REPUBLIC OF SOUTH AFRICA
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SPECIAL PENSIONS AMENDMENT BILL
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(As introduced in the National Assembly as a section 75 Bill) (The English text is the official text of the Bill)
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(MINISTER OF FINANCE)
[B8 —2005]
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
_______ Words underlined with a solid line indicate insertions in existing enactments.
BILL
To amend the Special Pensions Act No. 69 of 1996, so as to provide for the lapsing of the rights to pensions and survivor’s benefits on 31 March 2006, to introduce a surviving spouse’s pension, an orphan’s pension, and a funeral benefit, to regulate benefit payments to spouses and dependants, to regulate the reconsideration of determined cases, to provide for the repayment of any benefit paid to a person that was not entitled to that benefit, to further regulate the dissolution of the Board and the Review Board, to amend Schedule 3 of the Act, to include Schedule 4 in the Act, and to provide for matters connected therewith.
BE IT THEREFORE ENACTED
by the Parliament of the Republic of South Africa, as follows:—Amendment of section 1 of Act 69 of 1996
(a) the substitution for the heading of Part 1 of the following heading:
(b) the substitution for subsection (4) of the following subsection:
(4) A pensioner who qualifies for a benefit in terms of subsection (1) is entitled to receive a pension, payable monthly, commencing on 1 April 1995 or the first day of the month during which that person attains the age of 35 years.
Repeal of section 3 of Act 69 of 1996
2. Section 3 of the principal Act is hereby repealed.
Amendment of section 6 of Act 69 of 1996
3. Section 6 of the principal Act, is hereby amended by the substitution for the heading of the following heading:
6 Applications for benefits under this Part
Insertion of section 6A in Act 69 of 1996
4.
The following section is hereby inserted in the principal Act, after section 6:Insertion of heading and sections 6B, 6C, 6D, 6E, 6F and 6G in Act 69 of 1996
5. The following headings and sections are hereby inserted in the principal Act after section 6A:
BENEFITS ON DEATH OF PENSIONER (SS 6B – 6G)
6B Limitation on benefits payable under this Part
A person who qualified for a pension or benefit under sections 1 or 2 may not be granted any other benefit under this Part.
Upon the death of a pensioner a surviving spouse or, if there is no surviving spouse, a surviving dependant of that pensioner, is entitled to receive a lump sum payment equal to twice the annual amount that was payable to that pensioner immediately before the date of his or her death.
(1) Subject to section 6E, upon the death of a pensioner, -
(a) a surviving spouse of that pensioner is entitled to receive a monthly pension equal to 50% of the pension that was payable to that pensioner immediately before the date of his or her death for the remainder of the surviving spouse’s life; or
(b) an orphan, where there is no surviving spouse, is entitled to receive a monthly pension equal to the 50% of the pension that was payable to that pensioner immediately before the date of his or her death -
(1) If a pensioner is survived by more than one spouse or more than one dependant, each of whom qualifies for a lump sum benefit or a monthly pension or both on his or her death, the Board must allocate an equal share of the lump sum benefit and the monthly pension to each qualifying spouse or dependant; but the total benefits for all the surviving spouses or dependants must not exceed the benefit that would have been payable had there been only one surviving spouse or dependant.
(2) Upon the death of a person who applied and qualifies for a pension in terms of section 1 but died before his or her application was determined by the Board, a surviving spouse or surviving dependant of that person is entitled to receive the benefits referred to in sections 6C or 6D, as if that person’s application was determined immediately prior to the date of his or her death.
A funeral benefit as set out in Schedule 4 is payable to –
(a) a pensioner on the death of his or her spouse or child;
(b) a surviving spouse upon the death of a pensioner or child of a diseased pensioner; or
(c) a surviving orphan upon the death of a pensioner or surviving spouse of a deceased pensioner.
6G Applications for benefits under this Part
(1) Any person who applies for a benefit under this Part must complete and submit an application form and such other information, as determined by the Board, to the Board as soon as possible, but no later than 3 months, after the death of a pensioner.
