It’s Christmas — a time for parties, presents and pity for those children spending the holidays in institutional care. It makes government’s plan for the mass deinstitutionalisation of children seem miraculous. But, instead, in an uncanny recreation of the first Christmas, it may leave many children out in the cold.
The resolution has a section dedicated to “children without parental care”. It states that children should grow up in a family environment, and that “every effort should be directed to enabling children to remain in or swiftly return to the care of their parents or, when appropriate, other close family members and that, where alternative care is necessary, family and community-based care should be promoted over placement in institutions”.
This was followed on 25 June 2022 by the Kigali Declaration on care and protection reform — signed by all Commonwealth countries, including South Africa — which “encourage development agencies by 2025 to prioritise quality care arrangements at the community level, over institutionalisation” and “support projects which take a holistic and inclusive approach to child protection systems development and family strengthening”.
While the move towards deinstitutionalisation seeks to uphold the rights of children, it’s also predicated on the belief that all institutions are inherently damaging, unnecessary and even self-serving. It’s a perspective obvious in global thinking about institutional care.
A study which focuses on “dispelling the orphan myth” illustrates that, while there are an estimated eight million children in institutions globally, 80% have a living parent.
Although the study did not include South Africa, it indicated that, across multiple countries, children were placed in institutional care due to poverty, disabilities, abuse or neglect, discrimination (for example, families that did not want to raise a girl) or because organisations were using nefarious means such as removal orders or recruitment to populate their institutions.
Equally, the Kigali Declaration argues that institutional care is being promoted by “well-meaning international aid, donations, orphanage volunteering, mission trips or tourist visits”. These, it says, “can lead to unnecessary family-child separation and undermine care reform efforts”.
For South Africa, the declarations represent an important commitment from government to move away from long-term institutional care for vulnerable children and have received widespread support.
Lack of nuance
As with many child-rights-focused initiatives in the country, though, the lack of nuance in the global view on institutions may be unhelpful in a South African context, and the application and implementation of the approach is proving challenging.
South Africa has no published figures about the number of children in alternative care, but in March 2022, the department of social development (DSD) reported to the parliamentary portfolio committee on social development that the country had 15,552 children in registered child and youth care centres (CYCCs). There were 3,337 children in temporary safe care and 912 in secure facilities for children with behavioural, emotional and psychological difficulties.
These statistics have not been disaggregated, so it’s difficult to tell how many of these children have been placed in CYCCs because of abuse and neglect; how many have living family members, and how many are abandoned or orphaned with no family options for care.
But, if the figures are accurate — which is doubtful because they do not include unregistered institutions — the number of children in institutional care is relatively low given the country’s ongoing challenges with orphaning and abandonment.
According to UCT’s Children Count, in 2020 there were 2.9 million orphans in South Africa. This includes children without a living biological mother, father or both parents, and is equivalent to 14% of all children in South Africa. A total of 531,000 were maternal orphans and 620,000 (3% of all children) were double orphans.
In Gauteng, the General Household survey from 2020/2021 recorded 154,000 children between the ages of 0 and 17 being orphaned, a significant increase from the 2019 figure of 78,000, bringing the total number of single or double orphans in the province to 566,000.
While there are no formal statistics to confirm the number of abandoned children in the country, the March report sent to the social development portfolio committee estimated that about 10,500 children had been abandoned across eight of the country’s nine provinces in the past decade (North West did not provide statistics).
The Minister of Social Development admitted that over a thousand children entered the child protection system through abandonment in a two-year period.
Significant numbers need protection
Although not all orphaned or abandoned children need alternative care, the figures indicate that significant numbers of children require care and protection.
This is reinforced by anecdotal evidence. Baby Savers SA reports receiving between 10 and 20 queries every working day from desperate, pregnant moms experiencing a crisis pregnancy, and inquiring about options for placing their children into the child protection system.
Further, despite the DSD stating that CYCCs across the country are 3,000 children under-capacity, in Gauteng, CYCCs testify that they’re turning away between five and 10 children a week.
In this context, preventing babies entering care and shortening the stay of older children in institutional care seems like a Christmas miracle; a response to concerns raised by child protection activists and CYCCs themselves over the past two decades about the length of time children are spending in care.
Factors identified as leading to children’s protracted stays in institutions include high numbers of anonymous abandonments, violence against children, abuse and neglect, anti-adoption sentiment, lack of documentation, interminable bureaucratic processes to obtain birth certificates for children, prolonged attempts to trace first families, lengthy processes to place adoptable children into families, the ongoing collapse of the foster care system and the limited number of social workers able to vet, screen and monitor temporary safe care and foster care parents.
The upshot is that support for women experiencing a crisis pregnancy, violence prevention programmes, increased efficiencies, additional social worker resources and an openness to permanency planning through adoption are an essential part of any plan to end institutional care.
Gauteng prototype
It’s too soon to tell if these components will be included in government’s eventual plan. But despite this, in Gauteng, the DSD has already fast-tracked the phasing out of institutional care for children in accordance with a memorandum of understanding (MOU) signed between the Gauteng DSD and Hope and Homes, a global organisation focused on deinstitutionalisation.
Although this MOU was first agreed in 2016, the Kigali Declaration has led to a flurry of activity towards ending the institutional care of children by the Gauteng DSD because the province has been identified as the prototype for the country.
In July 2022, just a month after the declaration was signed, Hope and Homes met with the CYCCs in Gauteng to inform them that all CYCCs would be closed by 2030. CYCCs were told that they can be repurposed in accordance with the established needs of communities derived through community mapping exercises and based on priorities and gaps the provincial DSD has identified in its planning.
Some suggestions made during the meeting about how CYCCs can “pivot”, are for them to become facilities for children aged 3-11 with oppositional defiant behaviours, day care centres, community outlets or step-down facilities for independent living which will be run by the DSD for children aged 11-21.
Only organisations that meet the DSD’s strategic priorities will continue to be funded.
When CYCCs raised concerns about changing the constitution of their NPO, about zoning permissions for their properties, donor requirements, and about managing the costs of running operations while also transforming their care environment for future requirements, they were told that they had the next five to eight years to review their operations model, repurpose existing buildings and change their funding streams, but that they would ultimately find the shift from “running an institution” more “rewarding in terms of children’s best interests”.
Supported by the DSD, Hope and Homes also declared an immediate moratorium on children aged 0-3 being placed in CYCCs, and reported that, as the bank of temporary safe care parents increases, children below the age of three currently in CYCCs could be moved too.
Hope and Homes will provide CYCCs with a tool to determine adoptability of those children currently in care. However, the goal will be to reunify children with families wherever possible.
Under the shadow of Life Esidimeni
No one disputes the dangers of long-term institutional care for children. But there are increasing concerns over the deinstitutionalisation strategy being employed in the province.
These focus on three key issues: Hope and Homes’ appreciation of the local South African child protection context and its complexities; the haphazard roll-out of the plan in the province, and the challenges and potential dangers of decentralised, potentially unsupervised care — especially in a province still living under the shadow of the Life Esidimeni tragedy.
Crucial to the disquiet is the question of why the DSD chose to work with a UK-based organisation to pioneer its plans for deinstitutionalisation, when it had local options available.
Initially, it didn’t. When Hope and Homes signed the MOU in 2016, it was in conjunction with Give a Child a Family Africa (GCF), an organisation based in KwaZulu-Natal that has had success across Africa with deinstitutionalisation and replacing institutional care with effective family-based care for children.
GCF believes that only a small percentage of children require long-term institutional care. However, it also recognises that deinstitutionalisation of children requires a serious commitment and a specific plan of action.
