Social Assistance Bill and the South African Social Security Agency Bill: voting

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
15 October 2003
SOCIAL ASSISTANCE BILL AND THE SOUTH AFRICAN SOCIAL SECURITY AGENCY BILL: VOTING

Chairperson: Mr E Saloojee

Documents handed out:
Proposed amendments to the Social Security Agency Bill (Discussion Document 2)
Portfolio Committee Amendments to the Social Security Agency Bill

Relevant documents:
The Social Assistance Bill (B57-2003)
The Social Security Agency Bill (B51-2003)
The Social Assistance Bill (Third Draft dated 17 September 2003)

SUMMARY
The Committee considered the proposed amendments to the Social Security Agency Bill (Discussion Document 2). The DA and the IFP reserved their positions on the Bill. The Committee reported the Social Security Agency Bill [B51-2003] by way of majority. After lunch, the Committee considered final amendments to the Social Assistance Bill and then adopted it with all amendments.

MINUTES
Parties broke into groups for caucuses and then reconvened.

The Chairperson passed the Motion of Desirability for the Social Security Agency Bill.

Mr M Da Camara (DA) said that the DA would abstain.

Ms I Mars (IFP) said that the IFP would reserve its position.

The Chairperson said that the motion would be carried in terms of the vote of the majority. The Committee agreed to the Arrangement of Sections.

Clause 1
The Chairperson indicated two definitions for "social security" and asked which was most appropriate.

Ms K Booyson (State Law Advisor) said that the first definition included "contribution-based benefit payments" which would require further definition. The second option was simpler.

Mr Da Camara asked how this would relate to the self-employed and those with an irregular income.

Ms C Ramotsamai (ANC) asked whether this would include funds administered by the Road Accident Fund and the Unemployment Insurance Fund.

Mr F Makuwane (Department) explained that social assistance did not include contributions as the Government paid grants to benefit recipients. Social insurance constituted a contribution by the beneficiaries themselves to their own social benefit.

Advocate M Masutha (ANC) pointed out that the first definition contained all the necessary elements and suggested that the Committee accept it.

The Chairperson referred to the omission of "made in terms of section 22" in line 7 and asked for comment.

Ms J Chalmers (ANC) asked whether the regulations were being removed.

Mr Makuwane said that the sentence now read "'This Act' includes the regulations" with "This Act" in inverted commas.

Clause 2
The Committee accepted clause 2.

Clause 3
This related to the "Objects of the Agency". The Chairperson asked for comment from the Committee.

Advocate Masutha referred to clause 3(a) and recommended that "eventually" and "act" be swapped so that it read "to act eventually as the sole agent".

Ms Booysen pointed out that "eventually" meant no fixed term. The Committee should reconsider because it implied that the Agency might never assume the other responsibilities referred to in the clause.

Advocate Masutha explained that the rationale was that "eventually" meant it could not be prescribed in law exactly when the Agency would assume these responsibilities. He referred to clause 3(b) and said that "to provide" should be replaced as it did not refer to an object of the Act, but of the Agency. The Committee would reconsider this issue.

Clause 4
The Chairperson drew the Committee's attention to the newly formulated clause 4.

Ms Ramotsamai proposed that "assignment" be replaced with "applicable law" so that it read "The Agency must render any service in accordance with the agreement or applicable law as contemplated in subsection 4. The Agency may then in terms of any applicable law or agreement between itself and any other relevant authority be responsible for the provision of forms of social assistance"

The Committee accepted clause 5, 6, 7 and 8.

Clause 9
The Chairperson pointed out that clause 4(2)(b) was no longer applicable. The Committee would return to this point.

The Committee accepted clauses 12 to 25 as well as the long title.

Revisiting clauses 3 and 9
Ms Booysen suggested substituting "to provide" with "render". The Committee agreed and accepted clause 3 as amended.

Mr S Jehoma (Department) suggested that clause 9 remain as in the original Bill.

Advocate Masutha agreed as it complemented the amended clause 4(4).

The Committee accepted clause 9 as amended.

VOTING
The DA abstained and the IFP reserved its position. The Committee reported the Social Security Agency Bill [B57-2003].

THE SOCIAL ASSISTANCE BILL
The Chairperson read the motion of desirability for the adoption of the Bill.

It was agreed with the DA abstaining.

