Older Persons Amendment Bill: public hearings & provincial public hearings report

Meeting report

The Chairperson of the Portfolio Committee on Social Development, Ms N Mvana (ANC), called for a brief observation of a moment of silence. Apologies were acknowledged and all stakeholders were welcomed to the meeting. The agenda was adopted by the Committee.

The Chairperson opened for the oral submissions.

Ilitha Labantu submission on Older Person’s Amendment Bill

Ms Natsai Chakapfava, Senior Legal Advisor, Ilitha Labantu, presented oral submissions to the Portfolio Committee on Social Development regarding the Older Persons Amendment Bill. Ilitha Labantu, established in 1989, is a community organisation based in Gugulethu township, Cape Town, focusing on addressing violence against women, children, and vulnerable groups. Their services include psycho-social support, legal advocacy, education, and community development, all aimed at meeting the needs of communities affected by violence and limited socio-economic opportunities.

Ms Chakapfava highlighted the prevalent gender-based violence in South Africa, which denies women and children the right to live in a healthy and conducive environment. She emphasised the urgent need to address this issue and welcomed the attempts made by the Bill to rectify the failures in addressing violence in society.

Regarding the Older Persons Amendment Bill, Ilitha Labantu welcomed its purpose, which includes inserting new definitions and provisions for monitoring and evaluating services for older persons, among other amendments. Ms Chakapfava stressed the importance of these amendments in ensuring that older persons receive the necessary support and care while respecting their dignity and rights. She particularly noted the improvement in the definition of an older person, now including any person over 60 years irrespective of gender, thus addressing concerns regarding access to benefits for older men.

Further, Ms Chakapfava welcomed the recognition of the specific needs and preferences of older persons in the Bill, emphasising the importance of tailored services to meet the diverse requirements of the elderly population. She also highlighted the need for coordination among government entities and stakeholders to provide integrated services and ensure accountability.

Ilitha Labantu supported the establishment of indicators and benchmarks to assess the effectiveness and efficiency of services for older persons, as outlined in Sections 4-5 of the Bill. Ms Chakapfava noted the importance of addressing harmful traditional practices, including witchcraft accusations, which can affect the welfare and dignity of older persons, particularly in certain communities.

Regarding Sections 6-7, Ilitha Labantu welcomed the provisions for the responsibilities of older persons and the protection of their rights to property and inheritance. Ms Chakapfava emphasised the need to promote inter-generational dialogue and solidarity within communities, as older persons are valuable resources with essential knowledge and skills.

Ilitha Labantu also supported the provisions for residential and support facilities for older persons, as outlined in Sections 8-9, to ensure that they receive adequate care and support. Ms Chakapfava highlighted the importance of notifying older persons affected by decisions and providing necessary services to address their needs. Ms Chakapfava emphasised the importance of regular monitoring and evaluation to identify innovative approaches and enhance the effectiveness of services for older persons. She also stressed the need for strengthened penalties for non-compliance and improved reporting mechanisms for elder abuse to ensure comprehensive protection for older persons.

See attached for full submission

Associate Professor Kitty Malherbe, University of the Western Cape, submission on the Older Person’s Amendment Bill

Associate Professor Kitty Malherbe, University of the Western Cape, made a submission on the Older Persons Amendment Bill to the Portfolio Committee on Social Development.

Firstly, Prof Malherbe discussed the new definition of 'caregiver' introduced by the Bill, expressing concern about its limitation to qualified persons accredited with the National Quality Framework (NQF) training qualification. She questioned the exclusion of unqualified caregivers and raised difficulties regarding the requirement for further training for home-based and frail care caregivers. She recommended clarification on this matter and suggested including a reference to 'further' training for caregivers.

She also pointed out the reference to 'competing social and economic needs' in section 3(2) of the Bill, emphasising the need for clarity on how stakeholders prioritise measures aimed at providing care and support to older persons. ProfMalherbe recommended clarity on how the extent to which stakeholders use their available resources to promote the interests of older persons is measured.

Additionally, she addressed several inconsistencies and potential issues with specific clauses in the Bill. For instance, she suggested rephrasing the heading of Clause 6 to accurately reflect its content and recommended clarifying the terms 'family care' and 'special care' introduced in Clause 15. She also raised concerns about the significant change in the definition of 'person' and the proposed restriction of registration to juristic persons and trusts only. Professor Malherbe recommended reconsidering this restriction and providing a definition for a 'juristic person' to avoid contradictions and address potential criminal offences.

