Recommended candidates to serve on the Independent Tribunal for Social Assistance Appeals

Meeting report

Ms Lindiwe Ntsabo, Portfolio Committee on Social Development Committee Secretary, indicated that due to connectivity challenges by Ms Mvana, Mr Stock would act as Chairperson for the Portfolio Committee

Thereafter, she outlined that Members would be briefed by the Department of Social Development (DSD).

Co-Chairperson Stock, on behalf of the Committee, sent condolences to Ms Mvana for the recent loss of her granddaughter.

Co-Chairperson Gillion asked if all Members of the Select Committee were present in the meeting.

Ms Marcel Williams, Select Committee on Health and Social Services Committee Secretary, said that the Select Committee had met the quorum.

Co-Chairperson Gillion was pleased that both Committees would be able to resolve all outstanding matters during the course of the meeting.

Co-Chairperson Stock then asked which of the Portfolio Committee Members were present.

Ms Ntsabo stated that she had received apologies from Ms van der Merwe, Minister Zulu, and Deputy Minister Bogopane-Zulu.

Following that, Co-Chairperson Stock requested a mover for the adoption of the agenda.

Ms A Hlongo (ANC) moved for the adoption of the agenda.

Ms K Bilankulu (ANC) seconded the mover for the adoption of the agenda.

Opening remarks by the Chairperson

Co-Chairperson Stock explained that the Committees would be briefed by the DSD on the appointment of medical and legal practitioners as members of the Independent Tribunal for Social Assistance Appeals (ITSAA). However, before doing so, he wanted to make a few remarks on the article published by GroundUp on the 23rd of November 2022, which noted the Johannesburg High Court Judgment on the DSD’s adoption guidelines.

The case concerned two single women, aged 23 and 27, who had faced strong opposition from social workers regarding their decision to put their children up for adoption, arguing that they should rather be placed with their grandparents. Both applicants sought a review and setting aside of a letter of non-recommendation of the adoption of their, in terms of Section 239 (1) (d) of the Children’s Act, he said. In addition, the applicants also applied to the court for an interpretation of certain provisions of the Act and if found to be unconstitutional, for a declaration to be made to that effect.

After due consideration, the High Court declared that the adoption guidelines as unconstitutional and inconsistent with the Children’s Act. As such, the letter of non-recommendation issued by the Gauteng DSD was set-aside, he remarked.

Following the brief remarks, he requested that the National DSD study the Judgement and after doing so, brief the Committee on the legal position it has taken.

Thereafter, he informed Members that after deliberations on the department’s presentation, they would proceed to consider and adopt the Children’s Amendment Bill, which was referred back from the National Council of Provinces (NCOP) to the National Assembly, due to minor technical amendments made.

Mr Linton Mchunu, Acting Director-General of the DSD, on behalf of the Department, sent condolences to Ms Mvana and her family for their loss. After doing so, he mentioned that the presentation provided a picture of the process it followed regarding the advertisement and selection of the department’s preferred medical and legal practitioners to serve on ITSAA.

Briefing by the DSD on the appointment of medical and legal practitioners as members of the ITSAA

Mr Mchunu and Adv Antoinette Brink, Appeals Officer at the DSD, briefed the Committee on the process followed to appoint medical and legal practitioners as members of ITSAA.

Mr Mchunu began by indicating that for the period 1 April to 30 September 2022, SASSA received a total of 981 562 grant applications of which 887 628 were approved. A total number of 92 098 grant applications were rejected, representing approximately 9% of the total grant applications during this period. During the same period, the Tribunal received a total number of 2 591 appeal applications. The majority of appeals were however received during the 2nd Quarter following the implementation of the Amendment Act.

In terms of the regulatory framework, the Tribunal needs to adjudicate appeals within a 90-day period from receipt thereof. This is in line with the requirements of the Promotion of Administration Justice Act (PAJA). If the Tribunal failed to adjudicate appeals within 90 days it creates a litigation risk.

Adv Brink mentioned that Section 18 of the Social Assistance Act, 2004 provides that if an applicant disagrees with the decision of the agency in relation to their application for social assistance, he or she may lodge an appeal with the Tribunal. Due to the direct access now provided to appellants, the number of appeals received by the Tribunal increased significantly, from an average of 150 to 750 per month based on the appeals received since the implementation of the Social Assistance Amendment Act.

