Aged Persons Amendment Act [No. 19514 of 1998]
REPUBLIC OF SOUTH AFRICA
GOVERNMENT GAZETTE
STAATSKOERANT
VAN DIE REPUBLIEK VAN SUID-AFRIKA
Registered at the Post Office as a Newspaper As ‘n Nuusblad by die Poskantoor Geregistreer
CAPE TOWN. 27 NOVEMBER 1998 VOL. 401 No. 19514
KAAPSTAD. 27 NOVEMBER 1998
OFFICE OF THE PRESIDENT
No. 1535 27 November 1998
It is hereby notified that the President has assented to the following Act which is hereby published for general information:-
No. 100 of 1 9 9 8 Agcd Persons Amendment Act, 1998.
KANTOOR VAN DIE PRESIDENT
No. 1535. 27 November 1998
Hierby word bekend gemaak dat die President sy goed- keuring geheg het aan die onderstaande Wet wat hierby ter algemene inligting gepubliseer word:-
No. 100 van 1998: Wygigingswet op Bejaarde Persone, 1998
2 No. 19514 GOVERNMEST GAZETTE. 27 NOVEMBER 1998
Act No. 100. 1998 AGED PERSONS AMENDMENT ACT. 1998
GENERAL EXPLANATORY KOTE:
[ 1 Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
(English te.rt sigued by the President.) (Assented to 19 November 1998. I
ACT To amend the Aged Persons Act, 1967, so as to insert certain definitions; to provide for conditions regarding subsidies to managers of registered homes for the aged and to certain other institutions; to monitor compliance with conditions of registration of homes for the aged; to provide for the establishment of management committees for those homes; to provide for the accessibility of those homes; to provide for the enquiry by designated bodies into matters regarding aged persons; to require reporting on the abuse of aged persons and the keeping of a register thereon; to generally regulate the prevention of the abuse of aged persons; and to provide for matters connected therewith.
B E IT ENACTED by the Parliament of the Republic of South Africa. as follows:- Amendment of section 1 of Act 81 of 1967, as amended by section 1 of Act 14 of 1971, section 4 of Act 97 of 1972, section 21 of Act 37 of 1973, section 1 of Act 46 of 1976, section 1 of Act 44 of 1994, Proclamation No. R. 40 of 1994 and Proclamation 5 No. R. 7 of 1996
1. Section 1 of the Aged Persons Act, 1967 (in this Act referred to as the principal Act), is hereby amended-
(a) by the insertion before the definition of “aged person” of the following definition: 10
(b)
Cc)
ii ‘abuse’ infliction of physical, mental or financial power on an aged person which adversely affects that person;“;
by the insertion after the definition of “debilitated person” of the following definition:
“ ‘designated body’ means- (a) a person versed in law; or (bi a statutory body referred to in section 181(l) of the Constitution, designated by the national Minister, by notice in the Gazette, for the purposes of sections 3A, 5A and 6;“; and
by the insertion after the definition of “Minister of Finance” of the following definition:
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“ ‘national Minister’ means the Minister for Welfare and Population Development in the national sphere of government:“.
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4ct No. 100, 1998 AGED PERSONS AblENDMENT ACT. I598
Insertion of section 2A in Act 81 of 1967
2. The following section is hereby inserted after section 2 of the principal Act:
“Conditions for subsidies to homes for the aged and certain other institutions
2A. (1) When a subsidy is paid in terms of section 2, the national Minister 5 shall, by regulation in terms of section 20A, prescribe the conditions of use 1 of that subsidy, including conditions regarding the accounting for the subsidy so paid.
(2) Any person to whom a subsidy is paid in terms of section 2 shall use. and account for, the subsidy in accordance with the conditions referred to in subsection (1).
(3) If any condition referred to in subsection (1) is not complied with, the national Minister may, in consultation with the relevant competent authority referred to in the definition of ‘Minister’ in section 1 and after one month’s notice of the intention to do so, withdraw the subsidy in question.
(4) Any person to whom a subsidy in terms of section 2 is paid is personally liable for the refund of the amounts used contrary to any condition referred to in subsection (I).“.
