DRAFT DISCUSSION DOCUMENT CONTAINING UNOFFICIAL PROPOSALS MADE BY THE SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE OF THE NATIONAL ASSEMBLY

REPUBLIC OF SOUTH AFRICA

SOCIAL ASSISTANCE BILL

 

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(As introduced in the National Assembly as a section 76 Bill, explanatory summary of Bill published by General Notice No. 2173 in Government Gazette No. 25340 of 8 August 2003.) (The English text is the official text of the Bill)

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(MINISTER OF SOCIAL DEVELOPMENT)

 

[ B -2003]

 

 

040803SE

 

BILL

To provide for the rendering of social assistance to persons; to provide for the mechanism for the rendering of such assistance; to provide for the establishment of an inspectorate for social [security] assistance, and to provide for matters connected therewith.

PREAMBLE

SINCE the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), provides that everyone has the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance, and obliges the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights;

AND SINCE the effective provision of social assistance requires uniform norms and standards, standardized delivery mechanisms and a national policy for the efficient, economic and effective use of the limited resources available for social assistance and for the promotion of equal access to government services;

THEREFORE in order to prevent the proliferation of laws, policies and approaches to execution thereof from materially prejudicing the beneficiaries or recipients of social security as well as the economic interests of provinces or the Republic as a whole or from impeding the implementation of a national social assistance economic policy;

AND in order to assist in securing the well-being of the people of the Republic and to provide effective, transparent, accountable and coherent government in respect of social assistance for the Republic as a whole,

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

ARRANGEMENT OF ACT

Sections

CHAPTER 1

DEFINITIONS, APPLICATION AND OBJECTS OF ACT

1. Definitions

2. Application and implementation of Act

3. Objects of Act

CHAPTER 2

SOCIAL ASSISTANCE

4. Payment of social grants

5. Social grants

6. Child support grant

7. Child Disability grant

8. Foster child grant

9. Disability grant

10. Older person’s grant

11. War veteran’s grant

12. Grant-in-aid

13. Financial awards to welfare organisations and persons

CHAPTER 3

ADMINISTRATION OF SOCIAL ASSISTANCE

14. Application for social assistance

15. Appointment of procurator

16. Discontinuation of payment to persons absent from Republic

17. Recovery of sums overpaid

18. Appeal

19. Misuse of social assistance

20. Restrictions on transfer of rights and payments of social assistance

21. False representations

22. Information to be furnished to Agency

23. Power of Agency to investigate

 

CHAPTER 4

NATIONAL DEPARTMENT

24. Functions

CHAPTER 5

INSPECTORATE FOR SOCIAL ASSISTANCE

25. Inspectorate for Social Security

26. Independence of Inspectorate

27. Funding and employees of Inspectorate

28. Functions of Inspectorate

29. Power of Inspectorate to request information and to subpoena

30. General power to enter, search and seize

31. Powers of Inspectorate to enter, search and seize with warrant

32. Powers of Inspectorate to enter, search and seize without warrant

CHAPTER 6

GENERAL PROVISIONS

33. Delegation

34. Offences

35. Penalties

36. Regulations

37. Repeal of legislation

38. Short title and Commencement

CHAPTER 1

DEFINITIONS, APPLICATION AND OBJECTS OF ACT

Definitions

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

"Agency" means the South African Social Security Agency established by the South African Social Security Agency Act, 2003;

"applicant" means a person who applies for social assistance in respect of himself or herself or on behalf of another person in terms of this Act;

"beneficiary" means a person who receives social assistance in terms of sections 6, 7, 8, 9, 10, [or] 11 or 12;

"child" means a person under the age of 18 years;

"child-headed household" means a household contemplated in the definition thereof in section 1 of the Children’s Act, 2003

"care-dependency grant" means a grant made in terms of section 7;

"care-dependent child" means a child who requires and receives permanent care due to his or her severe mental or physical disability;

"Department" means the Department of Social Development in the national sphere of government;

"dependent" means a person whom the beneficiary is legally obliged to support financially and is in fact supporting;

"disabled person" means a person contemplated in paragraph (b) of section 9;

"foster child" means a child who has been placed in the custody of a foster parent in terms of Chapter 3 or 6 of the Child Care Act, 1983 (Act No. 74 of 1983), or section 290 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), or a tutor to whom a letter of tutorship has been issued in terms of Chapter IV of the Administration of Estates Act, 1965 (Act No 66 of 1965);

"foster parent" means a person, except a parent of the child concerned, in whose custody a foster child has been placed in terms of any law, or a tutor to whom a letter of tutorship has been issued in terms of Chapter IV of the Administration of Estates Act, 1965 (Act No 66 of 1965);

"grant" means income support awarded to an eligible beneficiary;

"Inspector" means an employee of the inspectorate, authorised in terms of section 28(3);

"Inspectorate" means the Inspectorate established in terms of section 25;

"Inspector-General" means the person appointed in terms of section 27(2);

"Minister" means the Minister of Social Development in the national sphere of Government;

"older person" means a person contemplated in paragraphs (a) or (b) of section 10;

"parent" means a parent as defined in the Child Care Act, 1983 (Act No. 74 of 1983);

"prescribed" means prescribed by regulation;

