REPUBLIC OF SOUTH AFRICA

 

 

OLDER PERSONS BILL

 

(As amended by the Select Committee on Social Services National Council of Provinces)

(The English text is the official text of the Bill)

(MINISTER FOR SOCIAL DEVELOPMENT)

[B 68B—2003] ISBN 0 621 35794 4

 

BILL

To ensure that the rights, dignity and independence of older persons are upheld; provide for the self-fulfilment, participation and care of older persons; for the establishment of a framework aimed at the empowerment and protection of older persons and for the promotion and maintenance of their status, rights, well-being, safety and security; for the recognition of the older persons’ wisdom, and to provide for matters connected therewith.

PREAMBLE

WHEREAS the Constitution establishes a society based on democratic values, social justice and fundamental human rights and seeks to improve the quality of life of all citizens and to free the potential of each person;

WHEREAS in terms of the Bill of Rights as set out in the Constitution, everyone has inherent dignity and the right to have their dignity respected and protected;

WHEREAS it is necessary to effect changes to existing laws relating to older persons in order to facilitate accessible, equitable and affordable services to older persons and to empower older persons to continue to live meaningfully and constructively in a society that recognizes them as important sources of enrichment and expertise;

WHEREAS past injustices which older persons experienced and the sacrifices which older persons made towards the establishment of a democratic society;

AND WHEREAS the majority of older persons live in poverty, are without access to essential support and services, especially in rural areas;

BEARING IN MIND that the State must, in compliance with Section 7(2) of the Constitution, respect, protect, promote and fulfil the rights enshrined in the Bill of Rights and in terms of Section 26 and 27 of the Constitution everyone has the right to have access to adequate housing, food and water, health care services and social security.

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa as follows:—

 

 

 

CHAPTER 1

1. Definitions

2. Objectives of the Act

 

 

CHAPTER 2

CREATING AN ENABLING AND SUPPORTIVE ENVIRONMENT FOR

OLDER PERSONS

3. Protection and promotion of rights of older persons

4. Development of and compliance with national norms and standards

5. Support for services delivered by third parties

6. Provision of programmes for older persons

7. Promoting communication network and a consultative forum on ageing

CHAPTER 3

COMMUNITY BASED CARE FOR OLDER PERSONS

8. Rights of older persons receiving community based care services

9. Establishment of community based services

10. Prohibition of operation of unregistered facilities and registration of facilities for

community based services

11. Management of professionals and workers in home based care

12. Community based programmes for older persons

13. Management of community based services

14. Monitoring and evaluation of community based services

CHAPTER 4

RESIDENTIAL FACILITIES

15. Rights of older persons in residential facilities

16. Establishment of facilities

17. Registration of facilities

18. Compliance with conditions for registration of facilities

19. Admission to facilities

20. Services provided by residential facilities to frail older persons

21. Establishment of management structures

22. Monitoring of registered facilities

23. Report to Minister by operators of facilities

CHAPTER 5

PROTECTION OF OLDER PERSONS

24. Older persons in need of care and protection

25. Protection of older persons from abuse and prohibition of abuse

26. Procedure for bringing complaints of abuse against an older person in the

community before magistrate

27. Enquiry into abuse of an older person

28. Notification of abuse of older persons

29. Keeping of National Older Persons Protection Register

CHAPTER 6

GENERAL AND SUPPLEMENTARY PROVISIONS

30. Delegations

31. Penalties

32. Regulations

33. Repeal of laws, and transitional provisions and saving

34. Short title and commencement

CHAPTER 1

Definitions

1. In this Act, unless the context indicates otherwise -

"abuse" means a single or repeated act, or lack of action occurring within any relationship where there is an expectation of trust, that causes harm or distress to an older person, including physical, psychological, financial, material or sexual harm or neglect;

‘‘care’’ means physical, psychological, social or material assistance to an older person and includes services aimed at promoting the quality of life and general well-being of an older person;

"associated auxiliary workers" includes assistant nurses, social auxiliary workers and other workers that assist professionals in the performance of their duties;

‘‘caregiver’’ means any person who provides care to an older person;

‘‘community-based care and support services’’ mean development, care and support services provided within a community, aimed at promoting and maintaining the independent functioning of older persons in a community, and include home-based care for frail older persons within the community;

‘‘day care’’ means a service within a residential home or a community-based facility which provides social, recreational and health related activities in a protective setting to individuals who cannot be left alone during the day, due to health care and other social needs;

‘‘Department’’ means the Department of Social Development in the national sphere of government;

‘‘Director-General’’ means the Director-General of the Department;

