The Portfolio Committee on Social Development held public hearings into the South African Social Security Agency Bill (B51 – 2003) and the Social Assistance Bill (B57 – 2003) on 22 and 23 September 2003. Submissions addressed both broad policy issues and specific clauses in both Bills. This report only deals with the Social Assistance Bill, and should be read in conjunction with the Committee’s report on the South African Social Security Agency Bill. The report will first summarise the policy and general matters relating to the social security system in South Africa raised during the hearings. It will then deal with submissions as they address specific clauses. Submissions are arranged alphabetically. Where different organisations made submissions as part of a coalition, similar recommendations are made by various organisations. These are not repeated.

Submitted by the Alliance for Children’s Entitlement to Social Security (ACESS)

The ACESS submission argued that there are many shortcomings in the Bill that pertain to the social assistance scheme for children. For example the limited eligibility of children for the child support grant due to age and care giver income restrictions and the fact that the care dependency grant is only for those children who suffer from severe disabilities and require permanent home-based care.

It was recommended that the Portfolio Committee reject the Social Assistance Bill at this point in time, and that the Committee encourage the Executive to engage with the Taylor Committee Report in order to formulate comprehensive social security policy, whereafter the drafting of comprehensive social protection legislation will be appropriate.

Submitted by the Congress of South African Trade Unions (COSATU) and the National Education, Health and Allied Workers Union (NEHAWU)

COSATU and NEHAWU prefaced their specific comments on the provisions of the Bill with general remarks on broader issues such as the absence of an overarching policy on social security, of processes in tabling the Bill before the Portfolio Committee on Social Development and transitional arrangements to a new dispensation.

In the first instance, the notice for the public hearings was too short as it was less than the two to three weeks stipulated in the Procedural Guide for Committees.

They noted that Cabinet is involved in a process to finalise a comprehensive social security policy. However, the two pieces of legislation before the Portfolio Committee have been presented in the absence of a comprehensive social security policy, and in a fragmented and steamrolled manner. The Taylor Report had recommended an omnibus social security legislation from which subsidiary legislation would be derived dealing with social assistance, social insurance, Children’s and Older Persons’ Bills, etc. The Bill before Parliament raises policy issues that still needs determination. Policy issues that need determination are, for example, means testing, which COSATU and NEHAWU believe should be abandoned. There is also the issue of a Stakeholders’ Commission recommended by the Taylor Report for policy engagement and delivery with civil society.

With regard to the institutional framework, COSATU AND NEHAWU proposed a dedicated unit within the national Department as the delivery mechanism. They believe that the Public Service Act (Proclamation 103 of 1994) is flexible enough to accommodate such an arrangement. The proposed Inspectorate, which they support, would be part of the institutional framework as long as it does not encroach in the area of the criminal justice system. They, therefore, welcomed the deletion of the controversial provisions of the Inspectorate. With regard to the Tribunal, they favour a standing tribunal than an ad hoc standing tribunal as envisaged in clause 18 of the Bill.

The Bill is silent on a transitional framework as social assistance is removed from the provinces to be located in the national department. Although provision is made for the Social Security Agency, there are no transitional arrangements to deal with human resource issues, assets and liabilities as social assistance is transferred from the provinces to the agency.

Lastly, COSATU and NEHAWU objected to an ad hoc approach to social protection reform without any engagement with stakeholders such as organised labour in terms of the National Economic Development and Labour Council (NEDLAC) Act (Act No. 35 of 1994) and the Public Service Act. Because of the above, they call for a suspension of further deliberations on the Social Assistance and Social Security Bills by Parliament until meaningful discussions with stakeholders have taken place.

Submitted by the Southern African Catholic Bishop’s Conference (SACBC)

The submission argued that the Bill is not comprehensive, and that it did not include issues raised during the work towards the Children’s Bill, Older Person’s Bill, Social Relief Fund Bill, and the South African Social Security Agency Bill. In addition, it was argued that the Bill is exclusionary in nature as it limits the extent to which people in need are able to gain access to social assistance grants.

Submitted by the South African Council of Churches (SACC)

The submission by SACC contended that the critical test for the new legislation on social assistance was whether it represents a step closer to comprehensive provisioning for the most vulnerable in the South African society. The presenter argued that the Social Assistance Bill does not substantially improve the current social safety net, because it is not based on an overarching policy framework for the realisation of the Constitutionally guaranteed right to social security. The 1997 White Paper for Social Welfare envisaged the development of a comprehensive welfare policy before the drafting of legislation. However, the presenter argued, this approach was not being followed with the Social Assistance Bill.

The SACC argued that the Bill makes no attempt to act on the constitutional imperative to extend social assistance to the nearly 12 million poor people between the ages of 9 and 60 or 65 who have no access to social assistance. Those people who live in households that have no access to social security because there are no eligible children, disabled persons or older persons living in the household are still being excluded from coverage. While policy provides for the gradual extension of benefits, this Bill does not extend the current social security coverage.

Furthermore, the Bill excludes non-citizens from social assistance except in those cases where there are agreements between the South African government and the country of origin of the non-citizen in question. The SACC held that this was inconsistent with the provision in section 27(1)(c) of the Constitution, which stipulates that everyone has the right of access to social security, including appropriate social assistance. Committee members asked what categories the SACC had in mind when it referred to categories of persons excluded from social assistance unconstitutionally. The SACC replied that they were referring to poor children older than 7, as well as permanent residents, refugees and asylum seekers.

In response to a question about whether the Bill represented progress in the social security system, the SACC argued that, when viewed against the background of the Constitution and the White Paper, it was difficult to view the Bill as a real improvement.

Submitted by the Children’s Institute: University of Cape Town

The submission argued that the current provisions in the Bill create perverse incentives for poor children to live in foster care with care givers who are not their biological parents, while providing little or no support to biological parents who care for their own children.

It was suggested that while government policy repeatedly refers to the importance of informal care networks and the importance of maintaining and supporting ‘families’, the Bill fails to provide adequate support systems for these care arrangements. Strengthening and supporting these networks is particularly important to ensure their sustainability through and beyond the worst of the HIV and Aids pandemic.

Submitted by the Children’s Institute: University of Cape Town

The submission noted with grave concern the absence in the latest draft of the Bill of many of the provisions recommended by representatives of the children’s sector at numerous times over the course of the Bill’s deliberations.

Submitted by the Southern African Catholic Bishop’s Conference (SACBC)

The submission raised the fact that there has been a lack of initial input by civil society into the Bill. It further noted that inputs from organisations such as the SACBC would have enriched the Bill because of the experience of the faith-based sector. However, this sector was not given the opportunity to do so from the initial stages of the drafting of the Bill.

Submitted by the South African Council of Churches

The submission argued that the changes envisaged in the new legislation were far-reaching enough to justify a more considered process that would have allowed for wide-ranging consultations and public debate. It was also noted that although the Department had held discussions with civil society organisations during the development of the Bill, very few of the proposals made by the sector have been included in the Bill.

Submitted by COSATU AND NEHAWU

COSATU and NEHAWU proposed that the following words be inserted in the long title: to repeal the Social Assistance Act of 1992

Submitted by COSATU and NEHAWU

The submission proposed that in the paragraph that begins with Therefore, the word security should be replaced with assistance, and that the paragraph reads recipients of social assistance…

Submitted by Action on Elder Abuse (SA)

The definition of "primary care giver" needs to be expanded to include older persons.

Submitted by Age in Action

Age in Action suggested the insertion of the following new definition:

Age in Action suggested the amendment of the following definitions:

Submitted by the Alliance for Children’s Entitlement to Social Security (ACESS)

ACESS recommended that the following definitions be included in the Bill:

The submission argued that a definition of child-headed households is needed for the procedures outlined in the new (proposed) clause 15 aimed at enabling children in child-headed households to benefit from social assistance grants. The Coalition for Social Assistance also pointed out in their submission that it would not be appropriate to use the procurator system in relation to children who do not have adult care givers. The procurator is generally someone who simply collects the grant on behalf of the beneficiary and does not necessarily administer and keep the money for the beneficiary. A mentor, on the other hand, would be a type of secondary care giver in the child’s life who applies for, collects and administers the grant for the child concerned.

The submission held that if children with chronic illnesses were to be considered eligible for the care dependency grant, then the Social Assistance Bill would need to define chronic illness.

The submission pointed out that there is no definition of a child support grant, while there is a definition for a care dependency grant.

Submitted by the Black Sash

The Black Sash submitted the following definitions to be included in the Bill:

"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.

In the current legislation, there is no age restriction on a primary care giver although in practice one can only receive social assistance if one has an identity document (ID) that is attained when one turns 16. By limiting access to people aged 16 and above one is discriminating against children who are younger than 16 but who in reality are caring for themselves and other, younger children and who are consequently unable to access social assistance for themselves or those children. These children are extremely vulnerable and there is a constitutional obligation to protect them in terms of Sections 27 and 28 of the Bill of Rights, and Section 9 of the Constitution which prohibits unfair discrimination on the basis of, inter alia, age.

