Older Persons Amendment Bill: DSD response to public submissions

Meeting report

The Chairperson of the Portfolio Committee on Social Development, Ms N Mvana (ANC), welcomed all to the meeting and commended the work done by the different Members of the Committee in their various constituencies to effect change. As the current term of Parliament was drawing to a close, the Committee had to ensure that the Older Persons Amendment Bill was left at an advanced stage. 

Older Persons Amendment Bill [B11-2022]: DSD response to public submissions

Mr Khumbula Ndaba, Deputy Director-General: Corporate Services, Department of Social Development (DSD), introduced the DSD delegation.

Adv Luyanda Mtshotshisa, Specialist in Legislative Drafting and Review, DSD, indicated that the purpose of the presentation was to respond to matters raised during public hearings, focusing solely on gazetted provisions to ensure procedural adherence and reflect the collective will of the people. He indicated that matters falling outside the Department's mandate were excluded from the presentation to avoid extending the scope of the Bill and encroaching on the responsibilities of other organs of state, although the Department remained mindful of their importance and intended to address them through other platforms.

Adv Mtshotshisa highlighted the significance of international law and foreign law in the interpretation of legislation, emphasising the obligation of courts to promote values underlying an open and democratic society based on human dignity, equality, and freedom. He underscored the preference for interpretations consistent with international law over those inconsistent with it, as mandated by the Bill of Rights. Additionally, he discussed the distinction between natural and juristic persons, elucidating the legal implications and risks associated with sole proprietorships versus protected entities, particularly concerning liability and estate devolution.

Further, Adv Mtshotshisa addressed specific legislative provisions related to substance abuse and domestic violence. He outlined criteria for involuntary treatment under the Prevention of and Treatment for Substance Abuse Act, emphasising the need for a sworn statement alleging dependency on substances and associated risks.

Regarding domestic violence, he clarified the process of applying for protection orders under the Domestic Violence Act, highlighting the role of various parties, including social workers, teachers, and health workers, in reporting knowledge, belief, or suspicion of domestic violence against vulnerable individuals.

Ms Civil Legodu, Chief Director, DSD, led a comprehensive review of the submissions and the Department’s responses regarding the Older Persons Amendment Bill. He underscored the Department's dedication to ensuring that the proposed amendments aligned with the needs and rights of older persons across South Africa.

Prof Kitty Malherbe

Ms Legodu addressed concerns that Prof Malherbe and others raised regarding the clarity of terminology, particularly the distinction between 'caregiver' and 'caregiver'. While acknowledging potential confusion, especially among family members providing informal support, the Department maintained that the current definition adequately encompassed such roles. This reflected the Department's commitment to upholding inclusivity and recognising the valuable contributions of all caregivers, regardless of formal qualifications.

Moreover, discussions regarding intergovernmental relations highlighted the complex landscape of governance surrounding the care and support of older persons. The Department reiterated the importance of existing provisions within the Principal Act to address powers and delegations across different spheres of government. This emphasis on collaboration underscored the Department's recognition of the multifaceted nature of addressing the needs of older persons and the necessity for coordinated efforts at all levels of governance.

In response to recommendations for revising section headings and clarifying terminology, Ms Legodu affirmed the Department's commitment to ensuring coherence and consistency within the Bill. By supporting proposals to refine language and align section headings with the content, the Department aimed to enhance the accessibility and comprehensibility of the legislative framework, thus facilitating effective implementation and enforcement.

Concerns regarding the state's obligation to increase access to facilities and services for older persons elicited a robust response from the Department. Ms Legodu emphasised the existing provisions within the Principal Act, which mandated all organs of state to implement measures aimed at enhancing access to services for older persons. This reaffirmation of the Department's commitment to promoting inclusivity and accessibility reflected its dedication to upholding the rights and dignity of older persons across South Africa.

Rand Aid Association and others

In addressing objections raised by Rand Aid Association and others regarding the potential unintended consequences of the Bill, Ms Legodu reiterated the Department's focus on creating an enabling environment that fostered the development and implementation of a wide range of services for older persons. Despite concerns about the regulatory burden on service providers, the Department underscored the paramount importance of registration and compliance to safeguard the well-being and rights of older persons.

Additionally, discussions surrounding capacity and cost implications underscored the Department's pragmatic approach to implementation. By highlighting strategic implementation plans and ongoing financial review processes, Ms Legodu sought to assuage concerns regarding the feasibility and sustainability of the proposed amendments. This transparent and proactive approach reflected the Department's commitment to ensuring effective implementation and allocation of resources to meet the diverse needs of older persons.

