To provide for the protection and welfare and empowerment of older persons; maintenance and promotion of the status of older persons; maintenance and promotion of the rights of older persons; maintenance and promotion of the well-being, safety and security of older persons; the care of the interests of older persons; the establishment and registration of residential facilities; the accommodation and care of older persons; the establishment of the Office of an Ombudsperson for Older Persons; the establishment of a National Consultative Forum on Ageing; and for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows: -

WHEREAS the Constitution of the Republic of South Africa, 1996, as the supreme law of the Republic, was adopted so as to establish a society based on democratic values, social and economic justice, equality and fundamental human rights and to improve the quality of life of all citizens and to free the potential of all persons by every means possible;

AND WHEREAS everyone has inherent dignity and the right to have their dignity respected and protected;

AND WHEREAS the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right;

AND WHEREAS it is considered necessary that changes be effected to the existing laws relating to older persons and that, as a first step in the reform of the entire South African older persons dispensation, certain of those laws be restated with a view to facilitate accessible, equitable and affordable services to older persons and to empower them to continue to live meaningfully and constructively in a society that recognizes them as important sources of enrichment and expertise.

Interpretation, Application, Objects and General Principles of Act

Ensuring an Enabling and Supportive Environment for Older Persons

Protection for Older Persons

Institutional Arrangements

General and Supplementary Provisions

1.(1) In this Act, unless the context indicates otherwise –

1. "abuse" means an act or omission or lack of appropriate action which causes harm or distress to an older person and which occurs in any relationship where there is an expectation of trust, and includes the infliction of physical, psychological, financial and sexual power on an older person;
2. "accommodation" means a facility that provides housing for older persons, excluding retirement villages referred to in the Housing Development Schemes for Retired Persons Act, 1988 (Act No. 65 of 1988);
3. "assisted living" means a facility that provides accommodation and services for older persons and includes provision of emergency housing or accommodation to older persons;
4. "CBO" means a Community Based Organization;
5. "care" means provision for an older person’s physical, psychological and material needs where such older person is unable to provide these for himself or herself and includes the service aimed at promoting the quality of life and social functioning of older persons;
6. "caregiver" means any person who provides care to older persons;
7. "community based care and support services" means services to promote and maintain the independent functioning of older persons in a community, and may include shelters, home-based care and related facilities;
8. "community based centres" means centres established to promote and maintain community based care and support services;
9. "day care" means the care of older persons who are transported on a daily basis to and from a facility to receive care;
10. "Department" means the National Department of Social Development;
11. "designated body" means a person versed in law or a statutory body referred to in section 181(1) of the Constitution, designated by the Minister for the purposes of sections 10, 14 and 19;
12. "Director-General" means the Director-General: Social Development;
13. "domestic assistance" means the provision of domestic services to an older person living outside a residential care facility, in order to enable the older person to maintain his or her present level of independent living;
14. "DQ98" means the official assessment scale to determine the dependency needs of older persons;
15. "FBO" means a Faith Based Organization;
16. "facility" means a structure managed for the purpose of providing accommodation, housing, care and support services to older persons;
17. "frail care" means the promotion and maintenance of the physiological, social and emotional well-being of dependent older persons;
18. "frail person" means a person, excluding a child, whose physical or mental condition renders him or her in need of 24 hours continuous care;
19. "grant-in-aid" means a grant paid to or on behalf of any older or disabled person who is in such a physical or mental condition that he or she requires regular attendance by any person;
20. "home based care" means the provision of services to older persons who are permanently or temporarily in need of care which cannot be provided by family members or spouse;
21. "magistrate" includes an additional and an assistant magistrate;
22. "management committee" means a management committee contemplated in section 10 of the Act;
23. "manager" means the person responsible for the day to day operation of an organization, facility or service;
24. "Minister" means the of Social Development in the national sphere of government;
25. "NGO" means a Non Governmental Organization;
26. "older person" means a person who has attained the age of sixty years;
27. "older person in need of care and protection" means a person referred to in section 22;
28. "Ombudsperson" means any person appointed as such in terms of

section 23;

29. "organisation" means any organisation caring, supporting or assisting with the needs of older persons;
30. "owner" means a person, persons or an organisation which owns a facility or service referred to in this Act;
31. "prescribed" means prescribed by regulation made under this Act;
32. "province" means a province established in terms of section 103 of the Constitution of the Republic of South Africa, 1996;
33. "recipient of social assistance" means a person receiving a grant under the Social Assistance Act, 1992 (Act No. 59 of 1992);
34. "registered home for older persons" means a facility registered in terms of this Act to care for older persons, for remuneration;
35. "registered welfare organisation" means a welfare organisation registered or deemed to be registered in terms of the National Welfare Act, 1978 (Act No. 100 of 1978), and includes a nonprofit organisation registered in terms of the Nonprofit Organisations Act, 1997 (Act No. 71 of 1997);
36. "rehabilitation" means the process whereby older persons are assisted to recover from an addiction, illness, hospitalisation or trauma in order to function optimally;
37. "representative" means a family member, lawyer, friend or member of the general public willing to represent the interests of an older person;
38. "residential facility" means a facility that provides housing and accommodation to older persons and includes assisted living, shelters and;
39. "services" means any activity or program designed to meet the needs of older persons and includes community based programs and services;
40. "shelter" means any building or premises maintained or used for the reception, protection, and temporary care of older persons in need of care;
41. "social worker" means any person registered as a social worker under the Social Service Professions Act, 1978 (Act No. 110 of 1978);
42. "this Act" includes any regulation made under section 41;
43. "welfare organisation" means an organisation which renders services to older persons for non profitable purposes and includes any company or other association of persons established for a public purpose and the income and property of which are not distributable to its members or office-bearers except as reasonable compensation for services rendered.