The Black Sash, therefore, recommended that the regulations make provision for all primary care givers irrespective of age to access the social assistance they are entitled to. Identification in the form of birth certificates as well as other forms of identification, including school reports and baptism certificates, could be provided for.

In a related submission, the Coalition for Social Assistance argued that currently, many children who are looking after other children in so-called child-headed households, as de facto primary care givers, are not able to access social assistance. This is due to Departmental policy, which stipulates that only people with IDs can apply for social assistance on behalf of children in their care. Children can only get IDs from the age of 16, hence the effective exclusion of children under that age from accessing social grants on behalf of children over whom they are the primary care giver.

This discriminatory practice is arguably unconstitutional and the Minister is thus obliged to provide a mechanism for these particularly vulnerable children (living in child-headed households) to be able to access social assistance for the siblings that they are looking after. One such mechanism is an adult mentorship model whereby a responsible adult or organisation is designated as ‘mentor’ over these children and is able to obtain the grants on behalf of children in a child-headed household. It is submitted that this scheme should apply where the child head of the household it too young or immature to look after other children without external adult support. An assessment of the situation should be made by a community or state social worker and recommendations made to appoint a mentor.

In circumstances where the child is old enough and sufficiently responsible to continue to play the role of primary care giver, and where there is no adult mentor available, these child-heads should be able to access grants directly if they are de facto the primary care givers of other children, irrespective of their age. Thus there should be no specified limitation on the age of a primary care giver.

Both options should co-exist, as many child-headed households may not have access to an adult or organisation that can provide mentorship. The law must be flexible enough to ensure that these children can access assistance. Children living in child-headed households are particularly vulnerable and need to be adequately supported with financial assistance from the State, irrespective of whether there is an adult to supervise them or not. The Constitutional Court has said in key decisions that a reasonable plan or programme designed to increase access to socio-economic services requires inbuilt flexibility to ensure responsiveness to differing and changing circumstances and contexts. The Constitutional Court in the Grootboom case has also stated that a programme for the realisation of socio-economic rights must:

"Be balanced and flexible and make appropriate provision for attention to… crises and to short, medium and long-term needs. A programme that excludes a significant segment of society cannot be said to be reasonable."

"Social relief of distress" means the provision of immediate assistance in cash awards to a person who experiences desperate need.

The Black Sash submission held that it is not reasonable to leave the administration of Social Relief of Distress to provincial departments. It should fall under national control and be subject to national norms and standards and thus needs to be incorporated into the Social Assistance Bill.

Submitted by the Coalition on Social Assistance

The Coalition on Social Assistance submitted the following definitions to be inserted in this section:

"Appointed" in the context of a procurator means the completion of a power of attorney by the grant beneficiary or appointment before a Commissioner of Oaths, which indicates the nominated adult to collect the grant of the beneficiary. In the case of a person with a disability who is unable to complete a power of attorney this means the nomination of an adult by the relatives or primary care giver of the beneficiary to collect the grant on the beneficiary’s behalf, provided that the person nominated satisfies the Chief Executive Officer that the beneficiary and the nominee comply with the conditions prescribed in this Act.

It is currently impossible for a person with a mental disability to appoint an adult to collect his or her grant on his or her behalf. The only alternative is an application to the High Court to appoint a curator bonis who would be allowed to collect the grant. This is costly, raises the dilemma of having access to an attorney and an advocate and is time consuming. The reality is that many of these beneficiaries consequently do not access these grants at all.

"Person with a disability" means any person who has attained the prescribed age and who owing to his or her physical or mental or intellectual or sensory disability or chronic illness, is unable to adequately support him or herself and/or his or her dependants;

The definition proposed is similar to that of child with a disability. However, the definition with respect to adults takes into account their ability or inability to adequately provide for themselves or their dependants. The focus of the disability grants should be on the needs of disabled adults and children.

"Procurator" means a person appointed by a beneficiary to receive the beneficiary’s grant on his or her behalf;

In the existing regulations the term procurator is mentioned in regulation 8(4) as relating to the limit in collecting only money on behalf of 5 people, whilst there is no clear definition of a procurator in the body of the Bill. The definition of procurator should not be limited to only include South African citizens, but should also give scope for documented permanent residents to be appointed. As beneficiaries of grants will include people from non-South African communities, procurators therefore should also be able to be appointed from these communities.

"Permanent Resident" means someone who qualifies as a permanent resident in terms of the Immigration Act (Act No. 13 of 2002);

The Constitutional Court is shortly to decide on the constitutionality of the exclusion of non-citizens from accessing social grants. This follows a ruling in the Pretoria High Court that the right to social assistance is not limited to South African citizens. It should be noted that section 27 of the Constitution confers the right to social security on "everyone". It is doubtful whether the exclusion of all categories of non-citizens would pass the limitations test in the Constitution. It is accordingly recommended that permanent residents (as a minimum) are included with those eligible for social grants.

The Coalition suggested the following amendments to the following existing definitions:

Special Needs Grant to be substituted for [Care Dependency Grant]

The focus of the Special Needs Grant should be on the needs of disabled children and not on how dependent they are on care. With respect to the removal of the requirement that the child be receiving permanent care or support services, this should not be a pre-condition as many children do not have access to permanent care. This name emanates from the South African Law Reform Commission’s research and subsequent draft Children’s Bill.

With respect to the disability needing to be severe to create an entitlement to the grant, which appears in the current definition of the grant, it is submitted that this requirement precludes children from getting the grant due to problems of definition and measurement of severity. This requirement also excludes children with moderate disabilities who may have high needs. Social assistance to children with disabilities should be determined by a needs test, which considers the extra needs and cost incurred by the child due to his or her disability. The Human Sciences Research Council (HSRC) is currently developing a needs-based assessment tool for children and adults with disability for the Department of Social Development. It is therefore critical that the definitions for children and adults with disability be amended to fit the framework of a needs-based assessment.

The disability or chronic illness need not be permanent in order to satisfy the eligibility criteria for the grant, but that in the context of treatment being available for certain conditions, children may only have special needs in respect of their disability or chronic illness for a limited period of time. The assessment as to whether the grant is made temporary or permanent and the length of the time period for a temporary grant should depend on the special needs that the child has and may have with respect to that disability or chronic illness, as recommended by the Taylor Committee Report.

The submission argued that the proposed new title of the grant goes to the heart of its definition. The focus of the disability grants should be on the needs of disabled adults and children and not on how dependent they are on care, hence the suggested change in the name of the grant. With respect to the removal of the requirement that the child be receiving permanent care; this should not be a pre-condition, as many children do not have access to permanent care.

Submitted by COSATU and NEHAWU

The submission pointed out that clause 13 of the Bill makes a distinction between a welfare organisation and a non-profit organisation despite the fact that the definition of welfare includes non-profit organisations. They are of the view that a corresponding change in the definition should be provided.

Submitted by Professor Olivier

Professor Olivier made the following comments with regard to definitions in the Bill:

• Narrow scope of "social assistance" as defined in the Bill. 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, and disability grant – this amounts to inconsistent treatment as far as other grants are concerned.
• Exclusion of accessibility to grants where fully funded State institutions undertake full-time care i.e. care dependency grant.
• No definition of "welfare organisation".
• A "child" is defined as a person under the age of 18 years. This echoes the Constitutional provision, but indications are that the Child Support Grant may not be available to children over 14 years. Statutory inconsistencies and constitutional questions therefore arise.
• A distinction is still made (unnecessarily) between "social grants" and other grants.
• The Bill contains inconsistency in the treatment of social grants.

Submitted by the Southern African Catholic Bishop’s Conference

The submission suggested that it would be important to have a definition of procurator in the Bill.

Submitted by the Women’s Legal Centre

The submission proposed the inclusion of the following definitions:

In a related submission, ACESS argued that a definition of "mentor" in this Bill would ensure that there is compliance with the new clause 15 proposed by them. The Coalition on Social Assistance also argued that using the procurator system for children who do not have adult care givers is not appropriate as the procurator is generally someone who simply collects the grant on behalf of the beneficiary and does not necessarily administer and keep the money for the beneficiary (they hand it over to the beneficiary). A mentor on the other hand would be a type of secondary caregiver in the child’s life who applies for, collects and administers the grant for the child concerned.

The use of the word "or" (line 4 of the proposal) in the context of what the mentor may do may be interpreted as allowing children to apply for the grant on their own, or, in the alternative, after receiving assistance in the application, collect and administer the grant without supervision. The submission argued that omitting this from the Bill would unacceptably leave children in child-headed households in destitute circumstances.

Submitted by Action on Elder Abuse (SA)

The submission held that this clause does not clarify the position of a person, especially an older person, who is a permanent resident. Many older persons have lived and worked in South Africa all their lives, and are permanent residents, not South African citizens. The Bill should state whether they are entitled to social assistance or have to become South African citizens in order to do so.

