CENTRE FOR INTERNATIONAL AND COMPARATIVE LABOUR AND SOCIAL SECURITY LAW (CICLASS)

SUMMARISED COMMENTARY ON THE SOCIAL ASSISTANCE BILL [B57-2003] AND THE SOUTH AFRICAN SOCIAL SECURITY AGENCY BILL[ B51-2003]

1. INTRODUCTION

This is a summarised commentary of the published version of two recent Bills, namely the Social Assistance Bill (B 57-2003) and the South African Social Security Agency Bill (B 51-2003). Subsequent suggested amendments, as proposed and/or discussed by the Portfolio Committee on Social Development were not available and were, therefore, not considered for purposes of this commentary.

2. SOCIAL ASSISTANCE BILL

While there are some positive aspects to the envisaged new law, such as the extension of the category of "primary caregiver" and the incorporation of bilateral agreements within the framework of the social assistance system, it is submitted that the Bill is lacking in many respects. The commentary, therefore, concentrates on what constitute in our view deficiencies.

2.1 Problems with definitions, inconsistencies and other forms of inaccurate drafting
· Narrow scope of "social assistance" as defined (see cl 1: definition of "social assistance" and of "grant")~ The South African Human Rights Commission (SAHRC) in the past criticised the present Social Assistance Act for its failure to extend social assistance to non-monetary forms of support.'
· No definition of for example, child support grant, social grant, disability grant (see cI 1) - this amounts to inconsistent treatment as far as other grants are concerned.
· Exclusion of accessibility to grants where fully-funded State institution undertakes frill-time care?: This is the case with care dependency grants (cl 7(b)), but apparently not in the case of other grants (e.g. older persons grant and disability grant). Justification for this inconsistency not apparent.
· No definition of "welfare organisation" - is the technical meaning intended?
· "Child" is defined as a person under the age of 18 years. This echoes the Constitutional provision (see s 28 of the Constitution of 1996), but indications are that the Child Support Grant may not be available in respect of children of that age. Statutory inconsistencies and constitutional questions may arise.
· A distinction is still (unnecessarily) made between "social grants" and other grants (see cl 4(a)).
· Inconsistency in treatment of grants/social grants (see e.g. descriptive derails in cl 9(a) not contained in clauses 5-7).
· Grant-in aid as regulated in cl 12 should have reference to cl 4(b)
· Reference to "that child" in cl 6 is unsuitable.
Financial awards to "persons" (see cl 13) a misnomer, as only two categories of beneficiaries are presently indicated: welfare organisations and non-profit organisations.
Reference to Minister meant to be to Administrator (see cl 20(2), cl 22(1)-(4)) and reference to Agency meant to be to Administrator (see cl 27(9)(a), cl 28(1)(a))?