"economic abuse" includes –

    1. the unreasonable deprivation of economic and financial resources to which an older person is entitled under any law or which the older person requires out of necessity, including household necessities for the older person;
    2. the unreasonable disposal of household effects or other property in which the older person has an interest;

‘‘facility’’ means a building or other structure used for the purpose of providing accommodation, shelter, community-based care and support services to older persons, including a private residential home in which older persons are accommodated;

"frail older person" means an older person in need of 24 hour care and/or whose physical or mental condition renders him or her incapable of caring for himself or herself;

‘‘home-based care’’ means the provision of health and personal care services rendered by formal and informal care givers in the home in order to promote, restore and maintain a person’s maximum level of comfort, function and health, including care towards a dignified death;

"intimidation" means uttering or conveying a threat, or causing an older person to receive a threat, which induces fear;

"juristic person" means a group of human beings, a corporation, a partnership, an estate, or other legal entity recognized by law as having rights and duties;

‘‘magistrate’’ includes an additional and an assistant magistrate;

‘‘manager’’ means the person responsible for the day-to-day management of a facility;

‘‘Minister’’ means the Minister for Social Development;

‘‘older person’’ means a person who, in the case of a male, is 65 years of age or older and, in the case of a female, is 60 years of age or older;

"older persons club’’ means a club which provides meals, social support, skills, development or any other activities for older persons on one or more days of the week;

‘‘older person in need of care and protection’’ means an older person referred to in section 24(5);

‘‘operator’’ means a person that operates a facility;

‘‘person’’ means a natural or a juristic person and includes a trust;

"physical abuse" means any act or threat of physical violence towards an older person;

‘‘police official’’ means a member as defined in section 1 of the South African Police

Service Act, 1995 (Act No. 68 of 1995), or a member of a municipal police service established under section 64A of that Act;

"prescribed’’ means prescribed by regulations;

"prevention" includes prevention at primary, secondary and tertiary levels;

"professional health care provider’’ means a person providing health services in terms of any law;

"regulations’’ means any regulations made under section 32;

"rehabilitation" means a process where older persons are provided with tools to enable them to reach and maintain their optimal physical, sensory, intellectual, psychiatric and/or social functional levels, and includes measures to restore and/or provide functions, or compensate for the loss or absence of a function or for a functional limitation, but excludes medical care;

"respite care" means a service offered by a frail care facility aimed at providing temporary care to older persons and carers ;

‘‘service’’ means any activity or programme designed to meet the needs of an older person;

"service centre" means a day care facility which an older person can visit to receive a range of services;

"sexual abuse" means any conduct that humiliates, degrades or violates the sexual integrity of an older person;

‘‘shelter’’ means any facility or premises maintained or used for the reception, protection and temporary care of an older person in need of care and protection;

‘‘social worker’’ means any person registered as a social worker under section 17 of the Social Service Professions Act, 1978 (Act No. 110 of 1978);

‘‘this Act’’ includes regulations; and

"verbal and psychological abuse" means a pattern of degrading or humiliating conduct towards an older person, including –

    1. repeated insults, ridicule or name calling;
    2. repeated threats to cause emotional pain; or
    3. acts that constitute a serious invasion of the older person’s privacy, liberty, integrity or security.

Objectives of the Act

2. The objectives of the Act are to:

    1. maintain and promote the status, well being, safety and security of older persons;
    2. maintain and protect the rights of older persons;
    3. shift emphasis from residential care to community-based care to ensure that older persons remain in the community for as long as possible;
    4. regulate the registration, establishment and management of facilities for older persons; and
    5. combat the abuse of older person.

CHAPTER 2

CREATING AN ENABLING AND SUPPORTIVE ENVIRONMENT FOR

OLDER PERSONS

Protection and promotion of rights of older persons

3. Older persons are protected by the same rights that are enshrined in the Bill of Rights and in addition, older persons have the right to-

    1. create opportunities for, and to participate in community services, and to serve as volunteers in positions appropriate to their interests and capabilities;
    2. participate in the design and implementation of policies that directly affect their well-being;
    3. participate in inter-generational programmes;
    4. establish and participate in structures and associations of older persons;
    5. have the opportunity to participate in activities that will enhance their income-generating capacity ;
    6. live in environments that are safe and adaptable to their changing capacities; and
    7. access opportunities that will promote their optimal level of social, physical, mental and emotional well being, in order to prevent and delay the onset of illness.

 

 

 

 

Development of and compliance with national norms and standards

4. (1) The Minister may, from time to time, by notice in the gazette, prescribe national norms and standards that will define acceptable levels of service and provide the basis for the monitoring and evaluation of services rendered to older persons.

