Prevention of and Treatment for Substance Abuse Bill [B12-2008]: Stakeholder roles and responsibilities; Social Assistance Amendment Bill

Social Development

06 May 2008
Chairperson: Adv Tshililo Michael Masutha
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Meeting Summary

The committee was briefed on the Roles and Responsibilities of stakeholders in the Substance Abuse Bill. All the relevant departments were dealt with and their relationship to and with the Bill was clearly outlined.

Concern was expressed by members regarding the sale of liquor to children and the youth, and the lack of sufficient parental involvement in substance abuse. The role of traditional courts was questioned, in regard to their jurisdiction, and the Department was tasked with investigating the management of the supply of substances as the Bill dealt only with matters of demand and harm prevention.

The Committee then received a briefing from the Department on the Social Assistance Amendment Bill. The amendments to Sections 10, regarding age equalisation for males, and Section 18, regarding the independent Tribunal, were outlined and explained. Members debated extensively on the independent tribunal, as the role of the Minister in this process was initially unclear, and the independence needed to be clarified. The role of the Social Security Agency was explained. Concern was expressed over high legal fees that might prevent the poor from accessing assistance.

The Department then gave a briefing on the Regulations, explaining how the independent tribunal would function and the mechanisms in place to give effect to the appeal process. The consultative process regarding the regulations was outlined. Members raised questions around the abolition of the means test and the cost implications of this, and also discussed the fact that the means test discouraged saving. The Department was committed to conferring with the relevant officials regarding the plight of women and the elderly in developing policy.

Meeting report

Prevention of and Treatment for Substance Abuse Bill (the Bill): roles and responsibilities of stakeholders: Department of Social Development (DSD) Briefing
The Chairperson stated that the Department of Social Development had still to present the outstanding matter of the roles and responsibilities of stakeholders. He added that oversight work was not being done as effectively as it should be, and that the Committee should consider hearing reports from the Public Service Commission, Annual Reports of various departments and the Auditor General’s report.

Ms Nomathemba Kela,Chief Director: Social Worker Services, Department of Social Development, explained that this presentation provided information about all the stakeholders involved in the treatment and prevention of substance abuse. She explained that the Department of Arts and Culture had a very critical role to play in addressing this matter, as substance abuse was not only prevalent in the arts fields but that this department had a key role to play in prevention strategies and in educating communities. Ms Kela proposed that it should identify activities to align with programmes of substance abuse by the DSD.

Ms Kela stated that there was an awareness of substance abuse in the Department of Correctional Services (DCS), and the aim was to reduce the incidence of abuse, and implement harm reduction programmes. She further raised the need for involvement in community substance abuse forums and diversion programmes to assist people to overcome addiction in prison.

It was critical for the Department of Education to identify children at risk from an early age and initiate life skills programmes with other departments. Ms Kela also stressed the need for teachers to be educated to communicate messages regarding substance abuse effectively and carefully.

Ms Kela noted that the Department Foreign Affairs (DFA) was the lead department in ensuring that drug related interventions were in line with international policies, protocols, treaties and agreements. Ms Kela stated further that as the United Nations did most of the research and reports on substance abuse, this department should co-ordinate and ensure distribution of this information. Given that people came to South Africa  from afar to receive treatment for substance abuse, DFA should be encouraged to visit countries with whom bi-lateral agreements existed for best-practice examples.

Ms Kela explained that the Department of Health had had a number of engagements around its responsibilities around the health aspect of substance abuse. She stated that the issue of co-mobility was very important as psychosis and abuse must be managed in a balanced fashion. Ms Kela stated further that most countries had reported a dependency on the legal drugs used for detoxification and this needed to be managed. Ms Kela raised a concern regarding the management of the challenge of legal drugs being diverted for illegal purposes. She stated that the challenge for the Department of Health was ensuring that practitioners like doctors and nurses were able to respond appropriately to drug abuse.

Ms Kela noted that of special concern for the Department of Home Affairs (DHA) was the anticipated movement of people before and during the 2010 Soccer World Cup. Ms Kela stated that the treatment of foreigners found guilty of trafficking, their deportation to countries of origin and dealing with foreigners in the country for treatment were important matters for the DHA.

The Department of Justice (DOJ) would need to address the need for magistrates to be trained in substance abuse in order to give appropriate sentences.

The Department of Labour’s (DOL) management of substance abuse in the work environment needed clarity, as well as ensuring that the “dop” system, as a method of payment, was permanently dealt with.

