27 JULY 2004

Soul City is

The Soul City project is made up of:

Each series takes two years to develop. During this time intensive research and consultation is undertaken.

It is not easy to separate health and social issues as they are inter-dependent. Soul City therefore has, through workshops and focus groups held in the community, as well as other research, built up a vast body of knowledge on issues such as child and women abuse, HIV/Aids, and sexuality education.

1. Introduction and general comments

Soul City is grateful to a have the opportunity present its comments on this Bill.

We would also like to acknowledge and support the overall objectives of the Bill and it recognition of, and commitment to, children’s rights. The inclusion of the standard of ‘best interests of the child’ being paramount in its implementation, is also to be applauded.

However, we also wish to express our concern regarding what has been described as the ‘watering down’ of the Bill that was drawn up by the South African Law Reform Commission after thorough consultation with civil society and other stake holders.

2. Support for other submissions

Soul City has been privy to the wide range of submissions made to the committee. They originate from organisations concerned with every aspect of child care and children’s rights. Soul City’s work since its inception has touched on many of the issues these submissions address. We support their inputs and provide specific endorsement of a number of them.


Soul City has also been intricately linked to the social movement advocating a comprehensive package of social security for children. Not only was it involved in the establishment of the Alliance for Children’s Entitlement to Social Security, but also it has worked closely with government utilizing its mass media skills to improve delivery of the child support grant.

Consequently, at the outset, we wish to record that as a member of ACESS we fully support the contents of their submission and in this submission we will attempt not to unnecessarily duplicate its observations and recommendations.

Critical to the ACESS submission and this one, however, is what we perceive as the diminution of the social security rights for children in the August 2003 draft of the Bill – which is substantially different to what was originally proposed in the SALC Draft Bill 2002.

In this context we wish to note:

2.2 The rights of foreign children

Soul City in both its adults series Soul City 6, and its children’s series Soul Buddyz 2, addressed the issue of refugee and foreign children.

In our Bill of Rights, foreign children are protected not only by the clause pertinent to children, but also by other clauses including the equality clause. The UN Convention on the Rights of the Child and our international obligations relating to refugees and asylum seekers, add even more weight to our responsibility. Therefore the excision of this category of rights in Chapter three of the current draft is inexcusable. We support the Children’s Institute’s formulation of this right not to be discriminated against because of its more comprehensive wording as it covers a wide gambit of discrimination based on the constitutional right of equality including that a child should not be discriminated against because of nationality.

Despite the fact that no child can ever be an ‘illegal immigrant’, Soul Buddyz research confirms that children of foreigners live with the stigma of an ‘illegal immigrant’ every day.

Children in schools, especially children from different racial backgrounds, in suburban and former white schools are seriously affected. These schools now have a more diverse learner and sometimes teacher population. In a study done by Vally and Dalamba 62% (1075) of 1729 learners from 60 schools reported having racial problems at their schools.

Some of the areas where learners are experiencing racial problems are:

1. The school culture – this is especially experienced in the areas of sports and religion, where schools have not changed any previous practices to accommodate their more diverse learner population.

2. Language is the other major area of school culture, which is listed as problematic. Often proficiency in the dominant language at the school is used to separate learners e.g. in reading groups, which inevitably take on racial dimensions because the dominant language is often the 2nd, 3rd or 4th language of some learners.

Children of foreigners are also denied access to schools. On-the-ground research reflects that the exclusion of children of foreigners is often done without authority; parents are often intimidated by staff who do not have the patience to deal with them particularly if there is a language barrier. Plus some schools are not aware that the Department of Home Affairs has removed restrictions on studying for asylum seeker children.

In addition to the above comments, we support the Lawyers for Human Rights submission dated 7 September 2003 in averring

3. Children’s rights

3.1 Children with disabilities

As has been noted in the ACESS submission, the rights of children with disabilities or chronic diseases is a serious omission in the current draft. We therefore endorse the insertion of the rights of children with disabilities as formulated by the CI because of its expanded definition and the inclusion of children with chronic illness.

