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
Two years after the Children’s Amendment Bill was first gazetted for public comment, it has finally been tabled in Parliament. The public have until this Friday, 27 November, to send submissions to Parliament. With 147 clauses, it is overwhelming in its breadth despite its quite simple initial objective of providing a comprehensive legal solution for the foster care crisis. So, what do the changes mean for children, and why should those invested in children respond to Parliament’s call?
Although this amendment to the Children’s Act was intended to provide a comprehensive legal solution to end the decade-long foster care crisis, the resultant Children’s Amendment Bill (CAB) is not a set of targeted amendments to the clauses affecting foster care, allowing for a quick passage through Parliament and enabling the Department of Social Development (DSD) to meet its (then) November 2019 deadline for the provision of the comprehensive legal solution. Instead the department produced a 147 clause amendment to the act, including some controversial changes to other areas of child care and protection such as adoption, the removal of privacy clauses protecting children during children’s court processes, and Early Childhood Development (ECD).
It’s testament to just how lengthy and complex the bill is that Parliament has scheduled a year for its debate, requiring the DSD to obtain another court extension for it to provide the solution to the foster care crisis (after the deadline had already been extended three times in 2014, 2017 and 2019 respectively). With the High Court granting a further two-year extension two weeks ago, the DSD will have the dubious distinction of having taken 10 years to comply with a High Court order.
But, despite the ostensible focus on foster care, the bill’s first outing in Parliament, a DSD briefing of the parliamentary Portfolio Committee on Social Development on 6 October, elicited so much discussion about the sections on adoption and ECD that the committee chairperson requested separate briefings on the two topics by the department. It is therefore not surprising that adoption and ECD, along with foster care, will be the topic of a number of public submissions to Parliament.
Solving the crisis in the foster care system
Truthfully, there are only a handful of clauses in the bill that relate to solving the foster care crisis.
The department is hopeful that small amendments to section 159 (allowing a six-month grace period after foster care court orders have lapsed, and six month interim extension orders), and section 186 (which increases the frequency of supervisory visits to children placed in foster care until the age of 18, with the goal of inducing more magistrates to grant orders for the duration of childhood), will provide the comprehensive legal solution.
But, if the foster care system is functioning optimally (as in, an appropriate number of children in care, relative to the number of social workers), section 159’s amendment should be a fail-safe, but not the norm. In addition, magistrates can already grant foster care orders lasting until a child is 18.
But, they are reluctant to do so because children in foster care are wards of the state and the court has a responsibility in terms of international law to continually monitor their circumstances. Annual supervision by social service practitioners is therefore unlikely to address magistrate’s concerns.
This may seem dismaying. However, there is a real answer to the foster care crisis in the Social Assistance Amendment Bill which was passed by Parliament in October, and is soon to be signed into law by the President.
This bill empowers the Minister of Social Development to pay a higher Child Support Grant (CSG) to relatives caring for orphaned and abandoned children. This CSG “top-up” will replace the Foster Care Grant (FCG) for this category of children, and will be much quicker to access because it doesn’t depend on social workers or the courts.
It’s also not subject to two yearly court reviews and won’t lapse every two years. Once the CSG Top-Up is in place (hopefully April 2021), social workers will be able to refer relatives directly to Sassa to apply for a social grant without having to first do an investigation, report or court order.
The CSG Top-Up is complemented by an amendment to section 150(1)(a) in the Children’s Amendment Bill. Together they provide the comprehensive legal solution to the overburdening of the foster care system. The CAB proposes to amend section 150(1)(a) by removing orphaned and abandoned children who have a suitable and able family member from the list of children deemed to be in need of state care and protection.
The implication is that orphaned or abandoned children in the care of kin will no longer need to be placed in foster care before they can access an adequate social grant.
While this is heartening, the implication is that this enormous 147 clause amendment bill could have been a one-clause change.
Adoption
Despite there being relatively few adoption-related changes in the bill, adoption remains one of its biggest focal points, largely because of the nature of the changes and, more importantly, the motivation behind those amendments.