Further, she highlighted the gap in addressing the state's positive obligation to increase access to social services for older persons, as Section 27 of the South African Constitution mandated. Professor Malherbe recommended addressing this gap in the Bill to ensure older persons' rights to access social services are progressively realised. Additionally, she suggested amending Section 25(5)(a) of the Older Persons Amendment Bill to align with the grant's official name and address discrepancies in terminologies such as 'assisted living facility.

See attached for full submission

Discussion

The Chairperson handed over to the Members of the Committee to engage with the first two presentations delivered.

Ms B Masango (DA) thanked the presenters for their insightful presentations and raised some questions for clarification. Regarding the issue of definitions, Ms Masango directed her questions to Profe Malherbe. She sought clarification on whether Profe Malherbe's concern with the caregiver definition extended to the entire concept of caregiving or if it specifically pertained to certain aspects of care. Additionally, she asked whether the definitions in question were too broad or too narrow to be effectively applied in practice.

Ms Masango asked for suggestions on how to strike a balance to mitigate the advantages and disadvantages outlined by Professor Malherbe regarding the distinctions between natural persons and juristic persons and trusts.

In addressing Ilitha Labantu's presentation, Ms Masango focused on their mention of deficiencies in the current legislation and the need for regular monitoring and evaluation. She asked if Ilitha Labantu had firsthand experience of these deficiencies on the ground due to limitations in the existing Act.

Additionally, she sought clarification on whether Ilitha Labantu believed that while monitoring and evaluation were happening, they were not occurring regularly enough to strengthen the implementation outcomes of the Bill.

Ms P Marais (EFF) asked regarding the training requirement for caregivers looking after older persons, particularly in home-based care settings. She sought clarification on whether family members providing care to their elderly relatives would be required to undergo special training.

Responses

In response to Ms Masango's questions, Prof Malherbe provided detailed explanations regarding her concerns with the definition of caregiver and the implications of restricting it to only qualified individuals. She highlighted that while the amendment aims to ensure caregivers are appropriately trained, narrowing the definition could lead to interpretive difficulties within the text of the Act. Prof Malherbe emphasised the importance of having open-ended definitions to allow for flexibility in interpretation, suggesting that substantive measures be introduced separately from definitions to avoid complications.

Regarding the issue of juristic personality, Prof Malherbe acknowledged the advantages of having juristic persons or trusts provide care services, such as increased governance and regulation. However, she expressed concerns about the potential disadvantages, particularly for smaller operators who may struggle to meet external governance requirements. She suggested that while the intent of the amendment may be to prevent "fly-by-night" operators, the requirement for juristic persons could inadvertently shield individuals from liability, which may undermine accountability.

Prof Malherbe recommended reconsidering the restriction on who can operate facilities and provide services, suggesting that removing the reference to juristic persons or trusts from the definition could address many of the concerns raised. She also emphasised the need for careful deliberation by the Committee and legislature to ensure that the amendments serve the best interests of older persons while maintaining accountability and effectiveness in service provision.

Prof Malherbe responded to Ms Marais' question by clarifying that the definition of caregiver in the Bill still encompasses any person providing care and support services, regardless of whether it is in a formal facility setting or at home. This implies that family members caring for older relatives in their homes would not necessarily need formal training to be considered caregivers under the law.

However, Prof Malherbe noted that there is a gap in the Bill regarding the definition of "family care." While the Bill mentions family care or special care as options for older persons, it does not clearly define what constitutes family care. Addressing this gap by defining family care would provide clarity on the role of informal caregivers within the context of the legislation.

Ms Chakapfava responded to Ms Masango's questions by acknowledging the challenges faced on the ground regarding the provision of services to elderly individuals, including healthcare and reporting issues of violence. She highlighted the difficulties in holding juristic persons accountable, as they cannot be sanctioned in the same way as individuals. This, she explained, creates obstacles in accessing justice for elderly individuals who may experience abuse or neglect in institutions run by such entities, particularly those described as "fly by night" establishments.

Ms Chakapfava emphasised the importance of re-evaluating the sanctions applicable to juristic persons and ensuring that they are adequate to address instances of abuse or negligence against elderly individuals. She expressed concern that the current system may not provide proper justice for elderly persons affected by such incidents.

