Older Persons Amendment Bill: motion of desirability & deliberation

Meeting report

The Chairperson of the Portfolio Committee on Social Development, Ms N Mvana (ANC), officially opened the meeting, welcomed all, and observed a moment of silence. The Chairperson apologised for the delay in the start of the meeting due to network issues. Attending Members were confirmed and apologies were acknowledged. The meeting agenda was highlighted and adopted.

Report: Public Hearings on the Older Persons Amendment Bill

Ms Yolisa Khanye, Committee Content Advisor, presented a summary of the national public hearings on the Older Persons Amendment Bill [B11-2022]. The hearings provided stakeholders who had submitted written submissions with the opportunity to make oral presentations. Stakeholders who participated were: Ilitha Labantu, Professor Kitty Malherbe, COSATU, and Mr Johan Rademeyer.

During the hearings, Prof Malherbe raised several concerns regarding the definitions in the Bill. She highlighted issues with the proposed definition of a "caregiver," suggesting that its restriction to individuals with accredited qualifications could pose interpretation challenges when read in conjunction with other sections of the Bill. Prof Malherbe recommended a broader definition that included "further training" to address these concerns. Additionally, she pointed out discrepancies in the definitions of "person" and "juristic personality," emphasising the need for clarity and consideration of governance challenges. Prof Malherbe also identified potential confusion between "family care" and "special care", advocating for clear definitions to mitigate ambiguity.

Further, she noted gaps in the Bill related to constitutional rights and the progressive realisation of older persons' rights. She recommended addressing these gaps to ensure adequate protection and realisation of rights. Additionally, she suggested rephrasing the heading of section 7A to better align with its provisions and recommended minor adjustments to ensure consistency with related legislation.

Ilitha Labantu, COSATU, and Mr Rademeyer presented their written submissions without additional commentary during the hearings. However, Ilitha Labantu shared experiences of elder abuse and expressed concerns about enforcement against juristic persons for offences listed in the Bill.

Following deliberations on the oral submissions, the Committee sought clarification on various issues, including the balance between "person" and "juristic person" and experiences related to deficiencies addressed by the Bill. Prof Malherbe emphasised the importance of inclusive definitions and discussed the advantages and disadvantages of involving juristic persons in service provision. Ilitha Labantu highlighted challenges related to elder abuse and enforcement.

In response, the Committee made resolutions to address key issues. They tasked the Department with following up on residential facility compliance with bylaws, particularly regarding fire safety. Additionally, the Committee prioritised funding for NGOs focusing on older persons, children, and other core areas to be addressed in the upcoming administration.

The Committee moved to adopt the report.

Draft report: Older Persons Amendment Bill Motion of Desirability

Ms Lindiwe Ntsabo, Committee Secretary, took the Committee through the report. It said that the Portfolio Committee on Social Development had thoroughly considered the Older Persons Amendment Bill referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 76 Bill. The Bill was tabled and referred to the Committee on 6 May 2022. Subsequently, on 26 October 2022, the Committee received a detailed briefing from the Department of Social Development on the contents of the Bill.

In adherence to constitutional requirements for public participation, the Committee advertised the Bill for a period of six weeks in April and May 2024 in national, local, and regional newspapers, inviting public comments. The Committee conducted provincial public hearings covering all nine provinces from 2 June to 26 November 2023. Additionally, virtual public hearings were held on 21 February 2024 to allow stakeholders to make oral presentations. Following these hearings, the Committee received briefings from various departments, including Health, Justice and Constitutional Development, Police, Higher Education, Science and Technology, Human Settlements, Social Development, and the South African Local Government Association (SALGA), addressing issues raised during public consultations.

The objectives of the Bill included inserting new definitions, provisions for monitoring and evaluating services for older persons, enabling temporary safe care without a court order, strengthening implementation and compliance measures, making textual amendments for clarity, and addressing related matters.

After careful deliberation on the briefings and presentations from relevant departments, the Committee was required to adopt a motion of desirability to proceed with further deliberations on the Bill. This motion aligned with Rule 286(4) of the National Assembly, which stipulated that the Committee must consider a motion of desirability on the subject matter of the Bill. If the motion was rejected, the Committee must immediately table the Bill and its report. If the motion was adopted, the Committee could proceed to deliberate on the details of the legislation.

The Committee had determined that the Bill was desirable and would therefore proceed with deliberations on the specifics of the legislation.

The Committee moved to adopt the report which deemed the Bill desirable.

Department of Social Development: Responses to submissions

Adv Luyanda Mtshotshisa, Specialist: Legislative Drafting and Review, Department of Social Development (DSD), presented the Department's responses to the submissions made on the Older Persons Amendment Bill. He began by acknowledging the recommendations put forth by various stakeholders and outlined the Department's stance on each.

One recommendation proposed the inclusion of the South African Older Persons Forum (SAOPF) in the background and purpose section of the Bill. The DSD supported this proposal, stating that the role of the SAOPF would be outlined in the regulations. The Department emphasised its responsibility, in consultation with the SAOPF, for ensuring that older persons received services as per the Principal Act.