2. The provisions of this Act, excluding the abuse of older persons, do not apply in respect of any place or part of a place registered or maintained in terms of any law as a hospital or clinic or in respect of which a hotel liquor licence has been issued and is in force in terms of the Liquor Act, 1989 (Act No. 27 of 1989).

2.(1) This Act applies throughout the Republic of South Africa to –

(a) every older person;

1. any individual, family, Non-profit Organization, welfare organization and organization involved in caring for one or more older persons.
2. State-owned and State-managed facilities.

2. The application of this Act to non-South African citizens will be in accordance with the agreements signed between the Republic of South Africa and an individual’s country of origin.

 

Objects of the Act

3. The objects of the Act are to –

1. maintain and promote the status of older persons;
2. maintain and promote the rights of older persons as recipients of services;
3. maintain and promote the well-being, safety and security of older persons;
4. maintain and promote the care and management of the assets and interests of older persons;
5. manage the provision of certain grants for older persons;
6. maintain and manage funding for facilities for older persons and services rendered to them;
7. manage the registration and functioning of facilities for older persons;
8. monitor compliance with the Act, regulations and Minimum Service Standards;
9. evaluate the functioning of facilities and service providers, using the DQ98;
10. provide for enquiry into matters concerning older persons by designated bodies;
11. criminalise certain actions committed against older persons;
12. manage acts of abuse of older persons and the therapeutic and legal response thereto;
13. establish an Ombudsperson for Older Persons; and
14. provide for the establishment of a National Consultative Forum on Ageing.

General principles of Act

4. The general principles set out in this Act guides –

1. the right of older persons to live safely and without fear of abuse;
2. the assumption, until shown otherwise, that older persons are competent to make informed choices and decisions about their own lives;
3. the right of older persons to be treated fairly and be valued independently of their economic contribution; and
4. the right of older persons to have access to employment, health, welfare, transportation, social assistance and other support systems without regard to economic status.

Progammes for the development of Older Persons

5. The Minister may, with the concurrence of the relevant Minister, establish or cause to be established or support programs which are aimed at –

1. the recognition of the social, cultural, economic and political contribution of older persons;
2. the participation of older persons in decision-making processes at all levels;
3. the access of older persons to information, education and training;
4. rural development, migration and urbanization and the effect thereof on older persons;
5. the access of older persons to health, welfare and other care and support systems in order to enable older persons to maintain or regain their optimal level of physical, mental and emotional well-being, enabling older persons to remain independent and live with dignity in the community;
6. the equitable distribution of resources in accordance with the primary needs of older persons;
7. the utilization and management of existing facilities for older persons as multi-purpose community centres and the development of an integrated community care and support system;
8. the provision of basic affordable accommodation for older persons;
9. the establishment of a national research plan and communication network on ageing;
10. the creation of employment opportunities for older persons;
11. the establishment of recreation opportunities for older persons;
12. the provision of geriatric services to older persons; and
13. the availability and accessibility of free public transport facilities to older persons, or subject to production of coupons;
14. retirement planning information for older persons;
15. promotion of protection of rights of older persons.

 

CHAPTER II

ENSURING AN ENABLING AND SUPPORTIVE ENVIRONMENT FOR OLDER PERSONS

Establishment and maintenance of residential facilities, community based centres, shelters, home based care, luncheon clubs and related services and payment of subsidies to residential facilities, organisations, welfare organisations and registered welfare organisations.

6. The Minister may, subject to the provisions of this Act and with the concurrence of the Minister of Finance, out of moneys appropriated by Parliament for that purpose –

1. establish and maintain residential facilities for older persons;
2. facilitate and assist in the establishment of community based centres, shelters, home based care, luncheon clubs and related services; and
3. pay subsidies for the management of those facilities, centres and clubs, and to organizations, welfare organizations and registered welfare organisations providing services to older persons and frail persons.

7.(1) When a subsidy is paid in terms of section 6, the Minister must prescribe the conditions of use of that subsidy, including conditions regarding the accounting for the subsidy so paid.

2. Any person to whom a subsidy is paid in terms of section 6 must use, and account for, the subsidy in accordance with the conditions referred to in subsection (1).
3. If any condition referred to in subsection (1) is not complied with, the Minister may after one month’s notice of the intention to do so, withdraw the subsidy in question.
4. Any person to whom a subsidy in terms of section 6 is paid is personally liable for the refund of the amounts used contrary to any condition referred to in subsection (1).

8.(1) A person must only manage a residential facility which is registered under this section, except a facility maintained by the State.

2. If any person wishes to manage a residential facility he or she may in the prescribed manner apply to the Minister for registration thereof.
3. After consideration of an application referred to in subsection (2) the Minister must –

1. refuse or grant the application subject to such conditions as he or she may determine;
2. if he or she grants it, direct that a registration certificate specifying such conditions be issued to the applicant in the prescribed form; or
3. subject to such conditions as he or she may determine –

1. grant authority to the applicant to manage the residential facility for such period, not exceeding twelve months, as the Minister may determine; and
2. direct that a registration certificate specifying such conditions be issued to the applicant in the prescribed form for that period; and
3. reconsider the application, after expiry of the said period, or after notice by the applicant in the prescribed manner that the said conditions have been complied with, whichever may occur first.

