18 September 2003

By Alliance for Children's Entitlement to Social Security (ACESS),

Children's Institute (UCT), Black Sash, Gender Advocacy Programme,

Socio-Economic Rights Project, Community Law Centre (UWC),

Congress of South African Trade Unions (COSATU), National Education, Health and Allied Workers Union (NEHAWU), National Association of Democratic Lawyers (NADEL), Treatment Action Campaign (TAC), Rapcan

Southern African Catholic Bishop’s Conference, South African Council of Churches,

Women’s Legal Centre

After looking at all the evidence, the Taylor Committee proposed that South Africa should create a comprehensive package of ‘social protection’.

The Taylor Committee Report talks about a package of social protection interventions and measures. The notion of a package is emphasised as it is not desirable for a person to have to choose between basic needs. For example, a poor parent should not be expected to have to choose between feeding the family or sending their children to school. Both are basic needs that must be provided for by the package of comprehensive social protection.

The Taylor Committee looked at addressing income poverty - a situation where people have no income or insufficient income to meet their basic needs – and recommended three universal cash grants:

• Basic Income Grant (BIG)
• Child Support Grant (CSG)
• State Old Age Pension (OAP)

The Taylor Report recommends that everyone must get at least a certain minimum income transfer to reduce or eradicate destitution and starvation. This would mean that all people would get an income transfer, whether it be through the vehicle of the CSG, BIG or OAP. The bottom line is that eventually (by 2015) everyone should get basic income support through one of the three grants.

The Taylor Committee also proposes a package of services to enable everyone to live and function in society.

In addition, people with special needs should also be provided for in the social security system. ‘Special needs’ refers to people with disabilities and children in compromised home environments. The Taylor Committee proposes that the adult disability grant, care dependency grant and the foster child grant should remain and be reformed in order to enable more children in need to benefit from them. All three grants should continue to be targeted grants which would mean that they would continue to have eligibility criteria.

The Taylor Committee proposes a phased in approach for the Comprehensive Social Protection package. It stresses that first priority must be to address income poverty by ensuring that poor people have access to a minimum level of income.

The Taylor Committee proposed a timetable for a programme of phasing in universal social assistance:

The Taylor Committee Report into a comprehensive social security system was considered in public hearings held by the Portfolio Committee on Social Development held in November 2002 and June 2003 and by Cabinet in July 2003. However, many of the overlapping policy decisions regarding social security broadly, and specifically in relation to children, have not yet been made or properly consulted upon. This is largely due to the fact there has been no clear and transparent policy reform process subsequent to the release of the Taylor Committee Report. The Social Assistance Bill therefore does not make any substantive moves towards the recommendations set out in the Taylor Committee Report.

We submit that the deliberations on the Social Assistance Bill must be seen in the light of the comprehensive approach as recommended by the COI. The Taylor Committee Report took cognisance of the socio-economic realities in South Africa but the Social Assistance Act does not flow from this research and consultation and makes no changes from its pre-new South Africa approach. The future stability and prosperity of our nation depends upon the formulation and implementation of a comprehensive social protection programme that can effectively eradicate extreme poverty, diminish economic inequality and lay the foundations for broad-based development.

The current social security system for children in South Africa is clearly inadequate in its capacity to address the socio-economic realities highlighted above. It is governed piecemeal in various acts, including the Social Assistance Act 59 of 1992, the South African Schools Act 84 of 1996, the Child Care Act 74 of 1983 and various other acts and is by no means comprehensive.

The result of these shortcomings is that the following groups of vulnerable children have no access to social assistance despite clearly being vulnerable and in dire need of support:

• Poor children between the ages of 9 and 18 years;
• Children whose parents have died and who are being cared for by extended family members;
• Many poor children between the ages of 0 and 18 years whose caregivers do not pass the means test. The means test does not take account of the number of people living off the income or the extra vulnerabilities faced by the family such as HIV/AIDS. Furthermore, the means test threshhold has not increased since 1998 despite increases in inflation and the cost of living;
• Children without adult caregivers (children living in child headed households and streetchildren);
• Children with moderate disabilities and chronic illnesses who need assistance;
• Children living with HIV and AIDS.

