PROPOSED AMENDMENTS

PROPOSED AMENDMENTS TO

SOCIAL ASSISTANCE BILL

[B57-2003]

ARRANGEMENT OF ACT

1. On page 3, after line 9, to insert "14. Social relief of distress".

2. On page 3, in line 7, after "welfare" to insert "and non profit"

3. On page 3, in line 7, to omit "and persons"

4. On page 3, from line 20, to omit "Chapter 4"

5. On page 3, from line 30, to omit:

"30. General Power of Inspectorate to enter, search and seize.

31. Powers of Inspectorate to enter, search and seize with warrant

32. Powers of Inspectorate to enter, search and seize without warrant";

PREAMBLE

1. On page 2, in the third paragraph of the preamble, to omit "security" in the third line and to insert "assistance"

CLAUSE 1

1. On page 3, from line 45, to omit the definition of "administrator"

2. On page 4, after line 10, to insert "child support grant" means a grant made in terms of section 6.

3. On page 4, after line 14, to insert the following definitions:

"Director-General" means the Director-General: Social Development;

disability grant" means a grant made in terms of section 9;

disabled person" means a person contemplated in section 9(b);"

4. On page 4, in line 15, to omit the definition of "Executive Director"

5. On page 4, after line 21, to insert the following definition:

"foster child grant" means a grant made in terms of section 8;

6. On page 4, in line 26 to omit the definition of "grant" and to substitute:

"grant-in-aid" means a grant made in terms of section 12.

7. On page 4, after line 29, to insert:

"Inspector-General" means the person appointed in terms of section 27(2);

8. On page 4, from line 30, to omit the definition of "Minister" and to substitute:

"Minister" means the Minister responsible for Social Development;

9. On page 4, after line 31, to insert the following definitions:

"older person" means a person contemplated in section 10(a) or (b);

"older person's grant" means a grant made in terms of section 10;

10. On page 4, after line 37, to insert:

"procurator" means a person appointed by a beneficiary to receive social assistance on his or her behalf;

11. On page 4, in line 39, to omit the definition of "social assistance" and to substitute "social assistance" means a care dependency grant, child support grant, disability grant, foster child grant, grant-in-aid, older person's grant and war veteran's grant in terms of this Act;

12. On page 4, after line 39 to insert:

"social relief of distress" means the immediate material assistance in cash or in kind in terms of section 14;

13. On page 4, after line 48, to add the following definitions:

"war veteran" means a person contemplated in section 11(b);

"welfare organisation" means-

(a) an organisation registered in terms of section 13(1) of the National Welfare Act, 1978 (Act No. 100 of 1978);

(b) any non profit organisation registered in terms of section 13 of the Nonprofit Organisations Act, 1997 (Act No. 71 of 1997), which in terms of its constitution has developmental welfare services as one of its objectives;

(c) an organisation which undertakes or coordinates organised activities, measures or programmes in the field of developmental welfare services.

14. On page 4, from line 49, to omit the definition of "Treasury".

CLAUSE 2

Clause rejected.

NEW CLAUSE

1. That the following be a new clause to follow on clause 1:

"Application and implementation of Act

2. (1) This Act applies to a person who is not a South African citizen, if an agreement, contemplated in section 231(2) of the Constitution, between the Republic and the country of which that person is a citizen makes provision for this Act to apply to a citizen of that country who resides in the Republic.

(2) The Agency is responsible for the administration, of social assistance in terms of chapter 3 and in terms of any function delegated to it in terms of section 29.

(3) The Agency must offer all reasonable assistance to a person, who, due to his or her age, a disability or an inability to read or write, is unable to understand, appreciate or exercise his or her rights, duties or obligations in terms of this Act, in the official language of the Republic which he or she is likely to understand, in order that he or she may do so.

(4) The Agency must out of moneys appropriated by Parliament for this purpose or with funds donated for this purpose publish and distribute to beneficiaries and potential beneficiaries, brochures in all official languages of the Republic setting out in understandable language the rights, duties, obligations, procedures and mechanisms contemplated in this Act, as well as contact details of the Agency or anyone acting on its behalf.