2. The Minister may at any time after one month’s notice of his of her intention to do so, and after consideration of any representations received by him or her during such month, amend or cancel, subject to the provisions of subsection (5), a registration certificate issued in terms of subsection (3)(a).
3. The amendment or cancellation of such registration certificate must be effected by notice to the holder thereof, and must take effect on a date specified in the notice, not being earlier than three months after the date of the notice, unless the Minister and the holder of the registration certificate have agreed otherwise.
4. A person to whom a registration certificate has been issued in terms of subsection (3), may not transfer it to any other person.
5. If the registration of a residential facility has been cancelled in terms of subsection (4), or if the manager of a residential facility desires to close down such facility for any other reason, he or she must take reasonable steps to ensure that on the closing down of such facility the older persons in question are accommodated in another facility or with persons who, in the opinion of a social worker, are fit and proper persons for accommodating them.
6. The manager of a residential facility, which immediately prior to the date of commencement of this section is being subsidized by the State, must register such facility within 12 months of the commencement of this section, subject to such conditions as the Minister may determine.
7. Any person who contravenes or fails to comply with a provision of this section, or of a condition imposed thereunder, is guilty of an offence.

9. (1) A person who manages a community based centre, shelter, home based care, luncheon club or related services, must notify the Minister about the existence of such centre or service.

(2) A person who, without notifying the Minister, accommodates -

1. more than six people;
2. for reward,

is guilty of an offence.

10.(1) If there is reason to believe that any of the conditions referred to in section 8(3) have not been complied with, the Minister must appoint a designated body and prescribe its composition, which must include, a social worker –

1. to order specific measures to be adopted to facilitate compliance with those conditions.

2. The applicant concerned must at all reasonable times report to the Minister any circumstances which may result in his or her inability to fully comply with the conditions referred to in section 8(3).
3. If the registration of a residential facility has been cancelled in terms of section 8(4),

(Determine procedure!)

4. If the manager of a residential facility wishes to close down or transfer that facility for any other reason, the manager must –

1. prior to any decision to close down or transfer that facility is made, consult with the Minister on the matter;
2. furnish the Minister with a full report on the steps taken regarding the future accommodation of the older persons in question as contemplated in section 8(7); and
3. at least six months before the closing down or transfer of that facility, notify the older persons in question and the Minister, in writing, of such closure or transfer;
4. transfer all assets bought with government funds or donated with the specific intention of assisting the poor, to the state.

11.(1) If more than 10 older persons reside in a residential facility, a management committee must be established as prescribed.

2. The Minister must prescribe –

1. the composition of every management committee to be established under subsection (1), which must include representation of the residents and staff of the relevant residential facility and the public in general;
2. the election and appointment, qualifications, term of office, and grounds of removal from office, of the members of that committee and the filling of vacancies on that committee; and
3. the number of, and procedure at, meetings of that committee.

3. A management committee established under subsection (1) must ensure that the manager of the residential facility in question –

1. facilitates interaction between the residents of the facility and their families, the public in general and that committee;
2. provides quality service to the facility;
3. provides opportunities for the training of the staff of the facility;
4. applies principles of sound financial management and submits quarterly financial reports to the residents and staff of the facility;
5. monitors activities at the facility in order to deal speedily with any incidents of abuse of the residents of the facility and takes steps to report such incidents to the appropriate authority;
6. consults the management committee in the appointment of the staff of the facility;
7. establishes complaints procedures for the residents and staff of the facility and persons who wish to lodge a complaint on behalf of any such resident; and
8. does everything necessary or expedient for the effective functioning of the facility.

12.(1) No person must unfairly discriminate directly or indirectly against a person applying for admission to a residential facility on one or more grounds referred to in section 9(3) of the Constitution.

2. Any person who contravenes the provisions of subsection (1) is guilty of an offence and is notwithstanding section 40, liable on conviction to a fine or to imprisonment for a period not exceeding five years, or to both such fine and such imprisonment.
3. The need for a residential facility must –

1. reflect broadly the race composition of South Africa;
2. be considered when determining eligibility for admission to that facility.

4. Admission to a residential facility will be based on the level of dependency as measured by the DQ98.
5. If a person is refused admission to a residential facility, the manager of that facility must, on the request of that person, give reasons for such refusal to the person.

13.(1) A social worker, directed by the Director General, may at any time –

1. visit and monitor a residential facility or any other place where an older person is cared for or accommodated for remuneration, whether by way of money or goods, or any place which the social worker believes on reasonable grounds to be a residential facility or such a place;
2. interview any older or frail person accommodated in such facility or place;
3. either with or without the assistance of a medical practitioner, enquire into the welfare of any such person;
4. direct any person who has in his possession or custody any book or document relating to such residential facility or place, to submit such book or document to him or her for monitoring;
5. monitor the fulfillment of objectives as stipulated in the memorandum of agreement.

2. A social worker exercising any power in terms of subsection (1) must, at the request of the manager of the residential facility in question or the person who has control over the place in question (as the case may be), produce a certificate issued by the Director-General and stating that he or she is such an officer.
3. Any person who obstructs or hinders a social worker in the exercise of his or her powers in terms of subsection (1), or who refuses to give him or her at his or her request access to an older or frail person accommodated in a residential facility or place referred to in subsection (1), or who refuses or fails to comply with a direction in terms of subsection (1)(d), is guilty of an offence.

14.(1) The Minister may appoint any designated body to inquire into and consider any matter relating to the rights of an older person.

(2). The designated body so appointed may, for the purposes of that enquiry –

1. summon in the manner prescribed, any person –

1. who, in the opinion of the designated body, is able to furnish information of material importance to the enquiry; or

2. who the designated body has reason to believe has in his or her possession or custody or under his or her control, any book, document or record relating to the subject of the enquiry,

1. through the person presiding at the enquiry –

(i) administer an oath to, or accept an affirmation from, any person summoned in terms of paragraph (a); and

2. examine or cause him or her to be examined by a person designated by the designated body to lead the evidence at the enquiry and instruct him or her to produce any book, document or record in his or her possession or custody or under his or her control.

(3) A summons referred to in subsection (2) must contain the information and must be served in the manner, prescribed and in terms of section 51(2) of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), will with the necessary changes apply in respect of any person on whom that summons has been so served.