(2) Services provided to older persons must comply with such prescribed norms and standards.

Support for services delivered by third parties

5. (1) The Minister-

    1. may, in consultation with the Minister of Finance, provide financial awards to service providers who provide services to older persons, from funds appropriated by Parliament for that purpose;
    2. may identify priority services required for older persons and in the prescribed manner, enter into contracts with service providers, to ensure that the required services are provided;
    3. must prescribe conditions for such financial awards, including accounting measures, compliance measures and norms and standards; and
    4. must prescribe remedies for failure to comply with the prescribed conditions.

(2) The Minister will ensure the opening and maintenance of a register of all assets bought with Government funds, and prescribe conditions for the management of such assets.

Provision of programmes for older persons

6. Key programmes for older persons must be provided in an environment that-

    1. recognizes the social, cultural, economic and political contribution of older persons;
    2. promotes participation of older persons in decision-making processes at all levels;
    3. ensures access to information, education and training of older persons;
    4. promotes development and the basic care of older persons in rural and urban areas;
    5. promotes the prevention of exploitation of older persons;
    6. promotes the respect and dignity of older persons;
    7. ensures that older persons receive priority in the provision of basic services; and
    8. ensures the optimal level of physical, mental and emotional well-being of older persons.

 

 

 

 

CHAPTER 3

COMMUNITY-BASED SERVICES FOR OLDER PERSONS

Rights of older persons receiving community based services

8. An older person receiving community-based services has, in addition to the rights referred to in section 3, the right to—

    1. reside at home as long as possible;
    2. pursue opportunities for the full development of their potential; and
    3. benefit from family and community care, and protection in accordance with society’s system of cultural values.

Establishment of community-based services

9(1) The Minister must, in consultation with other relevant Ministers, establish community-based services that fall into two broad categories:

    1. based care, which ensures that frail older persons receive maximum care and prevention and promotion services, which ensure the independent living and active ageing of older persons who are mobile and those who are at risk.
    2. home support within the community, through a comprehensive range of integrated services.

(2) Community-based services may be provided within a home of an older person, in a facility especially erected for that purpose or a multi-purpose facility which serves the broader needs of the community.

(3) The Minister may, with the concurrence of the Minister of Finance, out of moneys appropriated by Parliament for that purpose, provide resources to support such services.

(4) Any person wishing to establish a community-based service must ensure that such a service complies with the prescribed national norms and standards.

Registration of facilities for community based services and prohibition of operation of unregistered facilities

10(1) All facilities that provide community-based care services must be registered with the Department, except State facilities.

(2) The Minister must prescribe conditions for the registration of such facilities, including application for registration, approval of registration, temporary registration, withdrawal and termination of registration.

(3) If the registration of a facility has been cancelled or if management of the facility for any reason wishes to close down a facility, prior to closure of such facility, the management must-

    1. notify the Director-General of the intention to close or implications of such closure for affected older persons;
    2. inform older persons affected about the intended closure of the facility; and
    3. take reasonable steps to ensure that older persons benefiting from the service are not adversely affected, put at risk, and where appropriate, are placed in another facility that renders similar services.

(4) Registration granted in terms of this section is not transferable to another person or facility.

(5) In addition to the above, services delivered within facilities by service providers must comply with section 6 of this Act.

(6) Any person who contravenes or fails to comply with the provisions of this section is guilty of an offence.

Management of professionals and staff in home-based care

11. (1) Managers of these services must ensure that caregivers receive training and supervision.

(2) All professionals and associated auxiliary workers rendering services to older persons in facilities and in home-based care services must be registered with the appropriate statutory council responsible for the relevant profession.

(3) Management must ensure that home community-based workers are accessible to communities including rural communities, and provide a high quality service to beneficiaries, as prescribed in the norms and standards.

(4) The Minister must, in consultation with other relevant departments, keep a register of all carers rendering home-based care service to older persons, excluding those mentioned in subsection 2, and prescribe a code of conduct for such carers.

(5) No person may provide home-based care services to older persons unless registered in terms of section 10.

(6) Any person who contravenes or fails to comply with the provisions of this section is guilty of an offence.