"primary care giver", means a person older than 16 years, whether or not related to a child, who takes primary responsibility for meeting the daily care needs of that child;

"regulation" means a regulation made in terms of this Act;

"social assistance" means a grant in terms of this Act;

"South African citizen" means a person who has acquired citizenship in terms of Chapter Two of the South African Citizenship Act, 1995 (Act No. 88 of 1995) and includes any person who is –

(a) not a South African citizen and who prior to 1 March 1996 was in receipt of a benefit similar to a grant in terms of any law repealed by section 20 of the Social Assistance Act, 1992 (Act No. 59 of 1992); or

(b) a member of a group or category of persons determined by the Minister, with the concurrence of the Minister of Finance, by notice in the Gazette;

"Treasury" means the National Treasury established by section 5 of the Public Finance Management Act, 1999 (Act No. 1 of 1999);

"this Act" includes the regulations;

"war veteran" means a person contemplated in subparagraphs (i), (ii), (iii) or (iv) of paragraph (b) of section 11;

"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, and includes a nonprofit organisation established in terms of the Nonprofit Organisations Act, 1997 (Act No. 71 of 1997).

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Application and implementation of Act

2. (1) This Act applies to a person who is not a South African citizen [has the same rights and obligations in terms of this Act as a South African citizen] if an agreement, contemplated in section 231(2) of the Constitution, between the Republic and the country of which that person is a citizen makes provision for this Act to apply to a citizen of that country who resides in the Republic.

[(2) In order to ensure the efficient and effective management, administration and payment of social assistance, the Minister may subject to subsection (3) delegate the implementation and execution of this Act, excluding Chapter 4 and section 36, to the Agency or any other Agency.

(3) The delegation contemplation in subsection (2) must—

(a) be in writing and the Minister must prior to the commencement of that delegation publish a copy thereof by notice in the Gazette;

(b) specify—

(i) in respect of which geographical area the delegation applies;

(ii) that it applies continuously until the Minister withdraws it in writing;

(iii) the conditions, proviso's directions or limitations subject to which the Agency or other Agency may exercise the powers and must perform the duties in terms of the delegation; and

(iv) the financial arrangements, if any which apply.

(4) A delegation contemplated in subsection (2) does not prevent the Minister from exercising a power or performing a duty himself or herself and the Minister may, at any time withdraw such delegation after publishing the withdrawal of that delegation by notice in the Gazette.

(5) A delegation made in terms of subsection (2) prevails if and to the extent that it conflicts with a delegation made in terms of or under section 33, irrespective of dates upon which the respective delegations were made.

(6) The Minister may from time to time subject to subsection (3)—

(a) amend the delegation;

(b) issue directives or guidelines to the Agency or other Agency, as the case may be, in order to facilitate or improve the implementation or execution of the delegation.]

(2) The Agency is responsible for the implementation and execution of Chapters 2 and 3 of this Act.

(3) The Agency must offer all reasonable assistance to a person who, due to his or her age, a disability or an inability to read or write, is unable to understand, appreciate or exercise his or her rights, duties or obligations in terms of this Act in an official language of the Republic which he or she is likely to understand, in order that he or she may do so.

(4) The Agency must from time to time with funds specially voted by Parliament for this purpose or with funds donated for this purpose publish a sufficient number of brochures in all official languages of the Republic setting out in plain and understandable language the rights, duties, obligations, procedures and mechanisms contemplated in this Act as well as contact details of the Agency or anyone acting on its behalf, for distribution to beneficiaries and potential beneficiaries.

Objects of Act

3. The objects of this Act are to –

(a) provide for the financing of social assistance;

(b) provide for the administration of social assistance and payment of social grants;

(c) make provision for social assistance and to determine the qualification requirements in respect thereof;

(d) ensure that minimum norms and standards are set for the delivery of social assistance; and

(e) provide for the establishment of an inspectorate for social security.

CHAPTER 2

SOCIAL ASSISTANCE

Financing of Social Assistance

4. The Minister must with the concurrence of the Minister of Finance, out of moneys appropriated by Parliament for that purpose, make available—

(a) social grants to older and disabled persons, and to war veterans;

(b) a grant-in-aid to or on behalf of any person referred to in paragraph (a) whose physical or mental condition is such that he or she requires regular attendance by any person;

(c) a child support grant to a primary care giver of a child;

(d) a foster care grant to a foster parent; and

(e) a care dependency grant to a parent, primary care giver or foster parent in respect of a care dependent child.

Eligibility for Social Assistance

5. (1) A person is entitled to the appropriate social assistance grant if he or she —

(a) is eligible in terms of section 6, 7, 8, 9, 10, 11 or 12;

(b) is resident in the Republic at the time of making the application;

(c) is a South African citizen or is a member of a group or category of persons prescribed by the Minister, with the concurrence of the Minister of Finance, by notice in the Gazette; [and]

(d) complies with any additional requirements or conditions prescribed in terms of subsection (2); and
  1. complies with section 14.

(2) The Minister may prescribe additional requirements or conditions in respect of—

(a) income thresholds;

(b) means testing;

(c) age limits, disabilities and care dependency;

(d) proof of and measures to establish or verify identity, gender, age, citizenship, family relationships, care dependency, disabilities, foster child and war veterans' status;

(e) forms, procedures and processes for applications and payments;

(f) measures, to prevent fraud and abuse;

(g) criteria for funding in terms of section 13.

