1. delegate to any officer of the Department any power conferred upon the Minister by this Act, except the power to make regulations; and
2. authorise any such officer to perform any duty imposed upon the Minister by this Act.

• The difference between the APA and the Bill is that:

• the persons identified in the APA as to whom the Minister could delegate or confer powers to, was more extensive, being the Director-General (or the Director-General: Welfare in the instance of Section 18A(1)) or any official in the service of the State, while the Bill only deals with an official of the Department; and

• the APA does not have a similar provision regulating the conferring of authority on an official of the State to perform a duty imposed on the Minister in terms of the APA as is the case with the Bill

• This is not a new provision and accordingly costs incurred in the implementation and execution of the similar provision in the APA can be used as a platform for a costs analysis;

• Cognisance should also be taken of:

• the more restrictive identification of the person to whom the Minister can delegate powers to or to whom he can authorise to perform any duty imposed by the Minister, being an officer of the Department and not an officer in the service of the State as is the case with the APA;

• the additional provision of the Minister being entitled to confer authority on an officer of the Department to perform a duty imposed on the Minister in terms of the Bill, which may result in additional administration and control cost factors arising.

• There is furthermore a litigation cost factor, which may arise as a result of the Minister incorrectly delegating or conferring authority on persons who are not entitled to act in terms of the Bill.

• This is a new provision and accordingly the implementation and execution of such provision shall be a new cost driver;

• To a certain extent the costs incurred in the implementation and execution of Section 18 of the APA can be used as a basis for the determination of such costs.

• The same concerns arise with regards to additional litigation cost factors, which may arise as a result of the Minister incorrectly delegating or conferring authority on persons who are not entitled to act in terms of the Bill.

• This is a new provision and accordingly the implementation and execution of such provision shall be a new cost driver;

• To a certain extent the costs incurred in the implementation and execution of Section 18 of the APA can be used as a basis for the determination of such costs.

• The same concerns arise with regards to additional litigation cost factors, which may arise as a result of the Member of the Executive Council of a Province incorrectly delegating or conferring authority on persons who are not entitled to act in terms of the Bill.

• Kindly note of the staggered manner in which powers may be delegated and authority to perform duties are to be conferred in terms of sub-sections 19(1) to (3), which on its own may have a cost implication on the structuring and implementation thereof.

1. delegate to any other officer of the Department any power conferred upon the Director-General by this Act; and
2. authorise any such officer to perform any duty imposed upon the Director-General by this Act.

• The difference is that the Director-General in the APA is provincial while the Director-General in the Bill is National.

• This is not a new provision and accordingly costs incurred in the implementation and execution of the similar provision in the APA can be used as a platform for a costs analysis, bearing in mind that the APA dealt with a provincial Director-General of the Department of Social Development while the Bill deals with a National Director General;

• The same concerns arise with regards to additional litigation cost factors, which may arise as a result of the Director-General incorrectly delegating or conferring authority on persons who are not entitled to act in terms of the Bill.

1. delegate to that provincial Director-General any power conferred upon the Director-General by this Act; and
2. authorise that provincial Director-General to perform any duty imposed upon the Director-General by this Act.

• Although, this is a new provision the costs incurred in implementation and execution of the provision in the APA which deals with delegation from the Minister to the provincial Director-General, can be used as a platform for a costs analysis;

• There are limited possibilities of additional litigation cost factors arising as a result of the National Director-General incorrectly delegating or conferring authority on the provincial Director-General which he is not entitled to do in terms of the Bill.

• This is not a new provision and accordingly costs incurred in the implementation and execution of the similar provision in the APA can be used as a platform for a costs analysis;

• The same concerns arise with regards to additional litigation cost factors, which may arise as a result of the provincial Director-General incorrectly delegating or conferring authority on persons who are not entitled to act in terms of the Bill.

• The cost drivers should be reasonably the same as those for the APA, depending on the nature and extent of the conditions determined by the person delegating or authorising the other party to fulfill.

• The is the possibility of additional litigation costs arising related to labour legal issues as a result of persons not complying with the conditions imposed on them.

1. must be in writing;
2. does not prevent the person who effected the delegation or granted the authorisation from exercising that power or performing that duty himself or herself; and
3. may at any time be withdrawn in writing by that person.

• This is a new provision with new cost drivers related to the administration and controlling of the manner in which delegation takes place and the withdrawing of such powers or authority.

• There are additional legal costs that will arise on labour issues and/or due to persons performing certain powers or fulfilling certain duties when they were not procedurally entitled to act in terms of this provision.

1. section 4(5), 5(8), 6(3), 10(3)(a), (b) or (c) or 14(6)(a) or (b) is liable to a fine or to imprisonment for a period not exceeding one year, or to both a fine and such imprisonment; or
2. section 9(4), 13, 15(11) or 16(5) is liable to a fine or to imprisonment for a period not exceeding five years, or to both a fine and such imprisonment.

• There are however certain new costs drivers that arise, due to Section 20(b) of the Bill being a new provision which imposes a lengthier and heavier penalty of 5 years, while the APA only provided for the same penalty as is disclosed in subsection 20(a) of the Bill (being 1 year).

• Therefore there will be additional legal costs incurred in the enforcement and execution of this provision, not only with regards to the prosecution of the person accused of the offence but also in respect of the lengthier incarceration of the convicted person.