Following the signing of the MOU, it seconded its social worker to Hope and Homes for two years to help them understand the South African child protection challenges and develop a contextually relevant foster care programme.
However, when the contract ended after two years, it became clear that they had a different vision to Hope and Homes, who deemed GCF’s foster care strategy with its intensive vetting, recruiting and training regime, social worker involvement and support groups, too expensive.
Hope and Homes has run the programme without GCF since 2017.
While Hope and Homes has a wealth of experience running deinstitutionalisation strategies across the globe, there’s concern that it may not appreciate the complexity of the South African context.
During the CYCC briefing, Lourenza Foghill, national director of Hope and Homes for Children South Africa, appeared to diminish the challenge of abandoned babies without family care, claiming that Hope and Homes would be able to find the families of many “so-called abandoned babies” because it has experience using track and trace to do so.
She also intimated that the presence of CYCCs was encouraging desperate mothers to place their children into the child protection system rather than raising the child. She said there are currently “lots of people willing to help desperate mothers, which leads to mothers deciding that they can’t and won’t be able to care for their baby, which leads to the baby going to a CYCC and then being adopted”. This, she said, “is not optimal for Hope and Homes”.
In addition, although she recognised the impact of Covid on the recruitment of temporary safety parents, she didn’t acknowledge the current problems with the foster care system which have still not been solved more than a decade after the first court order instructing government to fix the overburdened and under-resourced system.
And despite referring to the availability of temporary safety parents to keep 0-3-year-olds out of institutions, as of July, Hope and Homes only had 18 parents in the “bank”.
Haphazard implementation
Equally concerning is the seemingly haphazard way that the programme is being implemented by the department. No written directives on the deinstitutionalisation process or requirements have been published, and government confessed that, despite instructing the CYCCs in July that they were not allowed to receive any more children aged 0-3, it failed to brief the child protection organisations (CPOs) that place children with them about the change in policy.
CPOs have unwittingly continued to bring 0-3-year-olds to CYCCs, forcing them to either ignore the moratorium or turn children away.
Moreover, it appears that whether intentionally or coincidentally, the DSD is making the re-registration of CYCCs very difficult. The upshot is that it is culling CYCCs even before it is ready to roll out its plan for deinstitutionalisation.
Factors precluding re-registration include DSD requests for health and safety certificates despite these not being required when there are no structural changes; for building plans despite some buildings being more than 100 years old, and for certification of competence for child and youth care workers from the South African Council for Social Service Professions (SACSSP), which are mandatory, but the SACSSP cannot issue certificates because of technical problems and the DSD won’t accept written confirmation of competence.
The result of these bureaucratic challenges is that some CYCCs will lose their registration long before alternative arrangements can be made for the children in their care. They will be forced to turn children in need away and, if the problems persist, children in their care will be removed because magistrates will not renew orders if the CYCC is not registered.
Others will have their children forcibly removed.
Care centre re-registration
In March 2022, a Gauteng CYCC was denied re-registration after the department introduced new requirements that had not been in place when it was originally registered in 2016. Unlike other CYCCs experiencing similar challenges who managed to get short-term re-registration while they raised money for architect fees and developing building plans, obtained health certificates in a pandemic or assisted the SACSSP to verify their staff training, this CYCC was given no grace period.
It was informed that its 10 children, aged three and under, would be removed and placed elsewhere.
In disbelief, caregivers packed everything for their children and watched while they were relocated to temporary safe care in Pretoria. For two months, they transported their care workers to Pretoria every day to maintain continuity of care for their children. Their nursery manager slept in a sleeping bag on the floor at the children’s new home to try to mitigate the trauma of the move.
By May, however, it became clear that they wouldn’t be re-registered and, for the sake of the children, they chose to withdraw.
They now face the dilemma of whether they should continue to employ their nine staff members whose salaries they still pay, despite not having any children in their care.
The story of Hannah
Notwithstanding their best efforts to minimise disruptions to the children, the nursery manager told the story of Hannah* who had been placed in the CYCC’s care at birth. At the age of three, she was moved from the only family she had known. As she arrived at her new “home”, she was greeted by her new house mother who asked her how she was.
The little girl looked at the nursery manager, then tensed up and threw herself face down on the ground. Recognising a trauma-induced “freeze” response, the nursery manager picked Hannah up, comforted her and helped her to deal with her distress.
A month later, Hannah’s best friend and “sister” was adopted and left the home, and a month after that, the nursery manager and her beloved “aunties” had to leave. Hannah, who is not adoptable because she has family with whom she cannot yet be reunited, will spend this Christmas in temporary safe care without the adults or friend who love her, and to whom she attached at birth.
Hannah’s story epitomises the damage that can be done without a proper deinstitutionalisation roll-out plan or way of ensuring continuity of care for all children.
Equally concerning is what has become of the 0-3-year-old children whose stories cannot be told, but who are already being turned away from CYCCs despite there being no alternative plan for their care.
Who’ll step in?
While an end to long-term institutional care is both a global priority that the South African government has endorsed — and an ethical imperative — important questions need to be asked about who will care for these children when institutions are gone.
How will we devolve quality care away from organisations but still ensure that there is proper recruiting, vetting, training and monitoring of their replacement carers?
How will we ensure that a professional foster care and temporary safe care system is not equally destructive, as has been experienced in other parts of the globe?
Although the UN resolution emphasises permanency, how will we provide permanency for vulnerable children in a country with a statistically verifiable problem with anonymous abandonment; more than half a million double orphans; the ongoing challenge of violence, neglect and abuse; an anti-adoption stance; an overburdened foster care system and too few social workers?
As the deinstitutionalisation plan is executed, many CYCCs will be forced to close their doors and dismiss their caregivers. Others will pivot and reinvent themselves in a desperate attempt to continue receiving government subsidies.
It is the children and their best interests that should be of primary concern.
As the spectre of Life Esidimeni continues to loom over Gauteng, the haphazard implementation of decentralised care without proper supervision and support is a terrifying prospect.
With our most vulnerable children at stake, we cannot afford to get this wrong. DM
* Name changed to protect her identity.
Hope and Homes was asked for comment for this article, but had not responded at the time of publishing.
The 16 Days of Activism is a palpable reminder of the horrible human cost of violence against children. But as we admit failure in ending violence through policing and the criminal justice system, underfunded prevention programmes are quietly changing communities and saving lives.
Every 16 Days of Activism, the media is awash with the heartbreaking stories of children whose lives have been changed by violence. According to Police Minister Bheki Cele, 558 children were killed in the six months between April and September 2022. In the three months between July and September, there were 294 attempted murders of children reported and 1,895 grievous bodily harm cases involving children.
Sobering as these stats are, we cannot fully appreciate the impact of violence without insight into the loss in human capital due to experiences of violence during childhood.
The World Bank Human Capital Index (HCI) measures the productivity and human capital potential of each child in the country given optimal health and education conditions. It captures the expected potential of children given the conditions in their country. On this measure, if a child born in South Africa today completed their education and had full health, they would only reach 43% of their potential productivity as an adult.
In 2015, a study by Save the Children South Africa estimated that this loss of human capital equated to roughly R238-billion (about 6% of 2015 GDP), “double what we are currently spending on the criminal justice system annually, and more than 10 times the cost of gender-based violence”.
According to an Institute of Security Studies policy brief in 2017, children who experience neglect and abuse, or witness violence, are at increased risk of negative health and behavioural outcomes, and of perpetrating violence.