Much of the debate revolves around the changes to section 249 of the Act, “consideration in respect of adoption”. In the draft bill gazetted in October 2018, Section 2, clauses B-G were deleted which effectively made the charging of fees for an adoption illegal.
The change produced a furore, with the sector arguing that it would put an end to adoption in South Africa and the DSD countering that it was necessary because adoption fees were “exorbitant” and that the change was justified because as long as fees are charged for adoption, it’s akin to child trafficking or the sale of a child.
But despite the DSD’s public insistence on the link between adoption and trafficking, behind the scenes, it was providing the adoption sector with assurances that the goal of the amendment was to remove all reference to fees from the Children’s Act to allow fees to be regulated by the relevant professional bodies (in a manner similar to attorneys).
Months of debate resulted in the State Law Advisers completely deleting Section 249 from the bill eventually tabled in Parliament, seemingly reinforcing the argument that it intended fees to be regulated elsewhere.
Even now, the purpose of the amendment is still up for debate. The Memorandum of Objects, an addendum to the tabled bill, states that the purpose of amending Section 249 is to “delete reference to all fees that may be charged for adoption”, which is self-explanatory, but unhelpful.
They are that adoption social workers choose adoption over family reunification which is the government’s primary strategy for the care of vulnerable children, that they do this because they consider adoption to be a commercial venture rather than a child protection measure, that adoption social workers charge exorbitant fees, and that there is a fine line between adoption and the sale of a child.
Mtshotshisa proposed that the department would be “moving away” from the adoption of unrelated children, particularly through intercountry adoptions.
In response, clarificatory questions from the parliamentarians asked if the Children’s Act is currently deficient in promoting family first as a placement option, and why fees could not be regulated rather than prohibited.
Mtshotshisa replied with a resounding yes to the first question, despite Section 230 of the act stating that a child can only be declared adoptable if the child is (a) “an orphan and has no guardian or caregiver who is willing to adopt the child; or (b) “the whereabouts of the child’s parent or guardian cannot be established” or (c) the “child has been abandoned”. (d) and (e) focus on abuse or neglect or children in need of permanent placement.
All require the social worker to establish that family care is not an option first. Furthermore, no national adoptions can be granted until both the provincial DSD and the magistrates court have evaluated the case and determined that there was no appropriate family care available (as part of the Section 239 process in the Children’s Act).
Mtshotshisa didn’t answer the question about the regulation of fees. If he had, he would have had to confess that adoption fees are already regulated and capped for designated child protection organisations (DCPOs) and intercountry adoptions, and that while they aren’t regulated for private social workers, all fees must be available for scrutiny by the provincial DSD and both declared to the court and approved prior to an adoption order being granted.
He also failed to mention that on average, a national adoption costs between R11,000 and R13,000 to complete and that agencies charge adoption fees on an income-dependent sliding scale, ranging between R1,500 (for adoptive parents earning less that R5,000 per month) to R23,000, as the upper threshold for those earning above R30,000 per month. Fees drop even further when organisations get partial government subsidies. Adoptions are free to those who can’t pay and on average cost between R9,000 and R12,000.
When the department provides its adoption briefing to the committee next year, it will undoubtedly be asked to specify examples of adoption being used for trafficking, evidence of exorbitant fees being charged by adoption social workers and instances where social workers have consistently ignored available and suitable family members and instead placed children in adoptive families.
If such evidence is presented, it will also have to account for why, despite the stringent legislative requirements for adoption, its monitoring and evaluation process have failed so consistently.
It will further need to explain why it’s using legislation to correct the problem instead of criminal proceedings (in the case of trafficking), and professional sanctions (in cases of unethical practices), and why these alleged cases have never been made public despite numerous requests from the sector.
Equally, questions must be asked about why the DSD’s solution is to make adoption the sole domain of government social workers instead of reforming and dealing with individual problems within the sector and why, given its apparent inability to adequately monitor and evaluate adoptions, it would be suitable, let alone adequately resourced to facilitate all future adoptions.
The department may argue that it has dealt with the resourcing issue with a change to Section 239, substituting the term ‘‘adoption social worker’’ with ‘‘a social worker responsible for adoption’’ to ensure that more departmental social workers can perform adoptions. But this wording is likely to be challenged in multiple public submissions.