Submitted by the Alliance for Children’s Entitlement to Social Security (ACESS)

The submission argued that the legislation must be applicable to refugees as well. It was stated that in recent decisions the Courts have taken the view that, unless the relevant provision indicates that a constitutional right is available to only citizens, it is available to everyone.

In terms of Article 2 of the United Nations Convention on the Rights of the Child (UNCRC), which was ratified by South Africa in 1995, a State party to the Convention may not discriminate against or deny any of the rights in the Convention (including social security) to a child due to the child’s national origin. It was therefore recommended that clause 2 be redrafted to read:

It was recommended that a new clause 2(2) be inserted to read:

Submitted by the Black Sash

The Black Sash recommended the insertion of the following subclause:

2(1) (a) The application of this Act to non South African citizens will be in accordance with the agreements signed between the Republic of South Africa and an individual’s country of origin: Notwithstanding the existence of any such agreements, a person qualifies for social assistance in accordance with the provisions of this Act, if such person is a permanent resident, or if such person is the spouse or life partner of such qualifying permanent resident, provided that the provisions of this Act will further apply to all refugees in accordance with the provisions of Section 27(c) of the Refugees Act (Act No. 130 of 1998), and in further accordance with Article 24(1) of the 1951 United Nations Convention and Protocol relating to the Status of Refugees and Article 22 of the Universal Declaration of Human Rights.

(2)(1)(b) The same rights shall be enjoyed by the child, spouse or life partner of such refugee as well as to all children who are dependant on refugees and asylum seekers, or who have entered South Africa as undocumented children.

The Constitution allows the right of access to social assistance to everyone – in other words this is not a right limited to citizens, as for instance Section 22 is. Furthermore, Section 27(c) of the Refugees Act states that "A refugee enjoys full legal protection, which includes the rights set out in Chapter 2 of the Constitution". This is because South Africa is a signatory of the 1951 United Nations Convention and Protocol relating to the Status of Refugees, which requires that refugees be granted the same rights to social security as citizens of the country. This Act should thus apply to all refugees and the child, spouse or life partner of such refugee should enjoy the same rights. In addition, the submission recommended that the Act should further apply to all children who are dependent on refugees and asylum seekers, or who have entered South Africa as undocumented children.

Many fear that if social assistance were available to refugees and asylum seekers South Africa would be accommodating millions of non-citizens. However, according to the United Nations High Commissioner for Refugees (UNHCR), there were 23 000 recognised refugees and 52 500 asylum-seekers in South Africa in 2002.

Submitted by COSATU and NEHAWU

The submission proposed that this part of the Act read as follows:

Submitted by Professor Olivier

The submission argued that there is insufficient coverage of non-South African citizens in this clause. Clause 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 in clause 1, appears to be too limited and provides insufficient coverage.

Only bilateral agreements are covered in this section. 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:

1. The United Nations Convention on the Rights of the Child.
2. The provision of the various refugee Conventions ratified by South Africa, for example the 1951 UN Convention Relating to the Status of Refugees, to which South Africa acceded on 12 January 1996. South Africa also acceded to the UN Protocol Relating to the Status of Refugees of 1967 on the same date.
3. More recently, in Dar-es-Salaam in August 2003, the President, together with the Head of States of other Southern African Development Community (SADC) Member States, signed the Charter of Fundamental Social Rights in SADC.

It is also inappropriate to leave such an important issue (coverage of non-citizens) to Ministerial determination. Matters such as these ought to be regulated in the legislation.

Submitted by Action on Elder Abuse (SA)

The Bill, as it stands, will not meet its objects and is "one sided" inasmuch as it focuses on the Department’s recovery of overpayments and monies defrauded, yet makes no provision for grants underpaid or withdrawn or for beneficiaries that have been defrauded by staff of the Department.

A mechanism to address these and other problems experienced by beneficiaries needs to be put in place, which will resolve these issues effectively and quickly. At present, appeals can take up to a year or more, even if the fault is on the side of the Department, causing undue suffering and poverty.

The Bill needs to focus more on service delivery to ensure a user friendly and equitable system in all provinces and in both rural and urban areas.

Submitted by Age in Action

One of the objects of the Bill is to ensure that uniform norms and standards are set for the delivery of social assistance. However, nowhere does the Bill state what these norm and standards will cover. Currently, there are huge variations in service delivery both between and within provinces in terms of services at pay-points, waiting times, location of pay-points etc. The current Bill, as it stands, is even less comprehensive than the 1992 Act in this respect.

Submitted by the Coalition on Social Assistance

The submission recommended the insertion of a new subclause (a) in addition to the existing subclauses (a) to (e):

Submitted by COSATU and NEHAWU

The submission recommended the insertion of an additional subclause to read:

Submitted by the Coalition on Social Assistance

The Coalition indicated that the general principles of the Act are not specified. If the Bill intends to usher in a new era of social assistance delivery for South Africa, it 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.

The following general principles were suggested to be inserted after the Objects of the Act:

The Women’s Legal Centre made the same recommendation.

Submitted by Action on Elder Abuse (SA)

Action on Elder Abuse argued that interim social assistance relief, e.g. food parcels while waiting for a grant application to be processed, should be written into the Bill. At present this is given in some provinces, but not all.

Submitted by the Advisory Board on Military Affairs

The Advisory Board proposed that in this chapter, clauses 4 & 5 of the Bill be amended as follows:

With respect to clauses 4 (a) and 5 (2), where reference is made to and war veterans, it be substituted with the words and military veterans.

Submitted by the Alliance for Children’s Entitlement to Social Security (ACESS)

The submission recommended that clause 4 be redrafted to read:

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

Submitted by Action on Elder Abuse (SA)

Action on Elder Abuse indicated that careful consideration in clause 5(2) must be given to determining the means test in regard to the old age pension. At present, the means test discourages older persons from earning additional income as they could lose their grants. For many older persons income opportunities are not regular or secure, e.g. an older person selling handmade items. It is, therefore, suggested that additional income be assessed on an annual basis, as this would give a more realistic reflection of monthly income.

Submitted by the Advisory Board on Military Affairs

In relation to clause 5 (1) it proposes that the clause be amended with a new subclause that reads:

Submitted by the Coalition on Social Assistance

The Coalition suggested the following amendments to this clause:

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.

Submitted by Professor Olivier

Professor Olivier indicated that this clause is inappropriate and, read with other provisions of the Bill, reflects inconsistency. Firstly, substantive requirements, e.g. age limits and disabilities, should be regulated in the law itself, and not in regulations. Secondly, the Bill is inconsistent, in so far as these requirements or substantive issues are sometimes contained in the Bill.

Submitted by the Alliance for Children’s Entitlement to Social Security (ACESS)

It was recommended that subclause 5(c) be redrafted to read:

Submitted by the Agency for Refugee Education, Skills Training & Advocacy (ARESTA)

The submission by the Agency for Refugee Education, Skills Training & Advocacy (ARESTA) argued that South Africa has an obligation in terms of the United Nations 1951 Convention Relating to the Status of Refugees and the 1969 Organisation of African Unity (OAU) Convention Governing Specific Aspects of Refugee Problems in Africa to afford refugees similar social protection as its own citizens. The submission pointed specifically to Articles 23 and 24 of the 1951 Convention. These articles deal with the obligation that contracting States have in respect of "public relief and assistance (Article 23) and social security (Article 24). In addition, the presenter noted that the preamble to the Social Assistance Bill provides that "…everyone has the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance."

The submission pointed out that a distinction needed to be drawn between recognised refugees and economic migrants or illegal aliens. For a definition of a recognised refugee, the presenter pointed the Committee to various sections of the Refugees Act, and argued that the definition contained in that Act was premised on the 1951 United Nations Convention and the 1969 OAU Convention.

With reference to clause 2(1), the submission argued that refugees are unlikely to be covered by the agreements contemplated in the clause. This is because the definition of a refugee in section 3 of the Refugees Act literally means that such a person does not enjoy the protection of his or her country of origin. Therefore, the presenter contended that clause 2(1) in fact serves to exclude refugees from social assistance.

The submission further argued that clause 5(2) presents another barrier to refugees accessing social assistance. This clause provides that the Minister may determine requirements in respect of, among others, "proof of and measures to establish identity, gender, age, citizenship…" In light of the fact that refugees experience serious difficulties in obtaining identity documents in terms of section 30 of the Refugees Act, the presenter noted that clause 5(2) in the Social Assistance Bill could also be used to exclude refugees from social assistance.

Finally, the submission noted the Pretoria High Court judgment in the case of Louis Khosa & others vs the Minister of Social Development which confirmed the right to social assistance of permanent refugees who had earlier been classified as refugees. The presenter argued that it would be logical to extend the implications of this judgment to include recognised refugees in the Social Assistance Bill.

Committee members asked whether the presenter had considered measures to control the influx of refugees once refugees become eligible for social assistance. The presenter replied that persons entering the country first have to be recognised as asylum seekers. This first process sometimes takes as long as 7 years, and the persons being granted refugee status are much fewer in number than the applicants. A strict means test could also be applied to ensure that only eligible refugees qualify for social assistance.