2. The law relating to privilege, as applicable to a witness summoned to give evidence or to produce a book, document or record in any civil proceedings, will with the necessary changes apply in respect of the examination of or the production of any book, document or record by any person summoned in terms of this section.
3. If the record of any criminal or civil proceedings is relevant in any enquiry in terms of this section, that record is on the mere production thereof prima facie proof of the facts stated therein.
4. If the conduct which forms the subject of any enquiry referred to in subsection (1), forms or is likely to form the subject of any criminal or civil proceedings, the designated body may postpone the enquiry until those proceedings have been concluded.
5. Any person against whom an enquiry is instituted in terms of this Act, is entitled, in person or through his or her legal representative, to answer the charge and to be heard in his or her defence.

(8)(a) The designated body may, generally or in any specified case, appoint a committee in the manner prescribed to exercise and perform all powers and duties of the designated body conferred or imposed by this Act.

1. If the designated body so appoints a committee, those powers and duties are regarded to have been delegated to the committee.

9. Any person who, having been duly sworn or having made an affirmation, tenders false evidence at an enquiry held in terms of this section, knowing that evidence to be false, is guilty of an offence and is, notwithstanding section 40, liable on conviction to the penalties which may be imposed for the offence of perjury.

15.(1) The manager of a residential facility must within 60 days after the end of the financial year of that facility submit to the Minister a report on –

1. compliance with –

1. the service standards, prescribed; and

2. the measures, so prescribed, to prevent and combat abuse of older persons, during that financial year; and

1. the content of the service level agreements, so prescribed, concluded during that financial year.

2. When the manager of a residential facility fails to submit a report in accordance with subsection (1), the Minister may –

1. give notice to that manager that if such report is not submitted within 90 days after the date of that notice, any subsidy paid in respect of that facility in terms of section 6 will be withdrawn; and
2. if such report is not submitted within 90 days after the date of the notice given in terms of paragraph (a), withdraw such subsidy after giving one month’s notice of the intention to do so.

16 An older person residing in a residential facility has the right to –

1. appoint a representative to act on his or her behalf;
2. have reasonable access to assistance and visitation;
3. have reasonable access to his or her medical records;
4. keep and use personal possessions;
5. have access to basic care;
6. be informed about the financial status of the facility and changes in management;
7. participate in social, religious and community activities of his or her choice;
8. privacy;
9. remain in the residential facility even though continuous care is required;
10. his or her own physician; and
11. be given at least 30 days notice of a proposed transfer or discharge.

17 Any person who abuses an older person is guilty of an offence and is, notwithstanding section 40, liable on conviction to a fine or imprisonment for a period not exceeding five years, or to both such fine and such imprisonment.

18.(1) If a social worker submits or makes a written statement under oath to a Public Prosecutor, and in such statement it is alleged that any person within the area of jurisdiction of the magistrate’s court to which that Public Prosecutor is attached –

1. accommodates or cares for an older or frail person in a place other than a residential facility in circumstances or in a manner likely to be injurious to his or her physical or mental well-being; or
2. presumably takes advantage of an older or frail person by receiving excessive remuneration, by way of money or goods, for the accommodation or care of such person in a place other than a residential facility,

that Public Prosecutor may, subject to the provisions of subsection (2), request the clerk of that court to issue a summons calling upon such first mentioned person to appear, at a time and place specified therein, before a magistrate within that area, and informing him or her of the allegations against him or her.

2. A Public Prosecutor should not in terms of subsection (1) request a clerk of the court to issue a summons unless he or she has obtained from a social worker a report on the accommodation or care of the older or frail person in question.
3. (a) If on the ground of a statement under oath referred to in subsection (1) the Public Prosecutor has reason to suspect that a social worker will be prevented or prohibited from going into or entering upon the place where the older or frail person in question is being accommodated or cared for to make the necessary investigation for the purposes of a report referred to in subsection (2); or

(b) if such an officer has been prevented or prohibited from doing so, the magistrate

in question may on the application of the Public Prosecutor issue a warrant authorizing a social worker to go into or enter upon that place to make such investigation.

4. A magistrate may in a warrant issued by him or her in terms of subsection (3) authorize a social worker to take a district surgeon or a police officer or both with him or her for the purposes of an investigation referred to in the said subsection.
5. The provisions of the Criminal Procedure Act 1977 (Act No. 51 of 1977), in relation to the form and manner of service of summonses in criminal cases in lower courts, the time to be allowed to a person summoned to appear, and the manner in which persons who have been summoned to appear, may be dealt with if they fail to appear or to remain in attendance, as required, apply with the necessary changes in respect of summonses issued in terms of this section.
6. Any person who –

1. obstructs or hinders a social worker in the performance of his or her functions in terms of this section; or
2. refuses to furnish to a social worker at his or her request any information in connection with the accommodation or care of an older or frail person at his or her disposal which such social worker requires for the purposes of an investigation referred to in subsection (3),

19.(1) Subject to the provisions of this section a magistrate or the designated body appointed in terms of section 13, before whom any person is brought in terms of section 18 or section 14, must enquire into the correctness or otherwise of the allegations contained in the summons in question.

2. The Public Prosecutor or any other person designated by the magistrate for the purpose or the designated body, must appear at the enquiry and may call witnesses and cross-examine any other witnesses giving evidence at the enquiry.
3. The person against whom the allegations in question were made, may give evidence, and he or she, or his or her legal representative, may cross-examine any witnesses called in terms of subsection (2), and call witnesses, and must be given the opportunity to advance reasons why an order should not be issued under subsection (10).
4. Subject to anything to the contrary contained in this Act, the law relating to criminal trails in magistrates’ courts will apply with the necessary changes in respect of-

1. the subpoena, the calling and examination of witnesses for the purposes of or at the enquiry;
2. the taking of evidence;
3. the production of documents and other articles thereat; and
4. the payment of allowances to witnesses.

