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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
9 April 2003
OLDER PERSONS BILL: BRIEFING
Documents handed out:
Draft Older Persons Bill (as at 9 April 2003)
South African Policy for Older persons (Draft Eleven)
The Department of Social Development briefed the Committee on changes made to the draft Older Persons Bill, which included many of the recommendations made at the Workshop on the Draft Bill for Older persons in February. The Bill will be submitted to Cabinet shortly. Members emphasised the need for the regulations to be prepared timeously.
Mr Salojee said that it had been a long process to develop a Bill for the aged. The Portfolio Committee had recently been a part of the workshop on the development of the policy for older persons. The fact that the Department was present to brief the Committee showed that there was movement in processing the Bill.
Mr A Theron: Chief Director, Welfare Services, Ms L Siwisa-Pemba: Director for Legal Services and Dr D Mahlangu: Deputy Director, Older persons, represented the Department of Social Development.
Mr Theron said that it was another step forward in the process that the Department could now come to the Committee with the new Bill that was based on draft eleven of the Policy for Older persons. The issues raised in the workshop Mr Salojee referred to had been incorporated into this draft of the Bill.
The Bill before them was still a Zero Draft. It has not yet been handed to Cabinet, where further changes would be made. Mr Theron said that the draft Bill indicated the level of consultation that had taken place in workshopping with the Portfolio and Select Committees already, the process having started in the Internal Year of the Older Person. A Task Team had been formed to incorporate the suggestions that had come from NGO workshops and the provinces. In addition older persons themselves had been consulted.
Mr Theron said that there would be a need for further public hearings once the Bill reaches Parliament in its approved form, when a costing exercise would also have to be carried out.
Mr Salojee asked if the process would take a long time, as the parliamentary year-end would come around quickly.
Mr Theron said that they had to submit the Bill and get the Committees' final input within the next week or so. He was unable to say how long Cabinet would take in dealing with the Bill.
Mr Theron said that Pierre Du Preez had been involved as the legal advisor but he was presently on leave. Ms Siwisa-Pemba had taken over and had consulted with an outside firm to ensure that all the issues brought up in the workshop were included.
Briefing on Older persons Bill
Ms Siwisa-Pemba said that she would go through the changes made to the Bill since the last draft, which incorporated the changes suggested by the Committee and others at the workshop.
The Long Title has been extended to accurately include all aspects covered in the Bill such as the registration of facilities caring for older persons. The new Long Title includes the term "residential facilities" instead of "certain facilities".
Chapter One: Changes to Definitions
An explanation of the abbreviation "CBO" as "Community Based Organisation was inserted. Ms Siwisa-Pemba said that it was important that older persons had user-friendly legislation.
Definition of "assisted living" was extended to include provision of emergency accommodation.
Definition of "community based care and services" was extended.
Definition of "community based centres" was inserted.
The definition of "care" was merged from the two definitions given in the previous draft of the Bill.
The definition of "registered home" was extended.
The definition of "services" now includes "community based programs and services"
Mr Theron said that the term "frail" was seen as possibly problematic and could be viewed as discriminatory.
Ms Siwisa-Pemba said that not all older persons are frail and by not using the term carefully they could be excluding the physically active.
Mr Theron reminded the Committee that in the previous Bill they had zoomed in on residential care facilities whereas this Bill was covering a wider scope in which the term "frail" became contentious, for example in saying only frail older persons could be subsidized in residential care.
Mr Salojee asked if they required comment from the Committee. He said that they would take note of this.
Ms Siwisa-Pemba continued going through the changes to the Bill:
The word "information" was inserted, following lengthy discussion on this issue in the workshop in February.
The word "information" was inserted next to "retirement planning" following lengthy discussion in the workshop. The establishment of such planning information was at the discretion of the Minister (as is the case with all sub-clauses of Clause 5).
A new sub-clause was added: "promotion and protection of rights of older persons".
Clause 5(g) and 5(j) of the old Bill were combined and 5(e) and 5(i) of the previous Bill were combined, both at the recommendation of the Members at the workshop.
Mr Theron said that most of these changes had been made at the recommendation of the Committee Members. He added that they unfortunately did not have copies of the previous version of the Bill in front of them, which made it more difficult for them to see the context of the changes. He asked that they go back and have a look at the old Bill to see this context.
Clause 5(k) and 5(m)
Ms Siwisa-Pemba continued that Clause 5(k) and 5(m), regarding the provision of recreation and transport, could be provided by the Minister for Social Development without usurping the roles of the Ministries of Sport and Recreation and Transport. The provision of housing however, in terms of Clause 5(h), would include the active participation of the Ministry of Housing.
This subclause was a new insertion to cater for luncheon clubs.
This subclause was extended to include luncheon clubs and the word "management" was used instead of "manager".
The clause now included the term "welfare organisations and registered welfare organisation" for the sake of consistency.
Changes have been made to Clause 8, which deals with "prohibition on management of unregistered residential facilities" and so forth. These changes were made so that when a facility was closed down, the manager in association with a social worker is to be responsible for finding alternative accommodation for the older persons.