2.2 Scope
Insufficient coverage of non South African citizens: Cl 2(1) extends coverage in the event of a bilateral agreement providing for this. However, this clause, read with the power of the Minister to determine groups or categories of persons to be covered (cI 1), appears to be too limited arid provides insufficient coverage:
(a) Only bilateral agreements are covered. The clause does not take into
account the obligations imposed on South Africa in accordance with the provisions of important multilateral international agreements, in particular:
Of particular importance are the binding provisions of the Convention on the Rights of the Child, ratified by South Africa. One of the issues which is cause for concern, is the continued exclusion in terms of the provisions of the Bill, as is the case with the present Social Assistance Act, of all categories of non-citizen children, in particular refugee children, from virtually the whole of the social assistance framework in South Africa. This is not in conformity with the anti-discrimination provisions of the Convention and appears to be constitutionally suspect.
Also of particular importance are the provisions of the various refugee Conventions ratified by South Africa. Minimum protection has to be extended to refugees in terms of these international instruments, as echoed by the provisions of the Refugee Act, according to which refugees are, in principle, entitled to the constitutionally entrenched right to access to social security and to social assistance, as well as the other socio-economic rights set out in the Bill of Rights. Their exclusion from the
social assistance system is, therefore, questionable from both an international law and constitutional perspective.
More recently, in Dar-es-Salaam in August 2003, the president of this country, together with the heads of state of the other SADC Member States present, signed the Charter of Fundamental Social Rights in SADC. In terms of this Charter (known as the SADC Social Charter), which entered into force upon signature by the Member State (article 17), Member States undertake to observe the basic rights referred to in the Charter (article 3(2)). In the clause on social protection, it is stipulated that "Persons who have been unable to either enter or re-enter the labour market and have no means of subsistence shall be entitled to receive sufficient resources and social assistance" (article 10(2))." It is submitted that the Bill makes virtually no attempt to give effect to this obligation imposed on South Africa.
(b) Reciprocity?: One would expect that the extension of social assistance in terms of a bilateral agreement would require reciprocity) as far as South African citizens are concerned. The Bill does not, however, require that.
(c) Ministerial power to extend?: It is submitted that it is inappropriate to leave such an important issue (i.e. coverage of non-citizens) to Ministerial determination. Matters such as these ought to be regulated in the legislation itself
· Fragmented nature of service delivery: The Bill provides for the delegation of the implementation and execution of the Bill to the Agency or "any other administrator", a concept which is defined widely in cl 1 of the Bill. (cl 2(2)). One wonders whether, from a legal and institutional perspective, this effectively does away with the present fragmentation of the administration of the social assistance system.
· Additional requirements or conditions (cl 5(2)): In our view, this clause is inappropriate and, read with other provisions of the Bill, reflects inconsistency. Firstly, substantive requirements (e.g., age limits, disabilities, etc) should be regulated in the law itself, and not in regulations. Secondly, the Bill is inconsistent, in so far as these requirements/substantive issues are sometimes contained in the Bill (e.g., age provisions regarding older persons grant; criteria for care dependency grant), and sometimes left to Ministerial discretion.
· Care dependency grant (cl 7, read with cl 1): In terms of the Bill this grant remains restricted to children in "permanent care" (or who requires and receives permanent support services) and to children with "severe physical or mental disability". No effect is given to the Taylor Committee recommendation that the requirement of permanent care be removed, and that the grant be extended to children with moderate disabilities and those in special schools or day centres (par 10.5 of the Committee Report).
· Narrow scope of qualifying conditions for disability grant: The relevant clause requires a physical or mental disability, which causes a person to be "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" (cl 9(b)). Two matters at least are cause for concern: (a) the "pure" medical model; and (b) the strict employment test upon which this is predicated. This does not take into account the recognition which has been given to the need to apply a broader psycho-social test as well (incorporating the so-called social model, and taking into account social and labour market barriers, as well as broader social and environmental factors which inhibit labour market participation) by international documents, State practice, South African High Court judgements, and the Taylor Committee report.
· Continued unequal treatment in old age grants for women and men: Clause 10(a) and (b) retains the age distinction. One would expect that some provision would be made for the gradual phasing out of the age differential, given the fact that genderised labour market and social exclusion practices are increasingly characterised by equal treatment of men and women. This appears to be the case in several European states where the distinction was until recently maintained.
· Restricted scope of organisations that could benefit from financial awards:
Only welfare organisations (active in the developmental social welfare field) and certain non-profit organisations could benefit from these awards (cl 13). The nonprofit organisation must be registered, and must have in its constitution the care of mentally or physically disabled persons as one of its objects. It is unclear why similar organisations that serve other vulnerable groups, such as older people and needy children, cannot qualify. Note should be taken of the recommendation made by the SAHRC in its recent report that the State should strengthen links with Faith Based Organisations and Community Based Organisations. The scope of clause 13 should be widened to make this possible, in particular .n the field of social assistance.
· Absence of social relief provisions: A statutory hiatus will be created if the Bill is adopted without provisions which regulate the granting of social relief The existing provisions also make it possible for social relief to fulfil a bridging role, pending the consideration of a grant application. It is suggested that it is inappropriate to regulate the social assistance system in national legislation, and not to provide for an essential part of the system in the same legislation, or in legislation at the same level - especially if the underlying philosophy is to create uniform norms and standards.
· Narrow provisions on the discontinuation of grant payment in the case of absence from South Africa (cl 16): Several issues of concern arise; (a) It is unclear why the statutory rule must be formulated in such absolute terms. Bilateral co-ordination agreements could, for example, provide for cross-border payment of social assistance grants. (b) Also, why additional conditions could be set for eligibility to resumed payment (see cl 16(2)), if the person concerned would otherwise qualify for the grant, remains unclear. (c) There is no requirement of notification of discontinuation of the grant to the affected person.
(d) There is also no requirement that beneficiaries should be forewarned about the possibility of such discontinuation, and be given an appropriate opportunity to respond.

