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DEPARTMENT OF SOCIAL DEVELOPMENT PRESENTATION ON THE OLDER PERSONS BILL August 2005

This presentation highlights the need for a new legislation for older persons in the Department of Social Development. The current Act is outdated, focused on institutional care, and lacks provisions for community-based care. The objectives of the proposed legislation are to empower older persons, protect their rights, promote dignity and respect, combat abuse, and establish programs and services for older persons. The process towards creating this legislation is outlined, along with the content and provisions of the Older Persons Bill.

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DEPARTMENT OF SOCIAL DEVELOPMENT PRESENTATION ON THE OLDER PERSONS BILL August 2005

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  1. DEPARTMENT OF SOCIAL DEVELOPMENTPRESENTATION ON THE OLDER PERSONS BILL August 2005

  2. WHY A NEW LEGISLATION

  3. -Act outdated;- Not responsive to current needs;- Focus on institutional care;- No provision for community based care;- Only 2% of older persons in institution;- Majority of 2% are white. 1.1Aged Persons Act 81/1967 (amended1998):

  4. - Recognises the skills and wisdom of older persons;- Participation in community;- Live in community as long as possible;- Right to care and protection;- Rights and dignity upheld- These rights Resolution 46/91 are enshrined in UN Declaration on the Rights of Older Persons. 1.2 New developmental approach to Ageing:

  5. -Caregivers;- Second time parents. • 1.3 Changing role of Older Persons:

  6. 1.4 Demographic variables: • - Total populations of older persons above 60 years 3.2m; • - 7.3% of population older than 60 years; • - 63% of older persons are female; • - Highest proportion - KZN (19.9%); • - Eastern Cape (18.0%); Gauteng (16.6%) • - Lowest proportion - Northern Cape (2.1%) • Mpumalanga (6.0%) • Free State (6.0%) • Census 2001

  7. NEW LEGISLATION ADDRESSING NEEDS OF ALL OLDER PERSONS IN THE COUNTRY

  8. OBJECTIVES(1) Empower older persons;(2) Protect their rights;(3) Promote dignity and respect of older persons;(4) Combat the abuse of older persons(5) Enforce punishment for any form of abuse against or inflicted on older persons, and(6) Provide for the Establishment of programmes and services to older persons.(7) Regulate the registration of facilities for older persons

  9. PROCESS TOWARDS LEGISLATION

  10. PROCESS TOWARDS LEGISLATION (1)-In 1999 International Year of Older Persons Celebration;- Call for new legislation;- Stakeholder consultation including Departments, NGO’s and Older Persons;- Draft Policy on Older Persons developed;- Consultation on Policy;- First Draft Bill developed with sector stakeholders;- 2000 Media/Public outcry on abuse of older persons;- Ministerial Committee appointed in 2000;- Recommendations of committee accepted in 2001;- Recommendation integrated in policy and legislation;- 2nd World Assembly held in Madrid, Spain in 2002;

  11. PROCESS TOWARDS LEGISLATION (2)- Priorities of MIPAA integrated;- July 2002 revised document consulted with stakeholders;- Draft Bill introduced to Parliament;- August 2003 Bill approved by NCOP in June 2005

  12. CONTENT OFOLDER PERSONS BILL

  13. 4.1 Preamble-Constitution (Human Rights Declaration);- Promote accessible, equitable and affordable services;- Empower elderly to lead meaningful lives; Recognition of older persons as source of enrichment and as experts

  14. 4.2 Definitions- Older Persons;- Abuse of Older Persons

  15. 4.3 Chapter 1Programmes  Based on Madrid Plan of Action; Development of Elderly – Abet, poverty alleviation economic empowerment; Care of older persons  Community Based Care; Care Giver Programmes; Protection and safety  Prevention of Abuse; Victim Empowerment; Safety and Security.

  16. 4.4 Chapter 2Care of Older Persons- Establishment of residential facilities; · registration;· management- Makes provision for independent living of older persons.

  17. 4.5 Protection of Older PersonsThis chapter is based on the (MinisterialCommittee Recommendations)- Define abuse;- Identification of abuse;- Criminalises abuse;- Provision of services to abused persons;- Defines procedures for dealing with abuse

  18. 4.6 Protection ContinuedMost of the laws applicable in South Africa contain standard clauses that deal with issues such as “regulations”, “penalties”, “ repeal of laws” and ”commencement of the Act”.In the Older Persons’ Bill those clauses appear in Chapter 4 under the heading “General and Supplementary Provisions”.Chapter 4 deals with delegation, penalties, regulations, repeal of laws and transitional provisions and saving and the short title and commencement.

  19. PROVISIONS OF CHAPTER 4

  20. (a) Delegation (1)Delegation is an authorization by a person to another person to perform functions in the name of or on behalf of the first mentioned person.In the Bill, delegation concerns powers, which are extended to a province at the discretion of the national government. Delegated functions are those which are carried out by a province on behalf of the person who effected the delegation – the national Minister or DG.Where the MEC performs a function on behalf of or in the name of the Minister, he/she replaces the Minister and performs the function as if the Minister himself/herself were performing it.

  21. (a) Delegation (2)Clause 19(2) of the Older Persons Bill provides that the Minister of Social Development may, with the concurrence of the Premier of a province-(a) delegate to the MEC of that province responsible for Social Development any power conferred upon the Minister by this Act, except the power to make regulations; and(b) authorize that MEC to perform any duty imposed upon the Minister by this Act.

  22. (a) Delegation (3)Clause 19(7) of the Bill provides that any person to whom any power has been delegated or who has been authorized to perform a duty, must exercise that power or perform that duty subject to such conditions as the person who effected the delegation or granted the authorization (Minister/Director-General) considers necessary.Clause 19(8) provides that any delegation or authorization-(a) must be in writing;(b) does not prevent the Minister or Director-General from exercising the power or performing the duty himself; and(c) may at any time be withdrawn in writing by the Minister or Director-General.

  23. (b) Penalties (1)The Older Persons Bill provides that any person convicted of an offence in terms of – Section 4(5) use of subsidies not in accordance with the prescribed conditionsSection 5(8) operation of unregistered facilitySection 10(5)(a)-(c) obstruction or hindering of social worker in performance of her duties (monitoring, visit)Section 14(6) obstruction or hindering of social worker in performance of her duties (investigating allegations of abuse)is liable to a fine or to imprisonment for not more than one year or to both.

  24. (b) Penalties (2)Any person convicted of an offence in terms of –Section 9(5) - discrimination/re admission to facilitiesSection 13 - abuse of older personSection 15(11) person authorized or prohibited to care for older persons fails to do soSection 16(5) failure to notify abuse of older personis liable to a fine or to imprisonment for not more than five years or to both.

  25. (c) Regulations (1)Regulations are a category of subordinate legislation framed and implemented by a functionary or body other than the legislature for the purpose of implementing valid legislation.Regulations are developed by the line function (in our case) in the department and approved by the Minister.

  26. (d) Repeal of laws, transitionalprovisions and saving (1)The repeal of an old law and the commencement of a new law usually happen at the same time.

  27. (e) Repeal of laws, transitionalprovisions and saving (2)The transitional period is usually the time between the signing of the Act by the President and the commencement of the Act – the period may be as short as three months and as long as 5 years. For this period transitional provisions are needed. This is what clause 22(2)-(5) does.Saving is a kind of condition – it saves a situation. In the Bill the savings clause is found in clause 22(3).

  28. (f) Short title and commencementClause 23 provides for the name of the Act and describes the process to be followed regarding the commencement of the Act.

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