COSATU and NEHAWU welcome this opportunity to make our joint submission on this Bill, the Social Assistance Bill. We have done so in previous occasions, especially since the publication of the Committee of Inquiry (Taylor Committee) into Comprehensive Social Security's report in 2000.

However, we wish to earnestly raise our concerns regarding the manner in which the consideration of both the Social Assistance and Social Agency Bills have been taking place in the Portfolio Committee on Social Development. Whilst we appreciate the on-going iterative process that may normally take place between the national Department of Social Development and the Portfolio Committee, the extent to which the department has involved itself in the deliberations of these Bills has been dubious at best from a constitutional (separation of powers) principle point view. Secondly, in terms of the parliamentary rules, at least a two to three weeks notice should be made for invitation to Public Hearings. We are therefore making this submission on the basis of a short notice and under protest.

The development and prosperity of our society 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.

We argue that 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.

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 and 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 currently seized (though not transparently) with the finalisation of the components of a comprehensive social security policy.

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 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, 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."

At the June 2003 Parliamentary Public Hearings into the recommendations of the Taylor Report held by the Portfolio Committee, many participants raised their concerns about a perceived lack of transparent engagement by the executive with the recommendations of the Taylor Committee in a holistic fashion. There is also uncertainty about the anticipated role of a comprehensive social protection package within the state's poverty alleviation programmes.

It is of some concern that in advance of the development and adoption of a comprehensive social security policy, there are at least five pieces of legislation that the Department of Social Development forwarded for consideration to the Portfolio Committee on Social Development with the hope that they will be passed in the current parliament. These pieces of legislation intersect with each other and incorporate in various ways critical aspects of a comprehensive social security system, yet they are developed in a fragmented and steamrolled process.

We have consistently raised concerns about the policy and legislative process; the problem of designing legislation in a policy vacuum and the disarticulated form and content of the pieces of legislation produced by the department which conceptually should be crafted as part a whole.

In its preamble, the Bill alludes to the need for the legislation not to contradict the "national social assistance economic policy", even though the promulgation of social assistance legislation is now intended to precedes policy determination. We argue that there has to be a clear policy framework of a comprehensive social protection system, before any legislative reform is embarked upon since legislation by and large codifies a policy framework. Logically, arising from this policy framework, would be the promulgation of an overarching social security statute, establishing the necessary framework for all the related and distinct aspects of a social protection system.

This template (principal) legislation we are proposing (the Social Security Act) will amongst others essentially comprise;

• guiding principles
• institutional service delivery mechanism
• monitoring mechanism
• fiscal transfer and integration framework
• institutional accountability mechanisms, etc.

Thus, consistent with a perspective of a comprehensive social security system, this overarching legislation would integrate and apply to social insurance, social assistance, intermediary and welfare services in line with an integrated approach to social security system.

Based on this proposed principal Act, subsidiary and specific laws dealing with social assistance, insurance and welfare services such as Social Assistance, Social Insurance, Children's and Older Person's Bills, etc. could be designed and logically articulated.

Social policy in South Africa has historically developed in a fragmented manner, largely influenced by the Apartheid welfare system. Policy reforms that have since been introduced have largely maintained its fragmented form and content, hence the groundbreaking importance of the Taylor Committee Report's integrated approach. Yet, notwithstanding this seminal comprehensive approach adopted in the committee's report, the current reform initiatives still maintain fragmentation and seem to be expediently ad hoc. Embedded in this Bill are policy questions on which some determination is yet to be made, at least officially, yet the department continues with its piecemeal reforms.

Notwithstanding its ad hoc, fragmented and manifestly inadequate scope and content, social policy in South Africa already has the rudimentary building blocks for a comprehensive social security system. As part of the policy and legislation development in the course of the progressive realisation of a comprehensive social security system, it is necessary that the legislative, policy, institutional framework lead and point to the desired ultimate scope. After all, such an approach is line with constitutional injunction in section 27 (2) enjoining government "to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right" as well as the case law in Grootboom and 1997 White Paper.

As self-evident from the short-title of the Social Security Agency Bill, the envisaged role of this agency referred to in the context of social assistance is purportedly to incrementally perform other aspects of a comprehensive social security system in the interest of economies of scale and policy coherence.

