DEPARTMENT OF SOCIAL
DEVELOPMENT
No. R. 2006
REGULATIONS UNDER THE
SOCIAL ASSISTANCE ACT, 2004
INSPECTORATE FOR SOCIAL
ASSISTANCE
The Minister of Social
Development intends, in terms of section 32 of the Social Assistance Act, 2004
(Act No. 13 of 2004), to make the regulations set out in the Schedule hereto
Interested parties are
invited to submit comments on the proposed regulations to the Director-General:
Social Development, Private Bag x901, Pretoria, 0001, fax number (012) 3127560
or e-mail: Nozipho.Buthelezi@socdev.gov.za / Pierredp@socdev.gov.za (for attention: Ms Nozipho Buthelezi or Mr Pierre du Preez)
within 21 days of the date of publication of this notice.
Chapter 1 Definitions
Definitions
1. In these regulations,
unless the context otherwise indicates -
1.1 "certificate of
appointment" means the document issued by the Executive Director in
terms of section 26 (6) of the Act;
1.2 "financial
institution" means an institution as defined in Section 1 of the
Financial Services Board Act 1990 (Act No 97 of 1990);
1.3 "organ of state"
means any Government Department, institution or office;
1.4 "protected
person" means
a person who qualifies for protection under the witness protection programme
referred to in regulation 8.1;
1.5 "the Act"
means the Social Assistance Act, 2004 (Act No. 13 of 2004);
Chapter
2 Appointment to the Inspectorate
2. The Executive Director
must issue a certificate of appointment, in the form contained in Annexure A of
these regulations with the persons photo affixed thereto, to every inspector
of the Inspectorate who has been appointed to perform the functions and
exercise the powers contemplated in sections 27 and 28 of the Act.
3. No person other than the
Executive Director may be appointed or seconded to the Inspectorate in order to
perform the functions and exercise the powers contemplated in sections 27 and
28 of the Act unless
(a) information with
respect to that person has been gathered in a security screening investigation
by the National Intelligence Agency established by section 3 of the
Intelligence Services Act, 1994 (Act No. 38 of 1994); and
(b) the Executive Director,
after evaluating the gathered information, is satisfied that such person is not
a security risk and will not in any way act prejudicial to the functions or
powers of the Inspectorate.
4. No person other than the
Executive Director may be appointed to the Inspectorate unless he or she has
signed a document acknowledging that he or she will not wilfully disclose
information regarding the operations of the Inspectorate while knowing that
such disclosure would prejudicially affect any of those operations.
5. Information
5.1 Information received
by the Inspectorate is restricted information.
5.2 The Executive Director,
the inspectors and any other employee of the Inspectorate must not disclose any
information received in the course of carrying out the duties for the purposes
of the Act. Such information must be kept confidential and must form part of a
report to the Minister requested in terms of section 24 (5) (a) of the Act.
5.3 Any person, when
submitting information to the Executive Director, may identify information that
the person claims to be confidential information, but must support that claim
at the same time, in a sworn statement explaining why the information is
confidential.
5.4 If a person makes a claim
referred to in regulation 5.3, the Executive Director may-
(a) agree to be bound by
that claim without determining whether or not the information is confidential
information; or
(b) report the matter to
the Minister or instruct any inspector or employee of the Inspectorate to
investigate the confidentiality of the information.
6. Proceedings in terms of Section
28(5) of the Act
6.1 An inspector may not
institute proceedings in terms of section 28(5) of the Act unless the Executive
Director or anyone authorised by him or her in writing to do so has in writing
approved the institution of such proceedings.
6.2 The proceedings in
terms of section 28(5) of the Act must be recorded in the manner determined by
the Executive Director.
6.3 A person who has been
cross-examined in terms of section 28(5)(c) has a right to request a copy of
such cross-examination at the payment of a fee provided for in terms of and
under the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000).
6.4 No person may
communicate to any other person any matter or information which may have come
to his or her knowledge in connection with proceedings in terms of section
28(5) of the Act, or allow or permit any other person to have access to any
records of the Inspectorate, except -
(a) by order of the High
Court;
(b) in so far as it is
necessary in the performance of his or her functions with the Inspectorate;
(c) where it is permitted
by leave of the Executive Director; or
(d) where such matter,
information or record is disclosed or referred to in any pleadings or papers or
evidence in any proceedings instituted in a court of law.