1. any matter which may or must be prescribed in terms of this Act;
2. the form of any application, authority, certificate, consent, notice, order, register, process or subpoena which is to or may be made, granted, given, issued or kept in terms of this Act, and any other form required in administering this Act;
3. the procedure to be followed and the conditions which may be imposed in connection with the registration of facilities, and the minimum standards with which such facilities are to comply;
4. the books, accounts and registers which are to be kept by the managers of facilities, the manner in which such books, accounts and registers are to be kept and dealt with, and the returns and reports to be furnished in connection with such facilities;

• Subsections 21(1)(a), (b), (c), (d), (e), (f), (g) and (l) of the Bill are practically identical to those provisions in the APA;

• Subsections (h), (i) and (k) of the Bill deal with the same topics raised in the APA but they have been worded slightly differently;

• Subsection 21(1)(j) of the Bill is a new provision and will have new cost drivers associated with it if regulations are formulated and implemented in the future;

• Costs incurred in relation to the regulations drawn, formulated and implemented in terms of the APA (if any) may be used as a basis for the determination of certain costing issues related to the regulations to be formulated and implemented in terms of the Bill in the future;

• The impact of such similar provision in the APA to that in the Bill is however not the same;

• This compulsory obligation does not impose a duty on the Minister to obtain the consent or approval of the Minister for Safety and Security but to merely consult with him prior to making such regulation;

• To a certain extent the cost drivers and costs incurred in the APA can be used as a framework for the cost analysis for this provision in the Bill;

• There will be presumably costs drivers associated with the administration, control and documentation related to ensuring that the Minister follows the proper consultative procedure when making regulations involving the South African Police Services.

Any regulation made in terms of subsection (1) which deals with the size or value of services and subsidies and with the criteria for eligibility of services must be made with the concurrence of the Minister of Finance.

• This compulsory obligation does impose a duty on the Minister to obtain the concurrence of the Minister of Finance when making such regulation;

• To a certain extent the cost drivers and costs incurred in the APA can be used as a framework for the cost analysis for this provision in the Bill;

• There will be presumably costs drivers associated with the administration, control and documentation related to ensuring that the Minister follows the proper procedure when making regulations dealing with the size or value of services and subsidies and with the criteria for eligibility of services.

• This Act binds the State except in so far as criminal liability is concerned.

• The drafters of the Bill propose / intend to remove this provision in its entirety from the Bill

• It is submitted that there are no cost drivers associated with this provision as the actual costs incurred will arise from the actual provisions placing obligations on the Minister or the relevant officials and social workers associated with the Department.

• The wording of this provision is to a large extent superfluous and unnecessary, hence the drafters intention to reject and remove such provision. In this regard:

• the State is in any event bound to comply with legislation, unless specifically stated otherwise;

• the State is incapable of prosecuting itself. In this respect, should certain officials of the State commit offences personally in terms of the provisions of the Bill, then such officials should be taken to task on such issues and the public would expect the State to act against such officials;

• The State’s liability to compensate certain parties on a civil basis, should the State fail to comply with its obligations in this Bill, is generally where the greatest cost driver stands.

1. 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.
2. The Aged Persons Amendment Act, 1998 (Act No. 100 of 1998), is hereby repealed.

• The provision in the Bill cannot be compared to the similar provision in the APA due to the repealing provisions being more directly related to that of the APA;

• Drafting issue – Subsection 1(a) does not repeal the APA in its totality, but rather it makes a qualified and limited reference to that part of the APA which is being repealed by the Bill, being in respect of the provisions that 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.

• This means that the remaining portions of the APA which do not form part of the aforesaid qualification remain of force and effect.

• Subsection 1(b) deals with the repealing of the provisions of the Aged Persons Amendment Act, 1998 (Act 100 of 1998) in its totality. By doing so without repealing the APA in its totality leads to the situation that the APA in its form prior to the implementation of the Aged Persons Amendment Act, which does not form part of the qualified repeal of the APA as stated in subsection 1(a) remains of force and effect, which seems to be unlikely to be the intention of the drafters of the Bill (hence the proposed amendment as stated hereunder).

• The above comments are made without having insight into the terms of Proclamation No. R.7 of 1996 and therefore such comments may change should we be provided with a copy of the said Proclamation.

The drafters of the Bill have proposed to replace the above Section 23(1) in its entirety with the following provision, being:

• "(1) The Aged Persons Act, 1967 (Act No. 81 of 1967), and the Aged Persons Amendment Act, 1998 (Act No. 100 of 1998), are hereby repealed."

• The amendment will remove the confusion that has arisen based on the present wording as stated in point 5.1 above and it will also have a beneficial impact on cost savings as the Department will not be obliged to maintain two different pieces of legislation simultaneously.

• This is a new cost driver, however the costing associated with the registration of the home for the aged in terms of the APA can be used as a platform for the estimation of the costs which will be incurred in the future. Naturally there will be costs incurred in the formulation of documentation, the administration related to the completion and processing of such documentation and the application for registration.

• There is also the risk of additional litigation costs as the function carried out here by the Department is an administrative act that must comply with the rules of natural justice.

• There will be certain administration and control costs incurred by the Department on a national and provincial basis in giving effect to this provision during the transitional period.

• There will be certain administration and control costs incurred by the Department on a national and provincial basis in giving effect to this provision during the transitional period.

• There is the possibility of litigation costs arising as a result of certain managers not receiving the relevant subsidies from the Department for whatever reason.

• The wording in the Bill has been formulated slightly differently to that in the APA but the meaning and impact thereof is basically the same;

• The cost drivers should be reasonably the same as those for the APA;

• Apart from the different reference to the relevant names of the proposed legislation, the wording of the Bill’s provision is identical to that contained in the APA.

• Any costs (if any) associated with this provision can be determined by what costs were incurred in terms of the APA provision.

• Drafting issue - the amendment of the year to read 2004 will, in all probability has to change to 2005 based on time delays in having such Bill passed.