Older Persons Amendment Bill: analysis of submissions & public hearings report

Meeting report

Content Advisor briefing on public comments on Older Persons Amendment Bill [B11-2022]

Ms Yolisa Khanye, Committee Content Advisor, briefed the Committee on the public comments on the Older Persons Amendment Bill.

She said Prof Kitty Malherbe, Department of Mercantile and Labour Law, University of the Western Cape, had commended the proposed alignment of the definition of 'older person' with that already established in the Social Assistance Act. However, in the submission, she had voiced concerns regarding the potential confusion stemming from the terms 'caregiver' and 'caregiver', emphasising the need for clarity in their interpretation. Furthermore, the submission highlighted a notable omission in the Bill concerning the intricate web of intergovernmental relations between national and provincial social development departments, suggesting that a more integrated approach was required to effectively serve the needs of older persons across the country.

The Rand Aid Association, while expressing support for measures aimed at protecting older persons, had expressed reservations about the potential unintended consequences of certain provisions within the Bill. Their concerns were multifaceted, ranging from apprehension about the inadvertent criminalisation of unregistered services, to confusion surrounding the registration of housing developments. They also delved into practical concerns, such as the strain on resources and bureaucratic challenges, suggesting that a more nuanced approach was required to strike a balance between regulatory requirements and the autonomy of older persons.

Ilitha Labantu, in their submission, welcomed the purpose of the Bill and its proposed amendments, including the insertion of new definitions, provisions on monitoring and evaluation, and the removal of older persons to a temporary place of safe care without a court order. Ilitha Labantu particularly appreciated the re-definition of an "older person" to ensure equal entitlement to benefits and protection. They also supported the recognition of specific needs and preferences of older persons, preventative measures against abuse, and the coordination of government entities and stakeholders for integrated services.

Ilitha Labantu welcomed the establishment of indicators and benchmarks to assess service effectiveness and efficiency, and applauded the identification of harmful traditional practices, such as witchcraft accusations, which endanger the welfare, health, life and dignity of older persons. They advocated for inter-generational dialogue and solidarity within communities, and emphasised the importance of protecting older persons' rights regarding property and inheritance. The submission recommended strengthening penalties for non-compliance and providing reporting mechanisms for older persons to report abuse.

The National House of Traditional Leaders supported the Bill, but recommended the inclusion of verbal and emotional abuse in the definition of elder abuse. A concern was raised about the means test disqualifying deserving older persons, based on their spouses' status, and suggested its removal or modification. They sought clarification on terms such as "assisted living facility" and "affordable," and proposed the involvement of traditional leaders in dispute resolution affecting older persons.

They also expressed concern about the clause allowing the removal of older persons without consent or a court order, and recommended safeguards to protect privacy and personal information. They advocated that there should be consequences for improper conduct of care and negligence of older persons, and urged the state to enforce consequence management for those mistreating older persons.

In their submission, the Western Cape government raised concerns about the implementation and costing of the Bill, questioning if the additional costs were adequately considered. In a recommendation, it was highlighted that the implementation of all proposals in the Bill must be subject to formal costing. Adequate additional resources must be provided to provincial departments to perform these functions.

The Western Cape government also suggested aligning the wording in definitions for consistency, and correcting terms like "South African Police Services" to "South African Police Service." The need for additional resources to implement the proposed coordination between government entities and the responsibility for temporary safe care placement was highlighted. They recommended expanding the definition of physical abuse and providing clarity on liability for temporary safe care costs.

The Congress of South African Trade Unions (COSATU) supported the Bill as a necessary intervention to ensure the protection, security, care and dignity of the elderly. In their submission, they appreciated the provisions holding caregivers accountable, and supported measures such as the right to comfort for older persons. COSATU endorsed state powers to register, suspend, and close facilities failing to comply with obligations under the Act, along with enforcing monitoring and evaluation of community-based care.

