The Provincial Standing Committee on National Council of Provinces Matters mandates the KwaZulu-Natal delegation to the National Council of Provinces not to support the OLDER PERSONS BILL [B 68 - 2003], in accordance with the submissions made in the Annexure attached hereto,

PROVINCIAL ENDORSEMENT:

Mrs L G Ngcobo

OLDER PERSONS BILL [B68-2003]

In terms of the Rule 243(1 )(c)(iii) of the Standing Rules of the National Assembly, a Cabinet Member or Deputy Minister or an Assembly member or committee introduces a bill by submitting to the Speaker a supporting memorandum which must give an account of the financial implications of the bill for the state. It is the view of the Social Welfare and Population Development Portfolio Committee of the Province of KwaZulu-Natal that the 'Report on the Costing of the Older Persons Bill' dated 5 April 2005 does not fulfil these requirements due to the following shortcomings:

• This costing exercise completed by the national Department of Social Development has not yet been approved by National Treasury or the Finance and Fiscal Commission, and no indication has been given by National Treasury that the Older Persons Bill is affordable to the national fiscus. Furthermore, the cost implications for provinces is yet undetermined;
• The costing model used is based on certain variables, namely: demand (number of older persons to be serviced), process and input variables (health and social workers needed to manage day care facilities), and the cost variable (input costs necessary to provide services, for example, furniture, stationary, computer systems, etc). There are, however, certain key variables that the costing model does not taken into consideration, namely: the establishment and funding of NGOs required to provide extensive social services to the elderly; the provision and sourcing of additional facilities and services required in terms of the legislation; compliance costs; litigation costs in the light of increased rights to elder persons in terms of the legislation; and costs to other sector departments such as the Departments of Local Government, Health, Education and Justice;
• The Committee believes that until Standing Rule 243 has been adhered to. the Older persons Bill is not property before the National Council of Provinces, and should not be debated.

Whilst the Older Persons Bill proposes increased administrative and fiscal responsibility to National Government with respect to the protection and monitoring of older persons with no prior guarantees of adequate budgeting for provinces, there is a likelihood of ' provinces administering such programme without adequate funding. Such unfunded mandate could possibly reduce the equitable share to provinces for this purpose.

At present the Provinces do not have the financial or human resources to fulfil its obligations in terms of the Bill as provincial budgets are already severely constrained with the funding pressures of social security grants. The Committee is of the view that due to the significant funding required to implement the Older Persons Bill, this Bill should be phased in over a period of years. No such provision in this regard has been made.

2. THE PROVISIONS OF THE BILL

Notwithstanding the Department having proposed certain amendments to the Bill, these have not been effected nor has an amended version of the Bill been submitted. Consequently, the Bill remains in its original form and it is on this Bill that the Social Welfare and Population Development Portfolio Committee of the Province of KwaZulu- Natal has conferred a final voting mandate.

The Province of KwaZulu-Natal does not support the Bill in its current form and re- iterates its recommendations for amendments as set out below

CLAUSE 1- Definitions

(i)"abuse

Recommendation: On page 3 in line 26, to delete the definition of "abuse" and to substitute-

"[abuse" means the violation of an older person’s rights enshrined in Chapter 2 of the Constitution;]

"abuse" means a single or repeated act or lack of action that causes harm or distress to an older person, including physical, psychological, financial, material oi sexual harm or neglect, and includes the violation of an older person's rights enshrined in Chapter 2 of the Constitution of the Republic of South Africa, 1996:"

(ii)"facility"

Recommendation; On page 3 in line 38, to delete the definition of "facility" and to substitute -

"[facility" means a building or other structure managed for the purposes of providing accommodation, housing and community-based care and support services to older persons, and includes a shelter but does not include a private residential home accommodating fewer than seven older persons for reward or a luncheon club or a building or other structure in or on which home-based care is provided;]

(a) means a building or other structure used for the purposes of providing accommodation, housing and community-based care and support services to older persons; and

(iii) "frail person"