CLAUSE 3

1. On page 5, in line 32, to omit "security" and to substitute "assistance".

CLAUSE 4

Clause rejected.

NEW CLAUSE

1. That the following be a new clause to follow on clause 3:

"Financing of social assistance

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

(a) older person's grant;

(b) disability grant;

(c) war veteran's grant;

(d) a grant-in-aid to or on behalf of any person referred to in paragraph (a), (b), (c) whose physical or mental condition is such that he or she requires regular attendance by any person;

(e) a child support grant to a primary care giver of a child;

(f) a foster care grant to a foster parent; and

(g) a care dependency grant to a parent, primary care giver or foster parent in respect of a care dependent child;

(h) social relief of distress.".

CLAUSE 5

1. On page 5, in line 48 to omit "section 6, 7, 8, 9, 10, 11 or 12" and to substitute "Chapter 2".

2. On page 5, in line 49, to omit paragraph (b) and to substitute:

(b) subject to section 16, is resident in the Republic;

3. On page 5, in line 52, to omit "and"

4. On page 5, in line 54, after "subsection (2)" to insert "and"

5. On page 5, after line 54, to insert:

(e) applies for a grant in accordance with section 15(1).

CLAUSE 7

Clause rejected.

NEW CLAUSE

1. That the following be a new clause:

"Care dependency grant

7. (a) A person is, subject to section 5, eligible for a care dependency grant if he or she is a parent, primary care giver or foster parent of a child who requires and receives permanent care or support services due to his or her physical or mental disability.

(b) A person contemplated in paragraph (a) is not eligible for such a grant if the child is cared for on a 24 hour basis for a period exceeding for such a grant six months in an institution that is funded by the State.

CLAUSE 10

1. On page 6, in line 34, after "for" to omit " for older persons and to substitute "an older person's grant"

CLAUSE 11

1. On page 6, in line 39, after "years," to omit "and" and to substitute "or".

CLAUSE 12

1. On page 7, from line 12, after "if," to omit "due to a physical or mental disability" and to substitute "that person is in such a physical or mental condition that"

CLAUSE 13

1. On page 7, in line 14, after "welfare" to insert "and nonprofit"

2. On page 7, in line 14, after "organisations" to omit "and persons".

NEW CLAUSE

1. That the following be a new clause to follow on clause 13:

"Social relief of distress

14. (1) The Minister may-

(a) provide social relief of distress to an applicant who applied for social assistance and is waiting for the application to be approved;

(b) provide social relief of distress to a person if he or she is satisfied that such person is in need of social relief of distress.".

CLAUSE 14

1. On page 7, in line 29, after "the" to omit "administrator" and to substitute "Agency"

2. On page 7, from line 31, to omit subsection (3) and to substitute:

"(3) (a) If the applicant qualifies for social assistance in terms of this Act, the Agency must render the relevant social assistance.

(b) If the applicant does not qualify for social assistance in terms of this Act, the Agency must in writing at the applicant's address or other point of contact stated in the application, inform the applicant-

(i) that he or she does not qualify for social assistance in terms of this Act;

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

(iii) of his or her right of appeal contemplated in section 19 and of the mechanism and procedure to invoke that right.

3. On page 7, after line 37, to insert the following subclause:

(5) If any information supplied by a beneficiary to the Agency in an application for a grant materially changes after that beneficiary has submitted that application, he or she must as soon as is reasonably possible after that change occurs, inform the Agency thereof.

CLAUSE 15

1. On page 7, in line 39, after "may", to insert "subject to subsection (4)".

2. On page 7, after line 41, to insert the following subclause:

(2) Nothing in this section prevents a person applying for on receiving social assistance to withdraw, a power of attorney made in terms of subsection (1) and to appoint another person as procurator.

3. On page 7, in line 42, after "person" to omit "with a disability or an older person who is unable to complete a power of attorney, an administration" and to substitute "who is unable to appoint another as his or her procurator, the Agency"

4. On page 7, in line 43, after "may" to insert "subject to subsection (4)"

5. On page 7, in line 43, after "adult" to insert "person or welfare organisation"

6. On page 7, after line 49, to insert the following subclause:

(5) A procurator who has knowingly failed to inform the Agency of his or her intention to be absent from the Republic for a period exceeding 90 days, as contemplated in section 17(3), is unfit to act as procurator and may not continue to act as procurator or be nominated or appointed as procurator, unless the Agency decides otherwise as provided for in section 17(5).