COSATU advocated the registration of competent caregivers, and recognised the stakeholders' role in caring for older persons. They backed the insertion of Sections 7A and 7B, empowering community members to report elder abuse. They highlighted serious abuses against older persons by family members and others seeking to exploit their vulnerabilities, including the neglect of investments by provincial governments in services for older persons, despite their growing need.

COSATU welcomed the amendments requiring educational support and special care for elderly individuals with non-communicable diseases and chronic diseases. They supported provisions for temporary safe care for abused elderly individuals, and the proposed extended definition of physical abuse.

In their submission, Dear South Africa highlighted that of the 168 individuals who had made submissions, 163 did not submit the Bill due to concerns about removing older persons without their consent. They argued that older people had the right to voice their opinions and remain an integral part of society. Only five individuals supported the Bill.

Mr Johan Rademeyer expressed concern about government shifting responsibilities towards the private sector while imposing more legal requirements on service providers. He criticised stringent municipal by-laws requiring costly compliance measures, impacting service quality and staff numbers. He recommended government funding for compliance, or the lowering of by-law standards. He opposed additional requirements for caregiver training, and questioned the availability and funding of temporary safe care facilities for older persons. He highlighted financial constraints faced by service centres for older persons due to capped funding.

The Catholic Parliamentary Liaison Office (CPLO) welcomed the insertion of definitions, especially for the monitoring and evaluation of services to older persons. They supported the extended definition of rehabilitation, the inclusion of spiritual care, and advocating for counselling and support for families.

They emphasised the importance of removing older persons to temporary safe care in their best interest, and highlighted difficulties in accessing healthcare, particularly for those in rural areas. They commended attention given to witchcraft accusations, and advocated for education on Alzheimer's disease and dementia.

The CPLO highlighted the lack of clarity on elder abuse incidence in South Africa, and recommended measures to ensure the success of abuse registries, citing challenges faced by existing registers under the Children's Act and the Sexual Offences Act. They suggested including elder abuse offences in criminal records for better tracking and management.

See attached for full briefing

Discussion

The Chairperson welcomed the presentation.

Ms Lindiwe Ntsabo, Committee Secretary, provided a way forward, indicating that the presentation was intended to capacitate the Committee on the received submissions so that the Department could respond to the issues raised in the submissions. This was where the Committee would also be able to ask further questions. Oral submissions from various organisations and individuals were expected next Wednesday.

Ms B Masango (DA) asked how long the Committee questions would have to wait. Did the questions have to wait until the oral submissions were complete and the Department was ready to respond? This was because some of these questions might be directed to both the Department and those making submissions.

Ms L Arries (EFF) added that, as already mentioned by the secretary, it made sense that the Committee wait until all the submissions had been heard before questions were asked.

Ms K Bilankulu (ANC) shared the same sentiment, indicating that the way to go would be to wait for the upcoming oral submissions while being familiar with the Bill. This was because it would not be productive for the Committee to ask the Department questions when other submissions were still expected to be received.

Mr D Stock (ANC) agreed with what had been said by the Members of the Committee. He highlighted that it was encouraging to see the overwhelming support for the Bill, including active participation in the various provinces. He added that the Department must also be commended for its continued efforts in ensuring that older persons were integrated into society, and their rights were protected. There were still some issues that needed to be addressed.

Ms P Marais (EFF) said that the Bill was important. This was because, in the communities, older persons were being abused by their family members, with no interventions from law enforcement. It was therefore important for the Committee to wait for the upcoming submissions, and then take it from there.

Ms J Mangaye (ANC) said there was a chance the Committee had delayed delivering the report on the visit to Canada. This was because some of the issues raised in the submissions could be applied in the South African context.

The Committee decided that Members should familiarise themselves with the Bill, including the proposed amendments, so they would be ready for the oral hearings next week. Therefore, all questions the Committee had would have to wait until then.

First term programme

The Committee adopted the first term draft Committee programme for the period January to March.

The meeting was adjourned.