Using data from the Birth to Thirty (Bt30) cohort study and the adverse childhood experience framework, researcher Sara Naicker found that violence represents a threat to development throughout the life course. Children exposed to a range of adversity in their homes and communities, including physical, emotional and sexual abuse, chronic unemployment, household substance abuse, community violence, and parent or household death, are likely to experience poor health and well-being as adults, an increase in harmful risky behaviours and reduced human capital.
The study confirmed that early adversity was linked to poorer health, well-being and social outcomes in young adulthood, and that the more adversities a child experienced, the greater their risk of suffering negative physical and mental health and social outcomes including criminality, psychological distress, incomplete schooling, illness, poverty and unemployment.
Disturbingly, 87% of the Birth to Thirty cohort had experienced exposure to at least four adverse childhood experiences by the age of 18.
While all adversities caused harm, the research found a particularly strong link between violence and poor outcomes. Physical abuse in childhood increased the likelihood of a child dropping out of school, being unemployed and experiencing social isolation, while exposure to community violence led to increased substance abuse and psychological distress as adults.
Bt30 data show that “in a single generation, just 28 years, children subjected to high levels of adversity and widespread violence were more likely to drop out of school, be unemployed, engage in crime, have mental health problems, be socially isolated and have poorer health”.
Naicker explains that “at the age of six, young children in the cohort who were exposed to high levels of community danger and intimate partner violence within the home were displaying symptoms of anxiety, depression, aggression and poor emotional adjustment, such as oppositional behaviour, or patterns of deviant and hostile behaviour and impairment of social relationships”. This exposure to violence was amplified in adolescence and young adulthood, especially among young women.
For this reason, preventing children from being subject to serious and persistent adverse childhood experiences (ACEs) is important for building human capital and promoting human development.
What is being done?
Given that intervening to prevent violent crime (especially interpersonal violence) and break entrenched cycles of violence is essential for growing the economy and improving the nation’s health, behavioural and social outcomes, and given the significant impact of violence on children’s mental health and development, what is being done to combat violence against children?
According to the ISS policy paper, in 2017, South Africa was spending R126.71-billion (9.68% of expenditure) on the criminal justice system and R45-billion on private security. But despite this, it reported “no apparent correlation between spending more on the criminal justice system, increasing the number of police, and a reduction in crime rates”.
By contrast, in the same year, the country spent just R9-billion (less than 1% of the Department of Social Development’s national and provincial budget) on violence prevention or early intervention.
This is despite the link established by the Save the Children study between preventing children from witnessing and experiencing violence, and ensuring that they have a good start in life, with building an inclusive economy in the medium to long term and growth in GDP:
“Not investing sufficiently in preventing… violence against children contributes significantly and directly to lowered human capital, which severely impinges on our country’s economy. That is because children who experience neglect and abuse, or who witness violence, are likely to go on to repeat the cycle of deprivation and disadvantage. This is exacerbated by exposure to violence in the home, stressed parents, harsh corporal punishment at school and at home, and bullying at school. Together this creates a toxic mix that massively reduces human potential and lays the basis for continuing cycles of violence.”
According to Naicker, the country’s Violence Prevention Forum, which consists of research institutions, government departments and non-governmental organisations, recommends the adoption of the following violence prevention definition into approaches for development across all social, health and economic policies and practices:
“Violence prevention is the whole of society working deliberately and sustainably to remove sources of harm and inequality, and heal woundedness, by intentionally growing an ethic of mutual care and inclusion to build peace.”
But the government places the onus for violence prevention on NGOs which are notoriously erratically funded, making it hard to quantify how much money is being spent on these initiatives.
Nevertheless, many are making a significant impact in their communities and families, most notably the South African Parenting Programme Implementers Network (Sappin). A network of 12 core non-profit (NPO) members with shared values of collaboration, ethical and cultural sensitivity and support for staff, Sappin runs many research-based parenting programmes across the country to foster secure and non-violent home environments for children.
One such project is at Touwsranten near Wilderness in the Western Cape, an eight-year community intervention run by Sappin’s Seven Passes Initiative, the Institute of Security Studies and the UCT Psychology Department between 2012 and 2020.
Touwsranten is a rural community comprising 762 households and about 2,245 inhabitants. According to 2011 census data, almost half of the adults in the community were unemployed, not economically active or discouraged work seekers. Just nine residents had more than a matric certificate. In 2016, only 20% of residents weren’t receiving one or more government grant.
A 2013 survey found that 60% of families described running out of money to buy food four or more times in the past month.
It also reported that 12.7% of the children aged six to 18 suffered from anxiety or depression which should have been receiving treatment, and 15.3% of the children of the same age experienced behavioural problems that needed treatment. Parents’ inconsistent discipline and use of spanking and slapping were strongly related to children’s behavioural problems, and to their anxiety and depression.
A third of parents who had a partner described experiencing intimate partner violence and one-fifth of parents reported such high levels of parenting stress that they were classified as being at risk of child abuse.
Surveyed parents identified unemployment, illicit drugs, particularly methamphetamine (tik), public drinking, petty crime and a lack of recreational facilities as factors negatively impacting the safety of children. They noted that physical and verbal abuse, bullying and neglect of children were common.
The environment in this community was typical of many others in South Africa, with parents “stressed and disempowered by the very difficult socioeconomic circumstances in which they raise their children and the compounded effects of racialised intergenerational trauma and poverty”. Further, in Touwsranten, as is common across South Africa, violence in the home and community was undermining the safety and happiness of its children.
The longitudinal intervention which aimed to show that it’s possible to develop and support “positive, non-violent parenting skills that help parents keep their children safe in and outside the home, and reduce parenting stress”, consisted of four parenting programmes. These were designed to increase positive parenting, reduce corporal punishment and provide parents with social support.
The goal was improved parent mental health, reduced parenting stress, and better communication and relationships between caregivers and children. It also consisted of several community initiatives to clean up the community, fix play areas and infrastructure for children and encourage accountability for positive parenting choices.
Nevertheless, the programme, attended by one-fifth of parents over its duration, resulted in decreases in parenting stress and in both children’s externalising behaviours (through which the child makes their distress visible to others such as fighting or stealing or related conduct problems) and internalising behaviours (when a child’s distress is kept internal and may manifest as anxiety and depression).
Behavioural problems among younger children decreased by 33%. It also saw a reduction in the use of corporal punishment, an increase in positive parenting (even among those who did not attend a programme), and a slight improvement in parents’ mental health.
Moreover, changes at family level were evident in Touwsranten. The Smit family* entered a parenting programme for teens shortly after their sons were returned to them eight years after they were removed and placed in foster care due to the parents’ abuse of alcohol. The family was reunited because one of the boys had begun using drugs and the foster family no longer wanted to foster them.
These factors created a high-risk environment, making intervention critical. The programme gave them the skills as a family to handle difficult relationships in the family and cope with stress.
The intervention helped the father, Dan*, to control his anger and become calmer. He started fishing with the boys, cooking for them and cleaning the garden together. The boys responded by praising their dad. Their mom, Marie*, the breadwinner, began to spend more time with her sons and praise them for their positive behaviour. The family now love talking and doing activities together.
In KwaZulu-Natal, the NGO Give a Child a Family tells the story of two little girls, Sindi and Thembi*, who were placed in their care after being removed from their mother. When the organisation’s social worker met their mom, Bongi Thola*, to try to assist her to be reunified with her daughters, she confessed to feeling like she had nothing to give her girls. She was struggling to make ends meet, lived in a tiny home and her boyfriend had no interest in her children. She had lost hope of having her daughters returned.
