Older Persons Bill: Department Response to Negotiating Mandates (CONT)

Meeting report

SOCIAL SERVICES SELECT COMMITTEE
14 September 2004
OLDER PERSONS BILL: DEPARTMENT RESPONSE TO NEGOTIATING MANDATES (CONT)

Chairperson: Ms J Masilo (ANC)

Documents handed out:
Department Response (2^nd Edition, revised for 14 September).
Proposed Amendments to the Older Persons Bill
Eastern Cape Final Mandate
Free State Negotiating Mandate
Gauteng Negotiating Mandate
Kwazulu Natal Negotiating Mandate
Limpopo Province Negotiating Mandate
Mpumalanga Negotiating Mandate
Northern Cape Negotiating Mandate
North West Province Approval of Old Persons Bill
Western Cape Negotiating Mandate
Older Person's Bill [B68-2003]

SUMMARY
The Department Law Advisors responded to the proposed amendments found in the provincial negotiating mandates on the Older Persons Bill. Full costing of the amended Bill could not be guaranteed before the end of October.

The Committee decided not to contest Cabinet's omission of the Ombudsman from the Older Persons Bill. The 1967 Old Persons Act, repealed from the Older Persons Bill, was discussed at length. All agreed that the provisions of the Act should be re-established in the Bill. The Department promised to address the weak capacity for social workers in the country.
Clause 7(3)(c) would be redrafted to avoid possible legal battles where Government reclaimed subsidised assets from facilities that were closing down. The amendment would attempt to maintain measures for reclamation.

MINUTES
The Department representatives were Mr P Du Plessis, Legal Advisor, Department of Social Services; Advocate G Hoon, State Law Advisor; Ms C Legodu, Deputy Director: Care and Services to Older Persons; and Ms L Petersen, Parliamentary Liaison Officer for Department.

The negotiating mandates had queried the financial implications of the Bill. The Committee re-addressed this concern to the Department. Ms Legodu said the Department was in the final stages of recruiting a tender for the job of costing the Bill. The Committee was outraged that one had not been appointed. It was clear that a realistic date was not in sight for advancing the amended Bill through Parliament. Mr du Plessis concluded that the Bill would not be ready by the end of October, and perhaps not even by the end of the year. The Chairperson told him to inform the Minister that the Department, not the Committee, was responsible for the delay.

Department response on negotiating mandates
The Department referred to the KZN negotiating mandate and noted that KwaZulu-Natal wanted a clause providing for "the establishment of facilities by the Minister and payment of subsidies to registered facilities".

Mr du Plessis pointed out that the Aged Persons Act, 1967, did fulfill this provision. However based on a proposal contained in the KZN negotiating mandate, this Act had been repealed in its entirety in the new amendments the Department was bringing that day to the Committee (see Clause 23(1). He suggested that relevant items of the Act could be re-established in the Bill pending approval by Cabinet and the National Treasury.

Mr M Sulliman (ANC) noted that a KwaZulu-Natal representative was not present to explain their proposed amendment and their request to repeal the Act. If the Act could not be reinstated without Treasury's approval, then the Committee would not be able to finalise the issue today.

Mr B Tolo (ANC) felt the Committee should finalise all decisions that day, to meet pressing time constraints. He was reluctant to re-introduce clauses that had been scrapped from the Bill by Cabinet. Cabinet did not want certain items for reasons that were irremediable, such as insufficient funds. Therefore he suggested that the Committee cease discussing the Ombudsperson, omitted from the Bill by Cabinet.

Mr du Plessis said he had proposed to the Human Rights Commission and the Public Protector that they incorporate the role of Ombudsperson. The Department of Justice had told him that the Committee should invite the Public Protector to a meeting, to officially recommend the function to him. The Chairperson declined this suggestion. She felt that the Public Protector was already overburdened with duties.

Ms H Lamoela (DA; Western Cape) asked whether the function of Ombudsperson overlapped with that of Director General for Older Persons.

Mr du Plessis replied that the roles did overlap to a certain extent.

The Chairperson asked if the Committee approved scrapping the Ombudsperson debate. The Committee unanimously approved this.

Mr du Plessis affirmed the request by North West Province for strengthening the capacity of social workers. The Department was interrogating the escalating outflow of workers from the country. In many rural areas they did not even exist.

Noting that the North West Province had wanted a clearer definition of the role of the MEC and the Minister, Mr du Plessis responded that the Minister would delegate powers to the provincial MEC if the Premier consented to it.

There was some debate over Clause 7(3)(c), relating to the reclamation of government-funded assets from facilities in the process of closing. KZN had noted 'the rationale for these provisions was unclear,' and may be 'unconstitutional as an infringement of property rights or alternatively an unconstitutional expropriation.' Mr du Plessis agreed that the item could lead to numerous court cases against the government, where the defendant could claim that it had allocated government funds to non-asset expenditures and private funds to purchase of assets. Mr Tolo and Mr Sulliman were concerned that dropping the clause would result in government forfeiting assets. Mr Tolo suggested that an asset inventory-keeping mechanism be drafted into the Bill. Mr du Plessis said they would redraft the clause to reconcile it with the amendment, and the concerns of the Committee.

The Committee agreed to keep paragraph (l) of Clause 2 (2) and not remove it as had been requested by Limpopo Province.

In response to KZN and Mpumalanga, the Committee decided that one month, and not three months, was sufficient notice for the MEC to withdraw subsidies to facilities in Clause 4(3).

The Free State had wanted a new sub-clause inserted in Clause 9: 'No person may be admitted to a facility without his or her consent.' Mr Hoon said this could be drafted as 'subject to a court order or a law,' in order not to inadvertently amend prevailing court orders or laws.

Mr Sulliman emphasised the delicacy of this 'human rights issue,' and urged the Department to treat it cautiously.

Mr M Robinson (Eastern Cape) noted that no provision had been set out for mentally unfit persons, whom institutions could not depend on for consent.

Mr du Plessis agreed. He promised to scrutinise the amendment carefully before advancing a solution.

Mr du Plessis responded to KZN and Mpumalanga requests to stipulate the purpose of monitoring systems in registered facilities. He said the Department was considering drafting an Inspection Clause into the Bill.

The Chairperson asked when he would be able to report feedback on this proposal. He said he would come back to the Committee by the end of next week.

Members rejected the Northern Cape suggestion to omit '30 days' from 12(i) and replace with "no less than 3 months notice".

They agreed to remove Clause 17(1)(a) as proposed by KZN who said it created a "procedure whereby a person rights may be adversely affected".

The Committee supported the intention of the Bill to remove convicted abusers from working in institutional care for older persons, for life.

Mr Hoon said he would advise the Committee at a later stage whether Clause 23(1)(a) was affected by the Aged Persons Act, 1967. If it is not, then the Act will not need to be repealed, as proposed by KZN.

The Department was mandated to advance updated amendments to the Committee within seven days.

The meeting was adjourned.