In their submission, Rand Aid Association raised a question about why people with disabilities were not afforded the same protection as older persons under the proposed amendments. Ms Legodu said that the DSD reiterated the constitutional provisions against discrimination based on disability and highlighted existing legislation, including the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which safeguarded the rights of persons with disabilities. Additionally, the DSD underscored ongoing efforts to develop a policy specifically addressing issues related to persons with disabilities, emphasising the importance of mainstreaming services to ensure inclusivity and equal protection under the law.

In the submission, concerns were raised about the role of stakeholders in implementing the Act, particularly within the private sector. Ms Legodu emphasised the state's responsibility to protect the dignity of older persons, irrespective of whether facilities were publicly or privately funded. Moreover, she reiterated the need for uniformity in service provision and underscored the importance of compliance among all stakeholders.

Regarding the involvement of stakeholders, the Department acknowledged the comments but reiterated that all parties involved in providing services to older persons had a duty to ensure the protection of their rights.

Rand Aid Association questioned the inclusion of gender-based protection in Section 7B. Ms Legodu justified this inclusion by highlighting the vulnerability of older women and LGBTQIA+ individuals to gender-based violence and witchcraft accusations, emphasising the need for specific protections in the legislation.

In the submission, questions arose regarding the scope of registration requirements for various care facilities. Ms Legodu clarified that the distinctions drawn between different types of care facilities aimed to ensure clarity and accountability in service provision, without duplication or contradiction.

Concerns were raised regarding the clarity of prescribed training requirements. Ms Legodu affirmed the existence of approved curricula and urged interested stakeholders to engage with the Bill for further information.

Regarding the Department's role in housing provision, Ms Legodu reiterated its commitment to safeguarding the dignity of older persons, clarifying that its involvement pertained to ensuring safety and security rather than directly participating in housing development.

Regarding the role of facility managers in investigating suspicions of abuse, Ms Legodu highlighted the appropriateness of such investigations, emphasising the duty to report any abuse to relevant authorities.

Ilitha Labantu

In their submission, Ilitha Labantu welcomed the insertion of new and improved definitions in the proposed amendments, particularly emphasising the re-definition of an "older person" to ensure equal entitlement to benefits and protection. Ms Legodu said the Department acknowledged the significance of these changes and noted that the qualifying age of 65 for men had already been amended in accordance with existing legislation.

Regarding Sections 10-15, Ilitha Labantu recommended strengthening penalties for non-compliance and establishing reporting mechanisms for older persons to report abuse. The DSD reiterated the provisions in the Bill for the removal of an older person who was being abused without a court order and emphasised the importance of reporting abuse to relevant authorities.

National House of Traditional Leaders and various individuals

The recommendation to include verbal and emotional abuse in the Bill was acknowledged by DSD, which clarified that such forms of abuse were already addressed in the Principal Act.

Concerns were raised about the means test disqualifying deserving older persons because their spouses were civil servants. Ms Legodu said that the Department noted the submission and indicated that the matter was receiving attention, although it fell outside the scope of the current Bill.

Regarding the definition of ‘assisted living facility,’ concerns were raised about the clarity of the term ‘partially independent.’ The DSD acknowledged the comment but maintained that the terms carried their ordinary meaning.  

The term ‘affordable’ was flagged as potentially vague and difficult to measure. Ms Legodu indicated that the DSD had clarified that affordability was not part of the gazetted provisions of the Bill and emphasised the importance of considering affordability objectively.

Western Cape Government

In response to the Western Cape Government's general concerns about the implementation and costing of the Bill, Ms Legodu gave an assurance that the Bill was costed and its impact on the provinces was adequately considered in the Socio-Economic Impact Assessment (SEIA). However, she acknowledged the passage of time since the costing and gave an assurance that inflation rate adjustments were taken into account.

Regarding Clause 6, which outlined the responsibilities of older persons, the Western Cape Government suggested incorporating its content into subsections under Section 7 entitled ‘Rights of older persons.’ However, the DSD did not support this proposal, stating that the proposed clauses fell outside the scope of Section 9 of the Constitution. Instead, a new section in the Bill was proposed to address issues related to access to opportunities, mentoring, and passing on knowledge.

In Clause 13, there was a recommendation to correct the reference to ‘the police’ to ‘a police official’ or ‘the South African Police Service.’ The DSD acknowledged the comment and clarified that the use of the term ‘police’ was appropriate in the context of the constituted body.

Concerning Clause 15, which addressed liability for temporary safe care, the Western Cape Government raised questions about the identification of responsible parties for the costs of temporary safe care. The DSD clarified that the person responsible for paying under normal circumstances would bear the costs, and the reference to section 319(3) of the Criminal Procedure Act, 1955 was deemed correct.