The social worker offered her assistance, inviting her to a parenting skills programme. Bongi initially declined, but within a week she had changed her mind. She broke up with her boyfriend and joined the course. To the children’s delight, they were returned to her soon thereafter with supervision and follow-up meetings.
Six months later, the social worker was visiting Sindi and Thembi’s school when she was hailed by the principal. “What have you done with Mrs Thola?” he asked. “She has found her voice. She is talking to the other parents and telling them to get involved with their homework and school activities, she is telling the parents how to discipline their children.”
The course she attended convinced Bongi that money, or the lack thereof, was not significant. She learnt the importance of connecting with her children and how being an adult who is crazy about them helps them thrive.
Nor is it just at-risk children who have been placed in statutory services whose lives can be changed by parenting interventions. The Seven Passes Initiative tells many stories about families in Touwsranten where the programmes came in time to help parents deal with stress, anger and risky behaviours, saving the children from the adverse impact of poor parenting.
Its mom and baby parenting programme transformed a teenager’s experience of motherhood. Teenage moms experiencing a crisis pregnancy may abandon, neglect or abuse their baby. Tami* was a 15-year-old mom who was not interested in her baby or parenting the child. With the help of Tami’s mom, the parenting facilitator who ran the programme supported her to be able to go back to school and balance school with caring for her baby.
Violence a language of love
Dr Dee Blackie who runs Courage, a long-term community engagement change-management programme focused on prevention and early intervention in child protection, echoes Sappin’s concern that high levels of violence perpetrated against children in South Africa are exacerbated by people’s desire for quick fixes, instead of meaningful long-term approaches to behaviour change.
Courage workshops help communities envision the kind of world they would like to create for their children. They then identify the child protection challenges in their community, understand and prioritise these challenges, and develop empowered solutions to address them. Courage helps them understand the legal child protection and safeguarding process, identify community partners, and the values that will drive the achievement of their vision, and ultimately to create a community-based action plan.
Blackie tells a story from a workshop she ran in Alberton, Gauteng, about a young girl who spent the night out with her boyfriend. On her return, her father beat her so badly she ended up in hospital for a month. When social workers asked the father, who was imprisoned for the crime, why he did it, his response was, “because I love her”.
The programme helped the community understand that violence had become a language of love. It made them realise that especially among parents, they had to teach a new language of care and empathy to resolve conflict, instead of violence.
Similarly, in a workshop run with children in Diepsloot, a notoriously violent township in Johannesburg, a young man explained that he now had words to describe children’s daily reality. Violence was so normalised in his community that children weren’t aware that the violence perpetrated against them was problematic.
Prevention interventions allowed the community to finally “speak up” and advocate for change.
Policing is a much easier sell than prevention. But it is parenting programmes like those run by Sappin, and community mapping processes like Courage, that can minimise violence against children and child homicide. If care for individual children isn’t sufficiently motivating, the cost to the country and human capital of adverse childhood experiences, especially violence, should drive funds to prevention interventions.
As we pack up our 16 Days of Activism pins and posters for another year, and return to a lived experience where violence against children and its impact are routine and mostly invisible, we should require nothing less. DM
* Names changed to protect their privacy.
Article originally printed in the Daily Maverick 15.12.2022
To cite please use the author’s name, the year of publication, the title of the article, name of publication, date of publication.
Four-year-old Bokgabo Poo’s horror rape, murder and dismemberment united government and communities in grief and fury. But in a country with under-reported statistics of three child murders a day, outrage on the part of authorities is a poor substitute for action.
Little Bokgabo Poo was described as an outgoing, confident four-year-old with a big and engaging smile who loved her daddy. Her granny Lilian Poo believed that she had a bright future ahead of her.
“We saw a doctor, a teacher, a minister and a lot of good things [in her],” she said.
But on 11 October 2022, Bokgabo’s dismembered leg and arm were found in a shallow grave the day after she went missing while playing in a park in Wattville.
Piecing together eyewitness statements, CCTV footage and media accounts, a picture of her gruesome death appears.
In the late afternoon of 10 October, while her mother, Tsholofelo Poo, was at a community meeting, Bokgabo was playing in the park with a five-year-old friend when she was approached by a man.
Well-known in the community as someone who was always around children, and who had sweets and money in his school bag, he gave the boy she was playing with R2 to buy lollipops at the local tuckshop. He agreed eagerly. When he returned, Bokgabo and the man were both gone.
Bokgabo was never seen alive again, but CCTV footage captured at a tavern showed the four-year-old girl approaching a shop with Ntokozo Zikhali pictured close by.
Zikhali, self-titled “Harry Potter”, was out on bail for the rape of a nine-year-old at the time. Tragically, in the footage she was skipping happily alongside the man alleged to have raped, murdered and dismembered her shortly thereafter.
A week after Bokgabo’s death, The Sowetan published a front-page article titled, “How many more must die?” On it are the faces of 19 children, all murdered in the past four years.
Among them is six-year-old Bontle Mashiyane from Mganduzweni near Hazyview. When she, like Bokgabo, was raped, murdered and mutilated for muti in April 2022, she was the third child from her school, Sincobile Primary, to die in this way.
One of the four people arrested for Bontle’s rape and murder was out on parole at the time of her death. He was released in December 2021 after being convicted of murder in 2016, a murder he had committed while out on bail for the attempted murder of a teenager, a crime for which he was also convicted.
His co-accused and girlfriend confessed to the murder of four children, including her sister’s daughters Silindile and Ntokozo Sifunda, who lived in the same street as Bontle. This was after the community, acting on the accusation of a local traditional healer, had beaten and set alight a local pastor and his son for the Sifunda girls’ murders.
Also pictured are Mzwandile Zith, 5, Simphiwe Mgcina, 6, and eight-year-old Mpho Makondo, who were all kidnapped, suffocated and their faces smeared with a black substance by a tavern owner in Orange Farm in 2020, allegedly for muti to make her business succeed.
Thirteen-year-old Gabisile Shabane from Emalahleni is there too. A child with albinism, described as kind and caring by her twin sister, she was kidnapped in 2018, along with her 15-month-old nephew, Nkosikhona Ngwenya. Nkosikhona was taken by mistake (the abductors were targeting another child with albinism). When they realised their mistake, they threw him from a bridge. He drowned in the swamp below.
Gabisile was butchered while still alive and her skull, hands and private parts used to make muti to bring the perpetrators a life of wealth and riches.
There’s Siphiwe Sibeko, described as a sweet, respectful and bright 14-year-old who was gang-raped, stabbed and mutilated by her boyfriend and an older accomplice during level 5 lockdown while the men were high on dagga.
And Bandile Skosana, known for his smile and laughter. He was abducted, assaulted, stabbed 18 times and then crushed under a boulder in Bronkhorstspruit four days after his 4th birthday. He was buried in the Spiderman suit he was due to wear for his party. To date, no one has been arrested for his brutal killing.
Like Bandile, the deaths of five-year-old Lesley Dube and 10-year-old Katlego Joja, both of whom had autism and were non-verbal, have never been solved.
Lesley, described as a vibrant, smart boy who loved playing, went missing from his home in Bronkhorstspruit on 9 May 2021. His clothes and bones were found in a shallow grave four months later. Katlego, or Katli, as she was affectionately known, was found dead in a river three days after she went missing.
Covered in open wounds, raped, stabbed and hit with an axe, three-year-old Melania Ruben’s body was found in a bag at a dumpsite just six hours after she went missing from a neighbour’s house in Bela Bela.
In Limpopo in 2020, the Phasha siblings, Katlego, 9, Joyce, 7, and Tshepo, 5, were hacked to death and their three-year-old sister Adel was bludgeoned to death with a rock. A revenge killing against their mother, they were murdered by their father who had been convicted of murder and attempted murder in 2001.