Given the ethical complexity and legal implications of adoption and a global movement towards making adoption more specialised, not less, many would argue that social workers without specialisation should not be allowed to process adoptions.
Ultimately, the ongoing furore about fees may be a moot point for this bill (although likely an ongoing area of conflict between the DSD and the sector), because legal experts seem to agree that the complete deletion of section 249 no longer makes the charging of professional fees illegal. It’s more likely (despite Mtshotshisa’s assertions) to allow fees to be regulated elsewhere. However, this may have unintended consequences.
Clause 249 was included in the Children’s Act to stop anyone other than professionals from charging fees for an adoption. Its absence (and the fee regulation gap until professional regulatory bodies can define them) could create a void allowing unscrupulous people to financially benefit from adoptions.
So, while the current legislative framework makes it implausible that there is currently “a fine line between adoption and the sale of a child” in South Africa as the DSD asserts, the deletion of 249 could make it true.
And, as important as the focus on fees is, the issue has detracted attention from how regressive the adoption amendments in the bill are (perhaps because of Mtshotshisa’s claim that the department is “moving away from” it). None of the changes address current challenges with adoption, despite these resulting in a paltry number of adoptions occurring annually (an average of just over a thousand per year).
When adoptions do take place, processes are elongated because of government’s failure to deliver its adoption services timeously (especially provision of form 30s and the 239 panels) and its family first policy that goes beyond the requirements of the Act.
On average, adoptions are taking twice as long as necessary to process (18-24 months, versus 9-12).
The result is children languishing in institutions instead of permanent family care, inconsistent caregiving and no matter how nurturing the care, the risk of them developing attachment disorders.
Given that the first thousand days of a child’s life are critical for emotional, cognitive and social development, delayed placement can produce long-term damage to intellectual capability, the child’s ability to complete school, obtain higher education, earning potential, psychological well-being, relationships and overall health.
Despite assertions that the bill promotes children’s best interests, there’s no mention in it of the importance of permanency, the impact of placement delays on attachment, and what will become of abandoned children who cannot be reunified with family – especially the many babies abandoned with no trace of family connections.
As such, the bill represents a missed opportunity to increase and speed up adoptions and provide permanent families for abandoned children.
Early Childhood Development
This missed opportunity is also evident in portions of the bill focused on Early Childhood Development (ECD), a sector whose ongoing challenges have been exacerbated by lockdown. The sector has already been to court twice to ensure its continued survival.
The first case was an attempt to induce the DSD to allow it to reopen after lockdown, the second to force government to back-pay promised subsidies that had been withheld since March. Although the sector won both cases, the subsidy ruling is being appealed by government.
Given how beleaguered the sector is, and that many of the lockdown problems stem from DSD’s inability to regulate ECD adequately because the registration criteria in the Act and its regulations are so onerous and unachievable, it would have been opportune for the bill to address the sector’s key concerns.
Unfortunately, in its current form, the CAB makes the situation in the ECD sector worse rather than better.
There are five critical problems with the ECD content in the bill, problems that ECD practitioners and NPOs have done excellent work in communicating simply and clearly. All relate to government’s lack of recognition of the demographics of the sector and failure to support its vulnerable constituents.
According to the petition started by these groups, “over six million children are of ECD-going age (excluding Grade R) and the majority of these children live in poverty. However, 3.2 million children are not accessing any ECD programmes.
Of those who do access some form of ECD programme, 2.9 million children are in unregistered programmes and only 800 654 children are in registered centres. Only 626 574 (25%) of the children who need it are obtaining subsidised learning”. Most providers are poor, black working-class women without the means to meet burdensome registration requirements.
Registration is essential for the protection of children, and will ensure that the sector is better regulated and open options for more children in need to access subsidies. But, while it’s in the best interests of government and children to facilitate compliance, for many, the Act and its regulations make compliance impossible.