With reference to the presenter’s comment that the requirements concerning IDs could serve to exclude refugees from social assistance, a member asked whether ARESTA was advocating for the complete removal of such documentation from the application process. The presenter said that refugees were experiencing serious problems in obtaining IDs. However, they do have alternative forms of identification, and the Department might have to acknowledge the validity of, for example, refugee status documents as proof of identity.

Members wanted to know whether ARESTA saw the problem only with the Department of Home Affairs, or whether other government departments or institutions also had a role to play in facilitating refugees’ access to IDs – for example, refugee centres where people could access a range of services. The presenter felt that the service burden in respect of refugees is currently being carried predominantly by the non-governmental sector, and that such one-stop service centres would be an ideal alternative.

Submitted by the South African Council of Churches (SACC)

The SACC proposed that clause 5 recognise the eligibility for social assistance of permanent residents, refugees and asylum seekers and their dependants, as well as undocumented children. In addition, it was proposed that clause 5(2) should prevent the Minister from limiting eligibility for social assistance by establishing a means test threshold that is below the poverty line. In other words, the means test should not be set at a level that is so low that many poor people will not be able to qualify for social assistance.

Submitted by the United Nations High Commissioner for Refugees (UNHCR)

The submission by the UNHCR was premised on the fact that South Africa is a party to a number of international instruments that guarantee recognised refugees equal protection before the law. The presenter pointed out that South Africa was a signatory to the United Nations 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, and the 1969 Organisation of African Unity Convention Governing Specific Aspects of Refugee Problems in Africa. In terms of these instruments, those persons recognised by South Africa as refugees have the right to basic services, including social assistance.

The UNHCR submission recalled that section 27 of the Refugees Act provides that recognised refugees are entitled to full protection of the law. This, they argued, includes the rights guaranteed in Chapter 2 of the Constitution, including the right to social security. Furthermore, the preamble to the Social Assistance Bill states that, in terms of the Constitution, everyone has the right to social security, not only South African citizens. In light of these arguments, the UNHCR called for the inclusion of refugees in subclause 5(c) of the Bill.

The submission also argued that unaccompanied minors and separated children represent a distinct category of vulnerable persons. In terms of the United Nations Charter on the Rights of the Child (UNCRC), South Africa is obliged to provide special protection to refugee children appropriate to their specific circumstances and vulnerability. The submission proposed that such children be dealt with in two possible ways. The first would be to recognise refugee children as one of the categories of non-South Africans to whom social assistance will be made available. The alternative would be to make specific reference to refugee children in each of the clauses that deal with grants to children.

The Committee asked whether it would not have been better to make provision for social assistance and related services in the Refugees Act. The presenter said that this might have been the preferred option, but the Act does not make such provision. In addition, the provisions around the Refugee Relief Fund (as contained in the Fundraising Act (Act No. 107 of 1978), are very broad and speak only to relief measures over the short term. The same applies to those provisions that are likely to be contained in the draft Social Relief Fund Bill. Refugees experience the same hardships as those South African citizens covered by the social assistance legislation. Because of their already dire circumstances, it is difficult for adult refugees to come forward and care for unaccompanied minors and separated children.

Vulnerable children

Submitted by the Children’s Institute: University of Cape Town

The submission argued that the impact of HIV and Aids on children is exacerbated in contexts of poverty. It was submitted that groups of children who are currently excluded from financial support include:

• Children over the age of 9 years who live with their biological parents.

• Children over the age of 9 years who are cared for ‘informally’ by adults who are not their biological parents i.e. care givers of children who have not been placed in their care through a children’s court.
• Children living without adult care givers.

During the discussion it was suggested that children whose parents are still alive experience very similar hardships as those children whose parents have died. It was argued that the single focus on orphaned children is inappropriate, especially in the context where children live with sick adults. Furthermore, it was stated that the focus on orphaned children would represent inequities where children living with family members receive higher priority than poor children living with their own parents.

The foster child system might impact on parental responsibility, since the Bill provides perverse incentives to families to abandon children in order for children to access the foster grant.

Research furthermore indicates that better income results in better life chances for children. If a family has money to feed children and send them to school, the vulnerabilities would not manifest so soon.

It was concluded that there is currently no data available on the cost of conducting the means test to determine eligibility for a grant. Therefore, a universal child grant would be easier to implement, and be cheaper to administer.

Submitted by the Southern African Catholic Bishop’s Conference (SACBC)

It was submitted that the Bill is exclusionary in nature as it limits the extent to which people in need are able to gain access to social assistance grants. The means test leaves out those who could benefit most from social assistance, while the Bill fails to accommodate the Constitutional definition of a child. Consequently many children under the age of 18 will not receive the child support grant.

It was submitted that the Bill fails to make adequate provision for children living in child-headed households. It was recommended that a specific grant should be introduced to cater for the needs of children in child-headed households.

The submission argued that the Bill fails to consider HIV and Aids as a chronic illness and which is deserving of its own special grant. Currently, people living with HIV and Aids are only entitled to apply for the disability grant if they are severely ill and in need of permanent care when in the final stages of this disease. It was submitted that the current situation makes it impossible for people living with HIV and Aids to obtain treatment and access to healthy lifestyles to allow them to remain active members of society, for as long as possible.

The Bill fails to provide for social relief of distress by including the right to apply for social grants in times of distress. It was argued that these grants could provide a lifeline for thousands of people living in distress.

The submission stated that the Bill fails to address issues of primary care givers who are younger than 16 years. There are many children younger than 16 who operate as primary care givers in households. It was suggested that either the age limit should be removed or recognition given to the fact that there are children who play the role of primary care givers.

Submitted by the Women’s Legal Centre

It was submitted that the Bill fails to explicitly provide that any child who may have the capacity to assume the role of primary care giver, or who have demonstrated such capacity de facto by caring for his or her siblings, may apply for and collect a grant.

The submission argued that the Bill fails to provide a means of assessing the capacity of children heading child-headed households. Furthermore it was submitted that linking capacity to age, would lead to both the under and over-inclusion of capable children.

The submission recognised that although it is essential to develop a method for assessing the capacity of a given child, in situations where it is clear that a child is already caring for family members, this capacity should not be questionable. It was argued that in such situations capacity should be assumed for the purposes of receiving the child support grant.

It was argued that if it is determined that remaining in a child-headed household is not in the best interest of the child, then in the long run appropriate arrangements should be made. However, until such time as alternative placement is arranged, a child head of household who has capacity to run his family should have direct access to the child support grant.

During the discussion it was submitted that in many areas of our law the notion of evolving capacity is recognised, for example:

• Choice of Termination of Pregnancy Act (section 5(3) of Act No. 92 of 1996);
• Child Care Act (section 39(4) of Act No. 74 of 1983)

Submitted by the Alliance for Children’s Entitlement to Social Security (ACESS)

The submission recommended the immediate and complete abolishment of the means-test for the child support grant (CSG), due to the fact that the means test excludes those persons most in need of assistance. The submission argued that when considering that between 60% and 70% of children in South Africa live in poverty, the expenses and administrative burden cannot be justified in targeting only a small percentage of those in need. It recommends that clause 6 be redrafted to read:

Or alternatively:

During the discussion a question was raised on whether the child support grant would be effective in addressing poverty and whether a Basic Income Grant (BIG) would suffice. In response, it was submitted that a BIG would be the better option, for various reasons. It was further stated that an extended child support grant should be regarded as a first phase of a BIG, while in the second phase the grant would be extended to adults. It was submitted that the Taylor Committee of Enquiry, as well as the Children’s Institute has done some costing for a BIG, while the BIG Coalition is currently conducting some work on how money to finance a BIG can be regained.

In response to a question on whether supporting child-headed households would entrench a situation that is not in the best interest of the child, it was noted that child-headed households already exist. It was further submitted that these households are likely to multiply and although it is not the ideal, child-headed households should be able to access financial support from the State. It was argued that child-headed households should not be further disadvantaged because they do not have an adult living with them. The best solutions would be allowing such households direct access to social assistance, as well as a mentoring programme (which is currently already happening in communities).

A question was raised whether, taking into account the small numbers of child-headed households, the child care system cannot take care of children in child-headed households. In response it was submitted that foster care is not always the most appropriate for children. Research has indicated that the majority of children would prefer not being taken out of their family home and community, but prefer remaining with their siblings. Foster care and the lengthiness of court procedures may not always be the most appropriate for children already traumatised.

Submitted by the Children’s Institute: University of Cape Town

The submission argued that a comprehensive social security system for children should include, but not be limited to, a universal (non means tested) child support grant which would be accessible to all children, including children living without adult care givers.

As an alternative, it was recommended that the child support grant be extended to children under 18 years and that the current means test be simplified and adapted (as a first step towards the abolishment of the means test) to ensure that the grant accommodates those children who need it most. In addition, the submission recommended that the documents required for accessing the child support grant be reviewed in order to eliminate one of the major barriers to grant access for the poorest children.