In another revenge killing, Kamagelo Sitole was 10 when her mother’s ex-boyfriend, previously convicted of attempted rape, robbery with aggravating circumstances and housebreaking, kidnapped her from her primary school and then strangled her before hiding her body under his bed.
Two-year-old Thandeka Kubheka, the youngest victim on the cover and the only child to die in a gender-based violence murder, was also strangled, along with her mother Promise. The alleged perpetrator, Promise’s ex-boyfriend, is accused of killing them in front of his biological child, Thandeka’s five-month-old sibling.
The 19 child homicides highlighted in Sowetan reveal devastatingly common themes: child rape, homicide for the removal of body parts, murder as revenge against the child’s mother, the perpetrator being out on bail or on early release following a crime against a child, unsolved child homicides and the child knowing his or her perpetrator. All involve extreme violence.
Yet what makes these children unusual is not that they were murdered, but that their stories have been told. Most are not.
As disturbing as these child murder statistics are, they are incomplete and inadequate. Findings from a 2009 study on child homicide completed by the Medical Research Council revealed that children under five are most likely to die of unnatural causes in the first six days of life as a result of unsafe abandonment.
The same study found that South Africa had among the highest reported rates of neonaticide (19.6 per 100,000 live births) and infanticide (28.4 per 100,000 live births).
However, in the last decade, child deaths resulting from unsafe abandonment have been inexplicably excluded from crime statistics, reinforcing a narrative that all abandoned babies found dead were stillborn and then abandoned, rather than murdered and then abandoned, or alive at the point of abandonment but then killed by exposure, drowning, suffocation, from predators, or as a result of illegal abortion medication.
If these deaths through abandonment were included, child homicides, currently twice the global average, would be even higher.
There’s also no separate category in crime statistics for muti murders, but although most go unreported, in 2003 a specialist police unit noted between 150 and 300 muti murders each year. Two reports completed by Mozambique’s Human Rights League and South Africa’s Childline confirmed that children are most likely to be targeted because they are more vulnerable — and because their body parts are thought to hold more power and luck in them.
Government’s research on child violence identifies interventions at individual, family, community and society level as four focal points for mitigating the risk of child homicide.
But, instead of implementing research-based solutions, when confronted with the horror of murdered children, government’s response is reminiscent of the ancient English practice of raising a “hue and cry”.
An early form of community policing, this noisy expression of public anger or disapproval was started when a crime was committed. The close community was required to raise the alarm and immediately work to find the perpetrator. It was effective, but by no means an act of altruism from all involved.
For many, the reason for joining the hue and cry was not justice, but because if you didn’t, you could be held answerable for the crime.
In South Africa, those responsible for policy that could prevent or reduce child homicide are often leading the hue and cry, either in their capacity as the executive or parliamentary oversight, or, in a clever sleight of hand, as their political parties, seemingly without any power to end the violence and acting as a lobby group, at times, against their own government.
Some common behaviours are evidenced from politicians when a child dies: party politicking and point-scoring, justifiable but ineffectual outrage, or crushing indifference.
Party politicking was particularly evident in both Bokgabo and Bontle’s deaths.
After the bail hearing of Bokgabo’s alleged murderer, EWN reporter, Kgomotso Modise, who followed the story, commented on how the ANC, EFF and ActionSA held briefings outside court, drawing attention away from the family. She also noted that the EFF was using the court appearance to hand out political pamphlets.
Similarly, at the trial of Bontle’s killers, EFF party members chanted Struggle songs outside the court as they called for justice for the murdered child.
There was also a strong ANC and EFF presence at Bontle’s funeral, where both parties condemned her killing.
Lydia Moroane from the ANC Women’s League told mourners: “We are angry as women and parents about these killings and we wish we could be there and deal with whoever is responsible for these murders. We can’t continue like this… where our children are killed like dogs.”
Mpumalanga provincial MEC for Sports, Culture and Recreation, Thandi Shongwe, who represented the premier, then said that the provincial government was shocked by the increase of muti killings in the province:
“We hope that the perpetrators are brought to book and face the might of the law and set a precedent. It’s really shocking that people are now kidnapping and killing innocent children in this gruesome manner. They are being killed for their body parts and this must stop, because we are now scared to even send our children to the store.”
While understandable, the wrath reinforces the collective perception that crime is the result of individual action, leaving authorities without responsibility or accountability for soaring child homicide rates.
It is easily done — the perpetrators in the child murders featured in Sowetan are almost stereotypically evil. The stories include paedophilia, greed, revenge, substance abuse, patriarchy, magic, repeated criminal actions and mass murder. It isn’t surprising that the community focus is entirely on the murderers.
But, tragically, after each perpetrator is imprisoned and the hue and cry subsides, so does the focus on solving child homicide. That is, until the next annual event like Child Protection Week or the 16 Days of Activism, or the next death.
The pattern of institutionalised indifference is oft repeated.
In 2017, when six-year-old Kutlwano Garesape was brutally murdered trying to stop his mother being raped, his devastating story earned one line in then Minister of Social Development and head of the ANC Women’s League, Bathabile Dlamini’s article on patriarchy.
Likewise, Bontle’s death was covered in a sentence in Minister of Women, Maite Nkoana-Mashabane’s statement expressing her indignation about the “relentless war against women and children”.
It is almost as if they weren’t the members of the executive tasked, along with the SAPS, with combatting the killings.
Frustratingly, with proper policies and budget, government could drastically minimise child homicide.
Key interventions include: a targeted strategic focus on violence against children (VAC) rather than it being subsumed into gender-based violence (GBV) interventions; an annual death review (including dead abandoned babies) to show how and why children are dying; active policing; increased numbers of social workers deployed across the country, and a functional child protection system to care for children if they are removed from their families.
Equally critical are an overhaul of conditions for bail, sentencing and parole for crimes against children, child-friendly victim support services, for government to fix the DNA backlog and properly manage the sex offender and child protection registers.
Raising the quantum of the Child Support Grant to the food poverty line would combat poverty and desperation-related violence. Also needed are the regulation of traditional healers, infrastructure upgrades and aftercare programmes to construct safe spaces for children to play; interventions to create community awareness about VAC, and family strengthening initiatives.
In the absence of disaggregated statistics, it recommends an annual child death review to both identify causes of death, suspected abuse and failures in the child protection system, and develop an early intervention system. A similar system in the UK consistently pinpoints modifiable factors in two-thirds of child deaths.
To obtain comprehensive statistics, child abandonment and muti murders both need to be included as a category of homicide.
To minimise child deaths immediately, government should legalise safe relinquishment. This would allow mothers to relinquish their children safely if they are unable to raise them or place them in the child protection system. It would also enable better policing and prosecution where the reason for unsafe abandonment is to kill the child.
Government can combat muti killings through investigation, regulation and education: investigating witchcraft-related violence, running education campaigns and enacting legislation regulating traditional healers are long overdue. Parliament has yet to enact related plans dating from 1995.
Further, government must address societal factors driving violence and child homicide including abject poverty, unemployment and overcrowding. Unicef recommends “socioeconomic packages and skills building to tackle poverty and unemployment”.
Following the October mini budget, the Children’s Institute criticised government’s R5.5-billion reduction in social grants, and its years of below-inflation quantum increases. This has resulted in the Child Support Grant, shown through multiple studies to alleviate poverty in the poorest women and children, falling to 72% of the official food poverty line.
In 2021, food poverty rates among children were the highest in a decade.