Recommendation: On page 3 in line 44, to delete the definition of "frail person"-

Recommendation: On page 3 in line 49, to amend the definition by the deletion of "small", as follows –

"luncheon club" means a club which provides a meal to an older person on one or more days of the week at a [small] charge:

(v) "operator"

Recommendation: On page 4 after line 2. to insert a definition of -operator" as follows -

"operator" means a person that operates a facility

(vi) "owner"

Recommendation: On page 4 in line 3, to delete the definition of "owner"-

[owner means a person who owns a facility;]

(vii) Recommendation: On page 4, after line 3, to insert a definition of "person" as follows-

"person "includes a trust;

Clause 2

(i) Clause 2(1)(b)

Recommendation: On page 4, in line 24, to amend clause 2(1)(b) by the in: of "financially" before "support" as follows –

"2(1)(b) financially support any person who runs programmes contemplated in subsection (2)

(ii) Clause 2(2)

Recommendation: On page 4 in line 25, to amend the introductory line as follows

"(2) The programme referred to in subsection(1) are programmes aimed at the support and development of older persons, including but not limited to –

(iii) Clause 2(2)(d)

Recommendation; On page 4 in line 30, to insert "and urban" after "rural" on page 4 in line 30 as follows-

"2(2)(d) the development of older persons in rural and urban area

(iv) Clause 2(2)(j)

Recommendation: On page 4 in line 38, to insert "and urban " after "rural " on page 4 in line 38 as follows-

"2(2)(i) the provision of care and services to older persons in rural and urban areas and in disadvantaged areas;

(v) Clause 2(2)(n)

The exemption of property rates and taxes does not fall within the competence of the. Minister of Social Development.

Recommendation: On page 4 in line 48, to delete paragraph (n) of sub-clause 2(2).

CLAUSE 4

(j) Clause 4(1)

Recommendation: On page 5 in line 12, to insert the following text after 'accounting"-

4(1) The Minister may prescribe conditions for the use of a subsidy contemplated in section 3, including conditions regarding accounting and regarding the opening and maintenance of a register of all assets bought with Government funds."

(ii) Clause 4(3)

This clause is seemingly in conflict with the provisions of the Promotion of Administrative Justice Act, 2000. For example, it is not apparent from the text that-

a) the party affected by a decision of the MEC will be afforded a reasonable opportunity of being heard;

b) the notice from the MEC will contain sufficient clarity to enable the person affected to properly assess and answer the complaint;

c) the person affected will be given a reasonable opportunity to remedy the issue complained about before the subsidy is withdrawn; and

d) although not obligatory, it is preferable to set out an appeal process in the legislation concerned, to avoid costly litigation in the High Court.

Recommendation: On page 4, from line 15, to insert amendments to adequately cover the above issues,

CLAUSE 5

(i) Clause 5(1)(a)

Recommendation: On page 5 in line 24, to delete "own, manage or" as follows –

"5(1)(a) Subject to .section 23, no person may. [own ,manage or] operate a facility unless such facility has been registered under this section."

(ii) Clause 5(2)

Recommendation: On page 5 in tine 27, to delete "own, manage or" as follows -

"(2) A person who wishes to [own, manage or] operate a facility must, in the prescribed manner, apply to the Minister for registration thereof."

(iii) Clause 5(4)

This clause is seemingly in conflict with the provisions of the Promotion of Administrative Justice Act, 2000. For example, it is not apparent from the text that-

(a) the party affected will be afforded an opportunity of being heard;

(b) the amendment or cancellation of a registration certificate will be on fair grounds;

(c) reasons will be given;

(d) the affected person will be given an opportunity of remedying any complaints within a reasonable period before the certificate is amended or cancelled; and

(e) although not obligatory, it is preferable to set out an appeal process in the legislation concerned, to avoid costly litigation in the High Court.

Recommendation: On page 4 from line 42, to insert amendments to adequately cover the above issues.