The CAB makes registration even harder, not easier. Not only is there a one-size fits all approach to ECD which treats toy libraries, playgroups, home-based care and nursery schools the same, despite experts arguing for a targeted approach for each different modality, but there are also troubling multiple registration processes.
According to ECD practitioners, “The bill not only fails to address the challenges of the dual-registration process but also now introduces the possibility of a third registration requirement.
Under the bill, a facility which provides ECD programmes for more than six children from birth to school-going age will be considered both a partial care facility and an ECD centre”.
This means that an ECD programme provider may be required to register as a partial care facility, an ECD centre and register its ECD programmes.
To compound providers’ misery, the move of ECD to the Department of Basic Education may result in some ECDs having to register as a school too, potentially adding a fourth process.
ECD providers are therefore recommending a one-step registration process and the simplification of registration requirements. They’ve also argued for simplified health and safety standards which can be assessed through one process.
Further, given the challenges of compliance, experts propose that ECDs get conditional registration if they can’t meet all of the registration requirements and that provincial MECs provide support to poorer communities to help them meet these criteria.
The conditional registration option and the obligation to provide support is already in the Act, but is not widely implemented. And now, a troubling change in wording in the CAB makes this imperative to help optional (the word “must” is changed to “may” in Section 78(4) and 93(4)).
The department has argued that MECs will help if they have funds, making the obligation unnecessary. But this is a weak argument belied by experience, especially after the department’s recent history of withholding financial assistance from ECDs during lockdown. Provincial departments will be increasingly cash strapped as the economic effects of COVID 19 and austerity budgeting worsen over the next five years. Prioritising ECD funding should therefore be strengthened in the law, not weakened.
In the 20 October 2020 High Court ruling about the lack of payment of subsidies to ECD the judge stressed that subsidies are necessary to: “provide access to nutrition and stimulation to infants and young vulnerable children, thereby promoting the rights of children to life, nutrition, social services, education and the enhancement of their development”.
It’s therefore essential for all children in need of subsidies to receive those subsidies, regardless of the registration status of their service provider.
Equally anti-poor is the bill’s prohibition of infrastructural assistance for ECD providers operating from private land, this despite the huge percentage of poor service providers who run ECD centres from private homes, shacks or huts .
Many in the sector can’t afford separate premises and can’t afford the capital outlay to make current premises compliant with the norms and standards.
Curtailing infrastructural funding for ECDs operating from home will prevent many ECDs from ever obtaining full registration, and may even put children at risk.
Next steps
There’s still a long road ahead for the bill, but the next step is written public submissions to Parliament on these and other key amendments. Submissions are due on Friday, 27 November to Lindiwe Ntsabo at childrens-amendment-bill@parliament.gov.za.
A selection of these submissions will then be chosen to present at public hearings scheduled for February and March 2021. For more information about how to submit input re adoption, see National Adoption Coalition of South Africa.
hen Enock Mpianzi drowned on a school orientation camp, it was not because he was poor, black and foreign. Nor was it, as leadership of the Nyati Bush and Riverbreak Lodge has stated, ‘a terrible accident’ and ‘no one’s fault’. It was the result of a series of actions and decisions made by the adults entrusted with his care. These decisions were at best poor, and at worst reckless and negligent. Tragically, the result was foreseeable.
The parents of Grade 8 learners at Parktown Boys High School (PBHS) would have had some minimum expectations when they signed the indemnity form and sent their son on the school’s orientation camp. These include: that safety standards (both legal and reasonable) would be adhered to; that the school had conducted a due diligence on its chosen camp to ensure that it was a secure environment, and that the school would know the nature of activities taking place on camp and check with parents if their boys had the skill and ability to participate.
They would also have expected teachers to compile a comprehensive list of the boys on the camp and that the list, along with the boy’s indemnity forms, would always be in their possession; that the school would use systems like regular head counts and a buddy system to check that all of the boys were present at all times; and that in the unfortunate event of an incident, the school would react immediately, and provide them with comprehensive and timely updates.
Most of all, they would have expected their sons to come home.
Yet, incomprehensibly, a school described by Panyaza Lesufi as “one of our best schools in the province” seems to have violated most, if not all, of these expectations in the incident that led to Enock’s death, the 24-hour wait before anyone started looking for him, and the investigations that followed his body being recovered.