Community-based programmes for older persons

12 (1) the Minister may, in consultation with any other relevant Minister-

    1. develop programmes referred to in subsection (2) and (3) or cause such programmes to be developed; and
    2. support any person who runs such programmes.
    3. (2) Programmes for prevention and promotion services include, but are not limited to the following:

      1. economic empowerment of older persons;
      2. establishment of recreational opportunities for older persons;
      3. information, education and counselling services, including HIV and AIDS, care for orphans, Alzheimer’s, dementia;
      4. spiritual, cultural, medical, civic and social services;
      5. provision of nutritionally balanced meals to needy older persons;
      6. promotion of skills and capacity of older persons to sustain their livelihoods;
      7. professional services, including care and rehabilitation to ensure independent living of older persons;
      8. appropriate services contained in the indigent policy for vulnerable and qualifying older persons;
      9. the utilization and management of existing facilities for older persons as multi-purpose community centres;
      10. integrated community care and development systems for older persons; and
      11. inter-generational programmes.

(3) Programmes for home-based care services that are directed to frail older persons within the community include, but are not limited to the following:

    1. provision of the hygiene and physical care of older persons;
    2. provision of professional and lay support for the care of older persons within the home;
    3. rehabilitation programmes that include provision of assistive devices;
    4. provision of respite care for older persons and their carers;
    5. information, education and counselling for family members, care-givers and the community regarding ageing and associated conditions; and
    6. provision of free health care to frail, vulnerable, and poor older persons.

Management of community based services

13 (1) A management structure must be established for facilities providing community- based services.

(2) The Minister must prescribe -

    1. the composition of the structure which must include representatives of the beneficiaries of the service, members of staff of the relevant community- based facility and members of the public;
    2. the election, appointment, qualifications, terms of office and grounds for removal from office of members of the structure and the filling of vacancies; and
    3. the number of, and procedure at meetings of a management structure.

(2) A management structure established in terms of subsection (1) must ensure that the manager of the facility-

    1. provides quality service to the facility;
    2. provides opportunities for the training of staff of the facility;
    3. applies principles of sound financial management and submits quarterly progress and financial reports to the beneficiaries of services and staff of the facility;
    4. monitors activities at the community-based facility in order to deal speedily with any incidents of abuse of the beneficiaries and take appropriate steps in terms of Chapter 5;
    5. establishes complaints procedures for the beneficiaries of services and staff of the facility and persons who wish to lodge a complaint on behalf of any such beneficiary; and
    6. does everything necessary for the effective functioning of the facility.

(3) Non-facility home-based care services will be managed by persons registered in terms of the provisions of section 6 of the Non-profit Organisations Act, 1997 (Act No.71 of 1997), will apply with the necessary changes.

Monitoring and evaluation of community-based services

14. Provisions of Section 22 on the monitoring and evaluation of facilities will apply for the monitoring of community-based facilities.

CHAPTER 4

RESIDENTIAL FACILITIES

Rights of older persons in residential facilities

15. An older person residing in a facility has, in addition to the rights as stipulated in section 3, the right to—

    1. appoint a representative to act on his or her behalf;
    2. have reasonable access to assistance and visitation;
    3. keep and use personal possessions;
    4. have access to basic care, including health care;
    5. be informed about the financial status of the facility and changes in management;
    6. participate in social, religious and community activities of his or her choice;
    7. privacy;
    8. his or her own physician if he or she can afford it; and
    9. be given at least 30 days’ notice of a proposed transfer or discharge.

Establishment of facilities

16. (1) The Minister may, with the concurrence of the Minister of Finance, out of moneys appropriated by Parliament for that purpose, establish or cause to be established residential facilities for older persons.

(2) Any person desiring to establish a residential facility must comply with the prescribed national norms and standards for such facilities.

Registration of facilities

17(1) A person who wishes to operate a facility must, in the prescribed manner, apply to the Minister for registration of such a facility.

(2) Subject to section 33, no person may operate a facility unless such facility has been registered under this section.

(3) A facility maintained by the State does not have to be registered under this section.

(4) After consideration of an application referred to in subsection (1) the Minister may—

(a) grant the application and issue a registration certificate;

(b) refuse the application; or

(c) grant authority to the applicant, subject to such conditions as he or she may determine, to operate the facility for such period, not exceeding 12 months, as the Minister may determine, and direct-

(i) that a temporary registration certificate, specifying those conditions, be issued to the applicant in the prescribed form for that period; and

(ii) that, after the expiry of the said period or after notice by the applicant in the prescribed manner, that the said conditions have been complied with, whichever occurs first, reconsider the application.

(5) Temporary registration may not be extended for more than 12 months under the same conditions.

(6) The Minister may, at any time after one month’s notice of his or her intention to do so, and after consideration of any representations received by him or her during such month, amend or cancel the registration certificate issued in terms of subsection (4)(a) and (c).

