Legal Opinion (Confidential]

SUBJECT: Children's Bill [B70-2003] (Reintroduced)

DATE: 18 February


1. You have requested us to advise whether clauses 129 -141 in the consolidated Children 5' Bill deal with issues to which the provision of section 75 of the Constitution applies or fall within the functional area listed in Schedule 4 to the Constitution to which the procedure set out in section 76 applies.

2. ln our opinion the above mentioned clauses deal mainly with issues to which the provision of section 75 of the Constitution applies. We have consulted the State Law Adviser who certified the Bill, Adv. Otto Kellner and he agrees with our view.

3 Furthermore, he informed us that the omission of these provisions in the reintroduced Children's Bill was apparently due to an error, He informed us further that the State Law Advisers are currently puffing together all the provisions that were erroneously removed with a view to tabling them in Parliament so that they can be included in the reintroduced Children's Bill.

Ramurunzi / Adv AJ Gordon

Parliamentary Legal Advisers

16 February 2005

Dear Dr Palmer

The Portfolio Committee on Social Development is currently considering the Children's Bill [B70 - 2003 (Reintroduced)]. This Bill was split into two separate Bills, one of which deals with policy matters and the other one with service related issues. There is divergence of opinion between Members of the Committee and Departmental staff about whether certain clauses in the consolidated draft Bill (as introduced to Parliament in August 2003) should be included in the Bill currently before the Committee, to be dealt with in terms of Section 75 of the Constitution, or whether these clauses should remain ~n the Section 76 part of the Bill. The clauses in question are as follows:

The Portfolio Committee would like to request that the Parliamentary Law Advisors provide it with a legal opinion regarding the above-mentioned clauses, indicating whether they should be regarded as dealing predominantly with policy issues and therefore be included in the Section 75 Bill, or whether they deal with concurrent competencies, and therefore should be dealt with in terms of Section 76 of the Constitution. The Committee would like to have the research completed by Monday 21 February 2005. Should you require input from the Parliamentary researcher attached to the Committee, this input will be made available.

We trust that you will be able to assist us in clarifying these matters. Yours sincerely

TJ Tshivhase (Mrs)

Chairperson of the Portfolio Committee on Social Development