Submitted by the Coalition on Social Assistance

The Coalition recommended the immediate and complete abolishment of the means test for the CSG, due to the fact that the means test excludes those persons most in need of assistance.

Submitted by Professor Olivier

Reference to "that child" in clause 6 is unsuitable.

Submitted by the Women’s Legal Centre

The submission argued that clause 6 be reformulated as follows:

It was proposed that subparagraph (d) be inserted to ensure that until such time as the mentor or supervision provisions may be effected in practice, children on the street or in child-headed households are provided for in some capacity. Though provision of mentors may suffice as alternative family care under the Constitution, it is necessary to acknowledge that it will take time and resources to give effect to this provision and therefore, an interim measure must be implemented.

During the discussion it was suggested that there is no blanket scenario of how a mentorship would operate in practice, since it would depend on the individual situation. It was argued that the intervention of a social worker in the absence of a mentor for a child-headed household would only be a temporary solution. The use of a social worker would be useful for the immediate interim period, but a mentor would be a long-term solution.

It was submitted that despite a mentorship programme, there would still be child-headed households without a mentor. In those instances, the child-headed household should be able to access the child support grant. However, there could still be a role for social workers, such as assessing the capacity of a child who is heading a household.

A question was raised as to whether social relief of distress should be made available when children lose their parents, while arrangements are being made to appoint a mentor or procurator. It was argued that social relief of distress is only limited to 3-6 months, while in order for the mentorship programme to work, it should be initiated as soon as possible or the child-headed household should be allowed to access the grant.

In response to a question on the role of traditional leadership in accessing a child support grant for child-headed households, it was submitted that such households do not always receive support that is equitable or fair from traditional leaders. Therefore, one could not entirely rely on the goodwill of traditional leaders in accessing grants for child-headed households.

Submitted by the Black Sash

The Black Sash argued that the care dependency grant currently benefits only severely disabled children who are permanently at home, and does not cater for the many others with milder disabilities, or those in day care facilities. There is no provisioning at all for children with chronic illnesses, including HIV/AIDS. These children have many additional needs and expenses and caring for them constitutes a large burden on family resources. Eligibility criteria should be determined by the need resultant from the particular disability or illness, and not depend on the nature or severity of the disability or illness.

Submitted by the Coalition on Social Assistance

The Coalition suggested the following amendments to this clause:

Similar proposals were made by ACESS and the Black Sash.

Submitted by Professor Olivier

Professor Olivier stated that 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 recommendations that the requirement of permanent home care be removed, and that the grant be extended to children with moderate disabilities and those in special schools or day centres.

Submitted by the Southern African Catholic Bishop’s Conference (SACBC)

It was recommended that in the case of grants for care dependent children and the disabled, reference to eligibility on the basis of severe chronic illnesses be included.

Submitted by the Durban Children’s Society

The submission noted disappointment that those clauses in the draft Children’s Bill that deal with social assistance have been removed. It was argued that the Social Assistance Bill in its current form still represents a barrier to, rather than a facilitator of access to social assistance. The submission called for the simplification of grant application procedures, especially with reference to the foster child grant. In this respect, it was recommended that the court procedures associated with the grant be removed. It was also recommended that the draft Children’s Bill retain provisions dealing with social assistance.

Submitted by the Southern African Catholic Bishop’s Conference (SACBC)

The submission argued that there is confusion amongst people about the eligibility of family members to receive the foster care grant. It was therefore recommended that the definitions of foster children and foster parents should include reference to extended family members.

During the discussion it was submitted that currently there is no provision in current legislation that states that families may not access the foster grant, however, some magistrates do not allow extended families to apply for a foster grant if a child lives with them.

Submitted by the Black Sash

The Black Sash recommended the following insertions to this clause:

A person is, subject to Section 5, eligible for a disability grant, if he or she –

(a) has attained the prescribed age; and

(b) is owing to a temporary or permanent physical or mental or intellectual or sensory disability or chronic illness, 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 and that of his or her dependants.

The purpose of the disability grant for adults with disabilities is income maintenance for persons who cannot provide for themselves due to the disability. The White Paper for Social Welfare acknowledges in Chapter 8, Section 4 that "People with chronic illnesses also experience difficulties in obtaining employment" and that chronic illnesses "impact on the individual and family’s capacity to function optimally".

A question was raised at to whether the Black Sash would have a problem with a policy that would prioritise children or people with disability and whether the degree of disability should be taken into consideration when considering the disbursement of grants. The Black Sash indicated that if any person with disability is unable to work, the person should access the grant anywhere in the country regardless of the degree of disability. However, with regard to children this might need to be factored in because of their needs.

Submitted by Professor Olivier

Professor Olivier stated that the Bill contains a narrow scope of qualifying for disability grant. The 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 maintenance.

Submitted by the Coalition on Social Assistance

The Coalition suggested the insertion of the following clause:

Submitted by Professor Olivier

This clause continues to retain the age distinction between men and women to qualifying for the grant. It is imperative that the Bill starts some gradual phasing out of the age differential, given the fact that gendered labour market and social exclusion practices are increasingly characterised by equal treatment of men and women.

Submitted by the Advisory Board on Military Veterans Affairs

The Advisory Board proposed that the concept war veterans should be substituted with the concept military veterans as defined in clause 1 of the Military Veterans’ Affairs Act (Act No. 17 of 1999).

Therefore the Advisory Board proposed the substitution of subclause 11 (a) with a new subclause with paragraphs (i) and (ii) that reads:

Submitted by Action on Elder Abuse (SA)

This grant must be paid to the primary care giver rather than to the older person. Many caregivers, family and non-family members, care for older persons, but do not receive the money from the grant-in-aid. The definition of "primary care giver" would then need to be expanded to include the care of older persons.

A question was asked whether the payment of the grant-in-aid to a primary care giver would not be open for abuse. Action on Elder Abuse indicated that mechanisms for more than one tier of accountability need to be established when the grant is given to the primary care giver. The primary care giver should also be made to account for the use and administration of the grant.

Submitted by Age in Action

Age in Action stated that this grant was paid in respect of 12, 279 persons in the 2002/2003 financial year. It should be more accessible. It is currently mainly claimed by family members, many of whom do not live with the older or disabled person or offer him or her any service. Therefore, it should be accessible only to the primary care giver for an older person.

In many areas no allowances are available for the care of housebound or terminally ill patients. If the carer was attached to a registered welfare organisation this could ensure that an adequate service was offered. As an additional safeguard, the medical certificate required when applying for this grant should identify the carer.

Submitted by the Alliance for Children’s Entitlement to Social Security (ACESS)

The submission recommended that a new clause with the heading Social Relief of Distress be inserted after clause 12: It recommended that the new clause read as follows:

Submitted by the Coalition on Social Assistance

The Coalition suggested the following amendments to clause 12:

Submitted by Professor Olivier

Professor Olivier stated that the grant-in-aid as regulated in clause 12 should make reference to clause 4(b).

Submitted by Action on Elder Abuse (SA)

Action on Elder Abuse argued that this clause needs to be broadened and re-written to facilitate the partnership between the Department and the welfare sector.

Submitted by Age in Action

The submission argued that this clause needs to be completely redrafted, in consultation with welfare organisations, as it should lay the basis for resolving the current stalemate in the financing policy in the Department. The clause does not address the following issues:

• The lack of uniformity in subsidy levels and common criteria for subsidies within provinces.
• Subsidies bear no relation to the costs of caring or otherwise providing services to older persons in particular and are not index linked.
• Subsidies do not address the continuing wide historical disparities between services in different communities.
• In some provinces, subsidies are monitored in a grudging and bullying manner with little recognition for the efforts of welfare organisations. Welfare organisations such as Age in Action would like to see a closer partnership between Government and welfare organisations so that these kind of issues could be addressed constructively and to the benefit of all parties, in particularly the poorest of the poor.

Submitted by Professor Olivier

The Bill contains a restricted scope of organisations that could benefit from financial awards. Only welfare organisations that are active in the developmental social welfare field and certain non-profit organisations could benefit from these awards. 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 South African Human Rights Commission in its recent report that the State should strengthen links with faith based organisations.

Financial awards to "persons" in clause 13 are also a misnomer, as only two categories of beneficiaries are presently indicated: welfare organisations and non-profit organisations.

Submitted by the South African Council of Churches (SACC)

The SACC noted the fact that the Bill does not contain a definition of "welfare organisations", while a number of civil society organisations that provide services in communities are not registered as non-profit organisations. The result is that clause 13 would exclude a significant number of organisations that work in the social development field. The SACC proposed that the clause be amended. Clause 13 could allow for financial support to organisations recognised by the Commissioner of Revenue as a public benefit organisation in terms of section 30 of the Income Tax Act (Act No. 58 of 1962) instead of the two categories of organisations provided for. An alternative would be to add the proposed "public benefit organisations" as a third category of organisations that would qualify for support in terms of this legislation.