Child support grant

6. A person is subject to section 5, eligible for a child support grant if he or she is the primary care giver of that child.

Care dependency grant

7. A person is, subject to section 5, eligible for a care dependency grant if he or she –

(a) is a parent, primary care giver or foster parent of a child who requires and receives permanent care or support services due to his or her physical or mental disability; and

(b) the child is not cared for on a 24 hour basis for a period exceeding six months in an institution that is fully funded by the State.

Foster child grant

8. A foster parent is subject to section 5, eligible for a foster child grant for a child, for as long as that child needs such care if—

(a) the foster child is in need of care; and

(b) he or she satisfies the requirements of the Child Care Act, 1983 (Act No. 74 of 1983).

Disability grant

9. A person is, subject to section 5, eligible for a disability grant, if he or she—

(a) has attained the prescribed age; and

(b) is, owing to a physical or mental disability, unfit to obtain by virtue of any service, employment or profession the means needed to enable him or her to provide for his or her maintenance.

Older persons grant

10. A person is, subject to section 5, eligible for a grant for older persons if—

(a) in the case of a woman, she has attained the age of 60 years; and

(b) in the case of a man, he has attained the age of 65 years.

War Veterans’ Grant

11. A person is, subject to section 5, eligible for a war veteran’s grant if he or she—

(a) has attained the age of 60 years; and

(b) owing to a physical or mental disability, is unable to provide for his or her maintenance, and has—

(i) performed any naval, military or air force service during the Great War of 1914–1918 as a member of any Union or British Force or who was a member of the protesting burgher forces during the period September 1914 to February 1915;

(ii) performed any naval, military or air force service during the war which commenced on 6 September 1939 as a member of the Union Defence Forces or, in the case of a Union national, as a member of any British or Dominion Force or any force of a government which was allied to the Government of the Union during that war;

(iii) while he or she was not a Union national, performed any naval, military or air force service during the war referred to in paragraphs (i), (ii), (iii) as a member of any British or Dominion Force and who is a South African citizen on the date on which he or she applies for a war veteran’s pension; or

(iv) while he or she was a member of the Union Defence Forces, signed an undertaking to serve in connection with the hostilities in Korea and who during such hostilities performed any naval, military or air force service on or after the date on which he or she had been detailed for duty in connection therewith.

Grant-in-aid

12. A person is, subject to section 5, eligible for a grant-in-aid if, due to a physical or mental disability, he or she requires regular attendance by another person.

Financial awards to welfare organisations and persons

13.(1) The Minister may, with the concurrence of the Minister of Finance, out of moneys appropriated by Parliament for that purpose, make financial awards to—

(a) any welfare organisation which undertakes or co-ordinates organised activities, measures or programmes in the field of developmental social welfare services;

(b) any nonprofit organisation registered in terms of section 13 of the Nonprofit Organisations Act, 1997 (Act No. 71 of 1997), which in terms of its constitution has the care of mentally or physically disabled persons as one of its objects.
    1. Subsection (1) ceases to have power or effect after three years after the commencement thereof.

CHAPTER 3

ADMINISTRATION OF SOCIAL ASSISTANCE

Application for social assistance

14. (1) Any person who wishes to apply for social assistance contemplated in sections 6 to 12 must do so in the prescribed manner.

(2) In considering an application made in terms of subsection (1), the Agency may conduct an investigation and request additional information.

(3)(a) If the applicant qualifies for social assistance in terms of this Act, the Agency must authorise the rendering of the relevant social assistance.

(b) If the applicant does not qualify for social assistance in terms of this Act, the Agency must in writing at the applicant’s address or other point of contact stated in the application inform the applicant thereof as well as of his or her right of appeal contemplated in section 18 and of the mechanism and procedure to invoke that right.

(4) No person may divulge any personal information of an applicant furnished in respect of an application except –

(a) to a person who requires it in order to perform a function in terms of this Act; or

(b) when required to do so by law or by an order of court.

(5) If any information supplied by a beneficiary to the Agency in an application for a grant materially changes after that beneficiary has submitted that application, he or she must as soon as is reasonably possible after that change occurs inform the Agency thereof.

Appointment of procurator

15. (1) A person applying for or receiving social assistance may subject to subsection (4) appoint a procurator, by a power of attorney, to apply or receive social assistance on his or her behalf, in accordance with the prescribed requirements.

(2) In the case of a disabled person [with a disability] or an older person who is unable to complete a power of attorney, or a person who is unable to write, the Agency may subject to subsection (4) nominate an adult person to receive the grant on the beneficiary’s behalf, if the person so nominated satisfies the prescribed conditions.

(3) Stamp duty is not payable in respect of a power of attorney given by an applicant to any person to apply for social assistance on his or her behalf or in respect of a power of attorney given by a beneficiary to any person to receive payment of any grant on his or her behalf.

(4) A procurator who has failed or refused to inform the Agency of his or her intention to be absent from the Republic for a period exceeding thirty days, as contemplated in section 16(3), is unfit to act as procurator and may not continue to act as procurator or be nominated or appointed as procurator unless the Agency decides otherwise as provided for in section 16(5).