Poverty is particularly a key driver of maternal filicide in South Africa. According to Dr Shaheda Omar from Teddy Bear Clinic, this is frequently due to a multi-faceted lack of support structures. Mothers, she says, often struggle financially, lack coping mechanisms and don’t have access to resources to ask for help.
The MRC study showed that 71% of children under the age of five were killed by their mothers, and that mothers’ risk of perpetration was associated with “economic stress, unemployment, younger age, limited education, social isolation, mental illness, substance abuse, and being victims of intimate partner violence”.
While few studies explore the role men play in women killing their young children, “fear of abandonment by the male partner, lack of financial support, and having fragile relationships with the father have been reported”.
Patriarchy and GBV are also significant factors.
The National Strategic Plan on Gender-Based Violence & Femicide (NSP GBVF) is a positive development in managing GBV. But civil society is concerned that the 10-year strategy doesn’t provide much practical detail on addressing VAC.
A child-rights-driven study of the plan by the Centre for Child Law confirmed that it had numerous VAC-related gaps; specifically that there is no clear definition of VAC or detail about where it fits in the plan or what funding, resources and responses it should receive. There’s also no examination of the drivers of VAC or acknowledgement of the importance of family and parenting programmes in managing it.
Child contributors to the South African National Child Rights Coalition’s complementary report regarding the Implementation of the African Charter on the Rights and Welfare of the Child noted that GBV often overshadows VAC-specific issues, and that government needs to resource a command centre that specifically addresses VAC, and increase the budget for child protection services.
Unicef confirms this need to “identify concerns among children before they escalate”. It recommends increasing children’s access to psychological support services, specifically through training of teachers, child and youth care workers and social service professionals in risk identification and mitigation, and providing families with skills to manage and overcome stresses that can lead to violence.
Ultimately, an increase in social workers and a functioning child protection system are key to early intervention with at-risk children.
However, there are currently only 17,500 social workers providing social work services across the populaces’ life span. This is despite the National Development Plan’s prerequisite for 55,000 social workers, and the Children’s Act’s requirement for 70,000 social workers for children alone.
Equally, shortage of spaces in child and youth care centres, and a lack of foster and safety parents, means that even when abuse and neglect are identified, children often aren’t removed because there is nowhere to place them.
The MRC study found no social work services involved in the investigation of most child homicides.
While “a police docket was opened for most abandoned neonates, no police investigation followed… cases had not been properly investigated, and only feeble attempts were made to hold someone responsible for deaths resulting from abuse and neglect”.
Not surprisingly, perpetrators were only convicted in 17% of child homicides of under fives. Police appear to assign low priority to child homicides, especially when very young children are involved
According to EWN’s Modise, in Wattville, community leaders bemoan the lack of a police station and active policing in an area where “things are so bad that a week barely goes by without the discovery of a dead body. And kids go missing, a lot”.
When Bokgabo’s mother realised she was missing, and community safety leaders blew the whistle calling for assistance, Bokgabo’s grandparents still had to travel to the nearest police station to report her missing.
Disgruntled leaders noted that the police presence was most noticeable when the SAPS prevented a protest march to Zikhali’s home by angry community members after he was apprehended.
The absence of visible and active policing, and police protection of perpetrators from community rage and vigilantism, are common themes in child homicide stories. The trial of Bontle’s alleged killers was moved and the media barred from taking photographs to protect the perpetrators from community retribution.
Tough questions must also be asked about child protection registers, DNA, and repeat offenders out on bail or parole.
Tshepi Mmekwa, Action Centre coordinator at Action Society, believes that Bokgabo’s atrocious death — and many of the other 548 children murdered in 2022 — can be attributed to “the DNA backlog, delay in taking DNA samples of convicted offenders and the non-existing National Register of Sex Offenders”.
The organisation plans to lobby to prevent those with a previous conviction or pending case of a sexual offence being released on bail.
Moreover, the impact of creating safer spaces for children shouldn’t be underestimated.
Children between the ages of eight and 18 interviewed for a Daily Maverick series on missing and trafficked children were asked for practical suggestions to prevent kidnapping, rape and homicide.
Along with better policing, they recommended that government fix broken infrastructure in schools, public toilets, playgrounds and parks so children can play safely. They also advocated for more aftercare and weekend programmes involving sport, culture and education to combat children being left alone, and to keep them off the streets.
The implication is that almost all children knew their killer: they were murdered by parents, family or community members. While shocking, it also means that family strengthening and support, positive parenting and community awareness initiatives can have a huge effect.
Yet, there remains no coordinated plan for minimising child homicide.
It’s time for government accountability, for strategic policy interventions and for a child-rights-focussed budget. Without them, the outrage of authorities over the murder of Bokgabo and countless others is nothing more than another “hue and cry” designed to avoid both culpability and answerability for these tragic and horrifying deaths. DM
High levels of crisis pregnancies in South Africa and limited options lead large numbers of desperate girls and women to abandon their babies in unsafe circumstances, or seek out late-term abortions. This can result in death or injury to the child and the mother. The availability of ‘baby savers’ as a safe relinquishment option would do much to prevent these deaths. Yet all forms of child abandonment, including safe relinquishment, remain a criminal offence in South Africa.
Speakers: Ms Robyn Wolfson Vorster, Child protection activist and writer: “For the Voiceless” and Dr Whitney Rosenberg, Senior Lecturer, Law of Persons and Family, UJ
After four years of debate and consultation around the Children’s Amendment Bill, it took only half an hour for the Social Development Portfolio Committee to decide on amendments. It was done without a clause-by-clause analysis, without reference to public contributions and with no input from opposition MPs who had walked out in protest.
The Social Development Portfolio Committee’s agreement to the Children’s Amendment Bill clauses should have been a cause for celebration for those advocating for vulnerable children.
A response to the North Gauteng High Court judgment ordering the Department of Social Development (DSD) to find a comprehensive legal solution to the country’s years-long foster care crisis, the amendments have been pending since 2011.
Eleven years and four court order extensions later, the DSD is only five months away from its latest deadline of November 2022.
But much of the process and content related to this bill has been flawed and dogged by controversy, and proceedings on 25 May 2022 reached a new low.
On the cusp of Child Protection Week, observers watched in mute horror as the committee chose to reject 136 clauses in the admittedly bloated bill, and then unilaterally agreed to the wording of the remaining 12 clauses in the time it took for the parliamentary legal adviser to read them out.
Despite four years of public consultation, national and provincial hearings, and over 1,000 submissions from civil society, there was no reference to public comment, or the needs of the orphaned, abandoned and abused children who the comprehensive legal solution was designed to protect.
There was no discussion about individual clauses, no proposed amendments or additions to wording, no questions about the new clause inserted by the parliamentary legal adviser and DSD on the morning of the meeting, and no debate, largely because the opposition had walked out in protest.
How did it go so wrong?
So, how did the process go so wrong, and what are the implications for vulnerable children whose best interests seem to have been lost in the decision-making?
Although it’s been a decade in the making, civil society argues that the comprehensive legal solution to foster care is relatively simple to achieve.
Orphaned and abandoned children in the care of family members need financial assistance without the largely unnecessary and unmanageable administrative burden of first placing them in foster care. The solution involves two key components:
Amending the Social Assistance Act to include provisions for the minister to action a new grant tailored for orphans in the care of relatives, the Child Support Grant (CSG) Top-Up; and
Amending key sections of the Children’s Act to specify which orphaned and abandoned children need care and protection, ensuring that the majority in the safe care of family members don’t need to be placed in the foster care system, and making it easier for relatives and unmarried fathers to legally care for them.