The Tribunal is comprised of a medical practitioner – who assess and makes recommendations on all medical aspects as well as advising the legal practitioner – and a legal practitioner – who decides and rules whether the decision of SASSA is to be confirmed, varied, or set aside and record the reasons and sign-off on the decision of the Tribunal.

Mr Mchunu began by indicating that the application pool was racially diverse but despite its best efforts, the department only received one application from a person with a disability. Furthermore, no applications were received from the Northern Cape (NC), North West (NW), and Mpumalanga provinces. Fourteen out of the nineteen medical practitioner applicants and twenty out of the sixty-one of their legal counterparts were put forward by the department, for the Committee’s consideration, he highlighted. The Minister awaited the Committee’s input so that she could finalise the appointments.

Co-Chairperson Stock raised his concern regarding the lack of applications from the NC, NW, and Mpumalanga. Nonetheless, he was pleased by the representation of youth.

Thereafter, he opened the floor for discussion.

Discussion

Ms L Arries (EFF) asked if any of SASSA’s medical assessment doctors had applied to serve on the Tribunal.

During oversight visits to various clinics, she was informed by officials that due to space constraints, medical assessment doctors could not be accommodated. As such, she asked what alternative plans had been made to ensure that the doctors could be accessed by all who required them across the country.

Ms A Abrahams (DA) asked if the DSD requested for the candidates to supply it with clearance and good standing certificates from bodies such as the Legal Practice Council and if so, whether these had been submitted. Such information, including evidence that they were not facing misconduct complaints, would illustrate if they were fit and proper.

Then, she asked what informed the ranking of the candidates during the interview process, as candidates six and sixteen did not have more than five years’ experience – while candidate fourteen recorded no experience on the document – yet they were recommended for a position on the panel. Additionally, she asked for clarity on why the names had been put forward. 

In her final question, she asked if the Tribunal was budgeted for, and if so, what this was. Furthermore, she requested that the department set limits on the travel and accommodation fees for the panellists.

Ms Hlongo, following her concern that there were no applications from the NW, NC, and Mpumalanga, asked if the DSD extended the closing dates of the applications.

Ms P Marais (EFF) asked what reasons were usually given to applicants rejected for the Disability Grant, as the presentation highlighted 92 000 such applications were rejected. Following this, she asked which officials were responsible for explaining the appeal processes to rejected applicants and how those who cannot read nor write or assisted in this regard, as several members of the community have complained about the difficulties in lodging an appeal.  

Ms Abrahams asked for the DSD to explain what reasons it usually gave for rejecting applications and what, if anything, should be done to accommodate deserving but not necessarily qualifying applicants.  

Also, she asked what would happen if the Tribunal were to fail to meet the ninety-day period.

Co-Chairperson Stock asked the DSD what approach it would take to ensure greater representation from the NC, NW, and Mpumalanga provinces, particularly as they are home to many of the grant beneficiaries.

Mr Brenton Van Vrede, Chief Director: Social Assistance,  DSD, mentioned that while the shortage of assessment doctors remained a problem, SASSA was still able to meet the thirty-day turnaround assessment times. Where there is a shortage of doctors in an area, a doctor from another will be reassigned. However, he admitted that SASSA has found it difficult to attract the skills.

To resolve this problem, the DSD published new legislation earlier in the year, which would allow for it utilise different health practitioners to conduct the disability assessments but this will take time as the doctors need to be trained, he said. The department did not believe that the shortage of assessment doctors would be resolved soon, due to the lack of doctors within the country.

Another of the Department’s solutions to the issue was for the Department of Health (DoH) to take over the competency of assessing disability grant applicants, he remarked. This would allow for the assessments to be done in clinics and hospitals, rather than SASSA’s offices. Furthermore, SASSA preferred to pay the DoH a fee for conducting the service, rather than continue contracting third-party doctors.

SASSA does offer the service for appeal, and in the rejection letter applicant is made aware can do so. Where the application is declined in the office, the client is told about the right to appeal and they can be assisted to complete the forms.

Regarding the question on the rejection of applicants for the disability grant, he explained that one of the challenges is that for one to qualify for the grant, they must have a disability, which many applicants do not have – the grant is only provided to those who have a disability that impairs the ability to work. Many applicants have chronic illnesses, which in many cases will not enable them to pass the test.

Answering the question of what is done for deserving and not qualifying applicants, he said that at the moment, such individuals can only apply for the Social Relief and Distress Grant.

He encouraged all applicants to report any instances of fraud to SASSA.