(7) (a) The amendment or cancellation of such registration certificate must be effected by

notice to the holder thereof, and takes effect on a date specified in the notice.

(b) The date specified in the notice may not be earlier than three months for permanent

registration and seven days for temporary registration, after the date of the notice,

unless the Minister and the holder of the registration certificate have agreed

otherwise.

(c)The Minister shall prescribe conditions for closure of a facility without notice.

(8) A person to whom a registration certificate has been issued in terms of subsection (4) may not transfer it to any other person.

(9) If the registration of a facility has been cancelled in terms of subsection (6), or if the 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.

(10) Any person who contravenes or fails to comply with the provisions of this section is guilty of an offence.

Compliance with conditions for registration of facilities

18 (1) If there is reason to believe that any of the conditions referred to in section 17(4)(c) have not been complied with, the Minister may order specific measures to be adopted to facilitate compliance with those conditions.

(2) The 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 referred to in section 17(4)(c).

(3) If the registration of a facility has been cancelled in terms of section 17(6), or if the operator of a facility wishes to close down that facility, the operator must—

    1. prior to any decision to close down that facility, consult with the Minister on the matter;
    2. furnish the Minister with a full report on the accommodation of the older persons concerned required in terms of section 17(9); and
    3. hand over to the Department all assets bought with Government funds.

(4) Any person who fails to comply with the conditions stipulated in this section is guilty of an offence.

Admission to facilities

19 (1) No person may unfairly discriminate, directly or indirectly, against an older person applying for admission to a facility, on one or more grounds referred to in section 9(3) of the Constitution.

(2) 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 the person.

(3) A manager of a facility may admit an older person in a facility only if the older person has consented in writing, to such admission.

(4) If an older person is not able to give consent due to his or her mental state, the facility may accept consent-

    1. issued by a court order;
    2. from a person who has the power of attorney; or
    3. by certain persons from a list of nearest relatives, in order of priority.

(5) Despite the provision of subsection (3), an older person may be admitted to a facility without consent, if-

    1. failure to admit him or her will result in serious risk to his or her health; and
    2. a delay in the admission might result in his or her death or irreversible damage to his or her health and the older person has not expressly, impliedly or by conduct refused that admission.

(6) Subject to the provision of subsection (5), where an older person was admitted to a facility without the consent referred to in subsection (3), the facility manager must notify the Director-General of the older person’s admission within 48 hours after such older person was admitted, and must submit the information referred to in subsection (5)(a) and (b).

(7). If the 48-hour period referred to in subsection (6) expires on a Saturday, Sunday or public holiday, the facility manager must notify the Director-General of the older person’s admission and submit the information referred to in subsection (6) at any time before noon of the next day that is not a Saturday, Sunday or public holiday.

(8). Any person who contravenes subsections (1), (3), (4), (5)(b), (6) or (7) is guilty of an offence.

Services provided by residential facilities to frail older persons

20. Residential facilities must, amongst others, provide the following services to frail older persons:

    1. 24-hour care and support services to frail older persons;
    2. care and supervision services to older persons who are suffering from dementia and related diseases;
    3. rehabilitation services to older persons;
    4. public education on issues of ageing, including dimentia;
    5. counselling services to residents and family members who need it;
    6. respite care services for older persons, carers and family members;
    7. implementation and monitoring of outreach programmes;
    8. provision of home community-based services to frail older persons in the community; and
    9. training of volunteer care workers and caregivers for the home-bound frail older persons.

Management of residential facilities

21(1) If more than 10 older persons reside in a facility, a management structure that is responsible for the day-to-day management of the facility must be established.

(2) The Minister must prescribe-

    1. the composition of the structure referred to in subsection (1), which must include representatives of the residents, members of staff of the relevant facility and members of the public;
    2. the election, appointment, qualifications, terms of office and grounds for removal from office of the members of the structure and the filling of vacancies; and
    3. the number of, and procedure at meetings of a management committee.

(3) A management committee established in terms of subsection (1) must ensure that the manager of the facility-

    1. facilitates interaction between the residents of the facility and their families and the public in general;
    2. provides quality service to the facility;
    3. provides opportunities for the training of the staff of the facility;
    4. applies principles of sound financial management and submits quarterly financial reports to the residents and staff of the facility;
    5. monitors activities at the facility in order to deal speedily with any incidents of abuse of the residents and take steps to report such incidents to the appropriate authority;
    6. establishes complaints procedures for the residents, staff of the facility and persons who wish to lodge a complaint on behalf of any such resident, and does everything necessary or expedient for the effective functioning of the facility;
    7. establishes a residents’ committee, which is representative of the profile of residents and represents the interests of residents;
    8. consults the residents’ committee in the appointment of staff of the facility; and
    9. consults the residents’ committee in the appointment of staff of the facility.