Submitted by Age in Action

Social relief of distress grant was introduced in the 1992 Act, but was only available in some provinces and for a limited period. Where it is available, it has provided invaluable relief to destitute families, including applicants waiting for social grants. However, it has been excluded from the current Bill, with the result that no interim measures will be in place while applicants are waiting for their grants.

The following questions, therefore, need to be addressed:

• Is the Social Relief of Distress going to be replaced by other measures?
• Are food parcels intended to replace it?
• If so, what are the criteria for qualifying for food parcels?

The submission proposed that a new clause be inserted after clause 12:

1. A person is eligible for a social relief of distress grant if he or she

1. is destitute and without any means of support; and/ or
2. has applied for another grant and is waiting for approval.

Submitted by the Black Sash

The Black Sash, along with the Coalition on Social Assistance, recommended the insertion of the following subclause:

The submission argued that it is important to remember that in the Constitutional Court case of Grootboom, the court provided certain constitutional requirements to be met by all State policies aimed at the progressive realisation of socio-economic rights. The court held that in assessing whether the state has fulfilled its positive obligations to realise socio-economic rights, the court will evaluate the ‘reasonableness’ of the measures adopted by the state to give effect to the rights.

The following principles are key elements of the reasonableness test:

• The relevant programme must be a co-ordinated, comprehensive programme, which is capable of facilitating the realisation of the right in question.
• The programme must include measures to provide immediate relief for those in desperate need and living in intolerable conditions or crisis situations. In other words, the State may not neglect to respond to immediate needs in favour of longer-term strategies.
• The legislation, policies and programmes adopted must not only be reasonably formulated, they must also be reasonably implemented.
• Access to the right should be progressively extended both to a larger number and to a wider range of people; legal, administrative, operational and financial hurdles should be examined and, where possible, lowered over time.
• The availability of resources will be an important factor in assessing the reasonableness of the resources adopted by the State to realise socio-economic rights.

Submitted by Professor Olivier

Professor Olivier stated that a statutory hiatus would be created if the Bill is adopted without provisions that regulate the granting of social relief of distress.

Submitted by the South African Council of Churches (SACC)

The submission argued that social relief of distress plays an important role in filling in what the SACC described as "the gaping holes in the existing social safety net". However, the provinces are not applying it uniformly. The SACC further held that social relief of distress should be seen as an integral component of the social security system, and that it should not be left to the discretion of provinces whether to apply it or not. Therefore the SACC expressed concern that this form of social security has been omitted from the Social Assistance Bill altogether. They proposed that the administration of social relief of distress be removed from the provincial sphere to the national department, and that the Bill make provision for this.

Submitted by the Black Sash

The Black Sash welcomed the amendments made by the Committee in their deliberations contained in the Draft Discussion Document containing proposals made by the Social Development Committee of 9 September 2003 to section 14(3)(b), and asked that such proposals be incorporated into the final Bill. It is important to note that this is not a departure from the status quo – the current Regulation 25(2) to the Social Assistance Act provides that:

"The Director-General shall, if he or she refuses an application, inform the applicant in writing of his or her reasons for such refusal and of the applicant’s right of appeal in terms of section 10 of the Act".

Given that such a provision provides for substantive rights to applicants, it should be contained in the body of the Act, and not the regulations.

Submitted by the Coalition on Social Assistance

Members of the Coalition submitted that requests for additional information from applicants for the purposes of assessing potential beneficiaries should be limited by allowing only those documents that are ‘reasonably necessary’ in order for the administrator to consider an application. It was argued that this would prevent the many cases of applicants being sent back and forth unreasonably, to produce various documents. The Coalition therefore suggested the following amendments to clause 14:

The submission noted that many applicants for social assistance are sent from one social services office to another to produce various documents required for their application. Sometimes these documents are not those specifically listed and this creates confusion. Thus the requests for additional information for the purposes of assessing potential beneficiaries should be limited by allowing only those documents that are ‘reasonably necessary’ in order for the administrator to consider an application. This will prevent the many cases of applicants being sent back and forth unreasonably, to produce various documents.

The submission further argued that many people are turned away from social services offices and have their applications turned down without an explanation nor are they told of the appeal mechanism that they are entitled to make use of. The Coalition also suggested the following amendments to this clause:

In terms of the principles of administrative justice, applicants for social assistance are entitled to reasons in writing for their failure to apply for social assistance successfully as well as the relevant appeal mechanisms. Many people are turned away from social services offices. Their applications are rejected without explanation, nor are they told of the appeal mechanisms, which they are entitled to make use of.

Submitted by the Children’s Institute: University of Cape Town

The submission argued that while the absence of birth certificates and identity documents are far from being the sole reason preventing children from accessing the child support grant, they nonetheless represent one of the key barriers.

Submitted by the Coalition on Social Assistance

The Coalition suggested the insertion of the following new clause after clause 14:

1. The provincial Department of Social Development, Child and Family Court or a non governmental organisation designated by the provincial department, may appoint mentors to apply, collect and administer social assistance on behalf of children living in child-headed households.
2. The Minister, in consultation with civil society, must prescribe the procedure for appointment and ensuring accountability of mentors.
3. The mentor referred to in subsection (1) –

A question was asked as to whether there is any difficulty with the current system for child-headed households to be placed under foster care. The Coalition indicated that the current foster care system is not appropriate in dealing with the current number of children in need of care. It does not take cognisance of the fact that some children would prefer to stay within their households with their siblings rather than being sent to foster care. It is the best interest of the child that needs to be taken into consideration when deciding whether a child needs to be placed in foster care or not.

A question was asked as to whether adoption grants should be instituted to encourage people to adopt children. The Coalition indicated that adoption grants are not yet an issue and the issue of adoption grants is a complex one that needs careful consideration.

Another question was asked as to the extent to which child-headed households are safe. The Coalition indicated that in most cases the community play a major role in protecting the children.

Submitted by the Black Sash

The Black Sash submission pointed out that in the opinion of the South African Law Reform Commission, the options for formal placement of children in need of care and protection are inadequate to cater for the large number of children who will be affected by the Aids pandemic. The Commission pointed out that child-headed households would become a familiar phenomenon owing to the increase of HIV and Aids infected adults. The Commission therefore recommended that legal recognition be given to child-headed households as a placement option for orphaned children in need of care.

In order to provide support to child-headed households, the Commission also recommended that:

• legal recognition be given to schemes in terms of which one or more appropriately selected and mandated adults are appointed as ‘household mentors’ over a cluster of child-headed households by the Department of Social Development, a recognised NGO or the court.
• the proposed ‘household mentor’ may not make decisions in respect of the child-headed household without consulting the child at the head of the household and without giving due weight to the opinions of the siblings as appropriate to their age, maturity and stage of development.
• the proposed ‘household mentor’ be able to access grants and other social benefits on behalf of the child-headed household.
• the proposed ‘household mentor’ be accountable to the Department of Social Development or a recognised NGO or the court.

The legislative recognition of mentors could be realised through the amendment of the Child Care Act by way of a clause in the Social Assistance Bill.

A question was raised as to the extent of child-headed households in South Africa. Black Sash indicated that there is currently a lack of statistics concerning the actual number of children orphaned by HIV and Aids, but that the problem is substantial.

Submitted by Professor Olivier

Professor Olivier stated that the Bill does not contain requirements for notification of a successful application. This implies that potential beneficiaries will have to go and check each month whether or not their application was approved.

Submitted by Action on Elder Abuse (SA)

Grants recipients need to be protected from procurators who abuse their function. There should be specific criteria for the appointment of procurators and these should include limiting the number of persons for whom one person can act as a procurator. At present, bottle store or shebeen owners are procurators, cashing grants for more than one grantee, and instead of giving beneficiaries the cash, pays them in the form of liquor.

In some instances, family members who are appointed as procurators do not give the money to the beneficiary, using it for their own living expenses or needs or to buy drugs and/or alcohol. Other problems noted are instances where some older persons do not reside in the same province as their procurator, or instances where a bedridden older person cannot cancel the power of attorney.

The prescribed requirements and prescribed conditions referred to in subclause 15(1) and (2) respectively must be defined.

Submitted by Age in Action

Age in Action stated that the Bill makes no provision for the protection of the beneficiary from procurators who abuse their position, yet this is a serious problem for many housebound beneficiaries. The criteria for procurators should be prescribed in regulations to include that:

1. The person must be over 18 years.
2. Have no criminal record.
3. Have an independent relationship to the beneficiary, i.e. the beneficiary must not be indebted to him or her.
4. The person’s livelihood must not involve money-lending or alcohol sales.
5. Witnesses should testify to the agreement between the beneficiary and the procurator.
6. The arrangement or agreement should be reviewed at regular intervals.

There is also a concern about clause 15(2), which states that if the older or disabled person is unable to complete a power of attorney, i.e. is not of a sound mind, the administrator may appoint a person to receive the pension on his or her behalf, provided that they comply with prescribed conditions. However, such a condition is not spelt out. The term deputy should be used for such persons and be included in the definitions.