(iv) Clause 5(5)(a)

The recommendations made under clause 5(4) will, if given effect to, require consequential amendments to this clause on page 5 from line 45.

Recommendation: On page 5 in line 53, to delete "owner" and to substitute "operator", as –

"(7) If the registration of a facility has been cancelled in terms of subsection (4), or if the. [owner] operator of a facility wishes to close down-such facility for. any reason, he or she must take reasonable steps to ensure that on the closing down of such facility the older persons concerned are accommodated in another registered facility or with persons who, in the opinion of a social worker, are fit and proper persons for accommodating the older person or older persons.

CLAUSE 6

There is no justification for the cut-off for regulation of accommodation in private residential homes for reward at seven older persons. Any facility owned, managed or operated for reward should be regulated by the Bill. Recommendation: On page 6 from line 9, to delete clause 6(1)(c) as follows"

["(c) accommodates fewer than seven older persons in a private residential home for reward"]

There is no justification for the cut-off for regulation of accommodation in private residential homes for reward at seven older persons, Any facility owned, managed or operated for reward should be regulated by the Bill.

Recommendation: On page 6 from line 14, to delete clause 6(3) as follows-

["(3) Any person who accommodates more than six older persons in a private residential home for reward is guilty of an offence unless the home js registered as a facility in terms of section 5."]

Recommendation: On page 6 in line 21, to delete "owner" and to substitute "operator" as follows –

"(2) the (owner] operator of a registered facility must, at all reasonable times, report to the Minister any circumstances which may result in his or her inability to comply fully with any condition contemplated in section 5(3)"

(ii) Clause 7(3)

Recommendation: On page 6 in line 25, to delete "owner" in the introductory sentence wherever it appears and to substitute "operator" as follows –

"(3) If the registration of a facility has been cancelled in terms of section 5(4), or if the [owner} operator of a facility wishes to close down that facility, the [owner] operator must -"

(iii) Clause 7(3)(c)

a) What is the rationale for this clause? Does the State retain ownership of the funds? If so, where is this stipulated? if not, the provisions can be said to amount to an unconstitutional infringement of property rights, alternatively an unconstitutional expropriation.

b) Assuming the State correctly retains ownership -

1. what happens to assets acquired partly with Government funds and partly with non-Government funds? The State cannot be said to be the owner of such assets; and

(ii) assets may also have been acquired with the income or proceeds of assets that were initially acquired with Government Funds, and these assets are seemingly not included.

Recommendation: On page 6, from line 30, to reconsider this clause with the view to dieting or amending it appropriately.

CLAUSE 8

The word 'reside' in clause 8(1) on page 6 in line 33 has not been defined. This means that a facility providing temporary accommodation would similarly have to set up-a-residents' committee, and this may be impractical.

Recommendation: On page 6 in line 33, to insert "excluding a shelter" after "facility" as follows-

"'8(1) If more than 10 older persons reside in a facility, excluding a shelter, a residents' committee which represents the interests of the residents must be established by the residents."

CLAUSE 9

Recommendation; On page 7 in line 4, to delete "a" and to substitute "an older" as follows-

"'9(1) No person may unfairly discriminate directly or indirectly against (a] an older person applying for admission to a facility on one or more grounds referred to in section 9(3) of the Constitution of the Republic of South Africa. 1996"

(ii) Clause 9(3)

Recommendation; On page 7 in line 10, to insert the words "in writing" after "reasons" as follows –

"(3) If a person is refused admission to a facility, the manager of that facility must, on the request of that person, give reasons in writing for such refusal to that person."

(iii) New clause 9(4)

Recommendation; On page 7 after line 10 to insert a new clause 9(4) as follows –

(iv) Clause 9(4)

Recommendation; On page 7 in line 11, to change the numbering of the clause from "(4)" to "(5)" and to insert "or (4)" after "(1)" as follows-

"[(4)] (5} Any person who contravenes subsection (1) or (4) is guilty of an offence."

