Social Assistance Amendment Bill [B17-2008]; Litigation issues: briefing

Social Development

07 May 2008
Chairperson: Adv T M Masutha ( ANC)
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Meeting Summary

The Department of Social Development briefed the Committee on the proposed amendments to the Social Assistance Amendment Act. The amendments would provide for the establishment of a Social Assistance Appeals Tribunal that would hear appeals by aggrieved parties. It would also ensure that the age of eligibility for males in accessing old age grants would be lowered from 65 to 60, to put their entitlement on par with that for women.

The Committee asked the Parliamentary Legal Office to confirm that there would not be any legal impediment to the Social Assistance Amendment Bill being passed in its current form. The Committee was generally satisfied with the proposed amendments, but raised concern over the internal problems that the DSD had in dealing with the extent of poverty and people not having access to social security. Further questions and clarity related to the position of the Tribunal. The Committee unanimously decided to adopt the Bill.

A briefing was then given on the current litigation being faced by the Department. This gave a detailed breakdown per province and outlined the key litigation cases still pending in the courts.
It was stressed that hopefully litigation would be a thing of the past once the Appeals Tribunal started to conduct its business.

Meeting report

Social Assistance Amendment Bill (the Bill): Department of Social Development briefing and deliberations
The Chairperson welcomed the delegation from the Department of Social Development (DSD) and stated that the main aim of the amendments to the Social Assistance Act was to reduce the age of qualification for men accessing old age grants, to bring it in line with the age at which women could access the grant.

The Bill further provided for the creation of an independent Appeals Tribunal. The Tribunal would hear appeals on applications for grants that had been refused by the South African Social Security Agency (SASSA).

He asked the Parliamentary Legal Advisers whether they thought there would be any legal impediment to the Bill in regard to the creation and independence of the Appeal Tribunal.

Advocate Frank Jenkins, Parliamentary Legal Adviser, said that an aggrieved party would have to exhaust all internal remedies before seeking redress from the Tribunal. He added that it was necessary to ensure impartiality so that there was no conflict of interest, and that this had been taken into account.

Mr Putseletso Leselo, Chief Director: Legal Services: DSD, agreed with this statement of the position on the part of the DSD.

The Chairperson noted that the independence of the Tribunal did not necessarily mean that redress could not be sought outside the sphere of government. The adjudicators should therefore base their decisions on their own consciences and judgement, without hindrance and influence from other parties. He noted in particular that the Minister of Social Development could prescribe the conditions and regulations of the Tribunal, but could not influence the decisions made by the Tribunal.

The Chairperson stated that he gave political parties the opportunity to consult with their respective caucuses on the proposed amendments and to report back on any issues or suggestions they might have.

Ms J Semple (DA) said that the Democratic Alliance was generally satisfied with the proposed amendments. She did however request clarity on why the age of 62 was left out.

Mr Selwyn Jehoma, Deputy Director General: Comprehensive Social Security: DSD, replied that the fact that it was not mentioned did not necessarily mean that it was left out. He added that there would be a gradual implementation of the new legislation that would ensure that all males, aged 60 and above accessed the grant.

The Chairperson noted that the onus was on those who qualified for grants to exercise their rights in accessing these grants.

Kgoshi K Morwamoche (ANC) said that the amendments were long overdue. He did express his concern over the unnecessary litigation in which the DSD was involved. He noted that the DSD should ask for assistance from the Department of Justice, instead of constant outsourcing.

Mr B Solo (ANC) said that South Africa had a major problem with poverty. He noted that he was worried about the possible exclusion of a public representative serving on this Tribunal.

Mr Leselo replied that that Department placed several advertisements in the media to attract possible candidates from civil society, from the medical and justice fields to serve on the Tribunal. The Minister was in the process of finalising appointments.

Ms M Gumede (ANC) said she was disappointed with the manner in which the DSD handled the whole process regarding the amendments, especially considering that many South Africans faced problems in accessing grants.

She noted that she also had a problem with the term “Old Age” attached to the grant and stated that the terminology used should be changed.

Mr Jehoma replied that the proposed amendments to the Act would ensure a more comprehensive approach to service delivery. He added that the terminology used would be changed to “Pension”.

Mr B Mkongi (ANC) asked whether the Tribunal would be independent from the Judiciary.

Mr Leselo replied that the constitution allowed for the separation of powers and that the Tribunal would function within the full spectrum of the law.

Mr Mkongi was worried that if Government provided the funding for the Tribunal, it would seek to influence decisions made by the Tribunal.

The Chairperson stated that the independence of the Tribunal was largely around decision-making and that decisions would be made regardless of whether the Tribunal was an extension of the powers of the Minister.

Ms Patricia Maloka, DDG: Department of Social Development, added that the Tribunal would function in an independent manner and that various functions would be assigned to the head of the Tribunal, in accordance with the Public Finance Management Act.

The Chairperson asked whether the Tribunal would be an extension of the administration powers of the Minister and what was meant by “internal remedies”.

Adv Jenkins replied that “internal remedies” referred to the internal processes within the Department, before an aggrieved party decided to approach the Tribunal.

