Harmful traditional practices, (male circumcision - Electronic Thesis ...

CHAPTER 4
HARMFUL CULTURAL PRACTICES AND THE CHILDREN’S ACT.
1.1 INTRODUCTION.
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The parliamentary debate around harmful cultural practices in the Children’s Bill
[B70 – 2003] (hereafter referred to as the Children’s Bill) before it was enacted,
was a lengthy process involving submissions from a number of stakeholders.
This chapter will examine the extent to which the submissions made was
accommodated for in the final Children’s Act 38 of 2005 (hereafter referred to as
the Children’s Act) that emerged, and whether the provisions relating to harmful
cultural practices in the Act conform to international as well as Constitutional law
principles. The requirement of ‘consent’ and the right of refusal of a child to
participate in cultural practices will be closely scrutinized in order to determine
whether the provisions go far enough to protect children against the potential
harmful consequences of cultural practices.
1.2 The parliamentary process on the Children’s Bill.
After 5 years of research and consultation, the South African Law Reform
Commission (SALRC) drafted the Children’s Bill which was designed to replace
the Child Care Act of 1983. 195 According to experts in the field of children’s
rights, the Child Care Act of 1983 which was enacted under the apartheid era
government, was not written from a child rights perspective and did not take into
account key concepts such as equality and the best interests of the child. 196
195
Proudlock P, “Children’s Bill – last chance to comment” in Children First, January/February
2004, Community Law Centre, University of the Western Cape at p 27.
196
Scorgie F, “A battle won? The prohibition of virginity testing in the Children’s Bill”, in Agenda
No. 68, 2006 at p 26 in footnote 3.