Regarding the definition of a private residential facility, another recommendation suggested a succinct differentiation from personal private residences. The DSD endorsed this proposal, noting that such facilities were registered with the Department of Trade, Industry and Competition and had already been defined in the Amendment Bill. The articulation in law clarified this by stating: “Private residential facility means a residential facility that is not owned by the state and registered in terms of any applicable legislative framework."

In response to the recommendation to include family members or informal support in the definition of a caregiver, the DSD agreed, stating that family members providing care without formal training would be included in the definition. They clarified that family members were not excluded from the definition provided in the Principal Act. This clause was amended to state that ‘‘caregiver” meant any person who provided care and support services, whether at a community-based care facility, residential facility or similar facility and who, in the context of a facility, must be in possession of an appropriate qualification accredited with the National Qualifications Framework.

Further recommendations addressed the definitions of "care" and "caregiver", with the DSD supporting revisions to avoid confusion and ensure a holistic approach to services for older persons. They stated that “care” meant physical, psychological, social, or material assistance to an older person, and included services aimed at promoting and maintaining the comfort, quality of life and general well-being of an older person.

The DSD also supported recommendations to include definitions for "family care" and "special care" in the Bill, emphasising a tailored and dignified approach to meeting the unique needs of older persons. The articulation in law added depth by inserting a definition of “family care” as referring to “the provision of support and assistance by family members to an older person who is frail and those living with disabilities provided out of love, duty, and a sense of responsibility towards the older person. It is a form of informal care where family members, such as adult children, spouses, or extended family, take on the responsibility of caring for their older person who is unable to fully care for themselves due to physical, cognitive, or mental disabilities.”

Additionally, the DSD supported proposals to include definitions of "substances" and to revise the structure of the inter-departmental framework to ensure comprehensive coverage and coordination in addressing issues affecting older persons. This was amended with the insertion of a definition of “substances'' as meaning chemical, psychoactive substances that were prone to be abused, including tobacco, alcohol, over-the-counter drugs, prescription drugs and substances defined in the Drugs and Drug Trafficking Act, 1992, or prescribed by the Minister after consultation with the Medicines Control Council. 'Drugs'' in the context of this Act had a similar meaning.

The Department also backed suggestions for dedicated queues for older persons at public service facilities and establishing an older persons desk at various government levels to facilitate integrated services. The articulation in law was detailed, stating: “To achieve the implementation of this Act in the manner contemplated in subsections (1) (2) and (3), all public service facilities and all service points providing services to older persons must provide dedicated, separate and special queues for older persons when receiving services at such facilities."

Recommendations concerning penalties for contraventions of the Bill, the role of the President, Premier, and Mayors in supporting the Older Persons Forum, and the protection of older persons with mental conditions were all supported and addressed in the amended clauses of the Bill, providing comprehensive legal frameworks for the protection and care of older persons.

See attached matrix

Discussion

The Chairperson invited Committee Members to deliberate on any amendments.

Ms B Masango (DA) raised questions about unresolved issues raised during the initial debate on the Bill in Parliament. She sought clarification on whether concerns previously voiced had been addressed and would be considered in the proposed amendments.

Additionally, Ms Masango inquired about the involvement of relevant agencies within the DSD, particularly those mentioned during public hearings such as the South African Social Security Agency (SASSA), which were relevant to the Bill. She said that her inquiry aimed to ensure that all relevant stakeholders were adequately consulted and engaged in the process.

Ms Masango inquired about the specific clauses raised for consideration at the beginning of the process. She sought clarification on whether these clauses were included in the current considerations discussed by Adv Mtshotshisa or if they had been addressed in previous committee meetings.

Advocate Mtshotshisa clarified that in the previous Committee meeting, the DSD addressed each issue raised during the public hearings, including those raised by other departments and stakeholders. He explained that matters falling outside the scope of the Bill would be referred to the relevant departments or organs of state for appropriate action. For instance, concerns regarding long lines at SASSA were acknowledged but deemed beyond the scope of the Bill and should be directed to the unit responsible for SASSA-related issues.

The Chairperson invited the Parliamentary Legal Advisor to guide the Committee on the next steps.

Ms Sueanne Isaac, Parliamentary Legal Adviser, said that while the Committee was mandated to consider public comments on the Bill, any proposed amendments beyond its scope would require permission from the House. Ms Isaac outlined the procedural mechanism for such amendments, highlighting the need for specific permission to extend the subject matter or propose amendments. She gave an assurance that her office would assess each proposed amendment against the Bill and provide specific advice on whether they necessitated permission or not. She affirmed the Committee's ability to proceed with amendments within the defined scope of the Bill, subject to the necessary approvals.

The Chairperson expressed her alignment with the amendments proposed by the public and presented in the discussion by the DSD. She acknowledged that the issues raised, including those deemed outside the scope of the Bill or the Department's mandate, had been duly noted. She encouraged Committee Members to contribute their insights on the matter.

Ms Masango sought clarification on whether the specific clauses they would like to address should be sent directly to the DSD or whether they were to be discussed further in the meeting.

In response to Ms Masango, the Committee Secretary indicated there would be a later process when the Committee would consider the Bill clause-by-clause. This was where Ms Masango would have the opportunity to raise inquiries about specific clauses she would like the DSD to address.

The meeting was adjourned.