2.3 Administrative issues

· No requirement of notification of a successful application (see cl 14(3)): This implies that potential beneficiaries will have to go and check each month whether or not their application was approved.
· Delegation of powers to wide categories of persons; E.g. to any staff member - cI 33(1) and (2). It is suggested that delegation to a senior staff member only should be provided for - as is envisaged in certain circumstances in the Agency Bill (see cl 6(4) of the latter Bill).

2.4 Adjudication and enforcement

· Unusual, inappropriate and incoherent appeal mechanisms: Appeal to the Minister is provided for (cl 18). The Minister can either vary or set aside the decision or appoint an independent tribunal to consider the appeal in accordance with prescribed conditions (cl 18(2)).
(a) This provision is unusual, in that the establishment of a tribunal mechanism in the South African social security context is normally regulated by statute -see, for example, sections 30B - 30X of the Pension Funds Act 24 of 1956, which regulates in detail the establishment of the office of the Pension Funds Adjudicator.
(b) It is also inappropriate to appoint a tribunal either ad hoc or otherwise purely on the basis of Ministerial direction/regulation, given the gravity and importance of the issues at stake - dealing with, amongst others, establishment, appointment, main objects, functions and powers, disposal of complaints, opportunity to comment and to be represented, jurisdiction, time limits, procedures, record-keeping, determination and enforceability of determinations, review possibility, accountability, remuneration, and limitation on liability.
(c) U is incoherent as a systematic approach of the issue appears to be absent. One would expect that: (i) there would be a possibility for internal appeal/objection against the administrator before appeal is made to the Minister; (ii) an institutional separation be made between internal appeal (to the administrator and then to the Minister) and external appeal (to a court or the tribunal, as of right arid not dependant on Ministerial direction). The recommendations of the Taylor Committee could be instructive in this regard. 18
No provision for procedures (notice/hearing/representations, etc.) (cl 19 on misuse of grants, and elsewhere in the Bill): It is submitted that these procedures should be spelt out, with reference to the provisions of the Promotion of Administrative Justice Act 3 of 2002 - at least in framework fashion in the Bill, and in detail in the Regulations. This seems to be required in view of the fact that this appears to be the area where government is most vulnerable to legal challenge, and since applicants arid beneficiaries of the social assistance system should know what their procedural and other rights are.
Disclosure of information provisions overly broad - "Notwithstanding anything to the contrary in any law, an organ of state must, at the request of the Minister and subject to subsection (3), finish the Minister with the prescribed information relating to an applicant or beneficiary and with any additional information requested if such information is necessary for a decision on an application." (cl 22, see also cl 22(4)) Applicants are deemed to have agreed to the disclosure of information, without consent, to the Minister (cI 22(4)). Ii. is submitted that these provision go too far. while it is necessary to combat fraud, mechanisms for sufficient protection of the rights and interests of the individual should be provided for as well. The constitutional right to privacy and the Promotion of Access to Information Act provide a measure of protection.
However, there is a need to ensure further protection of private information, particularly information in databases and the movement of such information between databases - as is the case in other jurisdictions.
Separate inspectorate for social assistance (ch 5)?: In our view the case for a separate inspectorate has not been made out sufficiently It is assumed that the Agency will have its own compliance and fraud unit (see cl 4(1)(c) of the Agency Bill). Should a need therefor arise, a matter can be further referred to the SAPS or the Inspectorate of Special Operations.

2.5 Powers/functions

· DG has significant duties and powers (see cI 24), see again, however, the wide delegation provisions.