He then put the Bill clause by clause to the members for adoption.

Arrangement of Act
It was agreed

Clause 1: Definitions
Mr Da Camara (DA) proposed that a definition of a "primary caregiver" be amended so that "a person older than 16 years, whether or not related to a child" was deleted.

Ms Ramatsamai (ANC) pointed out that the ANC was opposed to the foregoing proposal.

Chairperson asked the members to vote on the matter.

Five ANC Members voted for and one DA Member voted against. The proposal was rejected.

Mr Da Camara (DA) further proposed that a definition of "Child Headed Household" should include a household where there was no adult member to provide care to a child, or where a parent had died of a terminal illness.

Ms Ramatsamai (ANC) pointed out that the ANC was opposed to this proposal and would stand by their position as discussed in the Committee caucus.

The Chairperson requested members to vote.

Five ANC Members voted for and one DA Member voted against. The amendment proposed by Mr Da Camara was rejected.

Mr Da Camara (DA) further proposed that a definition of a "street child" be included.

Mr Masutha (ANC) pointed out that there was a comprehensive Child Care Act, which would deal adequately with the above. The proposition was rejected.

Clause 2: Application and implementation of the Act
It was agreed.

Clause 3: Objects
It was agreed.

Clause 4: Financing of social assistance
The Chairperson pointed out that the old clause has been rejected and a new clause had been inserted.

Adv. Masutha (ANC) proposed that "social relief distress" be substituted with "social grant".

It was agreed with the proposed amendments.

Clause 5: Eligibility for financial assistance
Adv Masutha (ANC) referred to clause 5(1)(a) and proposed that reference to clause 14 be added and reference to clause 13 be left out, because a welfare organisation was not entitled to a social grant.

Mr Da Camara (DA) proposed the insertion of new clause 5(1)(e): "A person is entitled to the appropriate social grant if he or she applies for a grant in terms of 15(1)".

Adv. Masutha (ANC) proposed that in the alternative new clause, 15(1)(e) be drafted to the following effect "A person is entitled to the appropriate social grant if he or she applies for social assistance in terms of clause 15(1).

All the members were in favour of the amendments with the DA abstaining.

Clause 6: Child Support Grant
It was agreed. However the DA requested that its objection in respect of clause 6 be recorded because the clause did not cover street children.

Clause 7: Care Dependency Grant
It was agreed as amended.

Clause 8: Foster Child grant
It was agreed.

Clause 9: Disability Grant
It was agreed.

Clause 10: Older Persons Grant
It was agreed as amended.

Clause 11: War Veteran's grant
It was agreed as amended.

Clause 12: Grant-in-Aid
It was agreed as amended.

Clause 13: Financial Awards to Welfare Organisations and Persons
It was agreed as amended.

Clause 14: Application for Social Assistance
Ms Ramotsamai (ANC) proposed that "as maybe" be deleted.

Mr Plaatjies (National Treasury) was concerned that the current clause 14 could lead to unintended consequences and loopholes for litigation. There was a need to provide for a sunset clause for the Minister to develop a framework for social relief.

Mr Jehoma (Department) explained that the clause was providing discretionary powers to the Minister and therefore could not lead to unintended consequences.

The members supported the clause as amended.

Clause 15: Appointment of Procurator
It was agreed.

Clause 16: Discontinuation of Payment to Person Absent from Republic
It was agreed as amended.

Clause 17: Recovery of Sums Overpaid
It was agreed as amended.

Clause 18: Appeal
It was agreed.

New clause 19: Misuse of Social Assistance
Mr Da Carama referred to clause 19(1)(a) and proposed the following formulation: 19(1) "Where the Agency has reasonable grounds to suspect that a beneficiary, procurator or a primary care giver is misusing the social grant, the Agency may appoint a person to investigate such suspected abuse;
(2) If such a person finds on objective grounds that the said abuse has taken place; the Agency must appoint a person to receive the grant on behalf of the beneficiary and to use it for the benefit of that beneficiary, subject to any prescribed conditions".

The old sub clause 19(1(a) and 19(1)(b) would automatically fall away. The State Law Advisors concurred with the above proposition.