5. The proceedings at the enquiry must be conducted in an open court room or behind closed doors, as the magistrate or designated body holding the enquiry may determine.
6. The provisions of section 159(1) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), in so far as they relate to the conduct of a criminal trial in the absence of an accused, will apply with the necessary changes, in respect of an enquiry held in terms of this section.
7. The provisions of section 108 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), will apply with the necessary changes, in respect of any proceedings in connection with an enquiry held in terms of this section.
8. The report referred to in section 18(2) must be submitted to the magistrate holding the enquiry or the designated body who may direct the district surgeon, or a psychiatrist or a clinical psychologist to examine the older or frail person in question and to furnish him or her with a report on his or her findings.
9. The contents of a report submitted or furnished in terms of subsection (8) must be disclosed to the person against whom the allegations were made, and if he or she so desires, he or she or his or her legal representative must be given an opportunity of cross-examining the person who made the report, in relation to any matter arising out of the report, and of disproving any allegation occurring therein.
10. If after consideration of the evidence and of any report submitted or furnished in terms of subsection (8), it appears to the magistrate or designated body that any allegation in the summons in question against the person in question is correct, the magistrate or the designated body may –

1. prohibit that person from accommodating or caring for the older or frail person in question except subject to such conditions and in accordance with such requirements as the magistrate or designated body may impose; or
2. prohibit that person from accommodating or caring for any older or frail person for such period, but not exceeding ten years, as may be determine by the magistrate or designated body.

11. Any person who contravenes or fails to comply with any condition, requirement or prohibition imposed in terms of subsection (10) is guilty of an offence and is, notwithstanding section 40, liable on conviction to a fine or imprisonment for a period not exceeding five years, or to both such fine and such imprisonment.

20.(1) Every registered dentist, medical practitioner, nurse or social worker or any other

person who examines, attends to or deals with an older person and suspects that that older person –

1. has been abused; or
2. suffers from any injury,

must immediately notify the Director-General.

2. On receipt of a notification in terms of subsection (1), the Director-General –

1. may issue a warrant, in the form and manner prescribed, for the removal of the older person concerned to a hospital or such other place as the Director-General may determine;
2. must arrange that the older person receive the necessary treatment.

2. Any dentist, medical practitioner, nurse, social worker or other person will not be liable in respect of any notification given in good faith in accordance with subsection (1).
3. Any dentist, medical practitioner, nurse, social worker or other person who fails to comply with subsection (1) is guilty of an offence and is, notwithstanding section 40, liable on conviction to a fine or imprisonment for a period not exceeding five years, or to both such fine and such imprisonment.

21. (1) The Minister must, in the manner prescribed, cause to be kept a register of all notifications in terms of section 20(1), together with a description of the circumstances regarding each notification.

(2) A person whose name appears in the register is prohibited from re-opening or operating a facility providing care to older persons.

22.(1) Any caregiver, medical practitioner, nurse or any other person involved with older persons in a professional capacity who on personal observation concludes that an older person is in need of care or protection must report that conclusion to the Director-General, a social worker or a police officer.

2. Any person who believes that an older person is in need of care or protection may report that belief to a social worker or police officer.
3. The Director-General, social worker or police officer to whom a report has been made should make an initial assessment of the report by investigating the matter.
4. If the report is being substantiated by the investigation the Director-General, social worker or police officer must take the prescribed steps to ensure the well-being and safety of the older person.
5. An older person who is in need of care or protection is one who –

1. has his or her old age grant taken by force;
2. has been forcefully removed from his or her property;
3. has been neglected or abandoned without any visible means of support;
4. lives or works on the streets or begs for a living;
5. is addicted to a dependence-producing substance and is without any support or treatment for such dependency;
6. lives in circumstances likely to cause or be conducive to seduction, abduction or sexual exploitation;
7. lives in or is exposed to circumstances which may seriously harm that older person physically or mentally;
8. is in a state of physical or mental neglect; or
9. has been or is being abused by a care-giver or family member.

22.(1) An office of the Ombudsperson which shall be a juristic person is established;

(2) There shall be an Ombudsperson for Older Persons for the Republic appointed by the Minister.

2. The Ombudsperson must be a South African citizen who is a fit and proper person to hold such office, and who –

1. has a good standing in the community;
2. has a sound understanding of the needs of older persons and is committed to protect the rights of older persons;
3. has specialized knowledge of or experience in the field of older persons; and
4. has a sound understanding of management processes.

3. The Ombudsperson shall not perform remunerative duties outside his or her official duties.
4. The remuneration and other terms and conditions of employment of the Ombudsperson must be determined by the Minister in concurrence with the Minister of Finance.
5. The Minister may suspend the Ombudsperson and, subject to the provisions of this subsection, remove him or her from office-

1. for misconduct; or
2. for unfitness for the duties of his or her office; or
3. incapacity to carry out his or her duties efficiently.

6. If a vacancy occurs in the office of the Ombudsperson, the Minister must, subject to the provisions of subsection (2) appoint another person to that office.

24.(1) The Ombudsperson must, subject to his or her directions and control, in the performance of his or her functions under this Act be assisted by –

1. nine Deputy Ombudspersons representing each province appointed by the Minister, after consultation with the Ombudsperson;
2. a suitably qualified and experienced person as Chief Administrative Officer, appointed by the Ombudsperson or seconded in terms of subsection (8), for the purpose of assisting the Ombudsperson in the performance of all financial and administrative functions pertaining to the office of the Ombudsperson; and
3. such staff, seconded in terms of subsection (8) or appointed by the Ombudsperson, as may be necessary to enable the Ombudsperson to perform his or her functions.