Finally, there was a recommendation to expand the definition of physical abuse to include omissions resulting in physical harm. Ms Legodu said the DSD noted the suggestion and clarified that the term ‘neglect’ in the definition already covered omissions.

Congress of South African Trade Unions (COSATU)

In their submission, COSATU supported the Bill, seeing it as crucial for safeguarding the elderly's well-being and holding caregivers accountable. COSATU backed provisions for the elderly's right to comfort, state intervention in non-compliant facilities, and caregiver registration including endorsing community reporting of elderly abuse and measures for non-communicable disease care. COSATU appreciated the Bill's focus on temporary safe care and expanded definitions of physical abuse. The DSD noted and appreciated the submissions of COSATU.

Dear South Africa

Dear South Africa received submissions from 168 individuals, with 163 expressing opposition to the Bill. Their main concern was the provision allowing the removal of older persons without their permission, viewing it as a violation of their rights. They argued that older people were capable individuals who should have a say in their care. However, the DSD emphasised that the Bill aimed to protect the dignity of older persons, in line with Section 10 of the Constitution. 

Mr Johan Rademeyer

Mr Johan Rademeyer expressed concerns about the government shifting responsibilities towards the private sector and imposing additional legal requirements on service providers. He highlighted the impact of stringent municipal bylaws on service centres, recommending that the government either fund their implementation or lower the standards. Additionally, he raised concerns about the training requirements for caregivers and questioned the feasibility of government's plans for temporary safe care facilities. Lastly, he highlighted funding limitations for service centres, noting that their capacity was financially restricted. Ms Legodu said the submission and comments had been duly noted.

Catholic Parliamentary Liaison Office

The Catholic Parliamentary Liaison Office (CPLO) welcomed the insertion of definitions in the Bill, particularly those related to monitoring and evaluating services for older persons. The CPLO appreciated the inclusion of spiritual care in the definition of care, emphasising the holistic approach it brought. The CPLO recommended access to counselling and support for families, especially those dealing with conditions like Alzheimer’s. Additionally, the CPLO supported the extended definition of ‘rehabilitation’ and emphasised the importance of ensuring that the removal of older persons to temporary safe care was done in their best interest.

Regarding access to health care, the CPLO highlighted the challenges older persons face, especially in rural areas, and supported efforts to address these issues. It also welcomed the attention given to witchcraft-related violence in the Bill, particularly in rural areas, and recommended education initiatives to combat harmful practices.

The CPLO acknowledged the lack of clarity about the incidence of elder abuse in South Africa and supported the establishment of a Register of Abuse of Older Persons. It suggested learning from the experiences of similar registries under the Children’s Act and the Sexual Offences Act to ensure success. Ms Legodu said these recommendations had been duly noted and addressed in the Bill. 

Timeless Care For Seniors

Timeless Care For Seniors in their submission advocated for implementing Safe Homes strictly for the elderly, emphasising the importance of providing them with dignity, peace, and love in their final years. The organisation saw the elderly as heroes and emphasised the need to create safe spaces for them. They expressed a willingness to contribute to building a fulfilled senior community and embraced change for the betterment of elderly citizens. This recommendation was duly noted and addressed in the Bill.  

Consolidated provincial public hearings inputs

Ms Legodu provided an overview of the inputs on the Bill at provincial public hearings. The Bill was supported because its amendments indicated that older persons had been neglected for a long time. The focus had historically been on youth empowerment, leading to a misconception that enabled the abuse of older persons. The Department acknowledged and appreciated the support received for the Bill. The DSD recognised that the Bill granted older persons the right to speak for themselves and uplifted their dignity.

A recommendation was made for widespread education on the Bill across all levels of government once it had been passed into law. The Department noted and appreciated this recommendation, stating that it had been addressed in the Bill and the matrix. Training, capacity building and awareness campaigns would be included in the Regulations and conducted during implementation.

Clause 1: Definitions

Support was widespread for the substitution of the definition of ‘older person’ in the Principal Act. The proposed amendment, which defines ‘older person’ as someone aged 60 or older, received backing for eliminating discrimination against men regarding access to government benefits like the Old Age Pension.

Clause 3

There was wide support for the amendment of section 3(b), with a call for a clear delineation of stakeholders' responsibilities to ensure adequate services for older persons.

Concerns were raised about poor service delivery at various facilities, including healthcare facilities, police stations, banks, and municipalities. The issue of elder care involving multiple government departments and institutions was highlighted.

Recommendations included the implementation of separate queues for older persons at public and private service facilities.