Discontinuation of payments to persons absent from Republic

16. [(1) The Agency must immediately discontinue the payment of a grant if the beneficiary is absent from the Republic for a continuous period exceeding six months.

(2) If the Agency has discontinued the payment of a grant in terms of subsection (1), he or she may upon proof that the beneficiary has resumed residence in the Republic, resume payment of such a grant, subject to such conditions as he or she may determine.]

(1) If a beneficiary or a procurator intends to be absent from the Republic for a period exceeding thirty days, he or she must prior to being so absent inform the Agency thereof and the Agency must subject to subsection (2) discontinue payment of a grant until that beneficiary or procurator, as the case may be, appears in person before the Agency and informs the Agency that he or she has returned permanently to the Republic.

(2) The Agency may upon written request by a beneficiary or a procurator contemplated in subsection (1) in circumstances prescribed by the Minister by notice in the Gazette continue payment of a grant or a portion thereof to that beneficiary or procurator subject to such conditions and for such a period as the Agency in its sole discretion may determine.

(3) If a beneficiary or procurator fails or refuses to inform the Agency as contemplated in subsection (1), the Agency must –

(a) immediately discontinue payment of the relevant grant;

(b) note that failure or refusal and any other information relevant to the absence of that beneficiary or procurator on his or her records;

(c) record that that beneficiary or procurator has subject to subsection (5) forfeited his or her rights to social assistance in terms of this Act or of his or her right to act as a procurator, as the case may be;

(d) take the prescribed steps in terms of the Public Finance Management Act, 1996, to recover any payment made after the beneficiary or procurator, as the case may be, was absent from the Republic for a period exceeding thirty days;

(e) take any further action contemplated in this Act.

(4) If the Agency has taken action contemplated in subsection (4), it must in writing, by registered mail at the last known address in the Republic or by verifiable notification at a point of contact with that beneficiary, inform the beneficiary in an official language of the Republic which he or she is most likely to understand that he or she –

(a) has forfeited his or her right to social assistance in terms of this Act and that no further payment of a grant will continue to be made to that beneficiary;

(b) is entitled to written reasons from the Agency for its decision to act in terms of paragraph (a); and

(c) has the right to inform the Agency and within 90 days from the date of postage of the registered mail, of the circumstances or reasons why he or she so failed or refused to inform the Agency of his or her absence, and of an alternative address where he or she can receive physical mail

(5) The Agency must after receipt of information, if any, submitted by a beneficiary or procurator in terms of paragraph (c) of subsection (4) –

(a) consider such information and must decide, in its sole discretion, whether or not to re-instate that beneficiary’s or procurator’s rights in terms of this Act;

(b) in writing by registered mail at the last known address of that beneficiary in the Republic or at an alternative address supplied by that beneficiary or procurator, as the case may be, inform him or her in the official language of the Republic in which he or she submitted that information –

(i) of the Agency’s decision; and

(ii) that he or she has a right of appeal contemplated in section 18 and of the mechanism and procedure to invoke that right.

 

Recovery of sums overpaid

17. (1) If the Agency pays money [is paid] to a person in the belief that he or she is entitled thereto in terms of this Act or any law repealed by this Act, but he or she was not entitled thereto, the amount of money so paid is an amount due and payable to the State by such a person or, if he or she is deceased, by his or her estate.

(2) [The Minister may, with the concurrence of the Minister of Finance, write off the whole or any portion of an amount owing to the State in terms of this section, if recovery of such amount would be uneconomical or would cause undue hardship to the debtor concerned or his or her dependents.] The Agency must recover the amount to which a person was not entitled, as contemplated in subsection (1), in accordance with the Public Finance Management Act, 1999.

Appeal

18. (1) If an applicant disagrees with a decision made by the Agency in respect of a matter regulated by this Act, that person or a person acting on his or her behalf may, within 90 days of his or her gaining knowledge of that decision, lodge a written appeal with the Minister against that decision, setting out the reasons why the Minister should vary or set aside that decision.

(2) The Minister may, after considering the appeal and the Agency’s reasons for the decision—

(a) confirm, vary or set aside that decision; or

(b) appoint an independent tribunal to consider the appeal in accordance with [the prescribed] such conditions as the Minister may prescribe by notice in the Gazette, and that tribunal may, after consideration of the matter, confirm, vary or set aside that decision or make any other decision which is just.

Misuse of social assistance

19. If a beneficiary, procurator, primary care giver or an applicant misuses a grant, the Agency may—

(a) suspend payment of the grant in question, whether temporarily or indefinitely; or

(b) appoint a person, other than a person contemplated in section 15(4), to receive the grant on behalf of the beneficiary and to apply it for the benefit of that beneficiary, subject to any condition that the Agency may determine,

and must –

(i) take all relevant steps in terms of this Act and the Public Finance Management Act, 1999, to recover the payment of the grant so misused; and

(ii) make a resumption or continuation of payment of that grant subject to such terms and conditions as may prevent the beneficiary, procurator, primary care giver or an applicant from continuing or repeating such misuse.

