Bills & Acts
The whole Children’s Act 38 of 2010 (as amended by Act 41 of 2007) came into operation on 1 April 2010. The regulations (and forms) also came into operation on the same day.
A summary of the law-reform process
The South African Law Reform Commission (SALRC) researched and drafted the Children's Bill over a period of six years. The SALRC Report and SALRC draft Bill were officially handed to the Department of Social Development in January 2003.
After inter-departmental negotiations, a new draft Bill was published in the Government Gazette for public comment. Although many submissions were sent to the Department of Social Development, it seems that the submissions were not considered or incorporated because Cabinet was presented with the same, 12 August 2003, version for approval. Cabinet approved the Bill for tabling in Parliament, subject to some changes.
In October 2003, when the Cabinet-approved Bill was ready to be tabled, it was discovered that the Bill needed to be split into two because Parliament does not have a procedure to deal with “mixed Bills”. Parliament has two distinct procedures for Bills that affect national government exclusively (these Bills must follow the legislative procedure set out in section 75 of the Constitution) and Bills that affect both national and provincial governments (these Bills to follow the legislative procedure set out in section 76 of the Constitution).
See the State Law Advisors memorandum, and the October 2003 Progress Update for further information on the splitting of the Bill.
The first Bill was tabled in January 2004 (B70–2003 re-introduced) and finally passed by Parliament in December 2005 (B70D–2003) after extensive debate and public consultation. It was signed by the President in June 2006 and is now called the Children's Act 38 of 2005.
The second Bill, the Children's Amendment Bill [B19 of 2006], was tabled in Parliament in August 2006. As it was a Bill which affects the provinces, it was first processed through the National Council of Provinces. The NCOP began their deliberations on the Children’s Amendment Bill in September 2006 and there were public hearings in all nine provincial parliaments.
The NCOP made many changes to the Bill in response to the public hearings and passed it on 29 May 2007. That version was known as the Children's Amendment Bill [B19B of 2006]. The Bill was thereafter referred to the National Assembly (NA) for consideration by the Portfolio Committee for Social Development. The committee held public hearings in eight rural communities in four provinces, and at the seat of Parliament in Cape Town. The committee proposed additional amendments and voted on the Bill on 23 October, and the NA voted and passed the Bill on 7 November 2007 as the Children’s Amendment Bill [B19D of 2006].
On 7 November, the Department of Social Development briefed the Select Committee on Social Services (NCOP) on the amendments to the Bill that were passed by the NA. Representatives were sent back to their provinces collect provincial mandates. Due to the high number of technical errors, the NCOP rejected the Bill, and Parliament had to establish a Mediation Committee. That committee proposed more amendments, which were accepted by both the NCOP and the NA on the 22 November 2007. The version finally passed by Parliament is called the Children's Amendment Bill [B19F of 2006].
The Bill was signed by the President in March 2008 and is now called the Children's Amendment Act 41 of 2007. The Children’s Amendment Act amends the Children's Act 38 of 2005, and the two Acts must now be read together.