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

WHY A NEW LEGISLATION

1.1 Aged Persons Act 81/1967 (amended1998): - Act outdated; - Not responsive to current needs; - Focus on institutional care; - No provision for community based care; - Only 2% of older persons in institution; -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

1.2 New developmental approach to Ageing: - 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.

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

- 7.3% of population older than 60 years; 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

NEW LEGISLATION ADDRESSING NEEDS OF ALL OLDER PERSONS IN THE COUNTRY

OBJECTIVES (1). Empower older persons; (2). Protect their rights; (3) 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

PROCESS TOWARDS LEGISLATION

PROCESS TOWARDS LEGISLATION (1) - 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;

PROCESS TOWARDS LEGISLATION (2) -. Priorities of MIPAA integrated; - 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

CONTENT OF OLDER PERSONS BILL

4. 1. Preamble -. Constitution (Human Rights Declaration); - 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

4.2 Definitions - Older Persons; - Abuse of Older Persons

4.3 Chapter 1 Programmes  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.

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

4.5 Protection of Older Persons This chapter is based on the (Ministerial Committee Recommendations) - Define abuse; - Identification of abuse; - Criminalises abuse; - Provision of services to abused persons; - Defines procedures for dealing with abuse

4.6 Protection Continued Most 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.

PROVISIONS OF CHAPTER 4

(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.

(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.

(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.

(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 conditions Section 5(8) operation of unregistered facility Section 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.

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

(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.

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

(e). Repeal of laws, transitional (e) Repeal of laws, transitional provisions 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).

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