These shortcomings need to be addressed through legislative amendments so as to ensure that the government fulfills its obligations to children under the Constitution.

With regards to children however, we submit that the full social security scheme for children should be set out in the Children's Bill with the administration being left to the Social Assistance Bill. Taking into account the fact that the Children’s Bill has not yet been tabled and still requires much deliberation, our comments with regards to matters affecting children are therefore restricted to the social security scheme as it exists now, with a number of minor suggestions as to how to improve the shortfalls in the current system with respect to administrative justice and inclusivity.

7. A person is, subject to section 5, eligible for a care dependency grant Special Needs Grant to ensure that their special needs are met if –

1. he or she 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 has a physical or mental or intellectual or sensory disability or chronic illness; and
2. 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.

"care dependent child child with a disability" means a child who requires and receives permanent care or support services due to his or her temporary or permanent severe physical, or mental, intellectual or sensory disability or chronic illness, including HIV/AIDS;

"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;

Insert new section 2. (2)(a) and (b)

The general principles of the Act are not specified in the Act. If the Bill intends to usher in a new era of social assistance delivery for South Africa, we suggest that the Bill should contain a set of guiding principles to that effect. These principles are also vital to ensuring that minimum norms and standards are maintained in the delivery of social grants, and to facilitate inter-provincial equity in accessing the grants. We therefore suggest the following insertion:

1. The general principles of this Act are the following:

4. CHAPTER 2 - SOCIAL ASSISTANCE

Suggested amendments:

Financing of social assistance

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

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

1. is resident in the Republic at the time of making the application;
2. is —

1. a South African citizen;
2. a permanent resident;
3. a refugee or a child, spouse or life partner of a refugee;
4. a child who is dependant on refugees and asylum seekers;
5. an undocumented child, or
6. 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;

1. complies with any additional requirements or conditions prescribed in terms of subsection (2).

1. income thresholds means testing, provided that any means test applied must not set the threshold of eligibility for social assistance at a level below the poverty [datum?] line;
2. age limits, disabilities and care dependency;
3. …

MOTIVATION: The Constitution guarantees everyone in South Africa the right to social security, including appropriate social assistance if they are unable to support themselves and their dependants. The poverty line is commonly understood as the income level below which an individual is unable to meet his or her basic needs. Although there is little agreement on an appropriate method of calculating the poverty line, such a calculation is essential in order for the constitutional right to be meaningfully interpreted. The Department must be required to develop a formula for calculating an appropriate poverty line. Once this is done, the Department should be prohibited from using means testing to exclude anyone living in poverty from accessing any social grant for which he or she is otherwise eligible.

Insert new sections after section 6:

1. he or she 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 has a temporary or permanent physical or mental or intellectual or sensory disability or chronic illness; and
2. 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.

11. A person is, subject to section 5, eligible for a grant-in-aid if, the person is in need of personal assistance to perform daily living activities due to a his or her physical, or mental, sensory or intellectual disability or chronic illness.

• receive and process applications for social relief of distress on the same day of receipt of the application,
• identify those applicants, in addition to the categories referred to in regulation 26(1), who qualify for the exceptional relief referred to in regulation 26(3) of the regulations under the Social Assistance Act,
• dispense with social worker reports in cases for first-time applicants falling under regulation 26(1)(a), (b) and (h) of the regulations under the Social Assistance Act and
• pay or otherwise provide the first instalment of social relief of distress on the date of application to persons who qualify for social relief of distress.

(ii) the reasons why he or she does not so qualify; and

• In practice, only children living with an adult primary care-giver can apply for a Child Support Grant (CSG);
• Children must be placed in formal foster care in order for the Foster Care Grant (FCG) to be payable; and

• Formal placement options for children in need of care and protection are inadequate, and not always appropriate, to cater for orphaned children.