Ms Kela stated that the Department of Sports and Recreation (SRSA) needed to make clear their policies on substance abuse and align these with roles clearly articulated in the National Drug Master Plan (NDMP).

The South African Revenue Services (SARS) was responsible for assistance in dealing with the supply of drugs and controlling ports of entry. Most important was the duty to ensure that illegal drugs and substances did not enter the country.

Ms Kela raised the importance of local and provincial governments in mobilising and participating in local drug action committees, through their municipalities, to ensure that communities understood substance abuse and all matters relating thereto.

Mr K Morwamoche (ANC) asked whether traditional authorities were consulted by the DSD regarding court licences.

Mr B Mkongi (ANC) questioned the age limit for sale of liquor to young persons. He also asked about the time limit of operations of liquor outlets and whether there was space in the legislation for dealing with issues like the sale of tobacco to young people.

Ms M Gumede (ANC) stressed the need for greater parental involvement around substance abuse, especially with regard to alcohol abuse by young children.

Ms H Weber (DA) asked what other crop could be grown in place of cannabis.

Mr L Nzimande (ANC) stressed the need for the creation of infrastructure for fighting abuse, and also the role of municipalities in establishing treatment centres. He asked how far the DSD had gone with the Bill regarding the obligatory reporting, and how many of the obligations had been shifted to other departments.

The Chairperson stated that the object of Bill only referred to the financial implications and did not deal with human resource implications. He also said it would be useful to know whether the memorandum on the Objects of the Bill did say enough about the implications of the Bill regarding institutional capacity.

Mr Morwamoche asked whether traditional courts had jurisdiction over people who committed drug offences.

Ms I Direko (ANC) stated that there was a problem controlling the sale of tobacco to minors in predominantly African areas and asked how this could be controlled.

Mr Mkongi raised the matter of the role of street committees, as he felt that  the South African National Civic Organisation (SANCO) should mobilise communities.

Ms Gumede asked how the informal brewing of alcohol could be monitored as thousands had died from the effects of substances used in this process, meaning that the brewers were committing crimes.

The Chairperson responded that part of problem with informal brewing was that a lot was going unnoticed regarding the use of substances and spiking additions. He said that this needed monitoring on the ground. He asked what the Department was doing to try to ensure that synergies between departments in terms of obligations were created and maintained.

Ms Weber stated that reference was made in the Bill in Clause 49 that 18 departments had to be represented on the Central Drug Authority (CDA), but the Department of Local Government was not included.

Mr David Bayever, Deputy Chair: CDA drew attention to section 52 (b),(c) and (d) of the Bill regarding powers and duties of the CDA in regard to management of the NDMP. He felt that the NDMP was a blue print, which included co-ordination between all government departments. Because of the enormity of the problem there was a need to strengthen the structure of the CDA to carry out its mandate fully.

Ms Kela stated that there were three  levels of management, one of which was the management of supply.  She added that the Bill dealt mainly with demand management, key role players in demand reduction and harm reduction. The departments involved - namely Social Development, Health, Justice and Constitutional Development, the Police Services and Education - had been well provided for in the legislation regarding demand management and harm reduction.

The Chairperson asked that the DSD return after the Public Hearings with a schedule of law relating to the management of the supply side, including information regarding direct relationships or implications that those laws had in relation to the object of the Bill.

Ms Kela responded briefly, in regard to some of the other questions,  that provision had been made for traditional healers in local drug action committees and this included parental responsibilities. She added that Chapter 3 dealt with prevention and had a strong family focus, dealing with the user in the context of the family. Information cards were also available with information for parents.

The Chairperson indicated that a campaign must be mounted to deal with children to get the necessary interventions. He expressed the need to return to the funding issue

Ms Kela responded that DSD was currently working on policy about funding priorities. It was hoped that it would be obligatory for government to fund non government organizations (NGOs) involved with substance abuse matters. She stated that infrastructure was a priority in the Department and that there are five government institutions providing rehabilitation services. One was in the Eastern Cape, two in Kwa-Zulu Natal, one in Gauteng, one in Mpumalanga and one was being erected in the Northern Cape. She added that there were 80 registered facilities but they were very expensive and the Department needed to buy beds from subsidised facilities. There needed to be at least one government run facility in every province, and the  legislation was moving towards government-subsidised facilities with provision for out-patients.