2. A Deputy Ombudsperson has such powers as the Ombudsperson may delegate to him or her.
3. Whenever the Ombudsperson is, for any reason, unable to perform the functions of his or her office, or while the appointment of a person to the office of Ombudsperson is pending, the most senior Deputy Ombudsperson available shall perform such functions.
4. If a vacancy occurs in the office of the Deputy Ombudsperson the Minister may, subject to the provisions of this section, appoint another person to that office.
5. The remuneration and other terms and conditions of employment of a Deputy Ombudsperson shall from time to time be determined by the Minister, after consultation with the Ombudsperson.
6. The persons appointed by the Ombudsperson in terms of subsection (1)(b) or (c) shall receive such remuneration, allowances and other employment benefits and shall be appointed on such terms and conditions and for such periods, as the Ombudsperson may determine in concurrence with the Minister.
7. In exercising his or her powers in terms of subsection s (1) and (6), the Minister must consult with the Minister of Finance.
8. The Ombudsperson may, in the performance of the functions contemplated in subsection (1)(b), at his or her request, be assisted by officers in the Public Service seconded to the service of the Ombudsperson in terms of any law regulating such secondment.
9. A member of the office of the Ombudsperson shall –

1. serve impartially and independently and perform his or her functions in good faith and without fear, favour, bias or prejudice;
2. serve in a full-time capacity to the exclusion of any other duty or obligation arising out of any other employment or occupation or the holding of any other office.

25.(1) The Chief Administrative Officer referred to in section 24(1)(b)-

1. must, subject to the Public Finance Management Act, 1999 (Act No. 1 of 1999) –

1. be charged with the responsibility of accounting for money received or paid out for or on account of the office of the Ombudsperson;
2. cause the necessary accounting and other related records to be kept and be audited by the Auditor-General; and

2. may exercise such powers and must perform such duties as the Ombudsperson may from time to time confer upon or assign to him or her, and must in respect thereof be accountable to the Ombudsperson.

(2) The expenditure incidental to the performance of his or her functions under this Act by the Ombudsperson must be defrayed from money appropriated by Parliament for that purpose .

26 (1) Any matter in respect of which the Ombudsperson has jurisdiction may be reported to the Ombudsperson by any person –

1. by means of an oral declaration under oath or having made an affirmation, specifying –

2. the grounds on which he or she feels that an investigation is necessary; or
3. all other relevant information known to him or her; or

1. such other means as the Ombudsperson may allow with a view to making his or her office accessible to all persons.

(2) A member of the office of the Ombudsperson shall render the necessary assistance, free of charge, to enable any person to comply with subsection (1).

2. The Ombudsperson is competent –

1. to investigate, on his or her own initiative or on receipt of a complaint, any alleged –

1. abuse of older persons;
2. complaints and grievances of older persons;

2. to endeavour, in his or her sole discretion, to resolve any dispute or rectify any complaint or grievance by –

1. mediation, conciliation or negotiation;
2. advising, where necessary, any complainant regarding appropriate remedies; or
3. any other means that may be expedient in the circumstances; or

3. at a time prior to, during or after an investigation if he or she is of the opinion that the facts disclose the commission of an offence by any person, to bring the matter to the notice of the relevant authority charged with prosecutions.

2. In addition to the powers referred to in subsection (3), the Ombudsperson is on his or her own initiative or on receipt of a complaint competent to –

1. identify, investigate and resolve complaints made by or on behalf of older persons in relation to lack of action that may result in adverse effects on their health, safety, rights or well-being;
2. monitor the outcome of decisions taken regarding complaints and grievances;
3. call witnesses and access relevant documentation; and
4. conduct a preliminary investigation for the purpose of determining the merits of the complaint, allegation or information.

2. The format and the procedure to be followed in conducting any investigation is determined by the Ombudsperson with due regard to the circumstances of each case.
3. The Ombudsperson may designate any person to conduct an investigation or any part thereof on his or her behalf and to report to him or her and for that purpose such a person shall have such powers as the Ombudsperson may delegate to him or her.

(7)(a) For the purposes of conducting an investigation the Ombudsperson may direct any person to submit an affidavit or affirmed declaration or to appear before him or her to give evidence or to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated, and may examine such person.

(b) The Ombudsperson or any person duly authorized thereto by him or her may request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on a matter being or to be investigated.

2. A direction referred to in subsection (7)(a) shall be by way of a subpoena containing particulars of the matter in connection with which the person subpoenaed is required to appear before the Ombudsperson and shall be signed by the Ombudsperson and served on the person subpoenaed either by a registered letter sent through the post or by delivery by a person authorised thereto by the Ombudsperson.
3. The Ombudsperson may require any person appearing as a witness before him or her under subsection (7) to give evidence on oath or after having made an affirmation.
4. The Ombudsperson or any person authorized by him or her in writing may administer an oath to or accept an affirmation from any such person.
5. Any person appearing before the Ombudsperson by virtue of the provisions of subsection (7) may be assisted at such examination by an advocate or an attorney and shall be entitled to peruse such of the documents or records referred to in subsection (13) as are reasonably necessary to refresh his or her memory.
6. Notwithstanding anything to the contrary contained in any law no person shall disclose to any other person the contents of any document in the possession of a member of the office of the Ombudsperson or the record of any evidence given before the Ombudsperson, a Deputy Ombudsperson or a person contemplated in subsection (6) during an investigation, unless the Ombudsperson determines otherwise.
7. The Ombudsperson or any member of his or her staff shall be competent but not compellable to answer questions in any proceedings in or before a court of law or any body or institution established by or under any law, in connection with any information relating to the investigation which in the course of his or her investigation has come to his or her knowledge.
8. The Ombudsperson may make rules in respect of any matter referred to in this section which has a bearing on an investigation or in respect of any matter incidental thereto, provided that such rules must be published in the Government Gazette.