1. If an applicant disagrees with a decision made by an administrator 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 administrator’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 conditions, and that tribunal may, after consideration of the matter, confirm, vary or set aside that decision or make any other decision which is just.

3. Any decision taken by the Minister or an independent tribunal must be communicated to the applicant or beneficiary, as the case may be, in writing, together with adequate reasons in writing.

 

Misuse of Grounds for suspension or redirection of social assistance or foster care allowance

 

19. If a beneficiary, a procurator, mentor or primary care-giver or an applicant person who receives social assistance in terms of sections 6, 7 or 8 misuses a grant, —
1. is convicted of abuse or neglect of the child on whose behalf she or he receives a grant; or
2. is found by the Inspectorate for Social Assistance to be incapable of using a grant for the benefit of the child on whose behalf she or he received it;

1. appoint a person to receive the grant on behalf of the beneficiary and to apply it for the benefit of that beneficiary, subject to any condition the administrator may prescribe; or
2. if no suitable alternative recipient can be found in terms of subsection (a), suspend payment of the grant in question; or

We support the setting up of an independent body to monitor and deal with problems arising from the administration and delivery of social assistance. In addition, the model of the Inspectorate as proposed by the Bill needs to be much more carefully considered in order to find the most appropriate mechanism. A system that is adopted whole-scale from the model in the Police Services Act, is not necessarily appropriate to the quite different nature of social assistance administration and delivery. Hence the wide powers of search and seizure seem particularly inappropriate in this Bill. Other models should be looked at in other countries.

In addition, there is potential ambivalence between the stated independence of the Inspectorate from the Department as provided for in clause 25(1) and the provisions for final responsibility over the Inspectorate to be exercised by the Minister in clause 25(4). The extent of the Minister’s control over the Inspectorate should be clarified in the Bill and we submit that the Committee clarify whether the Minister should have the power to direct the Inspectorate to terminate any particular investigation.

36. (1) The Minister may must subject to subsection (2), make regulations regarding -

It is vital to amend this provision to state that the Minister "must (as opposed to ‘may’) enact regulations…",particularly in relation to uniform norms and standards for service delivery, but also matters that must be prescribed in terms of the Act. In other words this provision should be peremptory as opposed to permissive.

Although the Social Assistance Bill in clause 33 (1)(a) prohibits a delegation by the Minister of the power to make regulations, we believe it possible that in the absence of regulations refining the eligibility criteria and necessary forms and procedures, the lacunae will be filled by ad hoc policy-making of the Agency, diluting transparency and ministerial responsibility for the administration of social assistance. The Bills, in order to constitute a ‘reasonable’ legislative framework should accordingly define minimum standards and norms as far as possible and require peremptory policy-making by the Minister in this regard by regulation in respect of aspects which cannot be canvassed in legislation. We believe that further consideration must as a matter of urgency be given to satisfy the Committee regarding what issues should be incorporated in the legislation, and what can reasonably be regulated upon. If the Committee decides that certain conditions of eligibility can be determined by regulation, we recommend that Clause 5(2) also be amended to require that the Minister must, rather than may make regulations.

Regulations must reflect the above guiding principles in order to reflect Constitutional imperatives.

Although the Social Assistance Bill in clause 33 (1)(a) prohibits a delegation by the Minister of the power to make regulations, we believe it possible that in the absence of regulations refining the eligibility criteria and necessary forms and procedures, the lacunae will be filled by ad hoc policy-making of the Agency, diluting transparency and ministerial responsibility for the administration of social assistance. The Bills, in order to constitute a ‘reasonable’ legislative framework should accordingly define minimum standards and norms as far as possible and require peremptory policy-making by the Minister in this regard by regulation in respect of aspects which cannot be canvassed in legislation. We believe that further consideration must as a matter of urgency be given to satisfy the Committee regarding what issues should be incorporated in the legislation, and what can reasonably be regulated upon. If the Committee decides that certain conditions of eligibility can be determined by regulation, we recommend that Clause 5(2) also be amended to require that the Minister must, rather than may make regulations.