CLAUSE 16

Clause rejected.

NEW CLAUSE

1. That the following be the new clause:

"Discontinuation of payments absent from Republic

16. (1) If a beneficiary, intends to be absent from the Republic for a period exceeding 90 days, he or she must inform the Agency thereof before leaving the Republic and the Agency must, subject to subsections (2), and (3), suspend, payment of a grant until that beneficiary or procurator, as the case may be, appears in person before the Agency and informs the Agency that the beneficiary has returned permanently to the Republic.

(2) Despite subsection (1), the Agency may upon written request by a beneficiary or a procurator, in circumstances prescribed by the Minister by notice in the Gazette, continue payment of a grant or a portion thereof to that beneficiary or procurator subject to such conditions and for such a period as the Agency may determine.

(3) If a beneficiary-

(a) is absent from the Republic for a period not yet exceeding 90 days and has not informed the Agency of his or her absence as contemplated in subsection (1); and

(b) due to a medical, safety or family emergency is likely to be absent from the Republic for a period exceeding 90 days,

the beneficiary or procurator, as the case may be, or anyone acting on his or her behalf or in his or her interest, must immediately after such emergency has arisen, submit an affidavit made under oath or affirmation to the Agency informing it-

(i) of the date when the beneficiary, left the Republic, the place where he or she is and any other information the Minister may prescribe by notice in the Gazette;

(ii) that the beneficiary is, due to an emergency contemplated in this subsection, likely to be absent from the Republic for a period exceeding 90 days;

(iii) of the details of the emergency which prevent the beneficiary's return to the Republic within, ninety days of the date referred to in paragraph (a) and verifiable proof thereof;

(iv) of the date when the beneficiary, intends to return to the Republic; and

(v) of an address where the beneficiary, or the person acting on his or her behalf or in his or her interest, as the case may be, can be readily contacted.

(4) The Agency must, after receipt of the statement and proof referral to in subsection (3)(b)-

(a) enter the details of these circumstances on the records of the beneficiary or procurator, as the case may be;

(b) consider the statement and such proof before deciding, subject to subparagraphs (aa), (bb) and (cc) whether or not to suspend, payment of the relevant grant as contemplated in subsection (1);

(c) in writing, in the official language of the Republic in which the application for that grant was made, inform the beneficiary or procurator, or the person acting on his or her behalf or in his or her interest, as the case may be, of the Agency's decision whether or not to suspend payment of that grant and if it has been decided to continue payment, subject to which conditions such payment will be continued,

but the Agency may in exceptional circumstances continue payment of the relevant grant subject only to conditions in respect of-

(i) the maximum period in respect of, which such payment will be continued;

(ii) the frequency with which further statements must be submitted to the Agency, the facts to be addressed in those statements and the nature and level of proof required; and

(iii) any matter relevant to the payment of social assistance which the Minister may prescribe by notice in the Gazette.

(5) If a beneficiary or procurator fails or refuses to inform the Agency as contemplated in subsections (1) or (3), the Agency must-

(a) immediately suspend, payment of the relevant grant;

(b) note that failure or refusal and any other information relevant to the absence of that beneficiary or procurator on his or her records;

(c) record that the beneficiary or procurator right to act as a procurator, as the case may be has, subject to subsection (5), been suspended;

(d) take the prescribed steps in terms of the Public Finance Management Act, 1996, to recover any payment made to the beneficiary or procurator, as the case may be, the period exceeding 90 days, during which the beneficiary was absent from the Republic;

(e) take any further action contemplated in this Act or other law.