This clause should be amended as follows:

Submitted by the Alliance for Children’s Entitlement to Social Security (ACESS)

ACESS proposed an amendment to clause 15, as it relates to the appointment of persons who would act on behalf of child-headed households. This proposal is similar to that of the Black Sash and the Coalition for Social Assistance, and is discussed under clause 14.

Submitted by COSATU and NEHAWU

The submission proposed an insertion, after the words "by a power of attorney", in subclause (1) of clause 15, of the words or commissioner of oath’s signature.

Submitted by the Southern African Catholic Bishop’s Conference (SACBC)

The submission recommended that subclause 15(1) be phrased in a manner that makes it clear that the beneficiaries have the freedom to choose the procurator. It was argued that such beneficiaries might have needs that the Agency might not know of. The wishes of beneficiaries should be prioritised as far as possible.

Submitted by COSATU and NEWAWU

It was recommended that in clause 16 (1) the Bill should retain "suspend" instead of "discontinue".

Submitted by Professor Olivier

Professor Olivier stated that the Bill contains narrow provisions on the discontinuation of grant in the case of persons being absent from South Africa. It is unclear why the statutory rule must be formulated in such absolute terms. Bilateral coordination agreements could, for example, provide for cross-border payment of social assistance.

Submitted by the Alliance for Children’s Entitlement to Social Security (ACESS)

It was recommended that clause 18 be redrafted to include subclause 18(3):

Submitted by the Coalition on Social Assistance

The Coalition suggested the following insertion to this section:

1. If an applicant disagrees with a decision made by an administrator in respect of a matter regulated by this Act, that person or 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 –
1. Confirm, vary or set aside that decision; or
2. 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.

Submitted by Action on Elder Abuse (SA)

The submission indicated that although this clause is fitting in the case of a beneficiary or applicant, it is unfair to cause hardship to a beneficiary due to the dishonesty of a procurator or primary care giver. This needs to be treated as two separate issues, and while the allegation is being investigated, interim social assistance should be made available to the beneficiary.

A question was asked as to whether there should be a statutory role for social workers to scan the abuse of pension by procurators. Action on Elder Abuse indicated that the social workers should be accorded the power to scan the abuse of grants by procurators. However, social workers as sometimes administrators of grants need to be monitored and be made accountable.

The Bill must also include some mechanism for accountability, termination of power of attorney and even the recovery of the money misappropriated by procurators and administrators.

Submitted by Age in Action

This clause provides for steps to be taken against those who "misuse" a grant, and it lumps together the beneficiary, procurator, primary care giver and applicant. There is no requirement for the administrator to investigate such allegations for appeals against the suspension of grants. In addition, the administrator has complete discretion to appoint another person to receive the grant under conditions that he or she may determine. Such persons should also be named "deputies" and be included in the definitions.

Clause 19 should be amended as follows:

1. Investigate such an allegation.
2. Suspend payment of the grant.
3. Appoint a deputy to receive the grant on behalf of the beneficiary.
4. The beneficiary, procurator, primary care giver or applicant shall have the right to appeal to the Director General against such action.

A question was asked as to whether grants should be withheld in cases of abuse and under what circumstances. Age in Action indicated that grants beneficiaries should be left to determine the way they use their grants. However, there should be criteria in the Act as how to deal with the abuse of grants by procurators. Procurators should, to a larger extent, be scanned before being appointed as procurators. People with drugs problems, charged with fraud and other related cases should not be allowed to be procurators. This will limit the abuse of grants by procurators.

Age in Action also indicated that one person should not be allowed to be a procurator for more than 5 people.

Another question was asked as to whether a provision should insterted in the legislation to allow the discarding of grants abused in casinos. Age in Action indicated that in most cases casinos in South Africa are more responsible, but people should still be allowed to decide on the use of their grants.

Submitted by the Alliance for Children’s Entitlement to Social Security (ACESS)

The submission expressed concern over the inclusion of the clause on misuse in the Bill. It was recommended that should the Bill make provision for the suspension of any grant, and that an appropriate definition of suspension needs to be included to ensure that the requirements of administrative justice as provided for in the Constitution and the Promotion of Administrative Justice Act (Act No. 3 of 2000) be met. It was submitted that the suspension of a grant is an administrative action that would materially and adversely affect the recipient’s rights. The submission drew extensively on section 3(2) and (3) of the Promotion of Administrative Justice Act and recommended that the assistance provided for in section 3(3) of the Act be considered by the Department.

The submission further welcomed the provision whereby a person may be appointed to receive the grant on behalf of a beneficiary, such as a child. However, it recommended that this be done before such a grant is suspended. Should this procedure not be followed, the child would end up being disadvantaged due to an adult’s "transgressions".

It was recommended that subclause 19(a) and (b) be redrafted to read:

Submitted by the Black Sash

The Black Sash indicated that this clause is open to subjective interpretation which could be to the detriment of people who depend on their ability to access social assistance. The only time a grant is suspended is if the beneficiary, procurator, mentor, primary care giver or applicant is convicted in a court of abuse and/or neglect or of not being able to control the grant. Prior to action being taken, the matter should be referred to the administrator for a full investigation prior to affecting any suspension. In addition, the suspension must be carried out in a fashion that is consistent with the requirements of administrative justice provided for in the Constitution and in the Promotion of Administrative Justice Act. What is important to note is that the old age pension is considered to be one of the most effective forms of social assistance because it is used to sustain entire households. In the case of other grants, such as the child support grant, it must be acknowledged that poor children live in poor households and therefore it is likely that the grant will be used in assisting to sustain the whole family, which cannot be defined as ‘misuse’.

Submitted by the Coalition on Social Assistance

The Coalition suggested the following amendments to this clause:

In respect of the clause heading:

In respect of the clause:

The current phrasing of the clause, which enables an administrator to suspend or redirect any grant the administrator considers to be "misused", is extremely vague and open to abuse.

Submitted by the South African Council of Churches (SACC)

The Bill provides that grants may be suspended or redirected in cases where the administrator becomes aware of the fact that such grants are being misused. The SACC submission noted that the wording of this clause is very vague, and that it does not outline on what basis the appropriate use of grants would be assessed. The submission illustrated the different ways in which grants are applied in poor households, each of which, depending on the definition of misuse, could be construed as such. It was further acknowledged that there might be instances where it is better to redirect a grant received on behalf of a beneficiary by a third party, for example a primary care giver who receives a child support grant on behalf of a child, or a procurator who receives a grant on behalf of an older or disabled person.

The SACC recommended that:

• Grants only be suspended or redirected in respect of recipients acting on behalf of a beneficiary.
• Grants only be suspended or redirected in instances where the recipient has been convicted of an offence that casts substantial doubt on his or her ability to act on behalf of a beneficiary.
• In other instances where the misuse of a grant is suspected, such a grant only be suspended or redirected after an investigation by, and on the advice of the Inspectorate.
• The suspension of grants be seen as a last resort where no suitable alternative recipient can be found to administer the grant on behalf of the beneficiary.

Submitted by Professor Olivier

Professor Olivier stated that the Bill does not make any provision for procedures/notices/hearing/ representation in dealing with the misuse of grants.

Submitted by Age in Action

Clause 20(3) states that the beneficiary must receive the full amount of a grant before an administrator may make deductions in respect of that amount. This section is weaker than the provision in the 1992 Act, presumably in order to make it possible for direct deductions to be made towards insurance and funeral policies. However, the Bill gives the Agency unlimited powers to make deductions, while no safeguards appear to be in place to prevent fraudulent deductions. Should this happen, beneficiaries have no recourse.

In several provinces, contractors abuse direct deductions in the following ways: premiums are increased without notice, double deductions are made and signatures on policies are forged. The Regulations should lay down that only registered insurance companies qualify for direct deductions and only one such deduction per beneficiary can be made.

A subclause should, therefore, be inserted as follows:

A question was asked whether it is possible to have direct deductions for those who want them while also limiting their abuse and protecting beneficiaries. Age in Action indicated that this issue needs careful consideration because even insurance companies that are supposed to take monies for life policies abuse the system. However, it is necessary to protect beneficiaries from unscrupulous businesses who often lend monies to the beneficiaries and then indiscriminately make the deductions.

Another question was asked as to what more the Government can do to protect beneficiaries from such abuses. Age in Action indicated that in practice people are not protected. There are lots of complaints about double deductions and sometimes unauthorised deductions that are made without the beneficiary’s knowledge and or consent. Age in Action also indicated that in some provinces deductions for loans are made before the payment of grants.

Submitted by the Alliance for Children’s Entitlement to Social Security (ACESS)

It was submitted that when a primary care giver of a child dies, the grant is terminated. The child, who is already traumatised by the death of his or her care giver, is further traumatised when his or her basic needs are not met due to the suspension of the grant. The new adult care giver has to reapply for a new grant and the child loses the benefit of social assistance during this period. It is recommended that the Bill provide a procedure for insuring that child beneficiaries are not disadvantaged through the stoppage of their grant when the adult receiving the grant on their behalf dies. It was submitted that this is a major problem for many children who are losing their parents and care givers to AIDS-related illnesses, violence and the other leading causes of death in South Africa.