6.5 In addition to section
28(7) of the Act and these Regulations, the rules of natural justice apply to
any proceedings conducted in terms of section 28(5) of the Act.
6.6 A person subpoenaed in
terms of section 28(5) of the Act has a right to legal representation.
6.7 The proceedings
conducted in terms of section 28(5) of the Act are not open to the public
unless ordered otherwise by a court of law.
7. Referral to the South
Africa Police Service, the Agency or the Inspectorate of Special Operations
Established by Section 7(1) (a) of the National Prosecuting Authority, 1998
(Act No. 32 of 1998)
7.1 Upon completion of an
investigation by the Inspectorate as contemplated in section 27(1) (a) of the
Act, the Executive Director shall if he or she deems it necessary refer the
matter to the South Africa Police Service, the Agency or the Inspectorate of
Special Operations established by section 7 (1)(a) of the National Prosecuting
Authority Act, 1998 (Act No. 32 of 1998) for further execution including but
not limited to the arrest of any person suspected of fraud, corruption, abuse
of social assistance or the commitment of any act deemed to be an offence in
terms of the Act.
8. Witness Protection
Programme
8.1 The Inspectorate must
in consultation with the South African Police Service, the Agency or the
Inspectorate of Special Operations established by section 7(1) (a) of the
National Prosecuting Authority Act, 1998 (Act No. 32 of 1998) or any other
organ of state established by law and which has the appropriate powers to
investigate and act on any alleged contravention of the Act, devise, adopt and
maintain a witness protection programme to protect the identity and integrity
of complainants and other sources of information.
8.2 The Executive Director,
the inspectors and any other employee of the Inspectorate must take all
reasonable steps to safeguard all information and documents relating to the
witness protection programme.
9. Eligibility for
witness protection
9.1 The Executive Director
must upon receipt of an application to the witness protection programme
determine whether a complainant or other source of information in respect of
any matter being investigated or being considered for investigation by the
Inspectorate requires protection relating to its identity and integrity.
9.2 The Executive Director
must, in determining whether a person is eligible for protection under the
witness protection programme, have regard to-
(a) the nature and extent
of the risk to the safety of the complainant or any other source of
information;
(b) any possible threat to
the interests of the community if the complainant or any other source of
information is not placed under protection;
(c) the nature of the
proceedings in which the complainant or any other source of information has
given evidence or is or may be required to give evidence, as the case may be;
(d) the importance,
relevance and nature of the evidence given or to be given by the complainant or
any other source of information in the proceedings concerned;
(e) the probability that
the complainant or any other source of information will be able to adjust to
protection, having regard to the personal characteristics, circumstances and
family or other relationships of the complainant or any other source of
information;
(f) the costs likely to be
incurred in the protection of the complainant or any other source of
information;
(g) whether that person had
previously been afforded protection and had left the witness protection
programme voluntarily or had been discharged on any grounds referred to in
paragraphs (c) to (g) of regulation 12.1;
(h) the availability of any
other means of protecting the complainant or any other source of information
without invoking the provisions of the Act or these Regulations; and
(i) any other factor that
the Executive Director deems relevant.
9.3 For purposes of
regulation 9.2, a threat to the safety of the complainant or any other source
of information includes any occupational detriment as defined in section 1 of
the Protected Disclosures Act, 2000 (Act No. 26 of 2000).
9.4 The Executive
Director may
(a) request the applicant
to furnish him or her with any information relevant to the application for
protection;
(b) request the applicant
to confirm any information furnished by way of sworn affidavit or solemn declaration.