Insertion of sections 3A, 3B and 3C in Act 81 of 1967
3. The followings sections are hereby inserted after section 3 of the principal Act:
“Monitoring compliance with conditions for registration of homes for the aged
3A. (1) If there is reason to believe that any of the conditions referred to in section 3(3) have not been complied with, the national Minister shall. in 1 consultation with the relevant competent. authority referred to in the definition of ‘Minister’ in section 1, appoint a designated body- (a) to monitor compliance with those conditions; and (b) to order specific measures to be adopted to facilitate compliance with
those conditions. (2) The applicant concerned shall at all reasonable times report to the
national Minister and the competent authority referred to in subsection (1) any circumstances which may result in his or her inability to fully comply with the conditions referred to in section 3(3).
(3) If the registration of a home for the aged has been cancelled in terms of section 3(4), or if the manager of a home for the aged desires to close down or transfer that home for any other reason, the manager shall-
prior to any decision to close down or transfer that home is made, consult with the national Minister and the competent authority referred to in subsection (1) on the matter; furnish the national Minister and the competent authority referred to in subsection (1) with a full report on the steps taken regarding the future accommodation of the aged persons in question as contemplated in section 3(7); and at least six months before the closing down or transfer of that home in writing notify the aged persons in question and the national Minister and the competent authority referred to in subsection (I) of such closure or transfer.
Establishment of management committees for homes for the aged
3B. (1) If more than 10 aged persons reside in a home for the aged, a management committee shall be established as prescribed by the national Minister by regulation in terms of section 20A.
(2) The national Minister shall, by regulation in terms of section 20A, prescribe- (a) the composition of every management committee to be established
under subsection (1) which shall include representation of the residents and staff of the relevant home for the aged and the public in general:
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.Ict No. 100, 1998 AGED PERSONS AMENDMENT ACT. 1998
(b) the election and appointment. qualifications, term of office, and grounds of removal from ofiice, of the members of that committee and the filling of vacancies on that committee; and
(c) the number of, and procedure at, meetings of that committee. (3) A management committee established under subsection (1) shall
ensure that the manager of the home for the aged in question- facilitates inter&ion between the residents of-the home and their families, the public in general and that committee; provides quality service to the home; provides opportunities for the training of the staff of the home; applies principles of sound financial management and submits quarterly financial reports to the residents and staff of the home; monitors activities at the home in order to deal speedily with any incidents of abuse of the residents of the home and takes steps to report such incidents to the appropriate authority; consults the management committee in the appointment of the staff of the home; establishes complaints procedures for the residents and staff of the home and persons who wish to lodge a complaint on behalf of any such resident; and does everything necessary or expedient for the effective functioning of the home.
Admission to homes for the aged
3C. (I) When deciding whether or not to admit a person to a home for the aged, no person shall unfairly discriminate directly or indirectly against the first-mentioned person on one or more grounds referred to in section 9(3) of the Constitution.
(2) Any person who contravenes the provisions of subsection (1) shall be guilty of an offence and shall, notwithstanding section 19, be liable on conviction to a fine or to imprisonment for a period not exceeding five years, or to both such fine and such imprisonment.
(3) The need for a home for the aged to reflect broadly the race composition of South Africa shall be considered when determining eligibility for admission to that home.
(4) If a person is refused admission to a home for the aged, the manager of that home shall, on the request of that person, give reasons for such refusal to the person.“.
Repeal of section 5 of Act 81 of 1967, as amended by sections 4 and 11 of Act 44 of 1994
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4. Section 5 of the principal Act is hereby repealed. 40
Insertion of section 5A in Act 81 of 1967
5. The following section is hereby inserted before section 6 of the principal Act:
“Enquiry by designated body into matters regarding aged persons
5A. (1) The Minister may appoint any designated body to inquire into and consider any matter relating to the rights of an aged person.
(2) The designated body so appointed may, for the purposes of that enquiry- (a) summon in the manner prescribed by regulation in terms of section
20A any person- (i) who, in the opinion of the designated body, is able to furnish
information of material importance to the enquiry; or (ii) who the designated body has reason to believe has in his or her
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Act No. loo,1998 AGED PERSONS AhlENDhlENT ACT. 1998
possession or custody or under his or her control, any book, document or record relating to the subject of the enquiry,
to appear at a time and place specified in the summons to be examined or to produce that book, document or record and may retain for examination any book, document or record so produced; 5
(b) through the person presiding at the enquiry- (i) administer an oath to, or accept an affirmation from, any person
summoned in terms of paragraph (a); and (ii) examine or cause him or her to be examined by a person
designated by the designated body to lead the evidence at the 10 enquiry and instruct him or her to produce any book, document or record in his or her possession or custody or under his or her control.
