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PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT
20 August 2003
SOUTH AFRICAN SOCIAL SECURITY AGENCY BILL
Chairperson: Mr E Saloojee (ANC)
Documents handed out:
South African Social Security Agency Bill
The Committee was briefed on the concepts and legal implications of the Social Security Agency Bill. They expressed some concerns with wording and structure, particularly regarding the transfer of Agency functions and staff. However, the area of greatest contention concerned "general offences" in Clause 20. The Committee suggested that the Department implement a criminal code of conduct and the Department agreed to re-examine the Bill. All agreed that public hearings needed to be scheduled urgently.
The Chair said that a number of Bills were being processed in the next 6 to 7 weeks including the Social Security Agency Bill, Social Assistance Bill, Older Person's Bill and Children's Bill. Given the importance of these Bills, it would be necessary to organise public hearings.
Ms Borman (DA) asked when the Bill drafts would be available.
The Chair replied that he would look at the programme and clarify the procedures.
Prof Mbadi (ANC) said the Committee's plans needed to consider public participation.
Ms Rajbally (Minority Front) stressed that the Committee needed to make planning a top priority. The Chair agreed. During planning, the Committee needed to request all political parties to send a representative to all meetings.
Briefing by the Department
Mr Selwyn Jehoma highlighted that many issues were not covered by the Bill. However, it was important to remember that the Bill aimed to establish a delivery mechanism and not deal with broader social security policy provisions. Adv Werner Krull briefed the Committee on the legal implications of concepts.
Dr Jassat (ANC) wanted clarification on the dates of the financial year. He queried what was meant by "suitable qualifications" as outlined in Clause 5.
Adv Krull replied that the fiscal year would be from 1 April to 31 March. It was impossible to specify exactly what mix of qualifications an applicant might require for a position, thus the Department had adopted the term "suitable qualifications."
The Chair asked about the implications of Clause 8.1 for a staffmember if a relative applied for assistance.
Adv Krull responded that Clause 8.3 provided that in such cases the staffmember would be removed from that particular application to avoid any conflict of interest. Staffmembers would be obligated to inform the Agency of any possible conflicts of interest.
Mr Da Camera (DA) asked for clarification on the preparation of information as outlined in Clause 4.1b.
Mr Jehoma replied that under the current administration process, all information on beneficiaries was collected at the National Department, but the reconciliation of payments was currently dispersed among the provinces. This clause would address this problem by allowing for the central reconciliation of payments.
Mr Masutha (ANC) was concerned that the concept of "suitable qualifications" for the appointment of staff was inadequate and suggested the addition of "fit and proper". He was also worried that "social security", while generally understood, had not yet acquired a definite legal meaning in any current law or in this Bill.
- In relation to the "functions of the agency" as outlined in Clause 4, he was concerned that the Agency was being given powers to perform functions already covered by other laws.
- As the provinces currently administered the Social Assistance Act, litigations regarding non-receipt of benefits had not been brought against national government. Thus the question of "legal liability" between the Agency and the relevant department was unclear and needed to be addressed.
- The terms "assignment" and "delegation" were equated in the Bill. The term "delegate" implied that the delegator retained power, whereas "assignment" meant that the person handed over power.
- The Bill did not address whether staff would be appointed in terms of the public service regulatory framework, or whether they would be employed under the applicable labour legislation. He suggested that if employees were to be considered public servants that, in addition to the Public Service Regulatory Board, the Department should consider creating a special code to tighten up regulations.
- Nowhere in law had the role and existence of the Social Pension System (SOCPEN) been dealt with and this could be perpetuated under the new Agency.
Mr Jehoma said the Department would re-examine the definitions in terms of qualifications. The Department deliberately wanted more flexibility with its staffing and needed further discussions with organised labour. He appreciated the point on the code of conduct and they were working on a similar concept.
SOCPEN was their operational computer system but under the Social Assistance Act, the Department was creating a central national database that would belong to the national government and which would be able to regulate Agency use.
Adv Krull stated in regards to "social security," that an added definition might limit the intention of the Constitution in Section 28. Clause 4.1 of the Bill outlined the Agency's functions but it did not provide any authorisation. All the functions exercised would come from agreements entered into under Subclause 3.
- With regards to "legal liability," the Agency would form part of any litigation from a procedural viewpoint. As the powers remained with the original institution, the institution would ultimately bear the liability.
- As to the definition of "delegation" and "assignment," he agreed that there was legal uncertainty. In order to overcome this, the Department had used both terms.
- In regards to public service, he said that when transfers occurred, the staffmember would become an employee of the Agency. Secondments would provide for the flexibility to bridge services. Any conflicts of interest would be addressed.
The Chair asked if, in relation to Clause 4, the Department had made allowances for outsourcing.
Mr Jehoma replied that given the investment in technology, the Department had taken over payments. However, for the foreseeable future, the Department would still have to use payment agents. They were conducting detailed research as to how the Agency would make payments. They were convinced that more people should pick up their payments from banks so they were in high-level discussions in the Interbank Project. While this would address 30-40% of beneficiaries, a significant number of people would still have to get payments by other means and thus the Department would have to continue to use third party contractors.
Ms Borman asked how Clause 20 would prevent the accepting of bribes.