However, as labour in this regard we propose a dedicated unit within the Department of Social Development, which will undertake the delivery of social assistance, amongst other components of a comprehensive social security system. The Public Service Act provides adequate room for such as delivery mechanism to be established in the department. Similarly, other related institutions such as the proposed Inspectorate and Tribunal with related provisions of their operational independence and accountability mechanisms would be established as part of the institutional framework in terms of our recommendation for an overarching Social Security legislation. This approach is particularly useful "in order to prevent the proliferation of laws, policies and approaches to execution" of social security as claimed in the preamble of this Bill. It could help avoid replicating such institutional provisions in respect of social insurance and welfare services, as well as help to avoid repeated amendments to this Bill itself.

We generally support the proposed Inspectorate to the extent that powers granted to it are compliant with the Constitution and do not usurp or encroach into the purview of the institutions of the criminal justice system. Thus, we welcome the deletion of provisions (which were in the previous version) which accorded the Inspectorate powers to enter, search and seize in the course of its investigations. The Inspectorate could also be useful in relation verification of information for purposes of matters before the Tribunal as proposed below.

In terms of section 18 (2) (b), the Minister is granted the discretion to determine whether to refer and appoint an independent tribunal to consider an appeal where an applicant disagrees with a decision made by the Agency. In the interest of due process, as embodied in the Promotion of Administrative Justice Act of 2000, it would be necessary as part of the institutional framework we are proposing in terms of the Social Security Act, that a standing tribunal be established to deal with situations such as section 18 anticipates. In terms of this law (Promotion of Administrative Justice Act of 2000), administrative action which may negatively affect a person's rights must follow fair procedure.

It would not only be onerous upon the Ministry but even unnecessarily bureaucratic for all such complaints to be dealt with in the Ministry, on ad hoc basis, as suggested in section 18. Applicants should be able to lodge their appeals to a separate and functionally independent body for review, rather than matters to be left to the discretion of the Minister as to whether a tribunal to deal with their appeals is established or not. As with some of the provisions in this Bill, section 18 has not been carefully considered. Given the scale of problems endemic in the administration of social assistance, it is clearly unnecessary and impracticable for the Minister to have to on regular basis commission an ad hoc tribunal prescribed by notice in the Gazette (as suggested by section 18 (2) (b)), every occasion "if an applicant disagrees with a decision made by the Agency".

Rather than the Minister exercising discretion as to the claims or complaints pertaining to the administration decisions, (in line with the recommendations of the Tylor Commission), we recommend an independent adjudicatory mechanism in the form of Tribunals, established in all provinces within the social development departments. As part of the institutional framework of the Social Security Act as proposed above, these Tribunals would be capacitated to adjudicate over social security claims and easily accessible.

Despite the stated intentions of the Ministry to work in collaboration with civil society organisations, the Bill does not include the Taylor Committee's recommended stakeholder-based Social Protection Commission. We wish to see this commission being included as part of the social security institutional framework, both for purposes of proper policy engagement and service delivery in collaboration with civil society.

The use of means testing as a criterion for eligibility in social assistance is always fraught with administrative injustices. Trying to target a particular beneficiary social group through the use of a standard measure of applicants' incomes or resources, tends to create problems such as failure to reach the targeted population cohort or conversely reaching even those not belonging to the targeted group. In addition, it requires increased administrative personnel and a well-developed population database to administer;

• The qualifying criteria, systems, forms filled-in and personnel for verification of information given.
• The onerous onus put on the applicants to prove their legibility, which tend to be too costly, intimidating and complicated.
• It lends itself to fraud and corruption as currently endemic in some provinces.
• From a costs and benefits analysis point of view, it has proven exceedingly costly to administer, draining the department more than R400 million per year.

Means testing must be abandoned because it has led to unfair discrimination and exclusion particularly of those in dire destitution from some of the social assistance programmes offered by the department.

In its long title, the Social Assistance Bill seeks "to repeal an Act", presumably the Social Assistance Act No. 59 of 1992. Accordingly, the Bill will effect the revocation of the assignment of social assistance functions from the provinces back to the national department.

However, this Bill does not outline the transitional framework in terms of which the national department would be resuming its execution of social assistance competency. In fact, the Bill has no section making any kind of reference to this eventuality, notwithstanding the fact that the department envisages to undertake the delivery of social assistance through a stand-alone public entity called Social Security Agency.