(3) A summons referred to in subsection (2) shall contain the information and shall be served in the manner, prescribed by regulation in terms of 15 section 20A, and section 51(2) of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), shall mututis mutandis apply in respect of any person on whom that summons has been so served.
(4) The law relating to privilege, as applicable to a witness summoned to give evidence or to produce a book, document or record in any civil 20 proceedings, shall mututis mutandis apply in respect of the examination of or the production of any book, document or record by any person summoned in terms of this section.
(5) If the record of any criminal or civil proceedings is relevant in any enquiry in terms of this section, that record shall on the mere production 25 thereof be prima facie proof of the facts stated therein.
(6) If the conduct which forms the subject of any enquiry referred to in subsection (l), forms or is likely to form the subject of any criminal or civil proceedings, the designated body may postpone the enquiry until those proceedings have been concluded. 30
(7) Any person against whom an enquiry is instituted in terms of this Act, shall be entitled, in person or through his or her legal representative, to answer the charge and to be heard in his or her defence.
@)(a) The designated body may, generally or in any specified case, appoint a committee in the manner prescribed by regulation in terms of 35 section 20A to exercise and perform all powers and duties of the designated body conferred or imposed by this Act.
(b) If the designated body so appoints a committee, those powers and duties are regarded to have been delegated to the committee.
(9) Any person who, having been duly sworn or having made an 40 aflirmation, tenders false evidence at an enquiry held in terms of this section, knowing that evidence to be false, shall be guilty of an offence and shall, notwithstanding section 19, be liable on conviction to the penalties which may be imposed for the offence of perjury.“.
Amendment of section 6 ofAct 81 of 1967, as amended by section 3 ofAct 46 of 1976 45 and section 5 of Act 44 of 1994
6. Section 6 of the principal Act is hereby amended- (a) by the substitution for subsections (1) and (2) of the following subsections:
“(1) Subject to the provisions of this section, [a magistrate] the- designated body before whom any person is brought in terms of section 50 [S] 5A, shall enquire into the correctness or otherwise of the allegations consed in the summons in question.
(2) The [Public Prosecutor or any other person designated by the magistrate shall appear at the enquiry, and] designated body may call witnesses and cross-examine any other witnesses giving evidence at the 55 enquiry.“;
(b) by the substitution of subsection (5) of the following subsection:
I 0 No. 1951-l GO\IRNMENT GAZETTE. ‘7 NOVEMBER 199X
Act No. 100, 1998 AGED PERSONS AMENDMENT ACT, 1998
“(5) The proceedings at the enquiry shall be conducted in an open court room or behind closed doors, as the [magistrate] designated body holding the enquiry may determine.“;
(c) by the substitution for subsections (8), (9) and (10) of the following subsections:
“(8) The [report referred to in section 5(2) shall he submitted to the magistrate holding the enquiry, and he] designated body may direct the district surgeon, or a psychiatrist or a clinical psychologist designated by [him] the body to examine the aged or debilitated person in question and to furnish [him] the body with a report on his or her findings.
(9) The contents of a report [submitted or] furnished in terms of subsection (8) shall be disclosed to the person against whom the allegations were made, and if he or she so desires, he or she or his or her legal representative shall be given an opportunity of cross-examining the person who made the report, in relation to any matter arising out of the report, and of disproving any allegation occurring therein.
(10) If after consideration of the evidence and of any report [submitted or] furnished in terms of subsection (8), it appears to the [magistrate] designated body that any allegation in the summons in question against the person in question is correct, [he] the body may-
(b)
prohibit that person from accommodating or caring for the aged or debilitated person in question except subject to such conditions and in accordance with such requirements as the [magistrate] desig- nated body may impose: or prohibit that person from accommodating or caring for any aged or debilitated person for such period, but not exceeding ten years, as may be determined by the [magistrate] designated body.“; and
(d) by the substitution for subsection (1 I) of the following subsection: “(11) Any person who contravenes or fails to comply with any
condition, requirement or prohibition imposed in terms of subsection (10) shall, subject to the provisions of subsection (12), be guilty of an offence and shall, notwithstanding section 19, be liable on conviction to a fine or imprisonment for a period not exceeding five years, or to both such fine and such imprisonment.“.