(2) If a person who would qualify for a benefit is permanently or temporarily disabled and therefore unable to personally apply for a benefit under this part, any person acting on behalf of that disabled person may submit a curator's application in the prescribed form to the Board.
(3) Notwithstanding subsection (1), the Board may condone any late application if the Board is satisfied that, for reasons beyond the control of the applicant, the application could not be submitted on or before the lapsing of the period stated in subsection (1), provided that no applications received after six months of the death of the pensioner may be condoned.
Amendment of section 7 of Act 69 of 1996
6. Section 7 of the principal Act, is hereby amended by –
(a) the insertion of the following heading after section 6G:
DETERMINATION AND APPEAL (SS 7-8)
(b) the insertion of the following paragraph after paragraph (e) of section 7:
(eA) determine whether an applicant referred to in sections 6C, 6D or 6F qualifies for a benefit under Part 1A;
(c) the insertion of the following subsection after section 7:
(2) The Board may on application reconsider and amend its determination in respect of any application which was not reviewed by the Review Board, if the Board is satisfied that material facts exist that was not considered by it in making a determination and may have resulted in a different determination, if the facts were considered.
Insertion of section 8A in Act 69 of 1996
7. The following section is hereby inserted in the principal Act, after section 8:
8A Payment of pensions and benefits
Pensions and benefits payable in terms of this Act must be paid from money appropriated by Parliament for that purpose.
Amendment of section 9 of Act 69 of 1996
8. Section 9 of the principal Act, is hereby amended by –
(a) the insertion of the following heading before section 8A:
MATTERS RELATING TO PENSIONS AND BENEFITS (SS 8A –14)
(b) the substitution for subsection (3) of the following subsection:
(3) When the first monthly payment is made to a pensioner in terms of subsection 1(4), the Minister must include therein a lump sum covering all the pension payments due to that pensioner from either 1 April 1995, or the pensioner's [60] 35th birthday, whichever is the later, to the date of that first payment.
(c) the substitution for subsection (5) of the following subsection:
(5) The Minister must pay any survivor's lump sum benefit or other payment payable in terms of this Act to the beneficiary within 90 days of the date on which the Board notifies the Minister that a benefit is payable to that beneficiary.
(d) the substitution for paragraph (a) of subsection (6) of the following paragraph:
(a) the Master of the [Supreme] High Court must appoint an appropriate person to administer that benefit on behalf of the beneficiary; and
(e) the substitution for paragraph (b) of subsection (6) of the following paragraph:
(b) the Board, on behalf of the applicant, must take the necessary steps to obtain the required order from the Master of the [Supreme] High Court.
Repeal of section 10 of Act 69 of 1996
Amendment of section 14 of Act 69 of 1996
10.
Section 14 of the principal Act, is hereby amended by -(a) the substitution for subsection (1) of the following subsection:
(1) In addition to any benefits granted in terms of this Act, a beneficiary who qualifies as contemplated in [section 1 or 2] sections 1, 2, 6C or 6D may apply for, and if qualified, may receive payments also in terms of either or both-
(b) the substitution of paragraph (a) of subsection (4) of the following paragraph:
(4)(a) Subject to paragraph (b), any person's right to a pension in terms of this Act ceases on the day on which that person's right to a pension for the period of service for which he or she receives or may receive a pension in terms of this Act is recognised in terms of –
(i) section 30A of the Government Employees Pension Law, 1996 (Proclamation 21 of 1996)[, is recognised as contemplated in section 30A of that Law]; or
(ii) the rules of any other employee pension or provident fund or similar fund.
Insertion of section 14A in Act 69 of 1996
11. The following section is hereby inserted in the principal Act, after section 8:
14A Repayment of pension or benefit to which person was not entitled
(1) The Board may require that any person who received a pension or benefit to which that person was not entitled, to refund the amount of that pension or benefit to the Board within 30 days of written demand by the Board, including a pension or benefit a person is no longer entitled to as a result of a re-determination in terms of subsection 7(2).