Clause 8(6) of the previous draft of the Bill was deleted, as no transference of registration certification should be allowed. New registration must be approved on its own merits.
Ms Siwisa-Pemba said that Clause 8(8) gave a timeframe for registration of twelve months. This was a policy gap that still needed to be filled. She said that "twelve months" was a temporary proposition and subject to change.
Mr Theron said that in the legislation on the prevention and treatment of substance abusers, the relevant facilities had twelve months to register and until such time as the Director-General gave approval to the application for registration, the facility was allowed to function.
Mr Theron said if they followed a similar route, it would have serious implications. A facility could therefore function without a code of conduct for twelve months. A great deal of unmonitored abuse could take place in twelve months.
Mr Salojee said that the Committee would take note of this.
This was an entirely new insertion.
The term "inspection" in the previous draft has been changed to "monitor" to incorporate inspection as an ongoing process.
Mr Salojee said that if there was a serious emergency and someone was sent to look at the problem, the term "inspection" in such a context might be more appropriate than "monitor".
Mr Theron said he was aware that this had been previously debated. In the Child Care Act, as with others, the term "quality assurance" was used. They might have to use this phrase in the Older Persons Bill for the sake of consistency across national policy.
There had been a suggestion that development worker as well as social worker should be inserted in Clause 13(2), but that it was to remain as "social worker".
This was a new insertion, stating, "A person whose name appears on the register is prohibited from re-opening or opening a facility providing for the care of older persons".
Ms Siwisa-Pemba said that the above was the last change. She said that the issue of regulations was very important. The Minister must prescribe the level of service in the regulations.
Mr Salojee asked at what point the regulations would be formulated. In his experience, it took ages.
She said that the Act is developed first so that the regulations do not have to change every time the Bill changes.
Mr Salojee acknowledged this, but asked if they could be assured that work was being undertaken by the Department to address the regulations in preparation for the Act.
Ms C Ramotsamai (ANC) said that they should be given a timeframe.
Ms Siwisa-Pemba pointed to some of the policy gaps and issues above and asked if they should debate them now.
Mr Theron said that Chapter Three included many changes since the workshop.
Ms Siwisa-Pemba said that another important issue was that of traditional courts and accusations of witchcraft against the elderly. They still had to cater for this in the legislation. Another issue was that many older persons in the rural areas did not have access to legal help and many feared the judicial system.
Mr Salojee said it appeared that the Bill was still a work in progress. It did not look as if the Department had done the necessary work to finalise the Bill. The Committee should only be interrogating the Bill after the next phase of its finalisation.
Ms Chalmers said that it was difficult to follow and comment on the necessary changes, as they did not have a copy of the old Bill in front of them. Mr Chalmers said that they usually received a document showing the amendments to a Bill, with previous wording in brackets and the new insertions underlined, which helped in contextualising the amendments. She asked how well people in Cabinet would understand the process that went into the drafting of the Bill.
Ms N Tsheole (ANC) said that she appreciated that the Department had briefed them again but she felt that it was not for the Committee to be involved at the present stage. The briefing would, however, help them in carrying out their own investigations in order to take part in the next process.
Mr Salojee said that they were mindful of the issues brought up in the briefing. He asked whether Mr Theron's mention of public hearings referred to those held by the Portfolio Committee or public hearings run by the Department.
Mr Salojee said that the matter of witchcraft had been discussed at other forums. Could the Department not take the views expressed at these forums into account and incorporate them in the Bill so that when the Committee ran the public hearings and issues of witchcraft came up, they would at least have been partially taken into account.
Mr M Da Camara (DP) said that it would be useful if they could receive the Bill in electronic format in order to disseminate it to interest groups.
Ms Siwisa-Pemba said she supported Ms Chalmers request for a document showing all the amendments and would produce such a document for the Committee.
Ms Ramotsamai said that she appreciated the fact that the Department had come to the Committee to include them in the process of developing the Bill. The Bill now needed to be taken to Cabinet, after which more changes would be made and the Bill would be returned to the Committee for them to look at the issues. She said that it was not necessary to detail all the changes now, but that this should be done after Cabinet had proposed further changes. Ms Ramotsamai thanked them again for including them in the process.
Ms B Dlamini (ANC) said that she would like to congratulate the Ministry of Social Development. Other Departments only briefed them about the final product. The Social Development Department had a very hands on approach and they consulted appropriately.
Mr Theron said that there might have been some miscommunication between the Committee and the Department. He said that it appeared the Committee was waiting for the final Bill, and the Department was under the impression that the Committee wanted to see the changes made before they went to Cabinet.
Mr Theron said that once the Cabinet had seen the Bill it would move from being a Zero Draft Bill, after which there would need to be an integrated budget process (with other Departments). The Bill would then go to Parliament. Mr Theron clarified that the Committee would then have to lead the process on conducting public hearings and consultation with other Departments.
Mr Theron said that the Department would provide the Committee with electronic copies of the new Bill, a document showing the amendments to the Bill and, once the Minister has approved the timeframe of the passage of the Bill, the Department would forward the information to the Committee.
The meeting was adjourned.
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