1. INTRODUCTION

1.1 Introduction

Apartheid policies, deep-rooted poverty and unemployment, poor or non-existent schooling, the breakdown of family life and the strains on a society in transition have left the majority of South African children in an extremely vulnerable position. In particular, children, the voiceless members of society, have suffered directly as result of the unequal application of the fragmented laws affecting them. These factors alone provide compelling justification for the reformulation of all law affecting children in a comprehensive, holistic manner. Furthermore, constitutional imperatives and South Africa's international legal obligations flowing from, inter alia, the ratification(1) of the United Nations Convention on the Rights of the Child (1989) (hereafter referred to as CRC) accentuate the necessity of undertaking a comprehensive review of child legislation.

1.2 Background

Various amendments to the Child Care Act 74 of 1983 have been effected and proposed since the Act came into operation in 1987. From the outset, the Act gave rise to disquiet amongst practitioners, social workers and child and youth care workers with respect to the functioning of, and principles underlying, the legislation. In June 1995, a new draft Bill, with regulations, was released for comment by the Department of Welfare, the stated intention being to effect urgent interim reforms, pending a more comprehensive redraft of child care law. The eventual legislation in this regard, the Child Care Amendment Act 96 of 1996, drew widespread and divergent responses. A key concern was that piecemeal amendments to comply with constitutional imperatives and the ratification of CRC would not resolve deep-seated concerns about the content and application of the current South African child law, nor indeed the relevance of its underlying philosophy to present-day South Africa. Also, reservations were expressed about the process that was followed prior to the adoption of the 1996 Act.(2) The need for a comprehensive rewrite of the principal Child Care Act, the need to Africanise child care and protection mechanisms and, as is mandated by the ratification of CRC, to review and harmonise all relevant child related law, has since become increasingly clear. The law reform process was further strengthened by the outcome of the Gordon's Bay Conference Towards Redrafting the Child Care Act, held on 26 to 28 September 1996.(3)

Following recommendations from the Minister of Welfare and Population Development, the Minister of Justice requested the South African Law Commission to include a review of child care legislation in the Commission's programme. The Commission decided on 4 April 1997 to include the investigation on its programme and to establish a project committee. Associate Professor Belinda van Heerden was appointed project leader and chairperson. The other members of the project committee are:

Dr Jacqueline Loffell
Dr Maria Mabetoa
Mr Mike Masutha
Dr Carmel Matthias
Ms Buyi Mbambo
Mr Mbongeni Mtshali
Ms Zubeda Seedat
Ms Ann Skelton
Ms Julia Sloth-Nielsen
Ms Helen Starke
Professor Noel Zaal

The committee brings together experts from various disciplines and constituencies - from law and social science - from government, the NGO and the private sector. This reflects an appreciation of the need for a multi-disciplinary approach, inter-sectoral co-operation, and the importance of involving all stakeholders in the process of drafting legislation.

The members of the committee were appointed in their individual capacities by the Minister of Justice and do not represent any particular organisation.

1.3 The Commission's working methodology

The project is aimed at a comprehensive review of the Child Care Act and all other South African legislation affecting children, together with the common law, the customary law and religious laws relating to children in this country. The aim is to develop recommendations for new, appropriate and far-reaching child legislation, legislation which will take into account not only the present realities, but also the future social, political and economic constraints of the society which it aims to serve. The Departments of Welfare and Population Development and of Justice, through the South African Law Commission, will be responsible for initiating and ultimately drafting legislation to implement the process of reform arising out of the project.

The project is being managed by the project committee established by the South African Law Commission as outlined above. The committee is required to plan the investigation, do or have the necessary research done, and submit reports in the form of issue papers, discussion papers and reports to the Commission. The report(s) with draft legislation will be submitted to the Ministers of Welfare and Population Development and of Justice who may then implement the recommendations proposed by adopting the draft legislation.

It is also important to ensure that all stakeholders, persons affected by the legislation and the community at large are integrally involved in the whole process of law reform. The voice of the community, and especially the voices of children, must therefore be heard. A broad process of consultation will be followed and will involve various state departments, tertiary institutions, local and international experts, various bodies supporting democracy, other relevant NGO's and CBO's, and obviously children.

1.4 Briefing sessions, Pretoria, 5 and 6 March 1998

As an initial step, the committee held a two-day series of briefing sessions prior to the final formulation of this issue paper. The key aim was to inform and educate the members of the committee about the factual position and special needs of various groups of children, such as children in especially difficult circumstances and children affected by customary and religious laws. It was also necessary to gain information about the likely impact of HIV/AIDS on children, families and communities. Many children are not adequately covered by existing legislation, and often 'fall through the cracks' of legislative and social protection. In particular, the sessions focussed on areas in which the members of the committee required additional expert information, or supplementary perspectives. A list of the topics addressed, and of the experts involved, is attached as Annexure A. Many of the views elicited during these sessions have assisted in the conceptualisation of the issues requiring attention, and have drawn the attention of the committee to previously unidentified gaps, defects and inconsistencies in our law and practice. Where appropriate, reference is made in this issue paper to specific presentations.

1.5 Conclusion

This issue paper on the scope of the investigation and the principles which should underpin a new, comprehensive children's code is but the first of three issue papers planned for this year. At this stage, it is envisaged that the other two issue papers will deal with the status of children (including adoption) and children in care proceedings and related matters. These issue papers will be followed by a discussion paper with draft legislation and a report containing final recommendations on the proposed legislation. The committee will adopt a broad, consultative process throughout and will workshop all issues thoroughly at every stage of the investigation.

The inclusive, multi-sectoral, and inter-disciplinary nature of this investigation cannot be over-emphasised. Your input on this issue paper and active participation in this process is therefore extremely important.

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