It is a fundamental principle of good legislation that where substantive rights are awarded (i.e. the enactment of policy) this should be provided for in original legislation, and not in delegated legislation which is what regulations are. Where this is unavoidable, some laws have provided that the regulations have to go before the portfolio committee to remedy this legislative weakness. Examples of such laws include the Water Services Act 108 of 1997 [ Sections 71 and 75], Non-profit Organisations Act 71 of 1997 [Section 27 and 28], Promotion of Access to Information Act 2 of 2000 [Section 92(2)] , Promotion of Administrative Justice Act 3 of 2000 [Section 10(4)] , the Domestic Violence Act 116 of 1998 and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 [section 30].

We have constructed a provision appropriate to the Social Assistance Bill after looking at the various provisions in the above Acts. If much of the eligibility criteria will be in the regulations, we believe that it is very important that the regulation drafting and decision making process ensures maximum consultation, public participation and the active involvement of the legislature.

We have concerns regarding the viability of a state where certain parts of the old law will be repealed by provinces and other sections will continue to regulate the provinces. This seems to be inviting confusion and lack of uniformity. We submit that the existing laws should be repealed in their entirety. The drafters of this Bill need to advise if any provisions, apart from the right to Social Relief of Distress (which we have above motivated should be in the national Social Assistance Bill) would then fail to be included in any legislation, and provinces would then have to pass provincial legislation to accommodate such provisions.

Furthermore, the Bills do not disclose a coherent approach to the transition from provincial to Agency-controlled administration of delivery. The Portfolio Committee has proposed, as is evident from the Second Draft Discussion Document of the Social Security Agency Bill, the inclusion of a provision requiring the Minister to endeavour to enter into "memoranda of understanding" with the relevant provincial MEC’s to ensure that payment of social assistance grants is in the future performed by the Agency. Clauses 37 (1) and 37 (3) (as added) of the Social Assistance Bill appear to contemplate repeal by the provinces of the Social Assistance Act of 1992.

The approach appears to envisage persuasion of the provinces to repeal the existing Social Assistance Act. This approach clearly carries the risk that, if any province does not agree, the objective of enforcing uniform national standards simultaneously across all provinces will be compromised.

We suggest that the Committee needs to be briefed on whether such agreements in principle have yet been obtained by all provinces, prior to passage of this Bill. It would appear that consultation with the National Council of Provinces Select Committee on Social Services would also be appropriate on this point.

We recommend that the Portfolio Committee reject the Social Assistance and the South African Social Security Agency Bills and we call on the Committee to encourage the Executive to engage with the Taylor Committee Report in order to formulate a Comprehensive Social Security Policy where after the drafting of comprehensive social protection legislation will be appropriate.

However, if the Bills are passed, we request that our comments, based on our experience of the administration of social assistance on the ground, are taken into consideration in order that the shortfalls in current social assistance may be effectively addressed.

IN THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA GENERAL DIVISION

CASE NUMBER:

In the application between:

ABBEY KUTUMELA First applicant

MELITA MAGUBUDELA Second applicant

TSATSAWANE CHAUKE Third applicant

and

THE MEMBER OF THE EXECUTIVE COMMITTEE FOR SOCIAL SERVICES, CULTURE, ARTS AND SPORT IN THE NORTH WEST PROVINCE First respondent

THE MINISTER OF SOCIAL DEVELOPMENT Second respondent

_____________________________________________________________________

___________________________________________________________________

TAKE NOTICE THAT application will be made to the court for an order in the following terms:

TAKE NOTICE FURTHER that, if any respondent intends to oppose the application, he is required:

TAKE NOTICE FURTHER that, if no such notice of intention to oppose the application is given, the application will be set down for hearing on Thursday 25 September 2003 at 10 a.m. or so soon thereafter as counsel may be heard.

TAKE NOTICE FURTHER that the accompanying affidavits of the applicants and the annexures thereto will be used in support of this application.