In the days since Enock died, the media has uncovered significant information about the events around his death and some answers to two crucial questions: how did he die and why was his body not found sooner?
Much of what has emerged seems incredible: facilitators at Nyati Bush and Riverbreak Lodge decided to put boys into the Crocodile River without life jackets, there was no apparent risk assessment to determine if the conditions in the river were safe, facilitators didn’t evaluate the boys’ swimming abilities before placing them in the water, teachers did not have an accurate list of camp attendees to check after the water activity, and there was an inexplicable unwillingness to believe that Enock was missing and look for him sooner.
In addition, there were a number of seemingly banal, but important, factors that contributed to his death. They included the school’s apparent unpreparedness for the camp (necessary permission was not obtained from the Gauteng Department of Education but the trip still went ahead, it’s uncertain if the school conducted due diligence before choosing the site, and buses arrived late to the camp). From Nyati’s side, camp facilitators were all young, between the ages of 19 and 25, and had received internal training but were not required to have any formal qualifications such as life-saving or First Aid. Facilitators also failed to get to know the boys prior to the first exercise.
Eyewitness accounts have confirmed that Enock died during the water component of a “rescue” exercise. The boys were placed into groups (of between 11 and 15 boys depending on whose account you believe), and tasked with building a stretcher to transport an “injured” boy to safety. The stretchers were made out of logs and materials that the boys could find, most were lashed together with shoelaces. One boy was then transported to “safety” through the water on the makeshift raft, which was balanced on an inner tube, while the rest of the boys were in the water. There is no record of facilitators having done a risk assessment about the conditions (despite recent rains which had made the currents in the river stronger).
In a statement to Eyewitness News (EWN), Nyati manager Anton Knoetze said that boys were told to sit out the water part of the exercise if they couldn’t swim. But no one evaluated the swimming ability of boys (like Enock) who could swim, and no one asked if they had swum in open water before. By Knoetze’s own admission none of the boys were wearing life jackets (none was requested for the camp, and none was provided by the facility). This, despite life jackets being a legal requirement for all open water activities. Eyewitness accounts indicate that at least one of the boys noticed life jackets at the camp pool and asked if they needed them for the exercise. They were told that life jackets were not necessary because they would be staying in the shallows.
Nyati’s press statement from 22 January stated that the boys had disobeyed this instruction, becoming competitive and trying to overtake other groups and finish first. It was a bizarre deflection, not just because it failed to acknowledge the legal requirement for safety devices, but also because, as water safety expert Graeme Addison pointed out on Carte Blanche, the boys would have had no way of knowing what was shallow water, and what was deep water.
It’s also worth remembering that these were 13-year-old boys, who were new to the school, unfamiliar with each other, and trying to prove themselves on their first activity on camp. It seems astonishing that Nyati would blame them for excited and competitive behaviour when it was surely a typical response, one that should have been foreseeable for any experienced facilitator.
What was also predictable was that the makeshift stretchers would break up in the open water. Some boys were able to grab onto the inner tube, but not all did. Many of the boys were swept down the river. Depending on who you believe, between 30 and 50 boys (up to a quarter of the boys on camp) had to be rescued. Many boys were rescued by other Grade 8 learners because the eight facilitators deployed by Nyati at the riverbank were not in the water and, according to one eyewitness, no teachers were present. The Grade 12 learners on the camp were also not present at the water activity. They were apparently in a session with child protection activist, Luke Lamprecht, who was briefing them on leadership, and how to instil culture and the “Parktown way” without the need for hazing.
Even strong swimmers reported that they thought that they were going to drown. Boys were screaming for help, and one eyewitness stated that some boys were clinging to an island but were told by the two facilitators who jumped into the water to “let go”, so they could “catch them”.
Given the river conditions, the lack of safety equipment and the lack of oversight, it seems miraculous that more lives were not lost.