CLAUSE 10

(i) Clause 10(1)

Recommendation # 1: On page 7 in line 13 to delete "or any" and to substitute "may at any time, and any social worker or"; and

Recommendation # 2: On page 7 in line 14 to delete ", after being" and to substitute "if, as follows –

'10(1) A social worker in the employ of the State [or any] may at any time, and any social worker or person designated by the Director-General must, [after being] if requested to do so by the Director-General –"

(ii) Clause 10(1 )(a)

Recommendation # 1: On page 7 in line 16, to delete "or frail"; and

Recommendation # 2: On page 7 in line 16, to insert "in order to ensure compliance with this Act" after "accommodated", as follows-

"(a) visit and monitor a registered facility or any other registered place where an older [or frail] person is cared for or accommodated in order to ensure compliance with this Act:"

(iii) Clause 10(1 )(b)

Recommendation # 1: On page 7 in line 17, to delete "or frail"; and

Recommendation # 2: On page 7 in line 17 to insert "cared for or" after "person" as follows –

(b) interview any older [or frail] person cared for or accommodated in such facility or place

(iv) Clause 10(1) (1)(c)

Recommendation; On page 7 in line 19, to delete "or frail", as follows –

"(c) either with or without the assistance of a professional health care provider enquire into the well-being of any such older [or frail] person; and"

(v) New clause 10(3) and 10(4)

Recommendation: On page 7 after line 26, to insert a new clause 10(3) and 10(4) as follows –

(vi) Clause 10(3) Recommendation: On page 7 in line 27, to change "(3)" to "(5)" as a consequential amendment to the insertion of a new clause 10(3) and 10(4), as follows -

"[(3)] (5) A person is guilty of an offence if that person –

(vii) Clause 10(3)(b)

Recommendation # 1: On page 7 in line 30 to delete "or frail"; and

Recommendation # 2: On page 7 in line 31, to insert 'cared for or" after 'person", as follows –

"(b) refuses to give a social worker or designated person access to an older [or frail] person cared for or accommodated in 3 facility or place referred to in subsection (1); or"

CLAUSE 11

Recommendation: On page 7 in line 33 to delete "managers" and to substitute "operators" as follows-

"Report to Minister by [managers] operators of facilities"

(ii) Clause 11 (1)

Recommendation: On page 7 in line 34, to delete "manager" and to substitute "operator" as follows –

"11 .(1) The [manager] operator of a registered facility must within 60 days after the end of the financial year of that facility submit to the Minister a report covering that financial year in respect of –

('ii) Clause 11 (2)

Recommendation: On page 7 in line 43, to delete 'manager" and to substitute "operator" as follows –

"(2) If the [manager] operator of a registered facility fails to submit a report in terms of subsection (1), the Minister may -"

(iv) Clause 11(2)(a)

Recommendation: On page 7 in line 45, to delete "manager" and to substitute "operator", as follows –

"(a) give notice to that [manager] operator that if such report is not submitted within 90 days after the date of that notice, any subsidy paid in respect of that facility in terms of section 3 may be withdrawn; and

CLAUSE 12

Recommendation: On page 8 in line 4, to insert ", notwithstanding the rights he or she has in terms of the Bill of Rights in Chapter 2 of the Constitution of the Republic of South Africa, 1996, or any other rights he or she may have, " after "has", as follows –

"12. An older person residing in a facility has. notwithstanding the rights he or she has in terms of the Bill of Rights in Chapter 2 of the Constitution of the Republic of South Africa. 1996. or any other rights he or she may have. the right to –

CLAUSE 14

(i) Heading Recommendation; On page 8 in line17, to delete "or frail", as follows -

"Procedure for bringing person who accommodates or cares for older [or frail] person before magistrate"

(ii) Clause 14(1)

Recommendation: On page 8 in line 20, to insert "or affirmation" after "oath" as follows-

"l4.(1) If a social worker or a professional health care provider submits or makes a written statement under oath or affirmation to a public prosecutor, and in such statement it is alleged that any person within the area of jurisdiction of the magistrate's court to which that public prosecutor is attached [-]

(iii) Clause 14(1 )(a)&(b)

Recommendation: On page 8, from line 22, to delete all the words after "attached" up to an including 'person" in line 28 and to substitute "abuses an older person" as follows –

"[(a) accommodates or cares for an older or frail person in circumstances or in a manner likely to be injurious to the older or frail person's physical or mental well-being; or "

(b) takes advantage of an older or frail person by receiving excessive remuneration, by way of money or goods, for the accommodation or care of such older or frail person,} abuses an older person."