1. enter any building or premises;
2. make such investigation and inquiry has he or she may deem necessary;
3. seize anything on those premises which in his or her opinion has a bearing on the purpose of the investigation or make extracts from documents or copies thereof; and
4. require any person whom he or she suspects of having the necessary information, to give an explanation of anything contained in such a document.

28. No person shall –

1. insult the Ombudsperson or a Deputy Ombudsperson; and
2. in connection with an investigation do anything which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court.

29. The Ombudsperson may, with the specific or general approval of the Minister of Finance or any person authorized by the said Minister to so approve, order that the expenses or a portion of the expenses incurred by any person in the course of or in connection with an investigation by the Ombudsperson, be paid from State funds to that person.

30.(1) The office of the Ombudsperson is a juristic person.

2. The State Liability Act, 1957 (Act No. 20 of 1957), applies with the necessary changes in respect of the office of the Ombudsperson, and in such application a reference in that Act to "the Minister" is construed as a reference to the Ombudsperson in his or her official capacity.
3. Neither a member of the office of the Ombudsperson nor the office of the Ombudsperson shall be liable in respect of anything reflected in any report, finding, point of view or recommendation made or expressed in good faith and made known in terms of this Act.

31. A body to be known as the National Consultative Forum on Ageing is established.

32. The objectives of the Forum are –

1. to advise the Minister on ageing matters;
2. to monitor the development of services to older persons;
3. to make proposals to the Minister for the improvement and extension of services to older persons;
4. to act as a consultative forum for the Minister to discuss ageing matters such as older persons policy and legislation; and
5. to facilitate consultation between stakeholders and government regarding the implementation of older persons legislation.

33. The Forum, in order to achieve its objectives, must –

1. respond to, and advise the Minister on matters relating to older persons identified by, or referred to, the Forum;
2. identify, promote, monitor and evaluate policy, legislation and programmes with regard to older persons and its impact on the quality of life of older persons and the delivery of services to older persons;
3. facilitate dialogue between government and civil society on matters relating to older persons; and
4. submit a report on the activities of the Forum to the Minister at least once a year.

34. (1) The Forum consist of not less than ……. but not more than …… members appointed by the Minister, of whom –

1. at least one, but not more than three, must be a representative from the office of the Minister, the Department or the Heads of Social Development; and
2. at least …….. are persons who have knowledge or experience of older persons and are actively involved in the older persons sector.

2. In appointing members to the Forum, the Minister must ensure that the Forum represents a broad cross-section of the population of South Africa and comprises of persons who reflect South African society with special attention to race, gender, disability and geographical spread.
3. The members referred to in subsection (1)(b) must be nominated by organisations in the older persons sector or by the public.
4. For the purpose of nominations of members referred to in subsection (1)(b), the Minister must invite such nominations by notice in the Gazette and by publication in at least two national newspapers, and may invite such nominations through any other media.
5. The members referred to in subsection (1)(b) must be appointed only after the parliamentary committees on Social Development of the National Assembly and the National Council of Provinces have made recommendations to the Minister regarding such appointment.
6. The Minister must, by notice in the Gazette, within 30 days after the appointment of such members, publish the names of the members of the Forum and the date of commencement of their period of office.

35.(1) A person may not be appointed as a member of the Forum if he or she –

1. is not permanently resident in the Republic;
2. has been convicted of a criminal offence, whether in the Republic or elsewhere, and was sentenced to imprisonment without the option of a fine, unless it has been established that such a person was granted amnesty in respect of an offence of which he or she was convicted and such an offence was politically motivated; and
3. has been disqualified under any law from practicing his or her profession.

2. The members of the Forum referred to in section 34(1)(b) hold office for a period of three years with effect from the date of their appointment.
3. Members referred to in section 34(1)(b) are at the expiry of their terms of office eligible for reappointment to not more than one consecutive term.
4. A member referred to in section 34(1)(b) vacates his or her office if that member –

1. has been absent from more than two consecutive ordinary meetings of the Forum without the permission of the Forum or without a written apology;
2. is disqualified under any law from practicing his or her profession;
3. submits his or her resignation in writing to the Minister; or
4. ceases to be permanently resident in the Republic.

2. A member of the Forum vacates his or her office if the Minister terminates his or her membership for reasons, which are just or fair.
3. If there is a vacancy on the Forum the Minister may, despite the provisions of section 34(3), (4) and (5) after consultation with the Forum, appoint a person who meets the criteria referred to in section 34(2), to fill the vacancy.
4. A member of the Forum, excluding a member who is in the employ of the State, must be paid allowances and disbursements as may be determined by the Minister in consultation with the Minister of Finance.

36.(1) Before the first meeting of a newly constituted Forum the Minister must appoint a chairperson, and at that first meeting the members of the Forum must elect from among themselves the vice-chairperson.

(2) (a) If the office of the chairperson or vice-chairperson becomes vacant, the Minister or the members of the Forum, as the case may be, must, at the first meeting after such vacancy occurred, appoint a new chairperson or elect from among themselves a new vice-chairperson, as the case may be.

(b) The chairperson or vice-chairperson holds office for the unexpired portion of the period of office of his or her predecessor.

(3) The chairperson or vice-chairperson of the Forum may vacate his or her office without terminating his or her membership of the Forum, in which case such a vacancy must be filled in terms of subsection (2)(a).

37.(1) The Forum must meet for the first time at a place determined by the Minister and thereafter at a time and place determined by the chairperson, or if he or she is absent, the vice-chairperson.

(2) (a) When the chairperson is absent or unable to perform his or her fun actions, the vice-chairperson must act as chairperson.

(b ) If both the chairperson and vice-chairperson are absent from a meeting or unable to perform their functions, the members present must elect a person from among themselves to preside at that meeting.