(2) The Board may require repayment of an amount referred to in sub-section (1) in any manner determine by the Board, including, but not limited to -
(a) repayment in instalments;
(b) the setting-off of any amounts due to the Board against any pension or benefit payable in terms of this Act to the person concerned.
Amendment of section 22 of Act 69 of 1996
12. Section 22 of the principal Act, is hereby amended by -
(a) the substitution for paragraph (b) of subsection (3) of the following paragraph:
(b) the [Exchequer Act, 1975 (Act 66 of 1975)] Public Finance Management Act, 1999 (Act 1 of 1999); and
(b) the substitution for paragraph (c) of subsection (3) of the following paragraph:
(c) the [Auditor-General Act, 1995 (Act 12 of 1995)] Public Audit Act, 2000 (Act 25 of 2000).
Amendment of section 23 of Act 69 of 1996
13. Section 23 of the principal Act is hereby amended by -
(a) the repeal of subsection (1).
(b) the substitution for paragraph (b) of subsection (6) of the following paragraph:
(b) subject to the [Exchequer Act, 1975 (Act 66 of 1975)] Public Finance Management Act, 1999 (Act 1 of 1999), is accountable for all State money that the Board receives or pays, and must keep the records needed to comply with that Act.
Repeal of section 27 of Act 69 of 1996
14.
Amendment of section 28 of Act 69 of 1996
15.
Section 28 of the principal Act is hereby amended by the insertion of the following subsection after sub-section (5):(6) The Review Board may on application reconsider and amend its determination in respect of any application, if the Review Board is satisfied that material facts exist that was not considered by it in making a determination and may have resulted in a different determination, if the facts were considered.
Insertion of section 28A in Act 69 of 1996
16. The following section is hereby inserted in the principal Act, after section 28:
28A Dissolution of Board and Review Board
(1) The Minister must dissolve the Board as soon as possible, but no later than 60 days, after the lapsing of Part 1 of Chapter 1.
(3)(a) Upon dissolution of the Board the head of pensions administration in the National Treasury is responsible for the performance of all the powers and functions of the Board in terms of this Act.
(b) Any power or function assigned to the head of pensions administration in the National Treasury by paragraph (a), may be delegated or assigned by him or her, in writing, to any officer in the public service, but the delegation or assignment of such power, function or duty does not divest him or her of that power or function.
(4) Upon dissolution of the Review Board, the Minister must assume responsibility for the functions of the Review Board.
Amendment of section 31 of Act 69 of 1996
17.
Section 31 of the principal Act is hereby amended by -(a) the substitution for the definition of "applicant”" of the following definition:
"'applicant' means a person who submits a completed application as contemplated in section 6 or section 6G;"
(b) the substitution for the definition of "application
”" of the following definition:"'application' means-
(a) a completed and sworn statement in the form set out in Schedule 2; or
(b) an application on the form referred to in section 6 (1) (b); or
(c) an application on the form referred to in section 6G;"
(c) the substitution for the definition of "benefit
”" of the following definition:"
'benefit' means a sum of money payable in terms of Part 1 or Part 1A;"(d)
the substitution for the definition of "pension" of the following definition:"'pension' means a right to the monthly payment of a pension determined in terms of section 1 or section 6D;"
(e)
the insertion after the definition of "pension" of the definition of "orphan”:"‘orphan’ means a child of the deceased, including a posthumous child, an adopted child and a child born out of wedlock, that has no surviving parent responsible for his or her maintenance;"
Amendment of Schedule 3 of Act 69 of 1996
18. Schedule 3 to the principle Act is hereby amended by substitution Schedule 3 with the following schedule:
PENSIONS PAYABLE IN TERMS OF SECTION 1 (6)
|
AGE CATEGORY IN YEARS |
ANNUAL PENSION AMOUNT IN RANDS |
|
35 but younger than 50 |
6 000 |
|
50 [but younger than 65] |
12 000 PLUS 1 200 for each year of service exceeding 5 years but less than or equal to 20 years, with maximum amount of 30 000 |
|
65 and older at the commencement date |
24 000 PLUS 1 200 for each year of service exceeding 5 years with maximum amount of 42 000. Where years of service exceed 25 years, a fixed amount of 84 000 |
Insertion of Schedule 4 in Act 69 of 1996
19. The following Schedule is hereby inserted in the principal Act, after Schedule 3:
|
Pensioner |
R 7 500 |
|
Surviving spouse of pensioner |
R 7 500 |
|
Natural child |
R 3 000 |
20. Retrospective application of certain sections
The provisions of section 6D apply retrospectively and must be regarded as having come into operation on 1 December 1996.