(iv) Clause 14(2)

Recommendation: On page 8 in line 35, to delete "or frail", as follows –

"(2) a public prosecutor may not in terms of subsection (1) request a clerk of the court to issue a summons unless her or she has obtained from the social worker or professional health care provider a report on the accommodation or care of the older [or frail] person concerned."

(v) Clause 14(3)

Recommendation # 1: On page 8 in line 37, to insert "or affirmation" after "oath", and

Recommendation # 2: On page 8 in line 40, to delete "or frail", as follows- "

(3) If on the grounds of a statement under oath or affirmation referred to in subsection (1) the magistrate has reason to suspect that a social worker or professional health care provider will be prevented or prohibited from going into or entering upon the place where the older [or frail] person concerned is being accommodated or cared for to make the necessary investigation for the purposes of a report referred to in subsection (2), or if such social worker or health care provider has been prevented or prohibited from doing so, the magistrate concerned may on the application of the public prosecutor issue a warrant authorising the social worker or professional health care provider to go into or enter upon that place to make such investigation."

(vi) Clause 14(6)(b)

Recommendation: On page 9 in line 45 to delete "or frail", as follows –

"b) refuses to furnish to a social worker or professional health care provider any information in connection with the accommodation or care of an older [or frail) person at his or her disposal which such officer requires for the purposes of an investigation referred to in subsection (3)."

CLAUSE 15

(i) Heading

Recommendation: On page 9 in line 7, to delete "or frail", as follows –

"Enquiry into accommodation or care of older [or frail] person"

Recommendation: On page 9 in line 33, to delete "or frail", as follows –

"(8) The report referred to in section 14(2) must be submitted to the magistrate holding the enquiry, who may direct the district surgeon, a psychiatrist or a clinical psychologist to examine the older (or frail) person concerned and to furnish the magistrate with a report on the findings of such examination."

(iii) Clause 15(10)(a)&(b)

Recommendation # 1: on page 9 in line 43, to delete "or frail"; and

Recommendation # 2: on page 9 in line 45, to delete "or frail" as follows-

"(a) authorise the person concerned to accommodate or care for the older (or frail) person concerned under such conditions as the magistrate may impose; or

b) prohibit that person from accommodating or caring for any older (or frail] person for such period, but not exceeding 10 years, as may be determined by the magistrate."

CLAUSE 16

Recommendation: On page 9. from line 52, to delete subsection (1) and to substitute as follows –

"16.(1) [Any person who examines, attends to or deals with an older person must immediately notify the Director-General if he or she suspects that the older person –

1. has been abused', or

(b) suffers from any abuse-related injury.]

Any person who suspects that an older person has been abused or suffers from an abuse-related injury must immediately notify the Director-General of his or her suspicion."

CLAUSE 17

(i) Clause 17(1 )(a)

Recommendation; On page 10 from tine 9, to delete paragraph (a), as follows –

"[(a)) a register of all notifications in terms of section 16(1), together with the particulars regarding each notification; and)"

Recommendation: On page 10 in line 11, to delete "(b)" as a consequential amendment to the deletion of clause (a), as follows-

"[b] a register of persons convicted of the abuse of an older person."

(iii) Clause 17(2)

Recommendation: On page 10 from line 12, to delete subsection (2) and to substitute as follows-

"(2) [A person whose name appears in a register contemplated in subsection (1)(l3) may not own, manage or operate a facility]

A person whose name appears in the register contemplated in subsection (1) may not in any way operate or be employed at any facility."