Social Assistance Amendment Bill (SAAB): DSD Briefing
Mr Selwyn Jehoma, Deputy Director-General: Social Security, DSD stated that the social assistance programme had been expanding and government was committed to giving expression to the right to social security. The SAAB would take this process forward and the Department had now done some costings around bringing the age for equalisation down gradually.

Mr Puseletso Leselo, Chief Director: Legal Services, DSD indicated that amendments were proposed in relation to  Section 10 of the principal Act, regarding the age equalisation for men to qualify for social assistance; and Section 18, regarding an independent tribunal.

He outlined that these amendments were as follows:
- the substitution, in paragraphs 1(b) of the age mentioned, from 65 years to 64 years. This meant that a man 63 years of age and above would qualify for an older persons grant. In subsection (1)(b)(iii) the age of “61 years” would be substituted with a reference to age of “60 years”.
- in respect of Section 18, he pointed out that the Minister may, after considering the application for social assistance, either set it aside or uphold it. Alternatively, he could appoint an independent Tribunal. The DSD had suggested that in subsection (2) the following wording be used:’the Minister may, (a) upon receipt of the applicant’s written appeal and the Agency’s reasons for the decision, confirm or set aside that decision; or the Minister may appoint an independent tribunal to consider an appeal contemplated in subsection (1) in accordance with such conditions as the Minister may prescribe by notice’. In Subsection (2)b, there would be a reference to all appeals in subsection (1) being considered by the tribunal.

Mr Gideon Hoon, Principal State Law Adviser: Office of the Chief State Law Adviser, referred to a change in the numbering of clause 1.

The Chairperson asked what precise concerns the Department was planning to address through this amendment, and whether this amendment reflected the full intention and policy changes that the Department envisaged. There was a need to clarify with the State Law Advisor (SLA) in which sphere of government this would fall.

Mr Mkongi enquired as to the role of an independent tribunal, pointing out the existence already of the South African Social Security Agency (SASSA). He questioned whether there would not be a duplication of responsibilities.

The Chairperson responded to this that SASSA existed in its own right, but that all other institutions that had a role to play in relation to social assistance were actually created by the Social Assistance Act. SASSA was almost akin to an independent contractor performing a function on behalf of the Department.  The Department still had an oversight and regulatory function that it exercised over SASSA. The issue of creating a Board for SASSA would have to be dealt with through an amendment to the SASSA Act.

Mr Morwamoche asked if the tribunal would consist of senior counsel, ordinary advocates or ordinary attorneys, who would review matters.

Ms Semple asked if the same principles would be applied to the means test.

Mr Jehoma expressed concern about the date of 1 April, saying that it could create problems if it raised an expectation that there could be retrospective accrual of benefits. The accrual actually applied from the date on which a person applied, and not two or three days after the application had been received.

Ms Direko asked who was to blame and should suffer if the offices caused delays in the processing of applications.

The Chairperson stated that one of the reasons that accrual was set on the day of application was to ensure that the beneficiary would not be unduly prejudiced if the administrative system was inefficient. The relevant official would be empowered by the law with the authority to issue a stamped receipt of the application.

Mr Hoon responded to the issue of retrospectivity, stating that there was in law a presumption against retrospectivity. The Bill intended to ensure that a person would be eligible from a certain date, but that an application would have to be made for benefits.

The Chairperson asked for explanation as to the “independent tribunal” and asked from whom it should be independent.

Mr Leselo replied that the tribunal was independent from the DSD.

The Chairperson stated that SASSA was established as an independent institution, to consider applications. The Department had no say in the processing of applications. The Minister could not review a decision of SASSA. From the tribunal, the matter would go to Court, and it was not possible to appeal to the Minister for reconsideration.

Mr Mkongi asked who would be funding the Tribunal and how would it be independent of its funder.

Ms Direko raised a concern regarding beneficiaries who could not afford costly court cases.

The Chairperson responded that the Constitution stated that anyone could have access to the Court to resolve their dispute. He asked if this was a matter falling under the competency of the Department of Justice.

Mr Leselo stated that  this  matter did not fall within the purview of the Department of Justice. The independent tribunal had nothing to do with the Department of Justice because it was acting on behalf of the Minister. Once the tribunal had made a decision the matter should not be referred back to the Minister for review.

Ms Direko reiterated her concern and expressed the need for a mechanism to obviate the route to court.

The Chairperson stated that the Department needed to deal with the issue of litigation and how this was being managed in relation to appeals. He agreed that the tribunal should obviate the need for beneficiaries to go to Court if they were not happy with a decision made by SASSA.

