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SPECIAL NEEDS GROUP HOUSING POLICY:
INVESTIGATION OF OBLIGATIONS, POWERS AND FUNCTIONS OF
CERTAIN GOVERNMENT DEPARTMENTS IN RELATION TO
THE PROVISION OF CAPITAL FUNDING FOR
SPECIAL NEEDS GROUP HOUSING
FOR
PROJECT PREPARATION TRUST
Final Version: 3 March 2015
Werksmans Attorneys has prepared this policy review on the instruction of the Project Preparation Trust
("PPT"). This policy review has been provided on the basis of the information recorded below and the South
African law in force as at the date hereof. Any change to such law or policy may affect this policy review. This
policy review is provided for PPT's exclusive use and purpose. Without our further written consent, the content
hereof may not be copied for or relied upon by any third party and we shall have no liability to any third party.
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TABLE OF CONTENTS
A. Overview of law and policy relating to Housing .......................................................... 5
1 CONSTITUTION ............................................................................................ 5
2 HOUSING ACT 107 OF 1997 ("HOUSING ACT") ............................................ 6
3 NATIONAL HOUSING CODE (2009) .............................................................. 7
4 WHITE PAPER: NEW HOUSING POLICY AND STRATEGY FOR
SOUTH AFRICA, 1999 ("HOUSING WHITE PAPER") ...................................... 8
5 "BREAKING NEW GROUND" A COMPREHENSIVE PLAN FOR THE
DEVELOPMENT OF SUSTAINABLE HUMAN SETTLEMENTS, AUGUST
2004 ("BNG") ............................................................................................... 9
6 EXISTING SPECIAL NEEDS GROUP HOUSING POLICIES ............................. 10
7 SUMMARY: LAW AND POLICY RELATING TO HOUSING ............................... 13
B Categories of Beneficiaries of Special Needs Group Housing .............................. 14
8 OLDER PERSONS ........................................................................................ 14
9 VICTIMS OF GENDER-BASED VIOLENCE; VICTIMS OF SEXUAL
ASSAULT & RAPE; ABUSED OLDER PERSONS; ABUSED PEOPLE
WITH DISABILITIES; VICTIMS OF HUMAN TRAFFICKING AND
VICTIMS OF HATE CRIME ("VICTIMS OF CRIME: ABUSED
PERSONS ") ................................................................................................ 20
10 CHILDREN .................................................................................................. 32
11 CHILD HEADED HOUSEHOLDS .................................................................... 35
12 JUVENILE OFFENDERS / JUVENILE AWAITING TRIAL DETAINEES ............. 41
13 PEOPLE UNDER SUBSTANCE REHABILITATION .......................................... 46
14 PEOPLE WITH DISABILITIES ..................................................................... 55
15 PEOPLE WITH INTELLECTUAL IMPAIRMENTS ............................................. 61
16 PAROLEES, PROBATIONERS AND EX-OFFENDERS ....................................... 65
C General legislation and policy considered.................................................................... 71
17 DSD POLICY ON FINANCIAL AWARDS TO SERVICE PROVIDERS
(MARCH 2011) ........................................................................................... 71
18 NON PROFIT ORGANISATIONS ACT 71 OF 1997 ("NPO ACT") .................... 75
19 NATIONAL WELFARE ACT 100 OF 1978 ("NWA") ....................................... 76
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20 WHITE PAPER FOR SOCIAL WELFARE 1997 ................................................ 76
D. SUMMARY OF MAIN FINDINGS AND RECOMMENDATIONS ...................................... 80
ANNEXURE “A” – CONSIDERED LEGISLATION
Table of abbreviations
BNG "Breaking New Ground" A Comprehensive Plan for the Development of
Sustainable Human Settlements, August 2004
CBO Community Based Organisation
CBRF Community Based Residential Facilities
CDA Central Drug Authority
CDG Child Dependency Grant
CHH Child Headed Households
CJA Child Justice Act 75 of 2008
CSG Child Support Grant
CYCC Child and Youth Care Centres
DCS Department of Correctional Services
DHS Department of Human Settlements
DSD Department of Social Development
DVA Domestic Violence Act 116 of 1998
FBO Faith-Based Organisation
INDS Integrated National Disability Strategy White Paper, 1997
MHC Act Mental Health Care Act 17 of 2002
MH Plan National Mental Health Policy Framework Strategic Plan 2013-2020
MINMEC Minister and Members of Executive Council
NDCS National Department of Correctional Services
NDHS National Department of Human Settlements
NDMP National Drug Master Plan (2013-2017)
NGO Non-Governmental Organisation
NPF National Policy Framework Management of Sexual Offence Matters
NPA National Prosecuting Authority
NPGVSO National Policy Guidelines for Victims of Sexual Offences, 1998