(iv) New clause 17(3)

Recommendation: On page 10 after line 13, to insert a new clause 17(3), as follows-

CLAUSE 18

Recommendation # 1: On page 10 in line 26, after the first "her" to insert Income, assets or", and

Recommendation # 2: On page 10 in line 26, after "wishes" to insert "or who suffers any other financial abuse", as follows –

"(a) has his or her income, assets or old age grant taken against his or her wishes, or who suffers any other financial abuse;"

(i) Clause 18(5)(b)

Recommendation; On page 10, in line 27, after "wishes" to insert "or has been unlawfully evicted from any property occupied by him or her ' as follows-

(b) has been removed from his or her property against his or her wishes a has been unlawfully evicted from any property occupied by him or her:"

CLAUSE 19

Recommendation # 1: On page 11 in line 8, after the third "the" to insert "relevant"; and

Recommendation # 2: On page 11 from line 9, to delete "in this section referred to as the "provincial Director-General")", as follows-

"(5) The Director-General may, with the concurrence of the relevant Director- General of a provincial administration [(in this section referred to as the "provincial Director-General")]

(ii) Clause 19(5)(a)

Recommendation: On page 11 in line 11, to delete "that provincial Director- General" and to substitute "the Head of the Department of that province responsible for social development" as follows-

"(a) delegate to [that provincial Director-General] the Head of the Department of that province responsible for social development any power conferred upon the Director-Genera! by this Act; and"

(iii) Clause 19(5)(b)

Recommendation: On page 11 in line 13, to delete "provincial Director-General" and to substitute "Head of Department" as follows-

"(b) authorise that [provincial Director-General] Head of Department to perform any duty imposed upon the Director-General by this Act."

Recommendation: On page 11 in line 15 to delete "provincial Director-General" and to substitute "Head of Department" as follows-

"(6) A [provincial Director-General] Head of Department may –"

CLAUSE 21

Recommendation: On page 12 from line 5, to delete paragraph (1) and to substitute "generally, any other ancillary or incidental administrative or procedural matter that it is necessary to prescribe for the proper Implementation or administration of this Act, as follows –

"(I) [ generally, any matter in respect of which the Minister considers it necessary or expedient to make regulations in order to achieve the objectives of this Act,]

generally, any other ancillary or incidental administrative or procedural matter that it is necessary to prescribe for the proper implementation or administration of this Act"

(ii) New clause 21 (2) Recommendation ~ 1; On page 12 after line 6,-to-insert a new clause 21(2), as follows-

"(2) The regulations may provide that any person who contravenes or fails to comply with the regulation is guilty of an offence and liable on conviction to a fine or to a period of imprisonment not exceeding one year or to both a fine and imprisonment"

Recommendations # 2: on page 12 in line 7 to consequentially re-number sub-clause "(2)" to "(3)" and in line 10 to re-number sub-clause "(3)" to "(4)"

(iii) New clause 21(15,(6) &(7)

Recommendation: On page 12 after line 12, to insert clauses 21(5), (6) & (7) as follows-

CLAUSE 23

Recommendation; On page 12 from tine 16, to delete sub-clause (1)(a) & (b) and to substitute as follows –

"'23.[(1 )(a) The Aged Persons Act, 1967 (Act No. 81 of 1967), is hereby repealed insofar as it relates to provisions which have not been assigned to a competent authority within the jurisdiction of the government of a province in terms of Proclamation No. R.7 of 1996.

(b) The Aged Persons Amendment Act, 1998 (Act No. 100 of 1998), is hereby repealed.]

(1)The Aged persons Act, -1967 (Act No. 81 of 1967). and the Aged persons Amendment Act , 1998 (Act No100 of 1998), are hereby repealed."

CLAUSE 24

Recommendation: On page 12 in line 36 , to delete "2003" and to substitute "2005", as follows-

"24 . This Act is called the Older Persons Act [2003] 2005, and comes into operation on a date determined by the President by proclamation in the Gazette."