Adv Brink explained that the department could not appoint any doctor who is conducting assessments on behalf of SASSA to the panel, as it would be a conflict of interest. In some of the provinces, SASSA has appointed contractor doctors to conduct the assessments but one of the challenges is that even when the agency makes referrals, the DSD has had to make use of public medical practitioners.

Responding to the question on the vetting of candidates, she pointed out that the report incorrectly stated that candidate fourteen had thirty years of experience, and duly apologised. The criteria for the appointment of legal practitioners, outlined in Regulation 1 of the Social Assistance Act, states that a candidate must have at least five years of legal administration work experience.

Candidate six had six years of work experience. A candidate from the Eastern Cape was not initially recommended but after going through his curriculum vitae, the department found that he had in fact experience in law administration.

Touching on the question related to the remuneration of panel members, she pointed out that this was prescribed by the National Treasury, as the panellists were not appointed as full-time employees of the government, as they would lose their independence. Instead, they are appointed on an ad-hoc basis, as and when the appeals are sufficient for adjudication. National Treasury determines the tariffs paid to the panellists, and these have service benefit packages. There has been one increase in their packages since 2017.

The Department prescribes appeals adjudication for the Tribunal per day, so as to get money for value. To conserve its budget, the Department only flies panellists to Gauteng for their training, which is done at the beginning of their term. Feedback on the progress made by panellists after their training is done every six months, which is now done virtually. While the department would prefer for most of the panellists to be based in Gauteng, they are not required to adjudicate appeal matters at Head Office, instead, the files are couriered to them and the DSD provides them with a deadline to courier the documents back within the ninety-day period, she said.

Provision is made in the Act to allow for the DSD to gain additional information on the applicant’s bank statements and for the Tribunal to conclude its adjudication after the ninety-day period, but this opened up a litigation risk, she explained. In 2010-12, the department incurred litigation costs amounting to over R17 million to R20 million per year; however, it currently did not have any litigation costs incurred related to delayed adjudication.

Mr Mchunu corrected Adv Brink on her statement that the Department preferred for the panellists to be based in Gauteng, and indicated that although the law was not explicit on provincial representation, the Department did strive to ensure that all nine provinces were represented. A public advert was put out by the department in all nine provinces, to encourage candidates to apply. Despite that, only a few medical practitioners based in Limpopo, Mpumalanga, NC, and NW, applied for consideration, which concerned the Department. To ensure that more practitioners apply in the round of applications, the Department has considered approaching the legal and medical societies.

The entire process was done according to the law.

Regarding the question of whether the Department required panellists to submit letters of good standing, he confirmed that it approached both the Health Professional Council and Law Society of South Africa as well as the Legal Professional Council, to make certain that the candidates were in good standing and did not have misconduct cases against them.

On the question related to travel costs, he told the Committee that the DSD did apply cost-containment measures, as prescribed by the National Treasury.

Co-Chairperson Stock thanked the officials for the presentation.

Ms Ntsabo advised that the Committee deliberate on the preferred candidates submitted by the Department to be appointed to the Tribunal, and adopt the report, which will be subsequently ATC.  

Consideration of Report by Portfolio Committee

Ms Ntsabo took the Committee through the brief report.

Co-Chairperson Stock requested a mover for the adoption of the draft report.

Ms Hlongo moved for the adoption of the draft report of candidates to serve on the tribunal, with the concerns raised by Members.

Ms Bilankulu seconded the adoption of the draft report of candidates to serve on the tribunal, with the concerns raised by Members.

ATC221201: Report of the Portfolio Committee on Social Development (hereinafter referred to as the Committee) on the list of recommended candidates to serve on the Independent Tribunal for Social Assistance Appeals, dated 30 November 2022

Consideration of Report by Select Committee

Co-Chairperson Gillion requested a mover for the adoption of the draft report from Members of the Select Committee.

Ms Ndongeni moved for the adoption of the draft report of candidates to serve on the tribunal, with the concerns raised by Members

Ms Nkosi seconded the mover for the adoption of the draft report candidates to serve on the tribunal, with the concerns raised by Members

Co-Chairperson Stock indicated that the report had been adopted by both Houses of Parliament.

Co-Chairperson Gillion thanked the Department for the briefing. Furthermore, she conveyed condolences to the Chairperson’s family. Thereafter, she indicated that Members of the Select Committee would leave the meeting to allow for the Portfolio Committee to continue with its remaining business.

The meeting was adjourned.