Submission to the Portfolio Committee on Social Development

19 September 2003

1. The South African Council of Churches (SACC) is the facilitating body for a fellowship of 23 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.
2. The SACC welcomes the opportunity to comment on the Social Assistance Bill [B57-2003] (hereafter, "the Bill"). The litmus test of the morality of any society is how it provides for its most vulnerable members. In the last nine years, we have made remarkable strides in transforming the legal foundations of our nation. Now the challenge before us is to deliver resources and services in a manner that demonstrates our commitment to these new priorities. 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.
3. The central theme of the Reconstruction and Development Policy remains just as apt today as it did in 1994: "No political democracy can survive and flourish if the mass of our people remains in poverty, without land, without tangible prospects for a better life. Attacking poverty and deprivation must therefore be the first priority of our democratic Government."

 

 

4. A comprehensive and integrated system of social protection is critical to the achievement of this objective. This is the yardstick against which the Social Assistance Bill must be assessed. In this context, we have very grave concerns about the capacity of the Bill to improve substantially the current social safety net and generate tangible prospects of a better life for all of our people, especially the most disadvantaged. Our primary reservations centre on the lack of an overarching policy framework for the realisation of the constitutional right of universal access to social security and, consequently, a clear role for social assistance programmes within that larger vision. In addition, we are concerned about:

• The unconstitutional exclusion of certain categories of people from access to social assistance;
• The omission of Social Relief of Distress grants;
• The proposed suspension or reassignment of benefits in the event of "misuse" of a grant;
• The powers of the Inspectorate for Social Assistance; and
• The criteria for the identification of organisations eligible to receive financial awards.

1. The 1997 White Paper on Social Welfare represented the first major attempt by a democratic South African government to sketch the contours of a comprehensive, integrated and equitable developmental social welfare programme for the nation. Foremost among the goals of this new national strategy was: "To facilitate the provision of appropriate developmental social welfare services to all South Africans, especially those living in poverty, those who are vulnerable and those who have special needs." [Chapter 2, para 7; emphasis added.]
2. Echoing the language of section 27(1)(c) of the Constitution, the White Paper promised: "The Government will take steps to ensure the progressive achievement of social security for all including appropriate social assistance for those unable to support themselves and their dependents. … Policies and programmes will be developed to ensure that every member of society can realise his or her dignity, safety and creativity. Every member of society who finds him or herself in need of care will have access to support. Social welfare policies and legislation will facilitate universal access to social welfare services and social security benefits in an enabling environment." [Ch. 2, paras 8 and 26.]

 

3. With regard to social security policy in particular, the White Paper highlighted the importance of social grants in alleviating poverty. "The Government is committed to the provision of a comprehensive national social security system and the Government’s Growth, Employment and Redistribution strategy recognises the importance of a broad social security net comprising social payments and targeted welfare services. … There 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." [Ch. 7, paras. 26-27]
4. The White Paper envisioned the development of a detailed national action plan to guide policy development and implementation and to facilitate systematic legislative reform. It pointed out the grave deficiencies of the patchwork of welfare policies and programmes inherited from the apartheid era. "Existing legislation is not based on the planned implementation and continuous evaluation of a comprehensive welfare policy. It reflects ad hoc and partial reactions to different needs at different times. … The problems inherent in South African welfare legislation underline the urgent need to develop a holistic body of legislation determined in accordance with a comprehensive policy." [Ch. 5, paras 5 and 17.]
5. In contrast, the White Paper promised a radically new approach. "Legislation will be determined by a comprehensive welfare policy. Therefore, legislation will be the end-product of, and not the initial impetus for, policy formulation. The values base and policy direction of each piece of legislation will also be clearly apparent in all Acts." [Ch. 5, para 10, emphasis added.]
6. It acknowledged that policy formulation is a slow process and noted that short-term amendments might be required to accomplish critical reforms. At the same time, it warned: "The process of amending or extending legislation should be carefully managed. It should, as far as possible, be ensured that urgent changes made in an incremental manner are consistent with the overall policy when it is in place. Short-term amendments should be implemented speedily in order to facilitate the restructuring process." [Ch. 5, para 17.] Government pledged to engage in extensive consultation with provincial departments and other role players at all stages of this process.
7. Three years later, the appointment of the Committee of Inquiry into a Comprehensive Social Security System for South Africa (a.k.a. the Taylor Committee) represented the next significant step in the development of a comprehensive and integrated social protection policy that could ultimately guide systematic legislative reform. The Taylor Report proposed concrete mechanisms to give effect to the broad policy commitments in the White Paper. Unfortunately, despite substantial public engagement with the Taylor Committee’s recommendations – in the media, in civil society, and in this Portfolio Committee – government has yet to present a structured response to the Taylor report. As a result, the White Paper remains the only comprehensive statement of social protection policy guiding the development of a legislative agenda.
8. The current Social Assistance Bill illustrates the White Paper’s limits as a guide to legislative reform and demonstrates the critical need for a more detailed and effective policy framework. Tellingly, the Preamble of the Bill, which identifies the policy imperatives to which the Bill responds, does not even mention the White Paper. The Bill fails to make any significant contribution to the extension, integration, or accessibility of social assistance programmes.
9. Although the Bill does little to realise the White Paper's vision of comprehensive and integrated social security, it is not devoid of policy content. The Department has portrayed the Bill as an urgent and largely formalistic move, designed primarily to terminate the assignment of the 1992 Social Assistance Act to the provinces and to give the National Department greater capacity to implement a uniform and coherent delivery system. We appreciate and support the Department’s efforts to streamline and improve the delivery of social grants. However, the Bill does make a number of changes to the grant administration system, some of which – such as the creation of the Social Security Agency – are at best tangential to and at worst at odds with the core objectives of the White Paper.
10. The proposed changes have significant implications for the future of South Africa’s social security system. We believe that it is inappropriate to make these alterations hastily, without adequate opportunity for public debate. In the absence of a global policy document – one that has been developed transparently, in consultation with a broad cross-section of stakeholders – legislation will end up driving policy formation, rather than the other way around. Even the Bill’s requirement [sec. 24(1)(a)] that the Director-General develop a national policy framework for social assistance grants appears to be a belated attempt to put a horse behind the cart. We therefore urge Parliament to defer further action on the Social Assistance Bill until the Cabinet has approved a proper policy framework to inform the development of a coherent legislative agenda. The Department should engage a broad cross-section of stakeholders in formal consultation around a proposed framework prior to making recommendations to Cabinet. At the very least, the current Bill should be seen as an opportunity to address some of the most urgent shortcomings of the present social security system.