Restrictions on transfer of rights and payments of social assistance

20. (1) A [person entitled to receive social assistance in terms of this Act or anyone acting on his or her behalf] beneficiary or procurator may not transfer, cede, pledge or in any other way encumber or dispose of such right unless the Agency on good grounds in writing consents thereto.

(2) Any act in contravention of subsection (1) is void and if the [Minister] the Agency becomes aware of any such act, [he or she may order that] it must immediately suspend or terminate payment of the relevant grant [in question be withheld, suspended or terminated].

(3) A beneficiary must without limitation or restriction receive the full amount of a grant before any other person may [make deductions] exercise any right or enforce any claim in respect of that amount.

(4) An amount that accrues or has accrued to a beneficiary in terms of this Act may not be attached or subjected to any form of execution under a judgment or order of a court or by law, or form part of his or her insolvent estate.

False representations

21. (1) A person is guilty of an offence if such person, when applying for social assistance, furnishes information which he or she knows to be untrue or misleading in a material respect or makes a representation which to his or her knowledge is false, in order that he or she or another person may –

(a) obtain or retain social assistance to which he or she is not entitled in terms of this Act; or

(b) obtain social assistance in excess of that to which he or she is entitled in terms of this Act.

(2) If any person receives social assistance knowing that he or she is not entitled thereto or not to the full amount which he or she is receiving, and he or she fails to inform the Agency thereof, he or she is guilty of an offence.

(3) A beneficiary who knowingly fails or refuses to inform the Agency of any material change of information contemplated in section 14(5), is guilty of an offence.

Information to be furnished to Agency by third parties

22. (1) Notwithstanding anything to the contrary in any law, an organ of state must, at the request of the [Minister] Agency and subject to subsection (3), furnish [the Minister] it with [the prescribed] all relevant information relating to an applicant or beneficiary [and with any additional information requested if such information is necessary for a decision on an application].

(2) A financial institution referred to in the definition of "financial institution" in section 1 of the Financial Services Board Act, 1990 (Act No. 97 of 1990) must, notwithstanding anything to the contrary in any law, at the request of the [Minister] Agency and subject to subsection (3), furnish [the Minister] it with [the prescribed] all relevant information relating to the assets and investments of an applicant or beneficiary [as may be prescribed and with any additional information requested, if such information is necessary for a decision on an application].

(3) A person who in terms of subsections (1) or (2) furnishes information obtained before the commencement of this Act to the [Minister] Agency [in terms of subsections (1) or (2)] must, when doing so, inform the person concerned of that fact in writing.

(4) A person who after the commencement of this Act applies for a grant in terms of this Act is deemed to have agreed, by making such an application that any other person who holds personal information relevant to that application may, without requesting permission from him or her, make that information available to the [Minister] Agency.

Power of Agency to investigate

23. (1) The Agency may, in the performance of [his or her] its functions, inquire into any matter concerning the rendering of social assistance, and may for such purpose –

(a) subpoena any person who can furnish information of material importance concerning the matter under investigation, or who is reasonably assumed to have under his or her control a book, document or thing that may have a bearing on the investigation, to appear within a reasonable period before him or her and to furnish such information or to produce such book, document or thing, as the case may be;

(b) through its representative administer an oath to or cause that person to make an affirmation if that person was or could have been subpoenaed in terms of paragraph (a) and he or she is present at the enquiry;

(c) through its representative cross-examine any person referred to in paragraph (b).

(2) A subpoena to appear before the Agency must be in the prescribed form and must be served on the person by registered mail or in the manner in which it would have been served had it been a subpoena issued by the clerk of a magistrate’s court.

(3) The rules with regard to privilege, which are applicable in the case of a person who has been subpoenaed to give evidence or to produce a book, document or thing before a court of law, apply in respect of the examination of a person and the production of a book, document or thing contemplated in subsection (1).

CHAPTER 4

FUNCTIONS OF [DIRECTOR-GENERAL] MINISTER

Functions of [Director-General] Minister

24. (1) The [Director-General of the Department] Minister must—

(a) develop, promote and co-ordinate the national policy framework in respect of social assistance grants [for approval by the Minister];

(b) [advise the Minister on the implementation of] determine uniform norms and standards for service delivery;

[(c) monitor and assess the implementation of this Act, including the prescribed norms and standards applicable to an Agency, in respect of social assistance service delivery;]

([d]c) [advise the Minister on the making of] make regulations to ensure the effective administration of the Act;

[(e) assist administrators in building capacity for efficient, effective and transparent service delivery; and

(f) maintain a national data base of all applicants for and beneficiaries of social assistance grants.]

(d) approve the budget proposed for social assistance grants.

CHAPTER 5

INSPECTORATE FOR SOCIAL ASSISTANCE

Inspectorate for Social Assistance

25. (1) [An] The Inspectorate for Social Assistance is hereby established as an organisational component contemplated in Schedule 3 to the Public Service Act, 1994 (Act No. 103 of 1994) and is headed by a person designated as Inspector-General [and functions independently of both the Department and the Agency].

(2) The Inspectorate [is established as an organisational component contemplated in Schedule 3 to the Public Service Act, 1994 (Act No. 103 of 1994)] functions independently of both the Department and the Agency.