Adv. Masutha (ANC) referred to clause 19(3) and proposed the following formulation: "the Agency -
(a) may suspend payment of a child support grant, foster child grant or a care dependency grant to a parent, primary care giver, foster parent or procurator, where that parent, primary care giver, foster parent or procurator as the case maybe -
(i) is convicted of abuse or neglect of the child on whose behalf he or she receives a grant; or
(ii) is found by the Agency or the inspectorate to be incapable of using a grant for the benefit of the child in respect of whom she received it; and
(b) appoint a person to receive the grant in respect of the beneficiary, subject to prescribed conditions pending the substitution of such a parent, primary care giver, foster parent or procurator as the case maybe".

It was agreed.

Clause 20: Restrictions on Transfer of Rights and Payment of Social Assistance
The Chairperson pointed out that the old clause 20 has been rejected and a new clause inserted.

Ms Chalmers (ANC) pointed out that the use of the word "beneficiary" was in inappropriate in respect of clause 20(6) because the beneficiary would have died.

Adv. Masutha (ANC) pointed out that the purpose of clause 20(6) was to cater for a situation where a beneficiary had died. He therefore agreed that the current clause was illogical. He further proposed the following formulation: "Notwithstanding the provisions of subsection (1), in the case of death of a parent, procurator or primary caregiver receiving a grant in respect of such person or child as the case may be, the Agency must appoint a person to receive the grant in respect of such a person or child, and to use it for his or benefit without suspending the grant, subject to the prescribed conditions.

It was agreed

Clause 21: False Representation
It was agreed as amended.

Clause 22: Information to be Furnished to Administrator
It was agreed.

Clause 23: Power of Administrator to Investigate
It was agreed.

Clause 24: Functions of Director-General
It was agreed.

Clause 25: Inspectorate for Social Assistance
It was agreed as amended.

Clause 26: Independence of Inspectorate
It was agreed as amended.

Clause 27: Funding and Employees of Inspectorate
It was agreed as amended.

Clause 28: Functions of Inspectorate
It was agreed as amended.

Clause 29: Power of Inspectorate to Request Information and to Subpoena
It was agreed as amended.

Clause 30: General Power of Inspectorate to Enter, Search and Seize
It was agreed.

Clause 31: Powers of Inspectorate to Enter, Search and Seize with Warrant
It was agreed.

Clause 32: Powers of Inspectorate to Enter, Search and Seize without Warrant
It was agreed.

Clause 33: Delegation
It was agreed as amended.

Clause 34: Offences
It was agreed as amended.

Clause 35: Penalties
It was agreed as amended.

Clause 36: Regulations
It was agreed as amended.

Clause 37: Repeal of Legislation
Adv. Masutha (ANC) asked whether the current formulation would stand because the clause was made in terms of the national law and other social grants were made in terms of the assigned law.

Adv. Omar (State Law Advisor) pointed out that to reformulate the clause, they would need more time to consult with the Senior State Law Advisors.

Mr Jehoma (Department) said they thought that the clause was not problematic. Rather, the formulation made at the last meeting was problematic.

Mr Makiwane (Department) requested the Department to give them ten minutes to consult among themselves and they would come back to the Committee.

After doing so, Mr Jehoma pointed out that they could not get hold of the Senior State Law Advisors. However, they had reached the conclusion that the alternative formulation as proposed in the last meeting would interfere with the provincial laws. Hence they proposed that the current formulation be retained.

Mr De Preez (Department) concurred that the legal experts were not comfortable with the alternative formulation. If the Committee insisted the State Law Advisors be given more time, that might delay the whole process of passing the Bill. Alternatively, clause 37 could be further discussed in the NCOP.

Adv. Masutha (ANC) pointed out that if there was a doubt that the current clause 37 might be unconstitutional, it would be improper to pass the Bill. Equally, if the Bill was not going to achieve the objectives as contained in the long title, it would still not be proper to pass the Bill.

Mr Da Camara (DA) pointed out that he was also uncomfortable with the second amendment.

Adv. Masutha (ANC) proposed that the Committee vote on the Bill as stood, until such time that the State Law Advisors advised them accordingly.

Chairperson pointed out that the Bill would be adopted pending an alternative formulation to clause 37. He hoped that the new formulation would be inserted before the Bill was tabled in the House.

Clause 38: Short title and Commencement
It was agreed.

The Chairperson read the report of the Committee adopting the Bill.

It was agreed with the DA reserving its position.

The Bill was formally passed

The meeting was adjourned.