(6) If the Agency has taken action contemplated in subsection (4), it must in writing, by registered mail at the last known address in the Republic or by verifiable notification at a point of contact with that beneficiary, inform the beneficiary in the official language of the Republic which he or she is most likely to understand that-

(a) his or her right to social assistance in terms of this Act has been suspended, and the reasons therefore; and

(b) he or she has the right to inform the Agency within ninety days from the date of postage of the registered mail, of the circumstances or reasons why he or she so failed or refused to inform the Agency of his or her absence, and an alternative address where he or she could have received physical mail.

(7) The Agency must after receipt of information, if any, submitted by a beneficiary or procurator in terms of subsection (6)(b)-

(a) consider such information and decide, whether or not to re-instate, that beneficiary's or procurator's rights in terms of this Act;

(b) in writing by registered mail at the last known address of that beneficiary in the Republic or at an alternative address supplied by that beneficiary or procurator, as the case may be, inform him or her in the official language of the Republic in which he or she submitted that information-

(i) of the Agency's decision;

(ii) the reasons for that decision; and

(iii) that he or she has a right of appeal contemplated in section 19 and of the mechanism and procedure to invoke that right.

CLAUSE 17

1. On page 8, in line 8, after if, to insert "if the Agency pays".

2. On page 8, in line 8, after "money" to omit "is paid"

3. On page 8, from line 12 to omit subclause (2) and to substitute:

(2) The Agency must recover the amount to which a person was not entitled, as contemplated in subsection (1), in accordance with the Public Finance Management Act, 1999.

4. On page 8, after line 15, to insert:

(3) The Minister shall remit an amount owning by a person in terms of subsection (1) if such a person satisfies the Minister that he or she received the amount without knowing that he or she was not entitled thereto.

CLAUSE 18

1. On page 8, in line 17, after "by" to omit "an administrator" and to substitute "the Agency"

2. On page 8, in line 22, after "the" where it appears for the third time, to omit "administrator's" and to substitute "Agency's"

3. On page 8, in line 24, after (a) to insert "confirm,"

4. On page 8, from line 25, after "with" to omit "the prescribed conditions" and to substitute "such conditions as the Minister may prescribe by notice in the Gazette"

5. On page 8, in line 26, after "matter," to insert "confirm,"

CLAUSE 19

1. On page 8, from line 29, to omit clause 19 and to substitute:

19. (1) If a beneficiary, procurator or a primary care giver uses a grant for a purpose other than that, which it was granted the Agency may-

(a) suspend payment of the grant in question, whether temporarily or indefinitely; or

(b) appoint a person, other than a person contemplated in section 15(5), to receive the grant on behalf of the beneficiary and to use it for the benefit of that beneficiary, subject to any condition that the Agency may determine.

(2) The Agency must-

(a) take all relevant steps in terms of this Act and the Public Finance Management Act, 1999, to recover the payment of the grant so misused; and

(b) resume or continue payment that grant subject to such terms and conditions as may that prevent the beneficiary, a procurator, primary care giver from continuing or repeating such misuse.

CLAUSE 20

Clause rejected.

NEW CLAUSE

1. That the following be the new clause:

"Restrictions on transfer on transfer of rights and payments of social assistance

20. (1) A grant may not be may not be transferred, ceded, pledged or in any other way encumbered or disposed of unless the Minister on good grounds in writing consents thereto.

(2) Any act in contravention of subsection (1) is void and if the Minister, becomes aware of any such act, he or she may order that, payment of the relevant grant be terminated or suspended immediately and the Agency must, in writing by registered mail at the last known address of that beneficiary or procurator, as the case may be, inform him or her in the official language of the Republic in which he or she made the application for the grant-

(a) of the Minister's decision;

(b) the reasons for that decision; and

(c) that he or she has a right of appeal contemplated in section 19 and of the mechanism and procedure to invoke that right.

(3) A beneficiary must without limitation or restriction receive the full amount of a grant to which he or she is entitled before any other person may exercise any right or enforce any claim in respect of that amount.

(4) Despite subsection (3), the Minister may prescribe circumstances under which deductions may be made directly from social assistance grants: Provided that such deductions are necessary and in the interest of the beneficiary.

(5) An amount that accrues or has accrued to a beneficiary or his or her estate in terms of this Act may not be attached or subjected to any form of execution under a judgment or order of a court or by law, or form part of his or her insolvent estate.