Although endorsed by Cabinet and experts in the department and civil society, the planned solution was initially implemented at glacial pace, necessitating multiple court extensions and forcing then-minister Bathabile Dlamini to admit, as part of the 2017 settlement order, that her failure to meet the court-imposed requirements was “unconstitutional, unlawful and invalid”.
The order of unconstitutionality was suspended along with the court order, on condition she prioritised achieving a comprehensive legal solution by the court-imposed deadline.
When Lindiwe Zulu took over as minister in 2019, she inherited the pending order of unconstitutionality against her as minister, a Social Assistance Amendment Bill that was gathering dust after being stalled by her predecessor, a Children’s Amendment Bill which had swollen to 148 clauses, and an ongoing crisis for hundreds of thousands of children made more vulnerable by the foster care system’s collapse.
But fortunately for the minister, the post-election Portfolio Committee for Social Development, under the guidance of then-chair Mondli Gungubele, took the problem seriously.
It passed the Social Assistance Amendment Bill in 2020 enabling the CSG Top-Up. This allowed Zulu to announce in her 2022/2023 budget speech that Treasury had allocated “R687-million in 2023/24 and R871-million in 2024/25” to implement the new grant.
With a quantum of R720 per month, roll-out for the CSG Top-Up began on 1 June 2022.
The only remaining task to achieve the comprehensive legal solution is therefore amending the Children’s Act to define which orphaned and abandoned children need care and protection, and to make it easier for relatives to care for them.
Biggest obstacle
Ironically though, the minister’s own department has created the biggest obstacle to completing it. The DSD inexplicably used the bill to amend the whole Children’s Act, rather than only focusing on changes needed for the solution.
When questioned about the size of the bill and why DSD had ignored the advice of civil society and the state law adviser to concentrate exclusively on the comprehensive legal solution, the bill’s drafter argued that for the solution to be “comprehensive”, it needed to focus on ways to prevent children from ending up in the foster care system.
It’s a valid point. But the version of the bill gazetted for comment in October 2018 contained clauses related to everything from genital mutilation to privacy to early childhood development (ECD), which no amount of argument could link to the crisis in foster care.
Nor did the department seem sure about what the comprehensive legal solution comprised.
The result was an enormous and controversial bill that necessitated four years of post-gazetting public consultation. And even after the ECD clauses were jettisoned because the department had failed to consult with the SA Local Government Association, and, more importantly, because ECD was becoming part of the basic education department (which the DSD must have known was imminent), there was such extensive feedback from national and provincial hearings that the resulting matrix — containing public input and the DSD’s responses — was so large that the current committee chairperson, Nonkosi Mvana, was reluctant to travel with it.
The upshot is that on 1 April 2022, the committee found itself in a virtual meeting, being guided through the 148-clause bill by parliamentary law adviser Nathi Mjenxane, who confessed to being so busy with other committees that he was seemingly unfamiliar with the bill and the matrix.
While on Zoom, MPs were required to flip between the principal act, the bill and the matrix, which was neither indexed nor organised by clause.
Significant errors
The complexity of the process resulted in significant errors, including Mjenxane missing 24 pages of public comment about the bill’s infamous privacy clause (clause 3, section 6(a) of the act) because, although the clause was at the beginning of the bill, public feedback was hidden on page 102 of the matrix.
As frustration built, the chairperson could have stopped the process and questioned if the committee would be able to get the bill approved, through the National Council of Provinces, passed, and regulations developed, by the November 2022 deadline.
If she had, MPs would probably have agreed that it was impossible, and made a joint decision to focus only on the clauses related to the comprehensive legal solution.
But instead, the ANC contingent of the committee acted unilaterally.
After Mjenxane had read the first clause, ANC chief whip, Dikgang Stock, formally moved that the committee should only focus on the foster care clauses.
Stock then gave blanket endorsement for all the amendments proposed by the DSD. If accepted, it would have resulted in all clauses in the bill being approved with the DSD’s preferred wording — without any discussion by the committee.
His motion was supported by ANC colleague Anastasia Motaung, but it wasn’t put to the committee for approval or voting. Instead, the proposal, which effectively rejected 136 clauses in the bill, occurred without comment.
Bizarrely, the meeting then continued as if nothing had happened.
Mjenxane ploughed on through the bill, either oblivious to the motion or in the mistaken belief that all 148 clauses related to the crisis in foster care.
Proceedings were only suspended when the MPs gave up trying to navigate through the cumbersome matrix and called for it to be grouped per clause and for future meetings to be in-person.
MPs went into the Easter recess unaware that a decision had been “taken” to summarily dismiss 90% of the bill. The first that many of the MPs knew about it was when they received the new matrix and discovered that it had been pared down to 12 clauses.
Choosing to focus only on the clauses related to the comprehensive legal solution was wise and what government had been advised to do in 2011. But the way it was done was problematic.
Unilaterally curtailed
The decision to drastically curtail the bill was taken abnormally and unilaterally by two MPs, and only endorsed by the whole committee weeks later after a new matrix and bill had already been developed by the DSD drafter.
Further, it appeared that there was political pressure on the committee to get the bill completed ahead of the DSD’s court deadline.
In her 4 May address to the committee, the minister validated the decision before the committee had even approved it.
In addition, the ANC MPs apparently gave no thought to what would happen to the other 136 clauses excluded from the revised bill, or to the four years of public consultation around those clauses. It fell to the opposition to ensure that they weren’t lost.
Ultimately, the committee approved the “foster care bill” approach, with the proviso that the remaining clauses become a committee bill. But if it hadn’t, it risked the clauses needing to be reapproved by Cabinet and put before a new committee who hadn’t been present during the extensive public input, and who would be lacking institutional knowledge of the bill.
Moreover, it resulted in what the state law adviser Lisa Naidoo, who from the outset had cautioned about extending the bill from its intended focus, somewhat euphemistically referred to as an “irregular process”.
The irregularity was immediately evident.
While all MPs eventually agreed that it was the right decision to only focus on the clauses related to the comprehensive legal solution, which of the 148 clauses comprised the solution remained unclear and contested. The DSD proposed 12 clauses, while the law advisers argued that only one clause was worth retaining.
Then, during lengthy debates on 18 May, opposition MPs requested the inclusion of the amended definition of an orphan, which had inexplicably been omitted despite orphans being the group most affected; exclusion of the revised definition of a caregiver which hadn’t been debated publicly but had significant consequences for orphans in the care of relatives; and the insertion of two clauses from the original bill that weren’t in the DSD’s version.
Missing clauses
The first missing clause was an amendment to section 21 aimed at strengthening unmarried fathers’ capacity to parent their children and thereby lessening the number of maternal orphans in need of alternative care.
The second was a consequential amendment to section 24 which the drafters had missed, needed to give the Children’s Court jurisdiction over guardianship, making it easier for guardianship orders to be issued to relatives caring for orphans.
Both are essential for the legal solution because they make it easier for orphaned and abandoned children to be cared for by extended family and unmarried fathers.
It was section 21 — the rights of unmarried fathers — that proved strangely controversial with the parliamentary and DSD law advisers and the ANC MPs, who insisted that further consultation was necessary.
It fell to IFP member Liezl van der Merwe to point out that extensive consultation had already occurred, and that apart from some small amendments to wording which the DSD had approved, there hadn’t been any public objections to the clause in the tabled bill other than from one father’s rights group that wanted section 21 removed entirely from the Children’s Act, along with the distinction between married and unmarried fathers.
The DA’s Alexandra Abrahams asked the chairperson to put the inclusion of section 21 to the vote, but the proposal was categorically refused.