He then explained, in regard to the comment about the Tribunal being an extension of the Minister’s administration powers, that the Tribunal was established to assist the Department in dealing with appeals.

The Chairperson noted that the Minister could set conditions on how the Tribunal should operate.

Ms Maloka replied that the Tribunal was a specialist body, tasked to act on the Minister’s behalf.

Kgosi Morwamoche asked whether provinces previously had conducted their own appeal hearings.

Ms Maloka replied that an investigation was done into how provinces previously dealt with appeals. The findings of the investigation concluded that processes followed by these ad hoc Appeal Boards were flawed and that they were not properly constituted. The Tribunal would ensure that these mistakes were rectified.

Ms Gumede said that there were many factors that the DSD should take into account before turning applicants down. She stressed that many grandparents or primary caregivers did not always have the necessary documentation due to absent parents not being able to be traced, yet the DSD refused to help these applicants.

Mr Jehoma replied that the DSD was aware of the issue raised by Ms Gumede and would address this accordingly.

Mr Mkongi asked whether the amendments proposed would affect the means test for Child Support Grants and what the barometers were to qualify for these grants.

Mr Jehoma replied that the means test would stay in effect. He added that income was the major factor that influenced eligibility for government grants.

Ms Maloka stated that Cabinet endorsed the Bill in its current form, that no further amendments were needed and that Parliament could proceed to pass the Bill.

Kgoshi Morwamoche expressed his concern with the incidences of bribery and corruption within the DSD, especially in rural areas.

Mr Jehoma replied that he was aware of these allegations and that everything possible was being done to curb corruption within the DSD.

Mr Mkongi noted that there needed to be a comprehensive plan concerning HIV-positive South Africans accessing the special grant, when they went in and out of the system based on their CD4 count.

He added that the DSD should also address the rampant corruption and the problem of unscrupulous lawyers making money off innocent people.

DSD Litigation issues: Briefing
Mr Leselo said that the DSD was currently involved in several litigation processes. He highlighted three important cases; Roberts vs. Minister of Social Development, Goliath vs. Minister of Social Development and litigation involving refugees who took government to court over their inability to access social security benefits.

He then explained that Mr Roberts took the DSD to court to challenge the age at which men could access the “Old Age” Grant. His argument was that this was unconstitutional as it discriminated against males, who had to wait until they were 65, before they could apply for this grant, whereas females could access it earlier. The DSD was awaiting the outcome of the judgement.

Mr Leselo emphasised that the DSD was in the meantime addressing the issue through the proposed amendments.

Mr Jehoma added that Mr Roberts now qualified for a grant, but he indicated that he would like to receive compensation for those years in which he did not receive the grant due to the alleged discrimination. If he won the case it would set a precedent for future litigation.

The second case involved Cedric Goliath, who was placed in a state health facility after being diagnosed with drug resistant tuberculosis. He took the DSD to court upon being informed that his grant was being revoked. His legal counsel argued that this was unconstitutional as he did not voluntary enter the institution and that his family was now without a household income. The DSD argued that the grant was stopped because Mr Goliath was now being cared for in a state funded institution and that the grant was not meant for his family, but for him alone.

The third major issue involved a number of refugees who had commenced litigation against the government because they were not able to access social security benefits. Mr Jehoma stated that the DSD wanted to make certain concessions and that the National Treasury was engaged to look at various avenues to assist refugees. However, National Treasury noted that it was outside their mandate. The DSD was urged to engage with the Department of Home Affairs on this matter.

Mr Leselo added that government showed its willingness to assist refugees in this regard, but these efforts were hampered by outstanding provisions within the current regulatory framework. He noted that it would not make sense for refugees to receive “half benefits”.

Mr Leselo gave a detailed breakdown per province on litigation in which the DSD was involved. These were: Eastern Cape 518, Free State 812, Gauteng 25, Kwazulu Natal 4000, Limpopo 1737 Mpumalanga 58, North West 812 and the Western Cape 388 litigation cases. He stressed that there was an ongoing process to get a better system in place to record the figures.

Ms Maloka added that the DSD would have accurate figures by June/July. She noted that the Tribunal would be piloted in Kwazulu Natal due to the high volumes of appeals in that province.

It was noted that the problem of ongoing litigation had been discussed with provincial governments and proposals were drafted to prevent litigation. Aggrieved parties should be encouraged to seek solutions within the DSD as the legal costs, both for the department and the claimants, tended to run high.

The Chairperson noted that this was quite a serious matter which needed to be referred to the Law Society.
Concluding Remarks
Mr Jehoma noted that a lot of South Africans experienced problems in accessing social security due to not having adequate identification. He said that many South Africans still had ID documents that were issued by the former homeland governments.

He said that whoever drafted the initial Social Assistance Act had no idea of the major socio-economic problems South Africa was facing and that the real challenge was the extent of poverty in South Africa. He stressed that it was imperative to have another session to discuss and implement more sustainable and comprehensive policies to deal with poverty in South Africa.

Ms Maloka added that the designation of a parent was changed to primary care giver as many households were not headed by parents, but by extended family members, friends and children themselves.

A motion of desirability was read out and the Social Assistance Amendment Bill was unanimously accepted by the Committee.

The meeting was adjourned. .

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