Constitutionality

11. Apart from the lack of a coherent policy framework within which to situate the Bill, it has other serious deficiencies. Paramount is its manifest failure to satisfy the constitutional obligation to provide access to social security for all who are unable to support themselves and their dependants. It fails on two counts. First, it makes no attempt to extend access to social assistance to the nearly 12 million poor people who currently live in households with no access to social assistance. Second, it arbitrarily excludes non-citizens from social assistance, except in cases where the South African government has signed an agreement with the person’s home nation. This is inconsistent with section 27(1) of the Constitution which stipulates that "everyone" has the right of access to social security, including appropriate social assistance.
12. To avoid a constitutional challenge, the Bill’s objects, listed in section 3, should include: "(a) promote the progressive realisation of the right of access to appropriate social assistance for all who are unable to support themselves and their dependents." In addition, the eligibility of permanent residents, refugees and asylum seekers and their dependants and undocumented children should be recognised through an amendment to section 5(1)(c). Furthermore, section 5(2) should prohibit the Minister from limiting eligibility for social assistance by establishing a means test threshold that lower than a point at which applicants would be able to support themselves and their dependants.

Social Relief of Distress

13. Regulation 28(1), published in terms of the Social Assistance Act, 1992, currently makes provision for social relief of distress (SROD) on a number of grounds. SROD goes some way toward plugging the gaping holes in the existing social safety net, but the Department acknowledges that the various provincial governments have used this provision very inconsistently. The Department has consulted extensively with a range of stakeholders to explore strategies for the introduction of a more uniform and equitable for the provision of SROD.
14. Unfortunately, the Bill omits all reference to SROD. We understand that, while the Department is eager to terminate provincial control over the disbursement of most forms of social assistance, it intends to leave SROD in the hands of provincial governments for the time being. We would urge the Committee to ensure that SROD is not treated as a troublesome "orphan" but is seen as an integral component of the social security system, one which the national Department should have responsibility for administering.

"Misuse" of Grants

15. Section 19, which authorises an administrator to suspend or redirect a grant if a beneficiary "misuses" it, is dangerously vague. It is not clear what criteria administrators will be expected to apply in assessing this. If, for example, a primary care giver uses a child support grant (CSG) to stabilize or improve the overall income of the household, even if the funds are not spent directly and exclusively on the child for whom the grant was designated, would this constitute misuse? What if a grant is spent in part on other children in the household, older than the maximum age of eligibility for the CSG? What criteria will be applied to identify "misuse" of an older persons’ grant or a disability grant?
16. We acknowledge that, in some instances, assistance given to a primary care giver is not used in the best interests of the child, whether due to the negligence of the care giver or to the intervention of a third party. In such cases, it may benefit the child (or at least not place the child at greater risk) to suspend or redirect social assistance intended for that child. However, improper suspension or redirection of assistance could compromise the beneficiary’s constitutional rights. Suspension and redirection powers must therefore be very narrowly drawn, and their exercise must be based on objective criteria.
17. We would therefore propose:

• that suspension or redirection powers be an option only in respect of grants paid to a third party on behalf of the intended beneficiary (e.g., the various child grants);
• that an administrator have the sole authority to suspend or redirect benefits only where the recipient has been convicted of an offense that casts substantial doubt on his or her capacity to act in the interests of the beneficiary (e.g., abuse or neglect of the beneficiary);
• that in other instances where the recipient’s capacity to act in the interests of the beneficiary is in question, an administrator should only have the authority to suspend or redirect benefits on the advice of the Inspectorate, following an investigation; and
• that suspension be seen as a last resort, where no suitable alternative recipient can be found to administer the grant on behalf of the beneficiary.

1. Empowering the inspectorate to "in general, do everything necessary to combat the abuse of social assistance" [sec. 28(1)(d)] is an alarmingly broad mandate, especially in conjunction with the vague prohibition on misuse in section 19 and the powers of search and seizure in sections 30-32. Together, these three provisions could amount to carte blanche for the inspectorate to intrude on the lives of grant recipients to ensure that they are not "misusing" grants.
2. The search and seizure powers [secs. 30-32] of the inspectorate are unnecessary and excessive. In the event of a legitimate legal infraction, inspectors could collaborate with the police, who could invoke ordinary warrant powers. We would therefore propose that these sections be deleted.

Financial Awards to "Welfare" Organisations

3. Section 13 authorises the Minister to make financial awards to welfare and nonprofit organisations for the purposes of supporting their social welfare services. However, "welfare organisation" is no longer defined in law, and many potential social partners – including many religious organisations – are not registered as nonprofit organisations. We would propose that this section be amended to permit awards to "organisations recognised by the Commissioner of Revenue as a public benefit organisation in terms of Section 30 of the Income Tax Act, 1962" – either instead of or in addition to the two existing categories of organisations identified in section 13.