(3) The Forum must determine the procedure for calling meetings and the procedures to be followed at meetings.

2. The majority of the members of the Forum constitute a quorum for a meeting of the Forum.
3. The Forum must hold at least three meetings each year.
4. (a) The Forum may hold such special meetings as the Forum may, from time to time, determine.

(b) The chairperson may at any time convene a special meeting of the Forum, but must convene such special meeting at the written request of the Minister or of at least …… members of the Forum.

5. A decision or recommendation taken by the Forum, or an action taken on authority of such decision or recommendation, is not invalid merely because –

1. of a casual vacancy in the Forum; or
2. a person who was entitled to sit as a member of the Forum did not sit when the decision was taken.

Personnel and finances of Forum

38.(1)(a) The Director-General must, after consultation with the Forum, designate officers or employees appointed in terms of the Public Service Act, 1994 (Proclamation No. 103 of 1994), for the proper performance by the Forum of its duties.

(b) The personnel referred to in paragraph (a) are responsible to the chairperson of the Forum and accountable to the Department.

3. The Director-General is the accounting officer of the Forum.
4. Subject to any law regulating access to information, the Department must provide the Forum with such information the Forum may require to fulfil its duties under this Act.

2. Subject to any law governing the provision of services to the State, the Director-General may, at the request of the Forum, enter into agreements with persons for the performance of specific duties or for the provision of specific services.
3. The expenses of the Forum are funded by the Department from money appropriated for that purpose by Parliament or received from other sources approved by the Minister.

39.(1) The Minister may –

1. delegate to any officer of the Department any power conferred upon the Minister by this Act, except the power under section ……. to make regulations;
2. authorize any such officer to perform any duty imposed upon the Minister by this Act.

2. The Minister may, with the concurrence of the Premier of a province –

1. delegate to the member of the Executive Council of that province responsible for welfare matters in the province any power conferred upon the Minister by this Act, except the power under section ….. to make regulations;
2. authorize that member of the Executive Council to perform any duty imposed upon the Minister by this Act.

2. The member of the Executive Council of a province responsible for welfare matters in the province may –

1. delegate to any officer of the provincial administration concerned any power delegated to that member under subsection (2);
2. authorize any such officer to perform any duty, which that member is authorized to perform under subsection (2).

2. The Director-General may –

1. delegate to any other officer of the Department any power conferred upon the Director-General by this Act;
2. authorize any such officer to perform any duty imposed upon the Director-General by this Act.

2. The Director-General may, with the concurrence of the Director-General of a provincial administration (in this section referred to as the "provincial Director-General")-

1. delegate to that provincial Director-General any power conferred upon the Director-General by this Act;
2. authorize that provincial Director-General to perform any duty imposed upon the Director-General by this Act.

2. A provincial Director-General may –

1. delegate to any other officer of the provincial administration concerned any power delegated to him or her under subsection (5);
2. authorize any such officer to perform any duty, which he or she is authorized to perform under subsection (5).

2. Any person to whom any power has been delegated or who has been authorized to perform a duty under this section, must exercise that power or perform that duty subject to such conditions as the person who effected the delegation or granted the authorization considers necessary.
3. Any delegation of a power or authorization to perform a duty under this section –

1. must be in writing;
2. must not prevent the person who effected the delegation or granted the authorization from exercising that power or performing that duty himself or herself;
3. may at any time be withdrawn in writing by that person.

40. Despite the provisions of any other law, any person who –

1. contravenes a prohibition, condition, obligation or order imposed in terms of this Act;
2. fails to comply with the provisions of this Act,

41. The Minister may make regulations regarding –

1. any matter which may or is required to be prescribed in terms of this Act;
2. the form of any application, authority, certificate, consent, notice, order, register, process or subpoena which is to or may be made, granted, given, issued or kept in terms of this Act, and any other form required in administering the provisions of this Act;
3. the procedure to be followed and the conditions which may be imposed in connection with the registration of residential facilities, and the minimum standards with which such facilities are to comply;
4. the books, accounts and registers which are to be kept by the managers of residential facilities, the manner in which such books, accounts and registers are to be kept and dealt with, and the returns and reports to be furnished in connection with such residential facilities;
5. the records to be kept by any person who cares for or accommodates for remuneration, whether by way of money or goods, any older or frail person in any place other than a residential facility;
6. measures –

1. to prevent, combat and deal with the abuse of older persons;
2. to be taken to advance persons disadvantaged by unfair discrimination;
3. to promote the rights of residents of residential facilities;

1. the form and content of service level agreements between the residents and the management committee of a residential facility;
2. the minimum standards for residential facilities;
3. the minimum norms and standards for admission of persons to residential facilities;
4. the conditions of use of subsidies;
5. the form of, and manner in which, a warrant is to be issued;
6. the keeping of a register of all notifications;
7. levels of community based care and support and focus of such services;
8. service standards;
9. composition of management committees. and
10. generally, any matter in respect of which the minister considers it necessary or expedient to make regulations in order to achieve the objectives of this Act;

42.(1) The Aged Persons Act, 1967 is repealed in so far as it relates to provisions which have not been assigned to a competent authority within the jurisdiction of the government of a province in terms of Proclamation No. R.7 of 1996.

2. The Aged Persons Amendment Act, 1998 is hereby repealed.
3. Anything done or deemed to have been done under any provision of an Act repealed by subsections (1) and (2) and which may be done under the last mentioned provisions, and any matter which has commenced under a provision so repealed, must be disposed of as if the provision concerned was not repealed, unless the Minister provides otherwise.

43.(1) This Act is called the Older Persons Act, 2003 and comes into operation on a date determined by the President by proclamation in the Gazette.

2. Different dates may be so determined in respect of different provisions of this Act.