3. SOCIAL SECURITY AGENCY BILL

· Loose terminology - "social security": There is no definition of the notion "social security" (as, e.g., used in the objects-clause - cI 3). If the idea is that the Agency will mainly, at least initially, deal with social assistance, this should be made clear, and the terminological differences between social security and social assistance be respected.
· Scope & Functions: The present Bill deviates in substantial respects from the recommendations of the Taylor Committee. The Committee proposed that:
the scope of the Agency would include all social security programmes (i.e. social assistance, social insurance, social relief, social services as well as private sector regulation).
the primary functions of the Agency would be research and monitoring, policy co-ordination, information and IT services. It would, importantly, act as an interface between the public and all parts of the whole social security system.
the Agency would be regulated by a Board that was a representative board (opposed to individual appointees of the Minister as proposed. in the first draft Agency Bill - the current Bill does not provide For a Board).
functions relate to all social security payments, etc. - however see the Social Assistance Bill that provides that other administrators may also be involved in the same.
· Enforcement
No provision for dispute resolution except that any legal proceedings against the Agency must be instituted in accordance with the Institution of Legal Proceedings against Certain Organs of State Act, 2002 (Act No.40 of 20C)2).
See limitation of liability - any action in (good faith (regardless of e.g. gross negligence) (cl 16)
Concurrent jurisdiction not adequately addressed?: The memoranda to both Bills assume that social assistance falls within the sphere of national and provincial concurrent jurisdiction, according to Schedule 4 of the Constitution. However, if the two Bills are read together, what is apparently attempted is to let the administration of social assistance vest in the Minister, who can then delegate this to the Agency and/or any other administrator. Provinces could by agreement with the Minister let the Agency execute these functions (cl 4(3)(a) of the Agency Bill).

All having said and done, one wonders what is then left of the fact that this is supposedly a concurrent function. Chapter 3 of the Constitution inter alia requires all spheres of government and all organs of state to co-operate with one another in mutual trust and good faith. The general approach of the Constitutional Court in those cases where the Constitution foresees concurrent national and provincial jurisdictional competence, such as housing and welfare services, is that the task of adopting reasonable measures is a function which is shared by the different tiers of government. The Constitutional Court commented;

"What constitutes reasonable legislative and other measures must be determined ir the light of the fact that the Constitution creates different spheres of government: national government, provincial government and local government. The last of these may, as it does in this case, comprise two tiers. The Constitution allocates powers and functions amongst these different spheres emphasising their obligation to co-operate with one another in carrying out their constitutional tasks. In the case of housing, it is a function shared by both national and provincial government. Local governments have an important obligation to ensure that services are provided in a sustainable manner to the communities they govern. A reasonable programme therefore must clearly allocate responsibilities and tasks to the different spheres of government and ensure that the appropriate financial and human resources are available."

"Thus. a co-ordinated state housing programme must be a comprehensive one determined by all three spheres of government in consultation with each other as contemplated by Chapter 327 of the Constitution.... Each sphere of government must accept responsibility for the implementation of particular parts of the programme but the national sphere of government must assume responsibility for ensuring that laws, policies, programmes and strategies are adequate to meet the state's section 26 obligations. to particular, the national framework, if there is one, must be designed so that these obligations can be met. It should be emphasised that national government bears an important responsibility in relation to the allocation of national revenue to the provinces and local government on an equitable basis. Furthermore, national and provincial government must ensure that executive obligations imposed by the housing legislation are met".
Remuneration, core benefits and non-pensionable allowances of Agency staff (cl 7(2)): It is submitted that cl 7(2) should stipulate that these matters be determined by the relevant Minister in accordance with the provisions of the Labour Relations Act 66 of 1995 (due to the role in particular of collective agreements in this regard). This is necessitated by the fact that the relevant provision of the Public Service Act (s 5(4)), providing for this, will no longer be applicable to Agency staff transferred from public service components. Similar approaches are followed elsewhere in the Bill (see cl 8(5) and cI 23(1)).

4. CONCLUSIONS

In conclusion, some overarching issues appear from the provisions of the two Bills and the discussion above.


· Firstly, it is unclear what the Social Assistance Bill in particular attempts to achieve.
Is it meant to be a framework law, or a detailed regulation of the relevant issues?
As noted in this commentary, there are inconsistencies in treatment and formulation. Also, as said before, in our view substantive issues need to be contained in the legislation itself - such as substantive criteria (other than technical requirements) impacting on grant eligibility, the creation and regulation of the external appeal mechanism, and the coverage of non-citizens in terms of the social assistance system.