(3) The Public Service Act, 1994, applies to the Inspectorate to the extent that this Act does not provide to the contrary.

(4) The Minister exercises final responsibility over the Inspectorate.

(5) To enable the Minister to exercise his or her final responsibility in terms of subsection (4), the Inspector-General must, at the request of the Minister—

(a) furnish him or her with information or a report with regard to any case, matter or subject dealt with by the Inspector-General, an inspector or any other employee of the Inspectorate in the performance of his or her functions; and

(b) provide him or her with reasons for any decision taken by the Inspector-General, an inspector or any other employee of the Inspectorate in the performance of his or her functions.

Independence of Inspectorate

26. (1) No person may in any way interfere with, hinder or obstruct any member of the Inspectorate in the performance of his or her functions. (2) A person who contravenes subsection (1) is guilty of an offence.

(3)  All organs of state must accord such assistance as may be reasonably required for the protection of the independence, impartiality, dignity and effectiveness of the Inspectorate in the performance of its functions.

Funding and employees of Inspectorate

27. (1) The Inspectorate is funded by money appropriated by Parliament for that purpose.

(2) The Minister must in concurrence with the national Cabinet appoint an Inspector-General to head the Inspectorate.

(3) The Inspector-General reports and is accountable directly to the Minister.

(4)  The Inspector-General must, subject to law governing the public service, appoint suitable persons as employees of the Inspectorate in accordance with an organisational establishment approved by the Minister, and that establishment must differentiate between employees who are to be appointed as inspectors exercising powers in terms of or under sections 28, 30, 31 and 32, and other employees who are to be appointed to perform other functions within the Inspectorate.

(5) The terms and conditions of service of the employees of the Inspectorate are determined by the laws governing the public service.

(6) A document, issued by the Inspector-General in the prescribed form, certifying that a person is an [employee] inspector of the Inspectorate and has been authorised to exercise the powers and perform the duties contemplated in [this Act] sections 28, 29, 30, 31 and 32, is prima facie proof of those facts.

(7) The Inspector-General may for good reason at any time withdraw a document issued under subsection (6), and a person in possession of such a document must, upon being informed of such withdrawal, return that document to the Inspector-General.

(8) A person who fails or refuses to comply with subsection (7), is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

(9)  A person who—

(a) wilfully discloses information regarding the operations of the Inspectorate[, the Department or the Agency]; and

(b) knows or could reasonably be expected to know that the disclosure would prejudicially affect any of those operations,

is guilty of an offence and liable, on conviction, to a fine or to imprisonment for a period not exceeding two years or to both a fine and such imprisonment.

Functions of Inspectorate

28. (1) The Inspectorate must, [within the Agency] –

(a) conduct investigations to ensure the maintenance of the integrity of the social [security] assistance frameworks and systems;

(b) execute [internal financial audits and] audits on compliance by the Agency with [regulations] relevant regulatory and policy measures and instruments;

(c) investigate fraud, corruption and other forms of financial and service mismanagement and criminal activity, within the Agency and in connection with its functions, duties and operations; and

(d) in general, do everything necessary to combat the abuse of social assistance.

(2) The Inspectorate may—

(a) of its own accord or upon receipt of a complaint, investigate any alleged contravention of this Act by any person, and may, where appropriate, refer such investigation to the South African Police Service or the Inspectorate of Special Operations established by section 7(1)(a) of the National Prosecuting Authority Act, 1998 (No. 32 of 1998); [and]

(b) investigate any matter in respect of social assistance referred to the it by the Minister, the Director-General or the Chief Executive Officer of the Agency.

(3) The Minister [may] must, [at the request of and] in consultation with the Inspector-General, in writing authorise those employees of the Inspectorate appointed as inspectors [identified by the Inspector-General] to perform the functions contemplated in subsections (1) and (2) and to exercise the powers contemplated in sections 29, 30, 31 and 32.

(4)  The Minister must, subject to this Act and all other applicable law, by notice in the Gazette prescribe procedures regarding the protection of the identity and integrity of a complainant or other source of information.

Power of Inspectorate to request information and to subpoena

29. (1) An organ of state must, at the request of the Inspector-General furnish the Inspector-General with the prescribed information relating to an applicant or beneficiary, and with any additional information requested, if such information is necessary for an investigation in terms of this Act.

(2) A financial institution as defined in section 1 of the Financial Services Board Act, 1990 (Act No. 97 of 1990) must, at the request of the Inspector-General, furnish the Inspector-General with the prescribed information relating to the assets and investments of an applicant or beneficiary, and with any additional information requested if such information is necessary for an investigation in terms of this Act.

(3) Any person who in terms of subsections (1) or (2), furnishes information obtained by that person before the commencement of this Act must, when doing so inform the person about whom such information is furnished of that fact in writing.

(4) Any person who applies for a grant in terms of this Act, is deemed to have agreed, by making such an application, that any other person who holds personal information relevant to that application may, without requesting permission from him or her make that information available to the Inspector-General.