CLAUSE 22

1. On page 9, in line 6, after "thereto," to insert "or is not entitled to the full amount which he or she is receiving, and he or she fails to inform the Agency thereof,"

2. On page 9, after line 6, to insert the following subclause:

(3) A beneficiary who knowingly fails or refuses to inform the Agency of any material change of information contemplated in section 14(5), is guilty of an offence.

3. On page 9, in line 7, after "to" where it appears for the second time, to omit "administrator" and to substitute "Agency by third parties"

4. On page 9, in line 9 after "the" where it appears for the second time to omit "Minister" and to substitute "Agency".

5. On page 9, in line 9, after "the" where it appears for the third time, to omit "Minister" and to substitute "it".

6. On page 9, from line 9, after "with" to omit "the prescribed" and to substitute "all relevant"

7. On page 9, from line 10, after "beneficiary" to omit "and with any additional information requested if such information is necessary for a decision on an application"

8. On page 9, in line 14, after "the" where it appears for the third time, to omit "Minister" and to substitute "Agency"

9. On page 9, in line 15, after "furnish" to omit "the Minister with the prescribed" and to substitute "it with all relevant"

10. On page 9, in line 19, after "who" to insert "in terms of subsections (1) or (2)"

11. On page 9, in line 20, after "the" where it appears for the first time to omit "Minister in terms of subsections (1) and (2)" and substitute "Agency".

12. On page 9, in line 25, after "the" to omit "Minister" and to substitute "Agency"

CLAUSE 23

1. On page 9, in line 26, after "of" to omit "administrator" and to substitute "Agency"

2. On page 9, in line 27, after "(1)" to omit "an administrator" and to substitute "The Agency"

3. On page 9, in line 27, after "of" to omit "his or her" and to substitute "its".

4. On page 9, from line 32 after "before" to omit him or her" and to substitute "it"

5. On page 9, in line 35, after "(b)" to insert "through it representative,"

6. On page 9, in line 38, after "(c)" to insert "through its representative,"

CLAUSE 24

1. On page 9, from line 50, to omit the whole of Chapter 4.

CLAUSE 25

1. On page 10, in line 13, after "(1)" to omit "An" and to substitute "The"

2. On page 10, in line 13, after "established" to omit "and functions independently of both the Department and the Agency" and to substitute "as an organisational component contemplated in Schedule 3 to the Public Service Act, 1994 (Act No. 103 of 1994) and is headed by a person designated as Inspector-General"

3. On page 10, from line 15, to omit subclause (2) and to substitute:

(2) The Inspectorate functions independently of both the Department and the Agency."

4. On page 10, in line 21, after "the" where it first appears to omit "Executive Director" and to substitute "Inspector-General".

5. On page 10, in line 23, after "the" where it first appears to omit "Executive-Director" and to substitute "Inspector-General, an inspector or any other employee of the Inspectorate"

6. On page 10, from line 25, after "the" to omit "Executive Director" and to substitute "Inspector-General, an inspector"

7. On page 10, in line 26, after "any" to insert "other".

CLAUSE 27

1. On page 10, from line 38, after "an" to omit "Executive Director" and substitute "Inspector-General"

2. On page 10, in line 40, after "the" where it first appears, to omit "Executive Director" and to substitute "Inspector-General"

3. On page 10, in line 41, after "the" where it first appears to omit "Executive Director" and to substitute "Inspector-General"

4. On page 10, in line 44, after "Minister" to insert ", and that establishment must differentiate between employees who are to be appointed as inspectors exercising powers in terms of section 28 and other employees who are to be appointed to perform other functions within the Inspectorate"

5. On page 10, in line 46, after "the" where it appears for the first time to omit "Executive Director" and to substitute "Inspector-General"