If the exercise was ill-judged, what happened next seems even more unbelievable. Given the number of boys who were swept down the river and the trauma of the experience, the most obvious course of action by facilitators and teachers should have been to place boys into their original groups, check that all were present, comfort the boys who were vomiting and coughing uncontrollably, administer First Aid and, if all were present, debrief them about what had happened. If this had occurred, they would have known immediately that Enoch was missing.
Shockingly, it seems that they also didn’t know the number of boys in their groups. Facilitators wrote a group number on each boy’s hand to keep the boys together. But at the end of the exercise, the facilitator of Group 4 (Enoch‘s group) appeared not to notice that one of the 14 boys in the group was missing. When told by Enock’s friends that they didn’t know where he was, the alleged reply was that he had probably joined another group. It’s a bewildering response. Enock would have known his group number so even if it had washed off his hand, all the facilitator needed to do to find him (or confirm that he was missing) was ask the other facilitators if they had a boy from Group 4 in any of their groups.
But, they didn’t, and along with the failure to take proper safety precautions, it’s likely that this refusal to respond to an eyewitness account that a boy was missing resulted in his death.
The upshot was that Enock’s absence was not noticed at the river, at the point where he was most likely to be rescued alive. But even so, it seems incomprehensible that his absence was not noticed when roll call was taken by the headmaster, Malcolm Williams, two hours after the exercise began. There’ve been a number of explanations mooted for the headmaster taking roll call from the full list of Grade 8 learners attending Parktown Boys, rather than a camp attendees’ list. Some news stories have proposed that no roll call was taken prior to the camp. It’s possible (albeit alarming), but even if there was no roll call, a list of camp attendees could still have been compiled from the boys’ indemnity forms.
What is most plausible is that neither the roll call list nor the indemnity forms were at the camp when Enock went missing. An article in the Star cited credible evidence that the head teacher, Alex Meintjies, left the roll call list and indemnity forms on the hired Bus 2000 bus, which then returned to Johannesburg. Journalists from Daily Maverick have also confirmed that the school contacted the bus company after it returned to Johannesburg to report that “they left a list on the bus”.
The bus company is now refusing to comment further on the nature of the documents, as is the School Governing Body (SGB).
The impact of this act of carelessness was enormous. Had roll call been completed from the camp attendee list, it would have been glaringly obvious that Enock was missing. But several boys were unable to attend the camp, so when roll call was done from the full Grade 8 list, there would have been as many as 10 boys who did not respond when their names were called.
As an aside, two other outcomes of this “oversight” were that it resulted in the devastating 10am phone call to Enock’s parents on Thursday 16 January asking if he was on camp (staff would have had to contact the parents of all the boys who did not respond to roll call).
In addition, the other consequence (and possibly the reason why the SGB responded with such hostility to the Daily Maverick’s request for comment), was that almost 200 young boys would have been on camp overnight without the indemnity forms which not only contained permission for the children to be on the trip, and emergency contact details, but also their medical information, including details of chronic medication requirements and life-threatening allergies. Given the heart-stopping resultant risk, the school is probably fortunate that more boys were not hurt during this camp.
What’s critical is that even if Enock’s absence was not obvious to facilitators, teachers or the headmaster at the river or during roll call (as intimated), there has been no explanation for why they all failed to listen to, or believe, Enock’s friends who told them multiple times over a 24-hour period that Enock was missing. Surely even if the boys were mistaken, it was incumbent on the staff to investigate their claims. Speculation has abounded about why they didn’t, but it’s one aspect of this story that no amount of investigative journalism can uncover, because the responsible people aren’t talking.
The other mystery is why a school with a history of abuse and conflict over orientation camps would select Nyati for its orientation camp. As recently as 2018, the Grade 8 camp was scrapped because of the potential risk to boys. But the SGB allegedly fought to have the camp reinstated in 2019, prompting an attorney representing concerned parents to state: “I have always believed that it will take the death of an innocent child for the government to realise exactly what is going on at Parktown.” Despite these concerns, the camp was still planned for 2020, albeit with a venue change because of the identified risk to learners at the previous camp site where teachers were housed too far away from the boys.