(5) An inspector may for the purposes of performing the functions contemplated in section 28(1) and (2)(a) –

(a) subpoena a person who, can furnish information of material importance concerning a matter under investigation, or who is reasonably assumed to have under his or her control a book, document or thing that may have a bearing on the investigation, to appear before him or her within a reasonable period and to produce that book, document or thing, as the case may be;

(b) administer an oath to or cause that person to make an affirmation if that person was or could have been subpoenaed in terms of paragraph (a) and he or she is present at the enquiry;

(c) cross-examine any person referred to in paragraph (b).

(6) A subpoena to appear before an inspector must be in the prescribed form and must be served on the person by registered mail or in the same manner in which it would have been served if it had been a subpoena issued by the clerk of a magistrate’s court.

(7) The rules with regard to privilege which are applicable in the case of a person who has been subpoenaed to give evidence or to produce a book, document or thing before a court of law, apply in respect of the examination of a person and the production of a book, document or contemplated in subsection (5).

General power to enter, search and seize

30. (1) An inspector must carry out an entry, search and seizure under section 31 or section 32—

(a) with strict regard to decency and order, including the protection of a person’s right to dignity, to freedom and security and to privacy; and

(b) by day unless it is necessary for its success that it be carried out at night.

(2) An inspector seizing a document or thing under section 31 or section 32 must do so by removing it from the premises concerned or, if that removal is not reasonably practicable, by sealing or otherwise safeguarding it on or in the premises.

(3)  An inspector who enters or searches premises under section 31 or section 32—

(a) must, immediately before the entry, identify himself or herself and audibly [in an official language of the Republic] demand admission to the premises and make known the purpose of the entry, [and] search or seizure, as the case may be, in an official language of the Republic which the owner of or the person in control of those premises is most likely to understand, unless there are reasonable grounds for believing that to do so would result in a document or thing which is the subject matter of the search being destroyed, disposed of or tampered with;

(b) may use the force that is reasonably necessary to overcome resistance to the entry or search or the seizure of a document or thing;

(c) may utilise or request the assistance of any person to identify any document or thing which has a bearing on the alleged offence or to otherwise conduct the entry or search or the seizure of any document or thing.

(4) A person from whose possession or control a document has been removed under section 31 or section 32 may, at his or her own expense and under the supervision of an inspector, make copies thereof or excerpts therefrom.

(5) An inspector who removes a document or thing from any premises under section 31 or section 32 must issue a written receipt to the owner or person in control thereof or, if that person is not present, affix it to a prominent place on the premises.

(6) If an inspector removes a document or thing from any premises under section 31 or section 32, he or she must—

(a) forthwith place that document or thing in a place of safekeeping specifically designated for that purpose and to which access is restricted;

(b) attach an identifying label or mark to it; and

(c) enter the relevant details thereof in a register specifically kept by the Inspectorate for this purpose.

(7) Subject to subsections (8) and (9), any document or thing seized under section 31 or section 32 must be disposed of in accordance with the applicable provisions of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), as if it had been seized in terms of that Act.

(8) If criminal proceedings are not instituted in connection with a document or thing seized under section 31 or section 32 within a reasonable time after the seizure or, if it appears that the document or thing is not required in criminal proceedings for the purposes of evidence or an order of court, it must —

(a) be returned to the person from whom it was seized or, if that person may not lawfully possess it, to the person who may lawfully possess it or dispose of it; or

(b) be released from the safeguarding on or in the relevant premises,

as the case may be.

(9)  In criminal proceedings in connection with a document or thing seized under section 31 or section 32, the court concerned may, without limiting any other powers of the court, order that—

(a) if the document or thing is the subject of an offence in terms of this Act, it be destroyed; or

(b) the document or thing be released to a specified person.

Powers of Inspectorate to enter, search and seize with warrant

31. (1) A magistrate or judge of a High Court must issue a warrant to an inspector if it appears from information on oath or affirmation that there are reasonable grounds for believing that a document or thing that has a bearing on an alleged offence or any matter contemplated in section 28(1) or (2)(a)—

(a) is or will be under the control of any person or on or in any premises within the area of jurisdiction of that magistrate or judge; and

(b) cannot reasonably be obtained otherwise.

(2) The warrant contemplated in subsection (1) must specify which of the acts contemplated in subsection (4)(a) to (f) the inspector may perform.

(3) The warrant may be issued on any day and at any time and is and remains of force until—

(a) it is executed;

(b) it is cancelled by the person who issued it or, if such person is not available, by any person with similar authority;

(c) the expiry of three months from the day of its issue; or

(d) the purpose for which the warrant was issued no longer exists,

whichever occurs first.

(4) If an inspector suspects that an alleged offence may be committed, he or she may, on the authority of a warrant issued under subsection (1) and subject to subsection (5) —

(a) enter and search the premises or search the person referred to in the warrant or the owner or person in control of the premises, and make the enquiries he or she considers necessary;

(b) examine any document or thing found on or in the premises, and make copies of or make extracts from that document;

(c) request the owner or person in control of the premises or any person in whose possession or control that document or thing is, or who may reasonably be expected to have the necessary information, to furnish information regarding that document or thing;

(d) seize for further examination or safe custody any document or thing on or in the premises which has a bearing on the alleged offence;

(e) seal or otherwise safeguard any premises on or in which any document or thing which has a bearing on an alleged offence is found;

(f) take the steps that he or she considers necessary to terminate or prevent the commission of an alleged offence.