Sections 21 and 24
However, the committee finally agreed to include the amendments to sections 21 and 24 along with the revised definitions in the new bill, prompting Stock to remark that he was glad the committee had come to the decision “by consensus” and not a vote.
When the clause-by-clause process was again suspended, MPs expected to reconvene the following week to approve the wording of the 12 clauses included by the legal advisers, the new definition, and the amendments to sections 21 and 24 as agreed by the committee.
Instead, at the meeting on 25 May, MPs were confronted by a new version of the bill which hadn’t been distributed to them prior to the meeting, as procedurally required.
The definition of an orphan was included and that of a caregiver excluded, per their decision the week before. But amendments to sections 21 and 24 were inexplicably missing.
When opposition MPs protested, Stock and Mvana inexplicably denied that the committee had decided to include the amendments to sections 21 and 24. The DSD legal adviser stated that the process had broken down the previous week, so the legal team had reverted to the original clauses.
Cherry picking
Moreover, the legal team disclosed that they had already met and unilaterally updated the 12 remaining clauses “to reflect public comment”, unashamedly cherry picking which input they agreed with, and then including it into the wording of the bill.
In so doing, they pre-empted the committee’s task of determining which amendments from the public and the DSD should be incorporated, excluding much of the public comment, and prioritising the version of the legal solution favoured by the DSD.
They had even inserted a previously unseen amendment to section 160 of the act under the guise of “public comment”, although there’s nothing in the matrix to justify it being a response to public input.
When Van der Merwe pointed out that the change to the definitions showed that the legal team had understood the committee’s decision to amend the bill, and questioned why the team had only implemented some of the agreed changes, opposition MPs called for a halt to proceedings while they consulted last week’s minutes for clarity (most had already seen the Parliamentary Monitoring Group (PMG) minutes which stated that there had been consensus to include amendments to sections 21 and 24).
The chairperson demurred that the committee secretary was off studying for exams and that the acting secretary wouldn’t be able to locate them. However, the chair instructed the acting secretary to find them after the meeting, because the committee would be “rescinding whatever we agreed in the first meeting”.
EFF MP Letitia Arries, who was attending virtually, then asked for a caucus, but was muted while proceedings continued.
Eventually, all opposition MPs walked out in protest.
Cameras were turned off in the meeting room, so virtual observers, including the PMG monitor, were unaware of their departure.
They only knew that Abrahams had left because she responded to the chair’s question about why members weren’t excusing themselves, saying she couldn’t continue until the verbatim minutes of the last meeting were presented before the committee.
If the ANC committee members had orchestrated things, they could not have done it better.
Someone contacted Motaung, the missing 11th committee member. She suddenly appeared on Zoom and, with the quorum secured, those remaining listened to Mjenxane read the legal team’s version of the bill.
Once he had finished, all ANC members agreed that they had debated the clauses enough, with the chair stating that they had begun debating the clauses when she was “two years old, and now she was six years old”.
No one remembered that only clause one, the definition section, had ever been debated in committee meetings. No one considered it noteworthy that the legal team had unilaterally changed the wording of the bill without a committee instruction. No one referred to the matrix to check if the public comments had been interrogated.
No one objected to the previously unseen amendment to section 160 or suggested that the committee reject the insertion because it hadn’t been for public consultation. Ironically, Stock even affirmed that “the proposed amendments… were not new amendments”.
Anxious about the quorum, Mjenxane contacted the committee secretary, Lindiwe Ntshabo (deemed uncontactable by the chair), to check on the number of committee members. He could be clearly heard by observers directing her that the minutes from the previous meeting must reflect that the process had broken down and no decisions had been taken.
In the absence of the opposition, the committee then rejected section 21 and the legal team’s version of the bill was approved.
Blanket approval
The committee’s blanket approval of the version of the bill presented by the legal team means that the minister will meet her court deadline. But what are the implications for vulnerable children, who weren’t mentioned once during the meeting?
According to Paula Proudlock from the Children’s Institute, the biggest problems with the revised bill are the last-minute amendment to section 160; the omission of changes to sections 21 and 24, and amendments to sections 150(1)(a) and 159.
Proudlock explains that if passed, the amendment to section 160 could force relatives caring for approximately 700,000 orphans to be assessed by a social worker before they can apply for the CSG Top-Up.
Not only would this hinder the comprehensive legal solution to the foster care crisis, but because of the lack of social workers, it could also make the CSG Top-Up impossible to implement.
The omission of amendments to section 21 is also problematic and, oddly, those who chose to exclude it seemed to know little about it.
They incorrectly argued that section 21 is about adoption (it’s about unmarried fathers), that the amendment is controversial (it was approved by Cabinet and widely accepted by children’s rights organisations), that it was proposed by Fathers for Justice (this group actually wanted it removed from the Act), and that it needed further consultation especially with the House of Traditional Leaders (there had been broad consultation and the DSD had agreed to the House of Traditional Leaders’ amendments).
Focusing on damages (which are already in section 21 of the Act), members missed the importance of providing legal recognition and certification for unmarried fathers living with maternal orphans, enabling them to protect and care for their children, and act as their legal guardian.
Guardianship cases
Equally concerning was the omission of the amendment to section 24.
Like the amendment to section 45, it enables jurisdiction for the Children’s Court to hear guardianship cases. This crucial part of the comprehensive legal solution allows relatives caring for orphaned and abandoned children to obtain guardianship without having to incur high court fees.
Oddly, the new bill includes the change to section 45, but not to section 24. Without this important consequential amendment, the bill contradicts itself.
Despite opposition MPs raising this concern, section 24 wasn’t discussed because the chairperson confused it with clause 24, which is part of the bill.
At the heart of the legal solution is section 150(1)(a). According to Proudlock, civil society has long advocated for a change to s150(1)(a) to ensure that orphans in the care of relatives aren’t automatically considered in need of state care and protection and are rather assisted with an accessible grant and supportive services.
But, despite numerous submissions from child rights organisations, the wording of 150(1)(a) contradicts the department’s own Child Care and Protection Policy, and CSG Top-Up policy. However, neither policy was discussed by the committee.
‘Band-Aid’ approach
Proudlock also cautions against the “Band-Aid” approach to the comprehensive legal solution evident in changes to section 159.
“This amendment will enable social workers to ask magistrates to extend foster care court orders that have already expired. This protects the social workers who cannot keep up with the extension backlog, but isn’t in children’s best interests.
“It removes the accountability that ensures children’s alternative care placements are regularly reviewed by social workers and the courts.”
She’s particularly concerned that this amendment will result in children in child and youth care centres languishing in residential care for many years without their placement orders being regularly appraised or family reunification services provided.
Furthermore, the amendment doesn’t protect children in foster care from losing their Foster Care Grants for the time that their court order is expired.
“While the grant can be paid retrospectively once the expired order is extended, many orphans will be without their grants for months or years while they await a social worker to process their extension,” she explains.
Events of 25 May show that the DSD, parliamentary law adviser and ANC MPs have lost sight of the goal of the bill.
It isn’t to technically comply with a court order or prevent further embarrassment for the minister — it’s to provide secure and sustainable financial support for orphans, and legal status for their related caregivers, without having to use the over-burdened foster care system.
The needs and rights of vulnerable children were subsumed by political expediency in the committee’s rush to approve the CAB clauses.
And in contrast to the indecent haste of 25th May, formal approval of the A-list of the bill has taken a month, once again delaying the process.
If the decisions made without due consideration are not revisited when the A-list is evaluated on the 22nd June, it will be hard for the committee to argue that it has acted in children’s best interests.DM