Monitoring of registered facilities

22 (1) A social worker in the employ of the State may, at any time, or any social worker or person or a team designated by the Director-General must, if requested to do so by the Director-General—

    1. visit and monitor a registered facility where an older person is cared for, or accommodated, in order to ensure compliance with this Act;
    2. interview any older person cared for or accommodated in such facility or place;
    3. either with or without the assistance of a professional health care provider, enquire into the well-being of any such older person; and
    4. direct any person who has in his or her possession or custody any book or document relating to such facility, to submit such book or document to him or her for inspection.

(2) A social worker or designated person exercising any power in terms of subsection (1) must, at the request of the manager of the facility in question or the person who has control over the place in question, as the case may be, produce a certificate issued by the Director-General stating that, he or she is such a social worker or designated person.

(3) A social worker or designated person may issue a compliance notice to the operator concerned if a provision of this Act has not been complied with.

(4) A compliance notice remains in force until the relevant provision of this Act has been complied with, and the social worker or designated person has issued a compliance certificate in respect of that notice.

(5) A person is guilty of an offence if he or she-

    1. obstructs or hinders a social worker or designated person in the performance of his or her functions in terms of subsection (1);
    2. refuses to give a social worker or designated person access to an older person cared for or accommodated in a facility referred to in subsection (1); or
    3. refuses or fails to comply with a directive in terms of subsection (1)(d).

Report to Minister by operators of facilities

23 (1) The 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-

(a) compliance with-

(i) the prescribed national norms and standards; and

(ii) the prescribed measures to prevent and combat abuse of older persons; and

(b) the provisions of the prescribed service level agreements concluded during that financial year.

(2) Any person who contravenes the provisions of subsections (1) is guilty of an offence.

CHAPTER 5

PROTECTION OF OLDER PERSONS

Older person in need of care and protection

24. (1) Any person who is involved with an older person in a professional capacity and who, on personal observation, concludes that the older person is in need of care and protection must report that to the Director-General.

(2) Any person other than a person in subsection (1), who is of the opinion that an older person is in need of care and protection may report that to a social worker.

(3) The Director-General or the social worker to whom a report has been made must investigate the matter.

(4) If the report is substantiated by the investigation, the Director-General or the social worker concerned must take such steps as may be prescribed, to ensure adequate provision for basic needs and protection of the older person.

(5) An older person who is in need of care and protection is one who-

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

(b) has been removed from his or her property against his or her wishes or who has been unlawfully evicted from any property occupied by him or her;

(c) has been neglected or abandoned without any visible means of support;

(d) lives or works in the streets or begs for a living;

(e) is addicted to a substance and is without any support or treatment for such addiction;

(f) lives in circumstances likely to cause or to be conducive to seduction, abduction or sexual exploitation;

(g) lives in or is exposed to circumstances which may harm that older person

physically or mentally; or

(h) is in a state of physical, mental or social neglect.

Protection of older persons from abuse and prohibition of abuse

25 (1) Older persons shall be protected from all forms of abuse including:

    1. physical abuse;
    2. sexual abuse;
    3. economic abuse;
    4. verbal and psychological abuse;
    5. intimidation; or
    6. any other controlling or abusive behaviour towards an older person, where such conduct harms, or may cause imminent harm to the safety, health or well-being of an older person.

(2) Any person who abuses an older person is guilty of an offence.

Procedure for bringing complaints of abuse to an older person in the community before a magistrate

26 (1) Any older person may, in the prescribed manner, lodge a complainant of abuse to

the relevant authority, including a member of the South African Police Service or a social worker.

(2) Despite the provisions of any other law, the application may be brought on behalf of the older person by any other person, including a counselor, health service provider, member of the South African Police Service, social worker who has a material interest in the well being of the older person, but the application must be brought with the written consent of the complainant, except in circumstances where the complainant is –

    1. mentally ill;
    2. unconscious; or
    3. a person in respect of whom the court is satisfied that he or she is unable to provide the required consent.

(3) Despite the provisions of any other law, the magistrate may order the social worker to conduct an investigation and submit a report.

(4) 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 abuses an older person, that public prosecutor may, subject to subsection (2), request the clerk of that court to issue summons informing such first-mentioned person of the allegations against him or her and calling upon him or her to appear, at a time and place specified therein, before a magistrate within that area.