So why, given the need to protect the boys, and the history of abuse in the school, did Parktown Boys fail to apply for permissions to hold the camp in the time frame required by the GDE, and why did the camp go ahead despite permission not being granted? Equally, where is the school’s due diligence on Nyati? One should have been completed by teachers prior to selecting the venue and, as Panyaza Lesufi has pointed out, even a cursory search on Nyati would have uncovered damning information about the camp (including the 2010 death of Mellony Sias and reports that the camp could be militaristic and rigid – a significant problem given Parktown Boy’s history with initiation). Although it wasn’t common knowledge at the time that Enock was the fifth child to die at the camp, surely one fatality would have raised red flags, as would the lack of formal qualifications and youth of the facilitators.
If the school did not compile a detailed due diligence on the camp (including police clearances and form 30s for all facilitators, a list of qualifications and a list of activities to be performed), it certainly failed in its duty to protect its new Grade 8s from harm.
While the picture of what occurred on 15 January is only emerging now, what’s been clear from the outset is how poorly the school has handled the crisis. It’s now common knowledge that the boys were told not to tell anyone (not even their parents) about what for many had been the worst experience of their lives. According to Francis Herd, news anchor and commentator on crisis management, the first tenet of crisis management is to stop the harm. But this instruction would have produced more pressure and fear in already traumatised boys.
Teachers were also instructed not to comment, and parents were invited to a meeting on 20 January only to be told that they could not ask questions. In addition, the headmaster asked the media to refrain from writing about Enock’s death “out of respect for the family”.
But, it’s hard to argue that the interests of Enock’s family are best served by silence, or by waiting the promised three months for the result of the investigations into his death, especially since information disclosed by Parktown Boys has been incomplete and improbable. Herd says that best practice at a time of crisis is full and open disclosure to the media and the public to avoid appearing untrustworthy. Had the school revealed what it knew instead of obfuscating and concealing evidence, it would have built trust and avoided the extraordinary levels of media scrutiny. Instead, Parktown Boys’ reticence to share information while others were talking made it appear that the school had something to hide.
In a painful interview on 702, Enock’s great-uncle explained how the school could not tell them at what point Enock had disappeared (despite the boys saying he had not been seen after the water event, staff still speculated that he may have got lost on the hike), or how he died. He described the heartbreak of finding Enock’s body two days after he died, and the feeling that Enoch’s death had gone “unnoticed”. He also articulated a conviction that if journalists hadn’t intervened and organised a discussion with Enock’s friend, the boy who was brave enough to give his eyewitness account, the family may never have known what happened to their son.
Herd believes that the school has lost control of the crisis, and can no longer be an authoritative voice. She is therefore not surprised that the previous crisis at PBHS, involving sexual misconduct, has come up again in public perception and the press. Given the level of distrust from the previous crisis, she contends that Parktown Boys should have been extra responsive this time around.
So, instead of creating the impression of protecting Enock’s family, the injunction for silence seems to be part of an overall bid to keep the story quiet to protect people who may be guilty of gross negligence. It’s a truism, but those with nothing to hide, hide nothing. Instead, to quote Rams Mabote, a parent at PBHS and mentor, the “conspiracy of lies” remains at Parktown Boys.
Regardless of what happens next, it’s hard to overstate the damage done. A child, a treasured son and brother, who wanted to be an attorney so he could help people and who could not sleep the night before the camp because he was so excited, is dead. Described as a “quiet, friendly and obedient child”, he was able to form friendships in less than a day that were so strong that his friends were willing to risk everything for him.
Despite the school organising counselling, many boys who attended the camp are suffering from nightmares, and counsellors had to intervene to get the annual school gala cancelled because many boys were too traumatised to get into the water. The lives of boys in all grades have also been compromised as their school is once again producing infamous headlines, and since daily life has been disrupted by (admittedly justified) protests at their gates, interruption of schooling and the inescapable conclusion that their staff and management cannot be trusted to make good choices for them.
It’s now up to the GDE, SGB, and, ideally, parents, to decide what happens next at Parktown Boys. We can only hope that these adults make better decisions than those made on that fateful camp, the Grade 8s of 2020 and all of their peers deserves nothing less. DM
