once Parliament opens a window to do such during its processing of the Bill. • Regulations to the Bill will follow once the Bill is approved by parliament and other issues will be dealt with in the regulations as envisaged in the Bill. • Further engagements will continue with other stakeholders in the field of foster to ensure that the backlog is cleared.

19. THANK YOU