· Secondly, it is doubtful if the fragmentation which has characterised the social assistance system in recent years, has effectively been dealt with. Institutionally it is possible that several administrators could take responsibility for the administration of social assistance. Also, in the event that provinces enter into an agreement with the Minister to let the Agency execute social assistance delivery functions (cl 4(3}(a) of the Agency Bill), it remains possible that provinces could in circumstances allowed by our legal system, withdraw from the agreement - in view of the concurrent power in this regard which supposedly vests in provinces. There are, therefore, risks involved which could impact on the streamlined delivery of social assistance, and which could cause fragmentation in the system.

Materially, the Social Assistance Bill in particular in many respects reflects (the perpetuation of) the patchwork system of social assistance due to its categorical approach, whereby only certain restricted categories of persons could access the grant system; the lack of a principled treatment of vulnerable people in need of social assistance; the making available of financial awards to limited categories of organisations under severely restricted circumstances; and the absence of provision for social relief which plays such a vital survival role and which provides, amongst others, bridging support.

· There is, thirdly, little evidence of a truly balanced rights-based approach. The fundamental rights of many people in this country are in our view not adequately protected by the two Bills. No sufficient balance of privacy infringement is foreseen the rights to administrative justice are not sufficiently spelt out in an environment where the non-recognition of these rights has caused severe hardship to poor people dependent on State support and has led to numerous successful court actions against government; and there is no proper accommodation of the constitutional right. to equality. Insufficient and inappropriate provision of the right to appeal to an inexpensive and easily accessible external institution has been made.

· Fourthly, extremely wide powers are granted to relevant Ministers, certain officials and to the inspectorate foreseen by the envisaged legislation. These powers are often of a discretionary or directive nature. As noted, many of these instances should be properly regulated in the legislation itself, not by regulation or directive. Delegations should be narrowed down to more limited senior categories of people. In our view, the establishment of a separate inspectorate for social assistance is unnecessary

· Fifthly, as indicated, constitutional questions may arise, if it is accepted that social assistance falls within the framework of "welfare services" contained in Schedule 4 of the Constitution. It is debatable whether the spirit of concurrent jurisdiction and of co-operative governance - as constitutionally required - is truly reflected.

· In the sixth instance, perhaps the most serious and severe shortcoming has to dc with the way in which the Social Assistance Bill limits the extension of grants to restricted categories beneficiaries. This is apparent from the unnecessarily narrow scope of coverage in regard to non-citizens and even South African citizens residing abroad, the care dependency grant, persons with disabilities and organisations active in the provision of social assistance. Worst of all, large numbers of poor people in this country could find themselves unable to access temporary social relief, should the Bill be passed in its present form. This lack of coverage by the system is at times compounded by inaccurate legal drafting.

These Bills, it is submitted, give little effect to the views and recommendations of commissions and committees of enquiry, to applicable international standards. to international obligations imposed on this country3t and, it is argued, the Constitution itself. Of particular concern is the lack of a comprehensive and streamlined social assistance policy framework with regard to children - something which has been recommended by the South African Law Commission, the Taylor Committee, the UN Committee on the Rights of the Child, and more recently the SAHRC. Such a comprehensive and streamlined approach is also absent as far as people with disabilities and non-citizens are concerned. 'vulnerable groups other than these are apparently not catered for, despite the views of the Constitutional Court in this regard.

· Finally, in our view, the Social Assistance Bill is a far cry from achieving the progressive realisation" of the right to access to social security generally arid to social assistance in particular. This is constitutionally required. The Social Assistance Bill in particular reflects little improvement, in relation to the current Act, and in respect of its sphere of coverage. It is our considered opinion that it not be passed, unless and until such time that serious reconceptualisation and reformulation of many of the issues have taken place. We trust that in doing so, due regard will be paid to the views and recommendations of commissions and committees of inquiry, to the applicable international law framework, and to the Constitution itself Only by doing so, we believe, will justice via the social assistance system be done and will we see the social upliftment of millions of poor, destitute and vulnerable people of this country, many of whom are still suffering from the effects of an unjust system which deprived them of the most basic elements of human dignity.


PROFESSOR MARIUS OLIVIER
DR NICOLA SMIT
20 SEPTEMBER 2003