TAKE NOTICE FURTHER that the applicant has appointed the undersigned as their attorney and will accept service of all documents in these proceedings at the address set out below.

DATED at PRETORIA on this DAY of

on this day of

for: 1st respondent

Received a copy hereof

on this day of

for: 2nd respondent

Introduction

The development and prosperity of our nation requires the formulation and implementation of a comprehensive social protection programme that can effectively eradicate extreme poverty, diminish economic inequality and lay the foundations for broad-based development.

Such a package should not be cobbled together in a piecemeal fashion. It requires a systematic approach, beginning with the articulation of a visionary social protection policy that can guide and lend coherence to subsequent legislation.

Given that Government is currently involved with deliberations regarding the components of a comprehensive social security programme, we note with concern the Department of Social Development’s intention to pass five important pieces of legislation before the end of the year. If the components of the policy are still being finalised, it would be unfortunate to allocate time and resources on the passage of legislation that may well have to be reconsidered once the final policy is developed. The policy finalisation should take precedence over the adoption of apparently piece-meal legislative initiatives that are currently about to be tabled before the legislature.

Implicit in the obligations on the state to realise progressively the right to socio-economic rights within its available resources, is the need to develop coherent and reasonable policy by which to achieve these obligations. The Constitutional Court judgement in the Grootboom matter set out coherent principles with which such policy needs to comply, which included the duty to formulate a co-ordinated, comprehensive programme.

The duty on the state to formulate a transparent national plan of action for the realisation of socio-economic rights promotes public accountability and participation in the realisation of socio-economic rights. It also lays the foundation for targeted, purposeful action by the state towards the realisation of these rights.

We are aware that Cabinet is seized with the finalisation of the components of a comprehensive social security that should be finalised by early 2004.

This is part of a process articulated in the Department’s seminal 1997 Social Welfare White Paper. The Paper states inter alia that "(T)here will be universal access to an integrated and sustainable social security system. Every South African should have a minimum income, sufficient to meet basic subsistence needs, and should not have to live below minimum acceptable standards. The social security system will also work intersectorally to alleviate poverty."

The appointment by the Minister of Social Development of the Committee of Inquiry into a Comprehensive Social Security in 2000 (the Taylor Committee) indicated the need within the Department for further investigation into the principles and components of an affordable comprehensive social security which would complement the stated commitment of Government to address the effects of poverty, and to address the causes of poverty in a sustainable and developmental manner. The Taylor committee spent two years completing its investigation, and released its recommendations in a report which was forwarded to Cabinet in February 2002. The recommendations of the Committee were seen as being central to the policy deliberations that would need to follow. According to President Mbeki, the policy formulation process "will be informed by the report and recommendations of the Commission (sic), which was set up by the Department of Social Development. A team of Ministers is processing the report, and consultations will be held during the course of the year with various stakeholders, before final recommendations are presented to Cabinet."

Civil Society welcomed both the completion of the work of the Committee, and the release of the report for public comment by the Minister in May 2002. The latter initiative was seen as indicative of an appreciation within government of the benefit attendant on involving stakeholders in the process involved in the formulation of the crucial policy around the various choices inherent in the realization of the right to access social security and social assistance.

At the June 2003 Parliamentary public hearings into the recommendations of the Taylor Report held by the portfolio committee on Social Development, many participants raised their concerns about a perceived lack of transparent engagement by the executive with the recommendations of the Taylor Committee in an holistic fashion. There is also uncertainty about the anticipated role of a comprehensive social protection package within the state’s poverty alleviation programmes.

Mindful of the commitment by government to involve public participation in the drafting of the 1997 White Paper, calls were made by stakeholders at the hearings for the executive to be guided by the Taylor recommendations in a fashion similar to a green paper, and to fashion in a broadly consultative manner a Social Protection white paper setting out specifically the department’s policy on comprehensive social security in line with its progressive constitutional obligations.