9.5 If the Executive
Director has in his or her sole discretion determined that such a complainant
or any other source of information requires protection in terms of the witness
protection programme, he or she must issue a certificate recording
(a) his or her approval of
the application for protection;
(b) the nature, extent and
period of such protection;
(c) the conditions upon
which the Inspectorate offers witness protection to that person, including
conditions in respect of communication by the protected person with family
members and friends, access to the protected person and co-operation by the
protected person with the Inspectorate;
(d) whether any other
person, who is the husband, wife, life partner, child, grandchild, parent,
grandparent, brother or sister of the person to be placed under protection,
must also be protected, and in what way;
(e) the conditions under
which the protected person may voluntarily leave the witness protection
programme; and
(f) any other relevant
matter.
10. Protection agreement
10.1 The Executive Director
must, before he or she places any person under protection, on behalf of the
Inspectorate enter into a written protection agreement with such person setting
out the obligations of the Inspectorate and the person in respect of his or her
placement under protection.
10.2 The Executive Director
must
(a) enter into a protection
agreement with the parent or guardian of
(i) a child; or
(ii) a person who is
otherwise not competent to enter into a legally binding agreement; or
(b) enter into a protection
agreement with a child referred to in regulation 11.
10.3 If the Executive
Director has entered into a protection agreement as contemplated in regulation
10.2(a)), he or she may, as soon as possible after the protected person
concerned becomes competent to enter into a legally binding agreement, require
the protected person to enter into a new protection agreement.
10.4 A protection agreement
must set out the terms and conditions under which a person is to be placed
under protection, including
(a) an obligation on the
Inspectorate
(i) to take such reasonable
steps as are necessary to provide the protected person with the protection and
related services, as referred to in the protection agreement concerned; and
(ii) not to keep a
protected person under protection in any prison or police cell, unless
otherwise agreed upon;
(b) an obligation on the
protected person
(i) where applicable, to
give the evidence as required in the proceedings to which the protection
relates;
(ii) to meet all financial
obligations incurred by him or her that are not payable by the Director in
terms of the protection agreement;
(iii) to meet all legal
obligations incurred by or applicable to him or her, including any obligations
regarding the custody and maintenance of children;
(iv) to refrain from
activities that constitute a criminal offence;
(v) to refrain from
activities that might endanger his or her safety or that of any other protected
person;
(vi) to accept and give
effect to all reasonable requests and directions made or given by any member of
the Inspectorate in relation to the protection provided to him or her and his
or her obligations;
(vii) to inform the
Executive Director of any civil proceedings which have or may be instituted by
or against him or her or in which he or she is otherwise involved;
(viii) to inform the
Executive Director of any proceedings in which he or she was or may be
involved, either as a witness or accused or otherwise; and
(ix) not to endanger the
security or any other aspect of the protection of witnesses and other persons
or related services or any other matter relating to a witness protection
programme provided for in the Act or these Regulations;
(d) mechanisms to be put in
place in order to monitor the circumstances under which a person is kept under
protection;
(e) any other terms and
conditions or obligations agreed upon; and
(f) a procedure in
accordance with which the protection agreement may, if necessary, be amended.
11. Children under
protection
11.1 The Executive Director
may not place a child under protection without the consent of his or her parent
or guardian, but any child
(a) who, as a witness,
applies for protection in respect of proceedings against his or her parent or
guardian or in which his or her parent or guardian is a suspect;
(b) who has no parent or
guardian;
(c) whose parent or
guardian cannot be identified or found, notwithstanding reasonable efforts to
do so; or
(d) whose parent or
guardian is unreasonably withholding or is unable to give his or her consent,
may be placed under protection without the consent of his or her parent or guardian
if the Executive Director is of the opinion that it is necessary to do so for
the safety of that child and if it is in the best interests of the child.
11.2 If a judge of a High
Court in an ex parte application, made to him or her in chambers by the Executive
Director, is satisfied that the safety of a child who is under protection might
be endangered by the exercising by anyone of his or her right of access to that
child, the judge may suspend such right of access or make any order he or she
deems appropriate with regard to the exercising of such right in a manner aimed
at
(a) preventing the
disclosure of the identity or whereabouts of the said child; or
(b) achieving the objects
of the Act and these Regulations.
12. Discharge from
protection.