(5) A public prosecutor may not, in terms of subsection (4), request a clerk of the court to issue summons, unless he or she has obtained from the social worker a report on the accommodation or care of the older person concerned.

(6) If, on the grounds of a statement under oath or affirmation referred to in subsection (3), 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 person concerned is being accommodated or cared for to make the necessary investigation for the purposes of a report referred to in subsection (3) and (5), or if such social worker 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 to go into or enter upon that place to make such investigation.

(7) A magistrate may, in a warrant issued by him or her in terms of subsection (6), authorise the social worker to take a police official with him or her for the purposes of an investigation referred to in the said subsection.

(8) The Criminal Procedure Act, 1977 (Act No. 51 of 1977) applies, with the necessary changes, in relation to the form and manner of service of summons in criminal cases in lower courts, the time to be allowed to a person summoned to appear, and the manner in which persons who have been summoned to appear may be dealt with if they fail to appear or to remain in attendance as required, in respect of summons issued in terms of this section.

(9) A person is guilty of an offence if that person—

(a) obstructs or hinders a social worker in the performance of his or her functions in terms of this section; or

(b) refuses to furnish to a social worker with any information in connection with the accommodation or care of an older person at his or her disposal, which such officer requires, for the purpose of an investigation referred to in subsection (3) and (6).

Enquiry into abuse of an older person

27. (1) Subject to this section, a magistrate before whom any person is brought in terms of section 26 must enquire into the correctness or otherwise of the allegations contained in the summons in question.

(2) The public prosecutor or any other person designated by the magistrate for this purpose must appear at the enquiry and may call witnesses and cross-examine any other witnesses giving evidence at the enquiry.

(3) The person against whom the allegations in question were made, may give evidence and he or she, or his or her legal representative, may cross-examine any witnesses called in terms of subsection (2), and may call witnesses and must be given the opportunity to advance reasons why an order should not be issued under subsection (10).

(4) Subject to anything to the contrary contained in this Act, the law relating to criminal trials in magistrates’ courts applies with the necessary changes in respect of subpoenas, the calling and examination of witnesses for the purposes of or at the enquiry, the taking of evidence and the production of documents and other articles thereat, and the payment of allowances to witnesses.

(5) The magistrate holding the enquiry may determine, on the recommendation of the social worker or with due consideration to the safety of the older person, whether or not the proceedings must be conducted in an open courtroom or behind closed doors.

(6) Section 159(1) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), in so far as it relates to the conduct of a criminal trial in the absence of an accused, applies with the necessary changes, in respect of an enquiry held in terms of this section.

(7) Section 108 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), applies with the necessary changes, in respect of any proceedings in connection with an enquiry held in terms of this section.

(8) The report referred to in section 26(3) and (5), 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 person concerned and to furnish the magistrate with a report on the findings of such examination.

(9) The contents of a report submitted or furnished in terms of subsection (8) must be disclosed to the person against whom the allegations were made, and if he or she so desires, he or she or his or her legal representative must be given an opportunity to cross-examine the person who made the report, in relation to any matter arising out of the report, and to disprove any allegation made therein.

(10) If, after consideration of the evidence and of any report submitted or furnished in terms of subsection (8), it appears to the magistrate that any allegation in the summons is correct, the magistrate may-

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

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

(c) apply the provisions of the Domestic Violence Act, 1998 (Act No. 116 of 1998), with the necessary changes, in relation to a case of domestic violence against an older persons.

(11) Any person who contravenes or fails to comply with subsection (10) is guilty of an offence.

Notification of abuse of older persons

28 (1) 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.

(2) On receipt of a notification in terms of subsection (1), the Director-General must arrange-

(a) for the removal of the older person concerned to a hospital in case of injury or to such other place as the Director-General may determine; and

(b) that the older person receive the necessary treatment.

(3) A person is not liable in respect of any notification given in good faith in terms of subsection (1).

(4) A person who fails to comply with subsection (1) is guilty of an offence.

Keeping of national older persons protection register

29. (1) The Minister must, in the prescribed manner, keep a register of persons convicted of the abuse of an older person.

(2) The register referred to in subsection (1) will include the following elements:

    1. Purpose of the register;
    2. Conditions for confidentiality;
    3. Access to the register;
    4. Disclosure of information;
    5. Enquiries on information;
    6. Identification of persons unsuitable to work with older persons;
    7. Disputes concerning findings;
    8. Consequences of entry of a name into the register;
    9. Disclosure of entry; and
    10. Removal of name from the register.

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

(4) The register contemplated in subsection (1) must be accessible to the public.