(1) This Act is called the Special Pensions Amendment Act, 2005.
(2) This Act comes into operation on the date of promulgation thereof by the President by proclamation in the Government Gazette.
MEMORANDUM ON THE OBJECTS OF THE SPECIAL PENSIONS AMENDMENT BILL, 2005
1. BACKGROUND OF THE BILL
1.1 The Special Pensions Act, 1996 (Act No. 69 of 1996) gave effect to section 189 of the Interim Constitution, 1993 (Act No. 200 of 2003), in that it provides for the payment of special pensions to persons and survivor’s lump sums to their eligible dependants, who made sacrifices or served the public interest in establishing a non-racial democratic constitutional order and as a result where unable to or prevented from providing for pensions for a significant period.
1.2 A period of more than eight years has lapsed since the promulgation of the Special Pensions Act on 1 December 1996. The period provided for applications in terms of the Act is 12 months from the commencement date of the Act. This period expired on 1 December 1997. Subsequent to 1 December 1997 a number of late applications have been condoned to date in terms of the Act.
1.3 It is assumed that most persons that qualified for a pension or survivor’s lump sums in terms of the Act would have applied in the extended period allowed for late applications. An extension of the period for application or continued consideration of late applications is no longer prudent as the risk of fraudulent claims are increasing as a result of a lack of information and difficulties experienced in the verification of information, due to the time lapse since 1996.
1.4 The Special Pensions Amendment Bill therefore proposes the lapsing of the provisions providing for the qualification for pensions and survivor’s lump sums on 31 March 2006. This means that the consideration of new applications for pension or survivor’s lump sums after this date will no longer be possible.
1.5 The Special Pensions Amendment Bill further provides for better alignment of special pensions to benefits afforded to spouses and dependants of pensioners under other pension schemes, taking into account equity and affordability. In this regard provision is made in the Bill for a spouses and orphan pension, and funeral benefits.
2. OBJECTS OF THE BILL
The Bill seeks to amend the Special Pensions Act, 1996 (Act No. 69 of 1996) by providing for –
2.1 the lapsing of part 1 of chapter 1, providing for pensions and survivor lump sums, on 31 March 2006;
2.2 a new Part that provides for an additional benefit to be paid to pensioners and the extension of benefits for which surviving spouses and orphans may qualify on the death of pensioners. These benefits are:
2.3 the disestablishment of the board 60 days and review board 90 days after the lapsing of part 1 of chapter 1 and for the head of pensions administration in the National Treasury and the Minister to respectively take over the boards’ responsibilities;
2.4 the resolution of administrative and legal difficulties relating to the implementation of the Act. The Bill allows the Board and the Review Board to reconsider and amend a determination made by it under certain circumstances and recover any pension or benefit paid to which a person was not entitled; and
2.5 technical and consequential amendments.
3. ORGANISATIONS AND INSTITUTIONS CONSULTED
All relevant political organisations whose members will be affected by the amendment Bill have been consulted.
4. FINANCIAL IMPLICATIONS TO THE STATE
The funeral benefit to be paid to pensioners and the extension of benefits for which surviving spouses and orphans may qualify on the death of pensioners, as provided for in the Bill will have financial implications for the State.
5. CONSTITUTIONAL IMPLICATIONS
None.
6. PARLIAMENTARY PROCEDURE
6.1 The State Law Advisers and the National Treasury are of the opinion that this Bill must be dealt with in accordance with the procedure prescribed by section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.
6.2 The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.