Cogniscent of government’s process of investigating the components of a comprehensive social security with the aforementioned concerns in mind, it is of some concern that in advance of the transparent development and adoption of a comprehensive policy, there are at least five pieces of legislation that the Department of Social Development has indicated to the portfolio committee that it wishes to table in the current parliamentary session. These pieces of legislation intersect with and incorporate in various ways critical aspects of a comprehensive social security system. They include:

• Children’s Bill
• National Social Security Agency Bill
• Social Assistance Bill
• Social Relief Fund Bill
• Older Persons’ Bill.

Notwithstanding the above legislative initiatives, the department has at the same time committed itself to the finalisation of the following policies :

The development of these policies clearly are integral components of the broader comprehensive social security policy being developed by the executive. Given the centrality of most of these policies to the above draft bills, it would seem premature to proceed with the legislation prior to the completion of the executive’s policy processes.

The Children’s Bill process with its comprehensive approach to social protection for children, could serve as a starting point for looking at a package of social security grants and benefits that could be delivered to all South Africans. There is general agreement amongst policy makers tasked with child protection and leading child sector organisations, that it is essential for a comprehensive social security system for children to be a cornerstone of the new Children's Bill in order to reduce the unacceptably high levels of child vulnerability, abuse and neglect in South Africa.

We have recently learnt that the Social Security Chapter of the Children's Bill has been removed in the latest Departmental Draft of the Bill. The right to social security previously contained in the Bill has also been removed. There are contradictory messages coming from the Department of Social Development with respect to exactly where the social security rights and needs of children will be legislated for, and when the necessary policy choices will be made in order to facilitate the legislating of the scheme. Children's social security needs have been moved between a number of policy and law reform processes over the past three years and finally found a home in the Children's Bill process. The latest decision to remove the scheme from the Children's Bill process again places children's social security needs outside of a clear and defined policy and law reform process and we fear that this will result in them being neglected and sidelined again.

We therefore request a clear policy process for decisions with regards to social security reform for South Africa to be made by the end of 2003. The conclusion of such a process should ensure that the legislative initiatives such as the Children’s Bill and the Older Persons Bill are not further delayed due to uncertainty over policy priorities and choices.

The lack of the formal conclusion of the national policy process also affects the terms in which the draft National Social Security Agency Bill has been drafted. The seeds of the idea of a national agency were set out in the Taylor report. The recommendations were however fundamentally informed by the other recommendations of the Committee regarding comprehensive social protection, and the Agency was seen as having a role to play in the administration and implementation of this. The draft bill of the Department is not able to reflect this vision in the absence of clear policy regarding the broader components of a comprehensive social security. A number of civil society organisations have noted their concerns about the vision of the current proposed agency.

The Taylor Committee recommended the establishment of a Social Protection Commission, representing key stakeholders, to monitor and review issues relevant to social protection (see p. 123 of the report). We strongly support the establishment of this commission.

As the function of the Commission would be to monitor social protection issues, it would be desirable if the Commission were established before the finalisation of the current policy development, to enable it to have input into this process. Should this not be feasible within the current time frames, we encourage government to engage in further broad consultation on the policy process, and include the establishment of the Commission in the ultimate policy.

We also urge government to expand and extend the national debate on comprehensive social protection by preparing a draft White Paper for public comment and facilitate broad participation in that debate by convening public hearings on the draft White Paper. This would provide a forum for further consultation with stakeholders in line with the President’s statement.

With regard to timeframes we believe it is both possible and essential that a draft white paper on comprehensive social protection be completed by November this year and that the final white paper be completed by March 2004. If dedicated effort is concentrated on finalising the broader policy statement then these timeframes can be achieved. Having a comprehensive social protection policy document in place will make the process of adopting new legislation considerably easier as the framework will provide the necessary guidelines for debate and decision-making.

Accordingly we call on the Department of Social Development, as the lead government department, together with the other responsible functionaries of the executive, to articulate the need for a broad and coherent statement of social protection policy prior to the tabling of legislation intended to give effect to that policy to facilitate the realisation of the right to social assistance in a manner that is transparent and encourages dialogue and engagement with civil society stakeholders.