The Soul Buddyz Literature Reviewon Disability, emphasizes that the discrimination that people with disabilities experience in the South stems from negative cultural belief systems and attitudes within society. As a result, people with disabilities remain hidden from society with no opportunities to become informed, empowered and confident.

According to the research, the majority of children with disabilities are black (92 out of 100). By extrapolating figures it is suggested that there is a crude prevalence rate of 6% disability prevalence among South African children, over half a million children with disabilities require services. These children are marginalised and excluded and the manner in which society perceives them, has primarily to do with cultural beliefs about disability.

The SALRC review highlighted the many issues the Bill should be addressing with regard to children with disabilities – some of which are addressed in different sections of the Bill. However, the inclusion of a section specifically related to the issues is preferable. It is also something that could be included in the National Policy Framework if it were returned to the Bill.

It should also be noted that children with disabilities’ right to education is a particular concern needing the allocation of substantial resources. Just one example, deaf children are taught by teachers who often cannot sign; they don’t seem to cover the same curriculum as other children in mainstream school.

Birth parents must also have the right to information about the disability and the possible ways of coping with the challenges that come with the disability

The birth of a child with disabilities, especially when the impairment is visible at birth, is a traumatic experience for any family. Issues of guilt, rejection, denial and anguish are emotions that the family has to deal with on a daily basis. This exacerbated by the cultural norms surrounding the child’s birth. This should be debated and a solution sought with reference to Section 12 (Harmful social and cultural practices).

Soul City endorses the submission made by the Disabled Children’s Action Group and believes that it provides strong and cognizant arguments for the reinstatement of the National Policy Framework and its importance in terms of a holistic approach to the needs and rights of children with disabilities. We note that the aspects which emerged in our research in relation to the relationships between parents and children with disabilities is also identified as an area of concern is this submission.

See further comments below.

3.2 The right to health care

Notwithstanding the inclusion of the right to information on health care in the Bill, it is disappointing to note that the right, more fully prescribed in earlier drafts, has been reduced to only this. Although it may be argued that the delivery of health care is a provincial responsibility, Soul City research indicates that health equity is not a priority in some provinces. Furthermore rural resources are often not on a par with those of their urban counterparts. Including the extension of the right along the lines of the wording suggested by the CI would hold provinces more accountable.

Substantive equality means that children across the board in South Africa should enjoy the same rights, it is therefore unacceptable that because of their geographical location, this does not occur. This will also be particularly pertinent in the treatment of children who are HIV positive.

The SALRC review says: "In addition to proposing that a universal non means-tested grant be paid to all children, the Commission also recommends the inclusion of a provision on preventative measures against diseases and malnutrition in the new children’s statute. Such provision will include an obligation on government to initiate programmes providing for a package of services comprising nutrition, immunisation, and health and referral services for children below a certain age, and regular health check-up, immunization and supplementary nutrition for pregnant and lactating women."

We therefore support the inclusion of these obligations along the lines of the Indian Children Code Bill 200.

3.3 The right to education

Research by Soul City and other educational organisations and institutions indicates that despite legislation which should protect and guarantee children’s right to education, a high percentage of our children are not accessing this right. Notwithstanding the fact that the SALRC Review said that some aspects of the review would remain in primary education legislation, it is again of particular concern that previous drafts had a more substantial commitment to the delivery of education.

We therefore support its reinsertion into the rights chapter and endorse the Centre for Applied Legal Studies Education Law Project’s recommendations. Especially that which would see the original SALRC’s working strengthened to guarantee the provisioning of educational facilities of a reasonable standard to ensure adequate education for all South African Children. We also endorse ELPs call for an entitlement defining South Africa’s obligation in respect of the free education guarantee to ensure that all South African children have access to education. Again the arguments that are made regarding substantive equality to ensure that all children regardless of financial status or geographic location enjoy the same rights are relevant.