Mr Hoon pointed out that the Act made provision for the independent tribunal. The Bill stated that if the Minister appointed a tribunal then all the appeals would be dealt with by the tribunal and the Minister would fall out of the picture.

Mr Jehoma stated that the cases dealt with were either of a policy nature, often hinging on questions of the possible unconstitutionality of provisions or omissions in the provision of social assistance. Most of challenges were around poor service delivery.  He stated further that there was a set of processes that people could follow to claim administrative justice.

Continuation of briefing on the Tribunal
Ms Patricia Maloka, DDG, DSD, explained that the independent tribunal set up in terms of Section 18 of the Act allowed for a person to lodge a written appeal with the Minister if he or she was unhappy with a decision made by SASSA. Once SASSA was conceptualised as an institution, the priority was to build its capability to receive and process applications on behalf of the Minister.

Because of the delays in establishing SASSA, and because it was a new institution, certain mechanisms were put in place after consultation with the Department of Public Service and Administration (DPSA) and the Minister of Finance. Both concurred with this process. Although the Tribunal had not been classified under a particular Schedule, it was agreed that the Tribunal as an organisational component could not function outside of SASSA.

To formalise that relationship DSD had proposed to the Minister that there be a Ministerial declaration that prescribed clearly what SASSA’s role encompassed. The Minister had signed this declaration.

Because of delays, an alternative mechanism had been developed; namely that anyone who was not able to afford legal costs should approach the Legal Aid Board. SASSA would give administrative support to the DSD.

A centralised model of a Tribunal had been set up at the national office, and this was being piloted in Kwazulu Natal (KZN). The independent tribunal consisted of two sections; appeals officers to develop policies, while the adjudication was done by enlisted panel members. There were two phases of adjudication. At the pre-adjudication phase a matter would be investigated by medical practitioners and attorneys. Civil society would usher in specific contexts, for example poor socio-economic conditions. From an administrative point of view this was how it was operating at present, with 4 000 matters set before respective Courts, particularly in KZN. There was a large backlog of cases.

Briefing on the Regulations
Mr Selwyn Jehoma, DDG:DSD, responded to the request from the Committee for a briefing as to where the Department was in the process of the regulations. He stated that at the last briefing it was reported that the consultation  process had been completed.  A draft of this completed process was handed over to the legal section of National Treasury.

There had been some delays because of the proposal to adjust the means test. The raising of the means test level was significant and would allow for the expansion of the social safety net.

Social Security and Treasury were close to completing their discussions and exchanges, and DSD had been advised that it would be prudent to send through the draft to the State Law Advisers for input. It was hoped that they could expedite the process so that the Minister could soon promulgate the regulations.

Ms Maloka added that there would be separate regulations for the independent Tribunal. 

Ms Weber stated that the abolition of the means test was far more costly than simply providing universal access to a pension, and she asked if the Department had discussed this matter.

Mr Jehoma replied that the Department had itself commissioned work into the implications of means test and how one could have a more fair and equitable system. He did not agreed that  applying the means test would cost more than it would cost if it were to be removed. He stated that it cost 3% of total budget to administer the means test, amounting to R1.5 billion. There would be an additional R6 billion if it were to be applied to the old-age grant. The Minister had stated that the DSD needed to look at the abolition of the means test for the old age grant. Over the next two to three years there would be raising of the means test within the available tax system.

Mr T John, Director: Policy Implementation and Support, DSD, explained that the value of the property either owned or occupied by the applicant was not used for purposes of the means test. There were income inclusion and income threshold amounts in the means test and those amounts had been increased by 30% to 50%. The means test had been structured in a progressive manner to increase in line with inflation.

Mr Jehoma noted that all indications were that the current means test encouraged people not to save. This matter was being dealt with by the interdepartmental technical task team that supported the inter-Ministerial committee on social security reform.

Mr Loselo explained that the means test  would take into account whether money was saved and whether one was maintained by a spouse.

Mr Jehoma stated that the law provided for the duty of spouses to maintain each other. He stated that women suffered the most under this provision. He expressed the commitment to consult with the Director of old age grants when drafting policy.

Ms Maloka acknowledged the need to ensure that the standard operating procedures (SOPs) of the Department were translated into easy-to-use guides. She also expressed the need to communicate aggressively in the public arena about the SOPs and improve on them.

The meeting was adjourned.

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