Mr Masutha, in following up on the sub-contracting question, said that Clause 4.2 was not clear and that the critical relationship between the Agency and sub-contractors should be clearly defined. He asserted that the term "social securities" should still be defined in the Bill to act as a guide. As to the definition of "delegation" and "assignment," he contended that a court had made the distinction and it would not be wise to use the terms interchangeably.
The Chair urged the Department to take Mr Masutha's suggestions under consideration and report their decisions at the next meeting.
Mr Jehoma, in responding to Ms Borman's question on Clause 20, said that it was impossible to prevent offences by simply having a policy position. Such offences could be best dealt with in management and administration arrangements. An enlightened culture was one of the major changes that the Department planned to bring to the Agency.
Prof Mbadi (ANC) stated that although one service provider covered both KwaZulu-Natal and the Eastern Cape, the level of service differed dramatically. The transfer of social security payments from the provinces to the national department was going to create a vacuum. He asked about the role of the social departments in the provinces within this new arrangement, especially regarding applications. He also wanted to know if the employees in the social development departments in provinces would be transferred to the new Agency.
Mr Jehoma replied that the provinces would no longer have a role in social assistance provision but they would practically be able to provide resources such as shared buildings. Of the current 12 500 employees in both the provincial and national departments, around 25-30% would be transferred to the Agency. The provincial departments would continue to have staff for other projects and social welfare services.
Ms Chalmers (ANC) wanted to know what percentage of the 12 500 employees were involved in delivery.
Mr Jehoma responded that if the 3 000 social grant employees were transferred alone, this would create a problem with support functions. The Department would have to take the 3 000 social security staff aside and then obtain another 1 000 people from the provincial departments. Employees could not be forced to transfer. The social assistance focus staff would be transferred under the terms of the Labour Relations Act.
Mr Masutha expressed his concern with the drafting structure of Chapter 3 and said the Bill was ambiguous about the powers of the principal and the Agency. If the Department was going to take staff out of the public service, then they needed to create a comprehensive framework to regulate them. If this Bill was rushed and details were skimmed over, it would be very difficult to create a new framework once staff were employed.
The Chair asked whether there would be performance assessment for officials from the provincial departments taken into the Agency.
Ms Tsheole (ANC) asked for further clarification on Clause 20.
Mr Jehoma, in replying to the question of "principle" and "agency," said that it was an issue of what was in the Social Assistance Act in terms of rights and obligations but the Department would look at the formulation.
He said that once employees were transferred, it would be safe to work under the current public service regulatory regime but the management of the Agency would soon have to create a new framework. It would be presumptuous to detail a new regime until the Department had had more discussions with organised labour. As to the question on Clause 20, preventing such offenses would be an issue for management.
Ms Tsheole said the Department and Committee needed to learn from past mistakes in relation to delays of implementation.
Mr Masutha contended that if the Department wanted to fast-track the Bill, they needed to tighten regulations. The Department needed to make sure that labour regulations were spelled out in the Bill.
Ms Borman stated that the Bill was weak on several issues as pointed out by several Committee members.
Adv Krull said that the Department had specified certain actions so that prosecuting attorneys could prosecute Clause 20 offences. Clause 8.5 was added to give the prosecuting authority a further mechanism to convict conflict of interest offenses. As to the human resource policy, Adv Krull said that this was outlined in Clause 7.2.
Mr Da Camara suggested that more be added to the Bill to address missing issues such as staff transfers.
Mr Masutha recommended that, as there was some confusion with Clause 20, a separate meeting was required to discuss criminal offences. A staff code had to be dedicated to the Agency. With regards to the labour regime, Clause 7 was inadequate and he wanted to know how it would be enforced.
Mr Jehoma agreed that more work needed to be done and said the Department would be guided by the Committee.
The Chair asked whether it would be more appropriate to have a board run the Agency rather than a CEO.
Adv Krull said perhaps the maximum period of imprisonment for serious offences needed to be increased.
Mr Masutha suggested that the Department revisit the underpinning work on the Bill and asked if they could then give another presentation to the Committee.
Ms Borman again expressed her concern with Clause 20 and suggested there needed to be a criminal code.
Adv Krull said that for the Department to create a criminal code of conduct, they would require the Committee to supply them with a list on what constituted the conduct of employees.
Mr Jehoma explained that for the Department to move forward on this issue, they needed clarity on the level of interactions.
Mrs Chalmers wanted to know if the provinces would need new guidelines as there would be changes in their responsibilities.
Mr Jehoma replied that the Department did not necessarily envisage a new arrangement for the provinces. However, they would have to repeal some social assistance as this would be in the Social Assistance Bill.
Ms Tsheole expressed concern that some ministers, especially those in the provinces, were not aware of their new roles in the Agency.
Mr Jehoma responded that management would be at regional and district levels.
Ms Tshivhase (ANC) wanted to know if this needed to be spelled out in the Bill.
Mr Masutha replied that the management framework should not be in the Bill but be dealt with in policy.
Ms Tsheole wanted to know if the Social Assistance Bill was near completion and suggested that perhaps the two Bills should be dealt with together.
Adv Krull responded that the Social Assistance Bill should be processed by early next week.
The Chair stressed that, as the Committee was faced with such strict time limits, public hearings for both Bills needed to be planned urgently.
Mr Jehoma restated that the Department would be happy with public hearings and to be guided by the Committee.
The meeting was adjourned.