Older Persons Amendment Bill: Department of Justice response to public comments

Meeting report

The Chairperson observed a moment of silence and opened the meeting. The Chairperson welcomed everyone to the meeting and said that International Women’s Day would be commemorated on 08 March 2024. Apologies were acknowledged. The Committee adopted the meeting agenda.

Briefing by the Department of Justice and Constitutional Development: Older Persons Amendment Bill
Adv Praise Kambula, Chief Director: Promotion of the Rights of Vulnerable Groups, Department of Justice and Constitutional Development (DoJ&CD), presented a briefing to address public concerns on the Older Persons Amendment Bill. The purpose of the presentation was to respond comprehensively to specific concerns and recommendations raised during the Committee’s public hearings on the Bill. [See the presentation for details]

Adv Kambula outlined the relevant legal framework, emphasising Clause 7B of the Older Persons Bill, which protects older persons from various forms of abuse, including abuse related to property and land rights. She drew attention to provisions in the Constitution and the Domestic Violence Act on the protection of property rights and the prevention of abuse against older persons.

Regarding the affordability of legal fees associated with the transfer of assets, Adv Kambula explained provisions in the Administration of Estates Act that allow assistance to heirs who cannot afford such costs. There was an initiative to sensitise court clerks about the rights and challenges faced by older court users. This included the development of training modules and the distribution of a Handy Hints Guide.

There have been efforts to rationalise magisterial districts and divisions of the High to improve access to justice for older persons, particularly by considering factors such as distance, transport routes, and the predominant language in communities.

Recent legal developments, such as extending intermediary services to older witnesses and providing virtual testimony options, were part of the Department's commitment to creating an age-centric justice system. The reporting of sexual offences and domestic violence against older persons was mandatory and underscored the Department's efforts to address vulnerabilities in this demographic.

The Department recognised limitations such as high attrition rates and the withdrawal of charges in cases involving older persons. Proposed solutions included recognising court accompaniment services and providing intensive training for court clerks on the Older Persons Act.

[See the presentation for details]

Discussion
The Chairperson thanked Adv Kambula and invited the Members of the Committee to engage with the presentation.

Ms L Arries (EFF) expressed gratitude for the presentation. However, she sought deeper clarity on measures in place to safeguard older persons from property-related abuse, particularly in cases where cognitive impairments such as dementia are prevalent. There are concerns about the exploitation of older individuals by family members in property transactions. There is a need for stringent safeguards to prevent such exploitation. The authorities need to take a more proactive approach when elderly persons are reported missing. She said that cases involving missing elderly persons should be treated with the same urgency as cases involving missing children.

Ms A Hlongo (ANC) commended the Department for its comprehensive response to concerns raised during the public hearings. She asked about the duration of trials involving elderly persons, expressing concern over prolonged legal proceedings that could potentially compromise the well-being of older individuals. It was important to expedite trials involving elderly persons to minimise stress and ensure timely access to justice.

Ms P Marais (EFF) was concerned about the enforcement of protection orders and the challenges faced by older persons with dementia. She knew of instances where older persons are subjected to abuse and exploitation within their own homes, despite having obtained protection orders from the court. Collaboration between the Department of Justice and the police is needed to ensure that protection orders are effectively enforced, and perpetrators held accountable. She proposed the use of recorded interviews with older persons to address memory-related challenges and ensure accurate testimony in legal proceedings.

Ms B Masango (DA) asked about the communication strategies employed by the Department to inform older persons about available services and support. It is important that older persons are aware of their rights and the resources available to them, particularly in rural areas where access to information may be limited. What was the coverage of upgraded courts? The Department's had to rely on the promulgation of legislation by other departments. Proactive measures should be taken to expedite necessary reforms within the justice system.

Mr D Stock (ANC) said awareness programmes targeting older persons were needed in rural areas to address cases where charges are withdrawn. He emphasised the need for effective communication channels to disseminate information about legal rights and protections to older persons, especially those residing in remote communities. It was important to address attrition rates in cases involving older persons and to ensure that court clerks are adequately trained to assist older individuals with cognitive impairments.

Responses
Adv Kambula said there was collaboration between the DoJ&CD and Chief Master’s Office to address property-related abuse involving older persons with dementia, emphasising their efforts to work with stakeholders. Due to the complexity of the issue, she proposed providing a detailed written response to the Committee in conjunction with inquiries about will drafting, both of which fall under the jurisdiction of the Office of the Chief Master.

Members had asked if court cases involving older persons could be prioritised. Adv Kambula said that case flow management falls under the purview of the judiciary's purview. The process of scheduling cases is overseen by committees chaired by judicial figures. The National Integrated Court Optimisation Committee, the Provincial Integrated Court Optimisation Committee, and the Regional Court are responsible for coordinating efforts among various stakeholders to expedite case finalisation.

In response to Ms Hlongo's concerns about trial duration and older witnesses' memory, Adv Kambula highlighted provisions in the Criminal Procedure Act allowing for witness memory refreshing before trial. She also explained the Court Preparation Programme, which provides emotional containment services for witnesses pre- and post-court proceedings, ensuring their readiness to testify and minimising the risk of re-traumatisation.

Addressing Ms Marais' queries about enforcing protection orders, Adv Kambula said that protection orders were obtained from courts, not police stations. She detailed timeframes for service of protection orders, highlighting efforts to expedite processes through online and social media service options, which included online applications for protection orders. Collaboration with law enforcement [was ongoing].

Responding to Ms Masango's question about communication strategies, Adv Kambula outlined various public education initiatives, including virtual learning sessions, webinars, and exhibitions on gender-based violence and older persons' rights. She acknowledged the importance of accessible educational materials and efforts to reach older persons in rural areas.

Regarding Mr Stock's inquiry about witness support and attrition rates, Adv Kambula discussed measures to enhance witness support, including sign language interpreters, provision of refreshments during sessions, and collaboration with victim support organisations. There was ongoing research to identify factors contributing to witness attrition, aiming to develop targeted strategies to address these issues effectively.

Further Discussion
Ms Masango asked whether virtual testimony could occur not only at designated centres but also at the homes of older persons or the homes for the aged. Smooth access to virtual hearings should go beyond just providing data, particularly for older persons residing in various settings who might not have the means.

Ms Marais said that even when a court-issued protection order was obtained, there appeared to be a recurring problem, such as the police failing to enforce these orders. This observation underscores a significant gap in the effective protection of older persons under the current system, highlighting the need for improved collaboration and accountability between the judiciary and law enforcement agencies.

Responses
Adv Kambula said the legislation does not specify a particular venue for hearings that involve virtual testimony. They can be conducted in any environment that best suits the victim, including their own home or a designated centre. However, devices and good internet connectivity are essential to ensure the quality of testimony. The Department is amending policies to cover the costs of data for participants. For those lacking suitable devices, arrangements are being made for access to victim-friendly rooms to facilitate testimony in a conducive environment.

Adv Kambula acknowledged the existing malfunction in the legislation to ensure the police implement protection orders. The Domestic Violence Act does not require complainants to personally take protection orders to the police for enforcement. Instead, it mandates that the police retrieve the orders from the court and ensure their timely service, with interim orders to be served within 24 hours. The task team is making efforts to establish modalities for compliance with service timeframes and provide necessary resources. Clearer directives and training sessions will also enhance implementation consistency among law enforcement officials.

The Chairperson thanked Adv Kambula and commended the work done by the Department. The Committee secretary informed the Committee that the Department of Higher Education, Science and Technology was not available to brief the Committee.

The meeting was adjourned.