Congress of South African Trade Unions (COSATU) submission on Older Person’s Amendment Bill

Mr Tony Ehrenreich, COSATU Western Cape Provincial Secretary, expressed full support for the Older Persons Amendment Bill, considering it a crucial intervention to safeguard the protection, security, care, and dignity of the elderly population in South Africa. He highlighted several areas of support within the Bill.

Firstly, COSATU welcomed the acknowledgement within the Bill of the right of the elderly to live in comfort, emphasising that this right should extend beyond mere survival necessities and include provisions for a dignified retirement.

COSATU also emphasised clauses regulating the roles, responsibilities, and registration of caregivers and facilities, including the importance of ensuring that only competent individuals are entrusted with the care of the elderly and that they are held to a high standard of accountability. Mr Ehrenreich said that COSATU particularly supports provisions for monitoring and evaluating community-based care services to maintain required standards and hold providers accountable.

Mr Ehrenreich said that COSATU advocates for the empowerment of the state to register, suspend, and close facilities failing to comply with their obligations under the Act, stressing the critical importance of enforcing such measures to protect vulnerable elderly individuals.

Stakeholder involvement was highlighted as essential, given the limitations of state resources, to ensure broader societal participation in caring for the elderly and reporting abuses to relevant authorities. Provincial governments were urged to play their role effectively, especially considering their significant presence in elder care provision.

Mr Ehrenreich indicated that the Bill's provisions addressing inheritance abuse were deemed vital, as many elderly individuals are susceptible to exploitation by family members and others seeking to exploit their vulnerabilities for financial gain. Education and special care provisions regarding non-communicable diseases (NCDs) and chronic illnesses were supported, recognising the heightened risk of health issues among the elderly.

See attached for full submission

Mr Johan Rademeyer submission on Older Person’s Amendment Bill

Mr Johan Rademeyer, Silver Crane Day Care, said that it is acknowledged that amendments to laws are typically aimed at improving existing frameworks, although success is not always guaranteed. Rademeyer noted that while public participation is crucial, it may not singularly ensure success.

Observing from his engagements with various individuals, Mr Rademeyer noted that many did not fully grasp the importance of the exercise or were unprepared to articulate the challenges they face in delivering services under challenging circumstances and limited financial means.

Reviewing the proposed amendments, Mr Rademeyer said that the intentions are noble and necessary, given recent reports of abuse and neglect. However, a significant issue remains unaddressed: government's shifting responsibility onto the private sector, burdening service providers with stringent legal requirements without adequate support. This is a problem for organisations like ACVV, which have operated for over a century on community-raised funds, sustainability is becoming untenable.

Mr Rademeyer highlights the lack of coordination between government levels, exacerbating challenges, evident in stringent municipal by-laws necessitating costly building adaptations without financial support. Additionally, Mr Rademeyer pointed out the absence of legal provisions for caregiver training, placing further strain on the private sector. While some facilities train caregivers effectively, they do so with minimal resources and no government assistance.

Mr Rademeyer said the concept of temporary safe care for older persons lacks practical implementation, with no accessible facilities identified. Meanwhile, service centres for the elderly, vital for supporting those living independently, face financial constraints due to capped grants.

Mr Rademeyer emphasised that without adequate funding, implementing proposed amendments becomes untenable. South Africa cannot afford to prioritise the policing of legal requirements over the allocation of resources to meet them.

See attached for full submission

Discussion

Ms Marais began by expressing her appreciation for the submissions made. She referenced discussions she had heard regarding red tape and compliance with fire safety regulations, particularly concerning the necessity for fire extinguishers to be compliant. She sought clarification on whether such regulations on compliance in old-aged care facilities originate from municipalities or the national government.

Ms L van der Merwe (IFP) expressed gratitude to the Chairperson, colleagues, ministers, and presenters. She shared a personal connection to the Boland region and emphasised her understanding of the struggles faced by organisations like Mr Rademeyer's. She highlighted the critical issue of funding for NGOs, particularly those providing services for the elderly.

Ms van der Merwe expressed concern over budget cuts affecting these vital services and suggested prioritising funding for the elderly, children, and people with disabilities in the next Parliament. She cited an example of funding redirection in Gauteng and stressed the importance of safeguarding NGO funding for core areas. Additionally, she directed a question to Mr Rademeyer regarding the source of the funding cut and whether reasons were provided for the reduction. She emphasised the need to ensure adequate funding for services to the elderly despite budget constraints.