6. On page 10, in line 47, after "an" omit "employee" and to substitute "inspector"

7. On page 10, in line 48, after "in" to omit "this Act" and to substitute "sections 28 and 29"

8. On page 10, in line 50, after "The" to omit "Executive Director" and to substitute "Inspector-General"

9. On page 10, in line 52, after "the" to omit "Executive Director" and to substitute "Inspector-General"

10. On page 10, in line 55, after "years" to insert "or to both a fine and such imprisonment"

11. On page 10, in line 3, to omit "the Department or the Agency"

CLAUSE 28

1. On page 11, in line 9, after "must" omit ", within the Agency"

2. On page 11, in line 10, after "(a)" to insert "conduct investigations to"

3. On page 11, in line 10, after "social" to omit "security" and to substitute "assistance frameworks and"

4. On page 11, in line 11, after "executive" to omit "internal financial audits and"

5. On page 11, in line 11, after "compliance" to omit "with regulations" and to substitute "by the Agency with regulatory and policy measures and instruments"

6. On page 11, in line 13, after "mismanagement" to omit "; and" and Agency and in connection with its functions, duties and operations

7. On page 11, after line 13, to insert the following subclause:

"(a) establish a complaints mechanism; and"

8. On page 11, in line 18, after "service" to omit "or" and insert ";"

9. On page 11, in line 20, after "(1998)" to insert "or any other organ of state established by law which has the appropriate powers to investigate and act on any alleged contravention of this Act"

10. On page 11, in line 24, after "Minister" to omit "may, at the request of and" and to substitute "must,

11. On page 11, from line 24, after "the" where it appears for the third time, to omit "Executive Director" and to substitute "Inspector-General, in writing,"

12. On page 11, from line 25, after "Inspectorate" to omit "identified by the Executive Director" and to substitute "appointed as inspectors"

13. On page 11, in line 28, after "law," to insert "by notice in the Gazette".

CLAUSE 29

1. On page 11, in line 32, after "the" where it appears for the second time omit "Executive Director" and substitute "Inspector-General"

2. On page 11, in line 33, to omit "Executive Director" and to substitute "Inspector-General"

3. On page 11, in line 37, after "the" where it appears for the second time, omits "Executive Director" and substitute "Inspector-General or an inspector"

4. On page 11, from line 37, after "furnish" to omit "the Executive Director" and to substitute "him or her"

5. On page 11, in line 47, after "the" to omit "Executive Director" and to substitute "Inspector-General"

CLAUSES 30, 31 AND 32

1. On page 12, from line 8, to omit clauses 30, 31 and 32.

CLAUSE 33

1. On page 14, in line 5 after "the" to omit "Director-General: of the Department, an administrator" and to substitute "Member of the Executive Council responsible for social development in a province, Director-General, the Agency".

2. On page 14, in line 8, after "Director-General" to omit "of the Department, an administrator" and substitute "the Agency"

3. On page 14, in line 11, after "Director-General" to omit "of the Department"

4. On page 14, in line 25, after "be" to insert "amended or"

CLAUSE 34

1. On page 14, in line 29, after "Director-General" to omit "of the Department," and to substitute "or"

2. On page 14, in line 30, after "or" to omit "an administrator" and to substitute "the Agency"

3. On page 14, in line 33, to omit "administrator" and to substitute "Agency"

4. On page 14, in line 25, after "furnishes" to omit "the administrator or"

5. On page 14, in line 40, after "by" to omit "the administrator or"

CLAUSE 35

1. On page 14, in line 45, after "exceeding" to omit "10" and to substitute "15"

CLAUSE 36

1. On page 14, in line 48, after "Minister" to insert "must make regulations regarding any matter that must be prescribed in terms of this Act and"

2. On page 14, in line 49, after "that" to omit "must or"

CLAUSE 37

1. On page 15, in line 7, after "of" to omit "legislation" and to substitute "laws and transitional measures"

2. On page 15, after line 13, to insert the following subclause:

(3) Any regulation or notice issued, any appointment made, any grant awarded, any moneys paid, or anything else done by a provincial sphere of government under the Social Assistance Act, 1992, insofar as it has been assigned to that sphere of government, is deemed to have been issued, made, granted, paid or done under the corresponding provisions of this Act in the event that a provincial legislature repeals the Social Assistance Act, 1992, insofar as it has been assigned to that sphere of government, or amends the Act in such a way that it conflicts with this Act.