Insertion of sections 6A, 6B and 6C in Act 81 of 1967
7. The following sections are hereby inserted after section 6 of the principal Act:
Notification of abuse of aged persons
6A. (1) Every registered dentist, medical practitioner, nurse or social worker or any other person who examines, attends to or deals with an aged person and suspects that that aged person- (a) has been abused; or (b) suffers from any injury,
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shall immediately notify the Director-General: Welfare or the relevant officer referred to in the definition of ‘Director-General’ in section I.
(2) On receipt of a notification in terms of subsection (l), the Director-General or the officer referred to in subsection (l)- (a) may issue a warrant, in the form and manner prescribed by regulation
under section 20A, for the removal of the aged person concerned to a hospital or such other place as that Director-General or officer may determine;
(b) shall arrange that the aged person receive the necessary treatment. (3)Any dentist, medical practitioner, nurse, social worker or other person
shall not be liable in respect of any notification given in good faith in accordance with subsection (I). I 55
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Act No. 100, 1998 AGED PERSONS AMENDMENT ACT, 1998
(4) Any dentist, medical practitioner, nurse, social worker or other person who fails to comply with subsection (1) shall be guilty of an offence and shall, notwithstanding section 19, be liable on conviction to a fine or imprisonment for a period not exceeding five years, or to both such fine and such imprisonment.
Prohibition of abuse of aged persons
6B. Any person who abuses an aged person shall be guilty of an offence and shall, notwithstanding section 19, be liable on conviction to a fine or imprisonment for a period not exceeding five years, or to both such fine and such imprisonment.
Keeping of register of abuse of aged persons
6C. The national Minister shall, in the manner prescribed by regulation under section 20A, cause to be kept a register of all notifications in terms of section 6A(l), together with a description of the circumstances regarding each notification.
Report to national Minister by managers of homes for the aged
61). (1) The manager of a home for the aged shall within 60 days after the end of the financial year of that home submit to the national Minister and the relevant competent authority referred to in the definition of ‘Minister’ in section 1 a report on- (a) compliance with-
(i) the service standards, prescribed by regulation in terms of section 20A; and
(ii) the measures, so prescribed, to prevent and combat abuse of aged persons,
during that financial year; and (h) the content of the service level agreements, so prescribed, concluded
during that financial year.“. (2) When the manager of a home for the aged fails to submit a report in
accordance with subsection (1), the national Minister may, in consultation with the competent authority referred to in subsection (l)- (a) give notice to that manager that if such report is not submitted within
90 days after the date of that notice, any subsidy paid in respect of that home in terms of section 2 will be withdrawn; and
(b) if such report is not submitted within 90 days after the date of the notice given in terms of paragraph (a), withdraw such subsidy after giving one month’s notice of the intention to do so.
Insertion of section 18A in Act 81 of 1967
8. The following section is hereby inserted after section 18 of the principal Act:
“Delegation by national Minister
18A. (1) The national Minister may, on such conditions as he or she may determine, in writing delenate to the Director-General: Welfare or anv other, officer in the service of the State, any power conferred upon the national Minister by or in terms of this Act, except a power referred to in section 20A.
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(2) The national Minister shall not be divested of any power delegated by him or her, and may amend or set aside any decision taken by a person in the exercise of the power delegated to him or her.“.
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Act No. 100,199s AGED PERSONS AMENDMENT ACT, 1998
Insertion of section 20A in Act 81 of 1967
9. The following section is hereby inserted after section 20 of the principal Act:
“Regulations by national Minister
20A. (1) The national Minister may, subject to subsection (2), make regulations regarding- / 5 fa)
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any matter which in terms of this Act is required or permitted to be prescribed by the national Minister; measures- (i) to prevent, combat and deal with the abuse of aged persons; (ii) to be taken to advance persons disadvantaged by unfair discrimi-
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fc)
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fg) (12)
(i)
(iii) to promote the rights of residents of homes for the aged; the form and content of service level agreements between the residents and the management committee of a home for the aged; the minimum service standards for homes for the aged; the minimum norms and standards for the care of aged persons; criteria, and assessment procedures, for admission of persons to homes for the aged; the conditions of use of subsidies paid in terms of section 2; the form of, and manner in which, a warrant referred to in section 6A(2)fa) is to be issued; the keeping of a register of all notifications in terms of section 6A( 1).
(2) Any regulation made in terms of subsection (1) shall be made after ) consultation with every competent authority referred to in the definition of ‘Minister’ in section 1.“.
Short title and commencement
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10. This Act shall be called the Aged Persons Amendment Act, 1998, and shall come into operation on a date determined by the President by proclamation in the Gnzerte.