12.1 The Executive Director
may, subject to regulation 12.2, on his or her own accord and after
consideration of any representations referred to in regulation 12.2, discharge
any protected person from protection if the Executive Director is of the opinion
that
(a) the safety of the
person is no longer threatened;
(b) satisfactory
alternative arrangements have been made for the protection of the person;
(c) the person has failed
to comply with any obligation imposed upon him or her by or under this Act or the
protection agreement;
(d) the person, in making
application for placement under protection, wilfully furnished false or
misleading information or particulars or made a statement which is false or
misleading in any material respect, or wilfully failed to disclose any
information or particulars material to his or her application;
(e) the person refuses or
fails to enter into a protection agreement contemplated in regulation 10;
(f) the behaviour of the
person has endangered or may endanger the safety of any other protected person
or the integrity of the witness protection programme;
(g) the person has wilfully
caused serious damage to the place of safety where he or she is protected or to
any property in or at such place of safety; or
(h).another witness protection
programme managed or executed by an organ of state is more appropriate and is
willing to offer protection to the protected person.
12.2 The Executive Director
must, before he or she discharges a protected person from protection, in
writing notify the protected person and, if he or she is a child, his or her
parent or guardian, and must allow the protected person, and, where applicable,
his or her parent or guardian, to make written representations to him or her
regarding such discharge.
12.3 The Executive Director
must upon receipt of a waiver of protection without delay discharge the
protected person from protection.
13. Temporary protection
The Executive Director may,
pending the finalisation of an application for the protection of a complainant or
any other source of information, place such person under temporary protection
for a period not exceeding 14 days, if he or she deems it necessary for the
safety of such person.
14. Witnesses and
Documents
14.1 A subpoena calling any
person to appear before the Inspectorate or deliver certain documentation for
purposes of section 28(6) of the Act must be issued with the clerk of the
Magistrates Court having jurisdiction.
14.2 A subpoena must give
any person referred to above 15 (fifteen) days within which to respond to the
Inspectorate.
14.3 A return of service of
the subpoena by the inspector serving the subpoena to the effect that it took
place may be handed in during the proceedings and must on its mere production
be proof of the service thereof.
Chapter
4 Provision of information by organ of state
15. Subject to any Act of
Parliament prohibiting the disclosure of information, an organ of state must
forthwith upon receipt of a written request by the Executive Director furnish
him or her free of charge with all relevant information in its possession in
respect of the receipt of financial assistance of whatsoever nature by any
person or group of persons, including -
(a) the information
provided in the application for such financial assistance;
(b) details of all
instances of financial assistance paid by the State; and
(c) the personal details
and address of such person kept on record by the organ of state.
Chapter
5 - Provision of Information by financial institution
A financial institution as
defined in section 1 of the Financial Services Board Act, 1990 (Act No. 97 of
1990), must forthwith after receipt of a written request by the Executive
Director furnish him or her free of charge with copies of all records
contemplated in section 21 and 22 of the Financial Intelligence Centre Act,
2001 (Act No. 38 of 2001) in its possession relating to a person or group of
persons.
Chapter
6 Offences and Penalties
17. Any person who wilfully
contravenes regulation 6.4 is guilty of an offence and liable, on conviction,
to a fine or to imprisonment for a period not exceeding two years or to both a
fine and such imprisonment as contemplated in section 26(9) (a) and (b).
18. An organ of state or a
financial institution that refuses or fails to comply with the provisions of
regulations 15 or 16 respectively, or a request for information issued by the
Executive Director, is guilty of an offence and upon conviction liable to a
fine not exceeding an amount which in relation to a period of imprisonment of
15 years is in the same ratio as the ratio between the amount of the fine which
the Minister of Justice may from time to time determine in terms of section 92
(1) (b) of the Magistrates Courts Act, 1944 (Act No. 32 of 1944).
19. Any person who
(a) wilfully hinders or
obstructs an inspector or any person duly authorised by the Executive Director
and acting upon the authority of the Inspectorate, in the exercise of his or
her powers or the performance of his or her duties or functions; or
(b) wilfully interrupts the
proceedings in terms of section 28(5) of the Act or misbehaves in any other
manner during the proceedings,
is guilty of an offence and
is liable on conviction to a fine or to imprisonment for a period not exceeding
one year.