3.4 The right to nutrition basic nutrition, shelter, social services;

The right to leisure and recreation

It is our understanding that the Children’s Bill was to provide a better framework for the primary prevention of the abuse of children and their rights. A cornerstone of such an approach is to develop an enabling environment in which this can take place. This would include ensuring access to nutrition and shelter and more importantly social services and security. Hence the inclusion of these rights more specifically and comprehensively, as in previous drafts, is recommended.

It is also argued that although government has various interventions to address the hunger and lack of nutrition South African children endure, there appears to be a lack of co-ordination and impact.

Food Security Working Group recognizes how essential it is to have a more co-ordinated approach to the issue:

The broad scope of food security calls for a comprehensive and multisectoral approach. The right of access to sufficient food and water is enshrined in the South African constitution. The state has a primary responsibility to provide a framework within which households and individuals can exercise choices to achieve food security in a manner that will not jeopardise the security of future generations. The state must also take appropriate measures to ensure that vulnerable groups, particularly young children and the elderly, are able to meet their food needs.

We therefore believe that this is all the more reason for the reinstatement of the National Policy Framework and all it implies in terms of an inter-sectorial approach and the allocation and maximisation of resources.

Although the right to leisure and recreation may not seem as critical as some of the other rights articulated, we contend it is as it contributes to mentally and physically health children – a preventative measure against children becoming involved in harmful activities and abuse. Involvement in leisure and recreational activities can influence the direction a child takes in life for the better. Schools and local councils have a responsibility to provide recreational activities and yet in today’s current budgeting climate these expenses are seen as being dispensable. Therefore inclusion of this right will provide communities and groups with leverage to insist on delivery.

We suggest the Bill reverts to including this right as in previous drafts and suggest the following wording.

Every child has the right to recreational activities appropriate to the child’s age including access to recreational facilities within reach of his/her home or school

3.5 Children’s responsibilities

The chapter on rights concludes with a section on children’s responsibilities.

We believe it is inappropriate and not generic to place responsibilities on children in the Children’s Bill.

4. Children in especially difficult circumstances

The ACESS submission elaborates substantially on the inadequacies of the Bill in this regard and the attention that was given to it previously in the SALRC draft. Signaling out children in difficult circumstance does not mean they should enjoy any rights outside of those enjoyed by children more generally. But if they are to enjoy the same rights as other children, a national strategy must be developed to address the shortcomings that prevent them from doing so because of their circumstances.

We also recognize the need for a national strategy setting out the responsibilities and roles of municipalities and provincial organs of state and promoting the engagement of NGOs in the development and implementation of programmes and projects giving effect to these strategies.

5. The sale of solvents and other harmful substances

The SALRC’s review did not see fit to address this issue in the legislation saying that it did recommend the enactment of a provision prohibiting the sale of harmful substances to children because it believes it would be impossible to enforce. The Review supports the Drug and Drug Trafficking Act which criminalises these acts as well as the Prevention and Treatment of Drug Dependency Act for rehabilitation.

We believe this is a defeatist attitude to one of the most pressing problems confronting childcare. An inclusion of a provision addressing this issue in conjunction with the inclusion of National Policy Framework thereby incorporating an inter-sectorial approach to the problem and hopefully the commitment of further resources to resolving it, could be a start.

Further the provision should legislate for on-going education on the abuse of harmful substances, drugs and alcohol even though there are currently limited programmes doing this.

We concur with the recommendation by the SALRC that research be conducted to improve best practice guidelines on advertising and children The impact of advertising and promotion of alcohol on children is of concern and this too could be addressed if a provision on the issue was introduced.

7.2 s 13 Information on health care

Soul City endorses this section and suggests that consideration be given to expanding the ensuring that ‘reproduction’ includes information on prevention/contraception and legal termination.

Furthermore we contend