Responses

Mr Rademeyer responded by addressing Ms Marais's question regarding the source of funding for ensuring compliance with fire safety regulations in aged care facilities. He emphasised the significance of the question, highlighting that municipalities work with the National Building Regulations (NBR), which incorporate the South African National Standard (SANS) 10400 regarding fire compliance. Mr Rademeyer explained that his organisation is in the process of spending over R2 million across three financial years to achieve compliance, as mandated by the department. He stressed the importance of fire compliance due to the potential risks and the need for orderly evacuation procedures in the event of a fire. However, he noted that many old-age homes are currently non-compliant due to funding constraints. Despite the pressure from both the fire department and the Department of Social Development to become compliant, the financial burden makes it difficult for older buildings to meet the necessary standards. Mr Rademeyer highlighted challenges such as the need to eplace flammable vinyl tiles with fire-resistant alternatives, which incur significant costs. He suggested that there may be a disconnect between legislation writers and the realities faced by volunteer-run organisations like old age homes.

The Chairperson thanked all for the oral submissions. The Committee moved to the next agenda item.

Consideration and adoption of Committee consolidated report on provincial public hearings on the Older Persons Amendment Bill [B11 – 2022]

Ms Yolisa Khanye, Content Advisor, Portfolio Committee on Social Development, presented the comprehensive report of the public hearings held across all nine provinces on the Older Persons Amendment Bill. These hearings, conducted from 02 June to 26 November 2023, were vital in fulfilling the constitutional mandate of fostering public involvement in legislative processes.

Participants from all the provinces overwhelmingly supported the amendments to the Bill, recognising them as long-overdue measures addressing the neglect of older persons in society. They emphasised the importance of empowering older persons to speak for themselves and restoring their dignity. There was widespread support for the revised definition of "older person," which eliminates discrimination against men and ensures equal access to government benefits.

The amendment to section 3(b) was well-received, acknowledging stakeholders in older persons' services. However, there were calls for clarity regarding stakeholders' responsibilities to ensure adequate services.

Concerns were raised about poor service delivery in various sectors, particularly healthcare, policing, and municipal services. Participants welcomed the clauses mandating all state organs and officials to protect older persons' rights. Recommendations included explicitly outlining departments' roles and including youth ambassadors for older persons' rights.

Concerns were raised about the lack of visibility of certain departments in providing services. The introduction of Sections 7A and 7B received widespread support for promoting mentorship and protecting older persons from violence and abuse. Recommendations included employing retired educators to facilitate workshops and ensuring proper verification of property transfers.

There were calls for training and educating communities on diseases like Dementia, financial education for older persons, and the provision of sign language and writing skills training. Suggestions included proactive measures for service provision during emergencies. Participants expressed concerns about the proposed amendment to Section 13, emphasising the need for user-friendly registration requirements and assistance from officials.

Recommendations included defining private residential facilities and ensuring standardisation of care centre requirements. While there was support for prescribed training for caregivers, there were calls for accredited training and funding for frail care resources. Concerns were raised about the lack of training and funding for caregivers and the need for clarity on training procedures and accountability.

The proposal to monitor community-based care centres received support, with recommendations for closer monitoring and evaluation. Concerns about inadequate bed space in old age homes and resource allocation for implementation were raised. Support was expressed for the proposed amendment, but concerns about the onerous registration processes for care facilities were raised.

Recommendations included assisting non-profit organisations (NPOs)with obtaining lease agreements and providing funding for permanent structures. Participants supported the amendment but raised concerns about NPOs neglecting older persons and recommended inserting punitive measures for physical abusers. Suggestions included defining statutory abuse and providing consequences for transgressions.

Support was expressed for the proposed amendment to extend the duration of obtaining a court order to 48 hours. Recommendations included provisions for temporary safe care facilities and improved accessibility to government services for older persons. Support was expressed for the proposed amendment, with calls for faster police response to elder abuse cases and provisions for private rooms in police stations.

Committee minutes

The Committee adopted minutes of 08 November 2023, 29 November 2023, and 14 February 2024.

The Chairperson thanked all the Members for their engagement and adjourned the meeting.