CHAPTER 6

GENERAL AND SUPPLEMENTARY PROVISIONS

Delegation

30. (1) The Minister may—

(a) delegate to any officer of the Department any power conferred upon the

Minister by this Act, except the power to make regulations; and

(b) authorise any such officer to perform any duty imposed upon the Minister by this Act.

(2) The Minister may, with the concurrence of the Premier of a province—

    1. delegate to the Member of the Executive Council of that province responsible for social development, any power conferred upon the Minister by this Act, except the power to make regulations; and
    2. authorise that Member of the Executive Council to perform any duty

imposed upon the Minister by this Act.

(3) The Member of the Executive Council of a province responsible for social development may-

    1. delegate to any officer of the provincial administration concerned any power delegated to that Member under subsection (2);
    2. authorise any such officer to perform any duty which that Member is

authorised to perform under subsection (2).

(4) The Director-General may—

    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.

(5) The Director-General may, with the concurrence of the relevant Director-General of a provincial administration-

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

(b) authorise that Head of Department to perform any duty imposed upon the

Director-General, by this Act.

(6) A Head of Department may-

(a) delegate to any other officer of the provincial administration concerned, any power delegated to him or her under subsection (5); and

(b) authorise any such officer to perform any duty which he or she is authorised to perform under subsection (5).

(7) Any person to whom any power has been delegated or who has been authorised to perform a duty under this section must exercise that power or perform that duty subject to such conditions as the person who effected the delegation or granted the authorisation considers necessary.

(8) Any delegation of a power or authorisation to perform a duty under this section-

    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

(c) may, at any time be withdrawn in writing by that person.

Penalties

31. Any person convicted of an offence in terms of-

(a) section 17(10), 18(4) or 19(9) is liable to a fine or to imprisonment for a period not exceeding one year, or to both a fine and such imprisonment; or

(b) section 22(5), 25(5) , 26(9), 27(11) or 28(5) is liable to a fine or to imprisonment for a period not exceeding five years, or to both a fine and such imprisonment.

Regulations

32. (1) The Minister may make regulations regarding—

    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;

(c) 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;

(d) 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 such facilities;

(e) the records to be kept by any person who cares for or accommodates for remuneration, whether by way of money or goods, any older or frail person in any place other than a facility;

(f) measures to—

(i) prevent, combat and deal with the abuse of older persons;

(ii) be taken to advance persons disadvantaged by unfair discrimination;

(iii) promote the rights of residents of facilities and other beneficiaries of services to older persons;

(g) the form and content of service level agreements between the residents and the residents’ committee of a facility;

(h) the national norms and standards for admission of persons to facilities;

(j) the levels of community-based care services;

(k) the keeping of registers; and

(l) generally, any other ancillary or incidental administrative or procedural matter that it is necessary to prescribe for the proper implementation of this Act.

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

(3) Any regulation made in terms of subsection (1) which affects the South African Police Service must be made after consultation with the Minister for Safety and Security.

(4) 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.

(5) Before the Minister makes any regulation under this section, he or she must publish a draft of the proposed regulation in the Gazette, together with a notice calling on interested persons to comment, in writing, within a period stated in the notice of not less than 30 days from the date of publication of the notice.

(6) If the Minister alters the draft regulations, as a result of any comment, he or she need not publish those alterations before making the regulations.

(7) The Minister may, if circumstances necessitate the immediate publication of a regulation, publish that regulation without consultation as referred to in subsection (5).

Repeal of laws, and transitional provisions and saving

33. (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.

(2) Any person managing a residential facility, which was registered in terms of the Aged Persons Act, 1967 (Act No. 81 of 1967), immediately before this Act took effect, must within 12 months of the date on which this Act took effect, apply for registration in terms of section 17 of this Act.

(3)A residential facility referred to in subsection (2) remains registered in terms of the Aged Persons Act, 1967 (Act No. 81 of 1967), until the Minister grants or refuses the application as referred to in section 17 of this Act.

(4) Any manager who received a financial award under section 2 of the Aged Persons Act, 1967 (Act No. 81 of 1967), immediately before this Act took effect continues to receive such financial award for 12 months after the date on which this Act took effect or the term of the service level agreement entered into between the Department and the service provider for this purpose expires, whichever comes first.

(5) Anything done or deemed to have been done under any provision of a law repealed by subsection (1) and which may or must be done in terms of this Act, must be regarded as having been done in terms of the corresponding provision of this Act.

Short title and commencement

34. This Act is called the Older Persons Act, 2005, and comes into operation on a date determined by the President by proclamation in the Gazette.