The recommendation by ACESS was the same as that of the Coalition on Social Assistance.

Submitted by the Black Sash

The Black Sash indicated that it opposes deductions of any nature in the payment of grants by the State or their payment contractors. It indicated that the Portfolio Committee on Social Development has in the past requested certain of the private payment contractors to brief the Committee about the numerous accounts of fraudulent deductions. Payment contractors charge the end receiver a fee for such a deduction, in addition to the high fees paid by the Department for delivery of grants. However, the payment contractors do not appear to take any responsibility for the bona fides or actions of the companies using the deduction facilities. The current abuses and fraudulent deductions that have been witnessed in various provinces will continue as long as deductions are allowed, despite the formulation of the legislation.

The Department has in the past attempted to outlaw the deduction facility, and on 3 October 2001 the Minister of Social Development stated his position clearly that the practice of automatic deductions for insurance policies, micro-loans or any other such matter is expressly prohibited.

Submitted by the Coalition on Social Assistance

The Coalition proposed the following underlined amendments to this clause:

The submission argued that when the primary care giver of a child dies, the grant is terminated, and the child is further traumatised when his or her basic needs are not met due to the stoppage of the grant. The Act needs to provide a procedure for ensuring that child beneficiaries are not disadvantaged through stoppage of their grants when the adult receiving the grant on their behalf dies.

Submitted by Professor Olivier

Reference is made to the Minister in clauses 20(2) and 22(1) – (4), while this should be a reference to the Administrator. The reference to the Agency in clause 27(9)(a), and clause 28(1)(a) should be to the Administrator.

Submitted by COSATU and NEHAWU

The submission proposed the insertion of procurator or a primary care giver after "A beneficiary" in clause 21 (3). This recommendation pertains to the most recent version of clause 21 (draft discussion document 3, dated 17 September 2003).

Submitted by Professor Olivier

Professor Olivier stated that the disclosure of information as provided for in the Bill is overly broad. 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.

Submitted by Action on Elder Abuse (SA)

Action on Elder Abuse stated that the Bill does not address the matter of inter-departmental collaboration. This is very important especially with regard to the role of the Department of Home Affairs, which is a key role-player in the accessibility of social assistance, and the Department of Health.

Submitted by Age in Action

Age in Action indicated that this Chapter should spell out the functions of the Director-General in much more detail and should include the following:

• Oversight of the Agency in respect of financial accountability and service delivery.
• Inter-sectoral coordination. One of the principal obstacles to accessing social grants occurs at the interface with other Departments such as Health (assessment of disability, hospital patients), Home Affairs (mistaken birth dates, lack of documentations, the cost of IDs, delays in issuing documents and poor access to offices), and Safety and Security (lack of security at pay points, poor treatment of elderly complainants).

The Bill must also include a clause along the lines of Clause 20(2)(f) of the National Health Bill, which obligates the Director-General to "participate in intersectoral and inter departmental collaboration."

Clause 24 (b) should, therefore, be amended as follows:

The following sub-sections should be added to Section 24:

Submitted by Action on Elder Abuse (SA)

While Action on Elder Abuse acknowledged the need for the State to recover money that has been misappropriated, they question the cost effectiveness of the Inspectorate and whether this function could not adequately be fulfilled by the Auditor-General, the Department itself or the already established Scorpions Unit.

In the case of individual beneficiaries who have abused social assistance, the modus operandi of the Inspectorate is rather draconian, and seen in conjunction with Chapter 3 on "recovery of sums overpaid" in clause 17(2), which states that the Minister may write off the amount owing if the recovery of such an amount would be uneconomical or cause undue hardship to the debtor, is contradictory. It was therefore suggested that this Chapter be revoked completely.

Submitted by Age in Action

Age in Action stated that the Inspectorate envisaged in the Bill is not concerned with helping the beneficiary. Although it is responsible for "audits on compliance with regulations", this does not appear to include checks on conditions at pay points, for example, but on individuals suspected of abusing the system. The "entry, search, and seize" clauses make it appear as an alternative to the Scorpions. Such steps seem excessively draconian for dealing with the individual claimant who may have a "fraudulent" application out of a desperate need for an income.

In addition, if the Minister is employing an Agency to render a better service, why does there also need to be an Inspectorate at additional cost to the taxpayer? Could its functions not be carried out by other bodies such as the Auditor-General, the National Prosecuting Authority, Parliament or by the Department itself?

This section should, therefore, be removed from the Bill, as it duplicates the powers of other bodies and is excessively costly and bureaucratic.

Submitted by the Alliance for Children’s Entitlement to Social Security (ACESS)

The submission expressed support for the establishment of an independent body to monitor and deal with problems arising from the administration and delivery of social assistance. However, it raised concern about the cost of setting up an Inspectorate, and instead suggested that the Portfolio Committee insists on reviewing the costing of the Inspectorate, prior to approval of the Bill.

It was further submitted that there is potential ambivalence between the stated independence of the Inspectorate from the Department and the Agency, 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). It was recommended that the Minister’s control over the Inspectorate be clarified in the Bill. In addition, it was recommended that the Portfolio Committee clarify whether the Minister should have the power to direct the Inspectorate to terminate any particular investigation.

Submitted by the Coalition on Social Assistance

The Coalition recommended the deletion of clauses 30 to 32.

Submitted by Professor Olivier

Professor Olivier stated that this chapter is not satisfactory. It is assumed that the Agency will have its own compliance and fraud unit. It is not clear what will happen in a situation where a matter is referred to the SAPS or Inspectorate of Special Operations.

Submitted by the South African Council of Churches (SACC)

It was the contention of the SACC that the formulation in clause 28(1)(d) suggests that the powers given to the envisaged Inspectorate are too wide. In addition, the submission questioned the power given to the Inspectorate to search and seize in terms of clauses 30, 31 and 32. The SACC argued that these powers were excessive, and opened the Inspectorate to an abuse of power and excessive intrusion in the lives of beneficiaries. Therefore the SACC recommended that clauses 30 to 32 be deleted from the Bill.

Committee members asked whether the SACC wanted the powers provided for in relation to the Inspectorate to be curtailed, or whether it believed that such a body would be completely inappropriate. The presenter replied that the SACC would support such a body, but that the extent of its powers was a cause of concern.

Submitted by the Alliance for Children’s Entitlement to Social Security (ACESS)

The submission argued that the model of the Inspectorate as proposed by the Bill needs to be carefully considered. It was submitted that a system adopted from the model in the South African Police Services Act (Act No. 68 of 1995) is not necessarily appropriate to the different nature of social assistance administration and delivery. The submission maintained that the wide powers of search and seizure seem particularly inappropriate in this Bill and suggested that existing models in other countries should be looked at. The submission recommended that clauses 30-32 be removed from this Bill.

Submitted by the Department of Justice and Constitutional Development

The submission by the Department of Justice and Constitutional Development focused on the wording of clause 31, which deals with the powers of the Inspectorate to enter, search and seize with a warrant. The clause provides that a judge or magistrate must under certain circumstances issue a warrant that will allow the Inspectorate to enter, search and seize. The implication of the wording in the Bill is that the court would not have the discretion to decide on the facts presented to it. The Department of Justice and Constitutional Development submitted that the word "must" be amended to "may" in order to protect the judicial independence of judges and magistrates.

Submitted by Professor Olivier

The Bill contains the delegation of powers to wide categories of persons, e.g. to any staff member. Only a senior staff member should be provided for – as is envisaged in certain circumstances in the South African Social Security Agency Bill.

Submitted by Age in Action

Age in Action proposed that clause 36(1) (c) be amended to read:

The following subclauses should be added to 36(2):

(d) The review, suspension and reinstatement of grants.

(e) The refund o under payments and arrears.

Submitted by the Coalition on Social Assistance

The Coalition made the following underlined suggestions to this clause:

The Coalition argued that this provision should be peremptory as opposed to permissive. The Coalition also suggested the following insertion after subclause (2):

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

They further recommended inserting the following subclauses:

Submitted by the Coalition on Social Assistance

The Coalition recommended the insertion of the following new clause after clause 36:

A question was asked as to whether the Coalition would have any suggestions on matters that they feel strongly should be dealt with in the Bill rather than in the regulations. The Coalition indicated that social assistance is a rights issue, and therefore principles should be located the actual legislation. Technical provisions, such as amounts, should be located in the regulations, since these require amendments from time to time.

Submitted by the Coalition on Social Assistance

The Coalition expressed concerns regarding the viability of a state where provinces will repeal certain parts of the old law and other sections will continue to regulate the provinces. The drafters of the Bill, therefore, need to advise if any provisions, apart from the right to Social Relief of Distress would then fail to be included in any legislation, and provinces would then have to pass provincial legislation to accommodate such provisions.

________________________________________________________________

Report compiled by the Research Unit, Information Services Section, Parliament of South Africa.