It is necessary for parliament to ensure that within the body of this law itself, some transitional framework are provided for because;

• No sooner the President assent to and signs this law in terms of section 84 (2) of the Constitution, than it then becomes unlawful for the provinces to continue undertaking the administration of social assistance as has been the case hitherto. By implication, the national department will have to be ready to undertake this function through its proposed agency in all provinces and at the same time.
• Whereas provinces were hitherto able to undertake the Social Relief of Distress programme in terms of the Social Assistance Act of 1992, in repealing this Act, whilst at the same time excluding Social Relief of Distress in this Bill, it becomes unclear as to what will happen to this programme. Given the fact that Social Relief of Distress is provided for in section 15 of the Fund-raising Act No. 107 of 1978, it is not clear as to under which sphere it will be discharged, if at all. This Act is a constitutional anachronism, and yet the Minister has actually promised to include the Social Relief of Distress programme in this Social Assistance Bill, during his Budget Vote speech this year.

As law-makers, the Portfolio Committee on Social Development must not abdicate its constitutional responsibilities by deferring the matter to the Minister through a provision for Regulations, given the fact that this transition has constitutional and fiscal implications. Moreover, this law will have to set a framework pertaining to the human resources, assets and liabilities, etc.

These practical implications of this transition to the agency as desired by the department underscores the validity and merit of our proposal for a dedicated unit within the department discharging social assistance amongst other components of a comprehensive social protection package.

To provide for the rendering of social assistance to persons; to provide for the mechanism for the rendering such assistance; to provide for the establishment of an inspectorate for social assistance, to repeal the Social Assistance [an] Act of 1992, and to provide for matters connected therewith.

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] assistance as well as the economic interest of provinces or the Republic as a whole or from impeding the implementation of a national social assistance economic policy.

"welfare organisation" means an organisation which renders services 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 include a nonprofit organisation established in terms of the Nonprofit Organisations Act, 1997 (Act No 71 of 1997).

Section 13 of the Bill makes a distinction between welfare and nonprofit organisation despite the fact that the definition of welfare organisations includes nonprofit organisations. Since this distinction is made in the revised version, it necessary that a corresponding change in the definition be provided for.

On the 27^th March 2003, in outlining his plans for this year regarding laws his department intended to introduce, during his Budget Vote speech, Minister Zola Skweyiya made a commitment to parliament and the country at large, amongst other things, to introduce the Social Assistance Bill which "seeks to provide for the rendering of social assistance and social relief of distress to persons". The exclusion of Social Relief of Distress represents a dramatic policy shift, occurring in the absence of an officially adopted policy framework. It is also not in keeping with the Minister's promise to the nation and parliament during his Budget Vote speech and the Portfolio Committee must hold the executive to account on behalf of the beneficiaries and the public at large.

To the extend that the Social Relief of Distress programme is administered on a short-term basis to the deserving beneficiaries whose circumstances would have adversely changed on account of some unforeseen emergency or when certain conditions are met, it is necessary that this programme not only be maintained as part of social assistance but also along side other programmes as part of comprehensive social security system. In this regard, it would be then possible (as opposed when its administered provincially) to establish and maintain universal norms and standards, which may easily vary and change from province to province as emergency situations tend to be different.

In addition and as part of the objects of this Act and its long title and other relevant provisions, we propose viz. section 2, 4;

1. To provide for social relief on a short-term basis for people who are in emergency distress.

This Act applies -

1. To all the South African citizens who are eligible in terms of section 5 of this Act.

1. any welfare organisation which undertakes or coordinates organised activities, measures or programmes in the field of developmental social welfare services;

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

The same would apply for section 15. (2) and 15. (3).

(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 be so absent inform the Agency thereof and Agency must subject to subsections (2) and (3) suspend 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.

Section 21 (3);

A beneficiary, procurator or a primary care giver 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.

We welcome the fact that the primary object of this Bill is to revoke the assignment of social assistance as per Social Assistance Act of 1992. However, we think it is absolutely problematic that the transfer of social assistance function in terms of this Bill excludes Social Relief of Distress. We argue that since the repeal of the Social Assistance Act of 1992 will include the repeal of assignment of Social Relief of Distress to provinces, provinces will have no legal basis to undertake this programme, especially because this Bill make no reference or provision for the assignment of this function. In any case, we propose that Social Relief of Distress must also be transferred nationally because (even when the Minister passed regulations) provincially it would be discharged with variations and inconsistencies since it would be provided from provincial fiscal appropriations.

We are opposed to this piecemeal and fragmented approach to social protection reform, undertaken in a policy vacuum, without any engagement with key stakeholders, notably organised labour in terms of the NEDLAC Act and Public Service Act. We call for the suspension of further consideration of both the Social Assistance and Social Security Bills by parliament until meaningful engagement takes place with stakeholders around the policy framework and legislation.