Clauses 4 and 5

The insertion of clauses 4 and 5 was welcomed, with recommendations for explicit inclusion of departmental roles and responsibilities and youth involvement as ambassadors for older persons' rights. Concerns were raised about the Department of Health's lack of visibility in providing services to older persons.

Recommendations included standardising subsidies across provinces and providing necessary skills and information to traditional leaders, councillors and youth regarding older persons' health challenges.

Clause 6

The insertion of sections 7A and 7B received widespread support for promoting mentoring, passing on knowledge and protecting older persons from violence and abuse.

Concerns were raised about properties of older persons being transferred without their knowledge, leading to homelessness.

Recommendations included employing retired educators to organise workshops for older persons and verifying property transfers to ensure legitimacy.

Clause 7

Recommendations included training and educating communities, families, police, and caregivers on diseases like dementia and Alzheimer's to prevent violence against older persons. Suggestions were made to train older persons in technology use and sign language. The need for proactive measures to ensure service provision during pandemics or natural disasters was emphasised. Recommendations included financial education for older persons.

Clause 8

Concerns were raised regarding proposed amendments, particularly regarding the duration and conditions of suspension or deregistration of care centres. Recommendations included defining private residential facilities clearly and ensuring uniform penalties across relevant clauses.

Clause 9

Support was expressed for prescribed training for caregivers, with calls for accredited training and prioritisation of caregiver training. Concerns about the lack of training and funding for frail care resources were raised. Recommendations included ensuring all caregivers receive proper training and registering trained caregivers for monitoring.

Clause 10

There was overwhelming support for proposed amendments, with calls for older person-driven monitoring of care centres. Recommendations included constantly monitoring and evaluating older persons through announced and unannounced visits to ensure their well-being. The Department noted and appreciated the comments and recommendations, addressing many in the Bill, matrix, and Regulations.

Clause 12

The Department received support for the proposed amendment to Clause 12, although concerns were raised regarding the onerous processes for registering residential care facilities. These concerns included the operation of service centres in inadequate buildings and the lack of necessary facilities and equipment. Requests were made for government assistance in allocating land and providing funding for permanent structures.

While the Department appreciated these comments, it noted that addressing registration processes and facility requirements fell within the jurisdiction of various state organs. Additionally, concerns about obtaining certificates and issuing title deeds were acknowledged but deemed outside the DSD’s mandate.

Clause 13

Speakers voiced support for the proposed amendments to Clause 13, with specific recommendations regarding the closure or deregistration of facilities and the inclusion of provisions for individuals such as sole proprietorships in the reregistration process. Suggestions were also made to include Clause 18A in the penalties in section 33 as an offence; extend the deregistration period; and provide training and evaluation before deregistration.

The Department noted and appreciated these inputs, as they had been addressed in the matrix. However, some proposals, such as amending the deregistration period, were not supported due to their impact on the process.

Clause 15

Comments in support of Clause 15 highlighted the need for sufficient time for court orders and protections for older persons with disabilities. Concerns were raised about budget cuts affecting bed space in old age homes and the management of expectations regarding training and funding. The Department acknowledged these concerns and outlined plans to address them through Regulations, including provisions for temporary safe care facilities and transportation for older persons.

Clause 16

Support for Clause 16 was accompanied by recommendations for improving police response times and providing private rooms for older persons in police stations. Suggestions were made for specialised training for court clerks and addressing barriers to reporting abuse to the police. Ms Legodu said that the Department agreed with these recommendations and was committed to including them in the Regulations to ensure clear guidelines and effective enforcement.

Clause 17

The public supported Clause 17 but recommended bringing courts closer to communities and clarifying certain sections. Concerns were raised about the duration of court orders and the role of prosecutors in the process. The DSD noted these recommendations and made a pledge to engage relevant state organs to address issues related to court accessibility and procedural clarity.

Clause 18

The proposed amendment to Clause 18 received overwhelming support, with calls for punitive measures against physical abusers and improvements in the justice system's response to elder abuse. Recommendations included keeping a register of abusers and providing consequences for offenders. The Department acknowledged these recommendations and committed to addressing them in the Regulations, emphasising the importance of protecting older persons from abuse and neglect.

Service Delivery Issues

Several comments were made regarding broader service delivery issues not directly related to the Bill, including concerns about government pensioners, social assistance programs, representation in Parliament, and stakeholder attendance at public hearings. While these issues were noted and appreciated, the DSD emphasised their relevance to other departments and pledged to escalate them accordingly.

The Committee decided that due to time constraints, the deliberations on the presentations and any clarity-seeking questions be submitted in writing to the DSD. The deliberations with the DSD would continue in the next meeting.

The meeting was adjourned