20. The Executive Director
may in writing delegate to an appropriate staff member of the Inspectorate any
power or duty which her or she may or must exercise or perform in terms of this
Chapter.
21. A person to whom a
power has been delegated or who has been authorised to perform a duty in terms
of regulation 20, must exercise that power or perform that duty subject to the
conditions determined by the Executive Director.
22. A delegation of a power
or authorisation to perform a duty under regulation 20 does not prevent the
Executive Director from
(a) exercising that power
or performing that duty himself or herself;
(b) in writing amending or
withdrawing the delegation at any time.
23. The Inspectorate uses
the following forms in carrying out its duties
23.1 Annexure
"B"- Subpoena;
23.2 Annexure "C"
Referral Form;
24. Commencement
These regulations come into
operation on the date of publication thereof in the Gazette.
INSPECTORATE FOR SOCIAL
ASSISTANCE
APPOINTMENT CERTIFICATE
[Section 26 (6) of the
Social Assistance Act, 2004 (Act No. 13 of 2004)]
I,
, Executive
Director of the Inspectorate for Social Assistance established in terms of
section 24 of the Social Assistance Act, 2004 (Act No. 13 of 2004), hereby
certify that
...with ID No.
.is employed by the
Inspectorate and has been appointed as an inspector of the Inspectorate for
Social Assistance and has been authorised to exercise the powers and perform
the duties contemplated in section 27 and 28 of the Social Assistance Act,
2004.
Please note that
Signed at Pretoria on this
the
day of
..
.
.
EXECUTIVE DIRECTOR
INSPECTORATE FOR SOCIAL
ASSISTANCE
SUBPOENA
issued by the
Inspectorate for Social Assistance
in terms of 28(5)(a) of
the Social Assistance Act, 2004 (Act No. 13 of 2004)
In the matter of
.
.
To:
(1)
..of
.
(2)
..of
.
(3)
..of
.
(4)
..of
.
You are hereby required to
appear in person before an inspector of the Inspectorate at (place, address)
.............................. on the .............................. day of
.............................. , 20......, at (time)
.............................. in the above-mentioned matter and to remain in
attendance until excused by the person presiding at the enquiry from further
attendance, to take an oath or to make an affirmation as a witness, to give
evidence and to bring with you and produce books, papers or documents specified
in the list hereunder.
Please note that in terms of
section 30(d) and 31 of the Act, a person is guilty of an offence if he or she
has been subpoenaed under section 28 of the Act and fails or refuses, without
sufficient cause, to comply with the subpoena or any relevant aspect thereof,
and a person convicted of such an offence is liable to a fine or imprisonment
for a period not exceeding two years, or to both a fine and such imprisonment.
Please note further that in
terms of section 28(7) of the Act, the rules with regard to privilege which are
applicable in the case of a person who has been subpoenaed to give evidence or
to produce a book, document or thing before a court of law, also apply in
respect of the examination of a person and the production of a book, document
or thing contemplated in this subpoena.
Dated at ..............,
this .................day of ............, 20..........
.
Executive Director:
Inspectorate for Social Assistance
LIST OF BOOKS, PAPERS OR
DOCUMENTS TO BE PRODUCED
Description Original or Copy
.
...
.
...
.
...
.
.
.
INSPECTORATE FOR SOCIAL
ASSISTANCE
REFERRAL FORM
In the matter of:
Reference
No.
To: the Director of Public
Prosecutions, Station Commander (delete whichever is not applicable)
By virtue of my appointment
by the Minister of Social Development in terms of section 26(2) of the Social
Assistance Act 13 of 2004 and powers vested in me including but not limited to
investigating the abuse of social assistance, I hereby refer this matter to
your office for you or your duly authorised official to:
1. Interrogate
..identity number
........of
2. Effect arrest of
identity number
.of
..
3. Detain
..identity number
of
(Delete whichever is not
applicable)
I enclose herewith
statements already obtained by the Inspectorate from the complainant / any
other source of information.
Signed at Pretoria on
this the
day of
..
.
EXECUTIVE DIRECTOR
INSPECTORATE FOR SOCIAL
SERVICES