(5)  An inspector must, immediately before commencing the execution of a warrant —

(a) identify himself or herself to the person referred to in the warrant or the owner or person in control of the premises, if such person is present;

(b) hand to such person a copy of the warrant or, if the person is not present, affix that copy to a prominent place on the premises;

(c) supply such person at his or her request with relevant particulars regarding his or her authority to execute the warrant.

(6) Any person affected by a warrant referred to in subsection (1) may apply to a competent court to have that warrant set aside.

Powers of Inspectorate to enter, search and seize without warrant

32. [(1)] An inspector may [, subject to subsection (2),] without a warrant —

(a) enter any premises, if the person who is competent to do so, after the inspector has in an official language of the Republic which that person is most likely to understand explained to him or her the implications of giving consent to enter the premises and to perform any act contemplated in section 31(4)(a) to (f), consents to that entry and to the inspector performing any such act [contemplated in section 31(4)(a) to (f)]; or

(b) enter any premises other than a private dwelling and perform any of the acts contemplated in section 31(4)(a) to (f), except the search of any person, if there are reasonable grounds for believing that—

(i) a warrant would be issued to the inspector under section 31(1) if the inspector were to apply for that warrant; and

(ii) the delay in obtaining that warrant would defeat the purpose of the entry.

[(2) An inspector must, immediately before entering premises in accordance with subsection (1) audibly identify himself or herself in an official language of the Republic].

CHAPTER 6

GENERAL PROVISIONS

Delegation

33. (1) The Minister may in writing—

(a) delegate to the Director-General: Social Development, the Agency, a staff member of the Inspectorate or an officer of the Department any power conferred upon the Minister by this Act, except the power to make regulations;

(b) authorise the Director-General: Social Development, the Agency, a staff member of the Inspectorate or an officer of the Department to perform any duty imposed upon the Minister by this Act.

(2) The Director General: Social Development may in writing—

(a) delegate to a staff member of the Inspectorate or any officer of the Department any power delegated to him or her in terms of subsection (1)(a);

(b) authorise that staff member or officer to perform any duty which he or she has been authorised to perform in terms of subsection (1)(b).

(3) Any person to whom a power has been delegated or who has been authorised to perform a duty in terms of subsections (1) or (2), must exercise that power or perform that duty subject to the conditions determined by the person who effected the delegation or granted the authorisation.

(4) Any delegation of a power or authorisation to perform a duty under subsection (1)—

(a) does not prevent the person who effected the delegation or granted the authorisation from exercising that power or performing that duty himself or herself;

(b) may at any time be amended or withdrawn in writing by the person who effected the delegation or granted the authorisation.

Offences

34. A person is guilty of an offence if he or she—

(a) hinders or obstructs the Director-General: Social Development, an employee of the Department or the Agency in the performance of his or her functions in terms of this Act;

(b) refuses or fails to comply with a requirement or request which the Agency or an employee of the Inspectorate has lawfully set or made in the performance of his or her functions in terms of this Act;

(c) intentionally furnishes [the Agency or] an employee of the Inspectorate with false or misleading information;

(d) has been subpoenaed under section 22 or 29 and fails or refuses, without sufficient cause, to—

(i) appear at the time and place specified in the subpoena;

(ii) remain in attendance until excused by the [Agency or the] person presiding at the enquiry from further attendance; or

(iii) take an oath or to make an affirmation as a witness.

Penalties

35. A person convicted of an offence in terms of this Act is liable, unless different provision is specifically made, to a fine or imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment.

Regulations

36. (1) The Minister may subject to subsection (2) make regulations regarding—

(a) any matter that [must or] may be prescribed in terms of this Act;

(b) offences relating to anything that must or may be done or is prohibited in terms of any regulation made under this section;

(c) uniform norms and standards for service delivery;

(d) any other matter which it is necessary to prescribe for the proper administration or implementation of this Act,

and must make regulations regarding any matter that must be prescribed in terms of this Act.

(2) The Minister must make regulations with the concurrence of the Minister of Finance if the regulations apply to –

(a) the application for and payment of grants, including maximum amounts of such grants;

(b) requirements or conditions in respect of eligibility for grants;

(c) the repayment of amounts overpaid in respect of grants.

Repeal of laws and transitional measures

37. (1) The Social Assistance Act, 1992 (Act No. 59 of 1992), is hereby repealed insofar as it has not been assigned to another sphere of government.

(2) Any regulation or notice issued, any appointment made, any grant awarded, any moneys paid, or anything else done by the National sphere of government under the Social Assistance Act, 1992, is deemed to have been issued, made, granted, paid or done under the corresponding provisions of this Act.

(3) Any regulation or notice issued, any appointment made, any grant awarded, any moneys paid, or anything else done by a provincial sphere of government under the Social Assistance Act, 1992, insofar as it has been assigned to that sphere of government, is deemed to have been issued, made, granted, paid or done under the corresponding provisions of this Act in the event that a provincial legislature repeals the Social Assistance Act, 1992, insofar as it has been assigned to that sphere of government, or amends the that Act in such way that it conflicts with this Act.

Short title and commencement

38. This Act is called the Social Assistance Act, 2003, and comes into operation on a date determined by the President by proclamation in the Gazette.