NPO Non-Profit Organisation
NPO Act Non-Profit Organisations Act 71 of 1997
NWA National Welfare Act 100 of 1978
OPA Older Persons Act 13 of 2006
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OP Strategy Directorate: Care and Services to Older Persons: Implementation Strategy
for Older Persons Legislation
PFASP Policy on Financial Awards to Service Providers 2011
PPT Project Preparation Trust
TLAC Tshwaranang Legal Advocacy Centre
SANCA South African National Council on Alcoholism and Drug Dependence
SAPS South African Police Service
SAWC South African Welfare Council
SLA Service Level Agreement
SNH Special Needs Housing
SOCA Sexual Offences and Community Affairs Unit
UNCRPD United Nations Convention on the Rights of People with Disabilities
VEP Victim Empowerment Programme
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A. OVERVIEW OF LAW AND POLICY RELATING TO HOUSING
1 CONSTITUTION
1.1 "The South African Constitution (the Constitution) guarantees the right to have
access to adequate housing (section 26(1))… The state has a general
obligation to ‘respect, protect, promote and fulfil’ the rights in the Bill of Rights
(section 7(2)). Section 26(2) imposes a specific duty on the state to take
reasonable measures, within its available resources, to achieve the progressive
realisation of the right to have access to adequate housing. In the context of
access to adequate housing, it is also important to have regard to section
25(5) of the Constitution, which requires the state to take reasonable
legislative and other measures, within its available resources, to foster
conditions which enable citizens to gain access to land on an equitable basis."1
1.2 Section 28(1)(c) of the Bill of Rights creates the fundamental right for every
child to shelter.
1.3 Section 41 of the Constitution sets out certain principles of co-operative
government and intergovernmental relations. "All spheres of government and
all organs of state within each sphere must -
(h) co-operate with one another in mutual trust and good faith by –
(i) fostering friendly relations;
(ii) assisting and supporting one another;
(iii) informing one another of, and consulting one another on, matters of common interest;
(iv) co-ordinating their actions and legislation with one another;"
1.4 The Constitutional mandate in respect of housing is clear and has been
repeatedly reinforced by the interpretations of our courts.
1 Combrinck, Helene (2009), 'Access to housing for women who are victims of gender-based violence', ESR
Review, Vol. 10, No. 2, pp. 2–6 at page 4
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2 HOUSING ACT 107 OF 1997 ("HOUSING ACT")
2.1 The Housing Act broadly refers to housing for people with special needs.
Section 2(1)(a) of the Housing Act establishes the "general principles
applicable to housing development" and creates an obligation on the
government – at national, provincial and local levels – "to give priority to the
needs of the poor in respect of housing development"; to "promote the
meeting of special housing needs, including but not limited to, the needs of the
disabled"; to promote "the housing needs of marginalised women and other
groups disadvantaged by unfair discrimination". Legal academic L Chenwi
interprets this to mean that "Housing development must thus provide the
widest possible choice of housing and tenure options."2
2.2 The Housing Act also directly sets out that "in the administration of any matter
relating to housing development"; government must "respect, protect,
promote and fulfil the rights in the Bill of Rights"3. Government must also
"strive to achieve consensus in regard to the policies of the respective spheres
of government in respect of housing development".
2.3 In the Housing Act, the Minister of Housing is tasked to "establish and facilitate
a sustainable national housing development process"4 and for this purpose
must "promote consultation on matters regarding housing development
between the national government and representatives of civil society."5 This
would include NPOs. In performance of these duties, the Minister has the
discretion to "establish a national institutional and funding framework for
housing development".6
2L Chenwi Taking Those with Special Housing Needs from the Doldrums of Neglect: A Call for a Comprehensive
and Coherent Policy on Special Needs Housing, 2007, 11(2) Law, Democracy and Development 1-18. Accessed at http://www.saflii.org/za/journals/LDD/2007/10.pdf
3 Section 2(h)(i)
4 Section 3(1)
5 Section 3(2)(f)(i)
6 Section 4(a)
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3 NATIONAL HOUSING CODE (2009)
3.1 The National Housing Code fails to explicitly include adequate provisions on
special needs housing. Further, the National Housing Code "does not provide
space for provinces to do so either. As a result provinces are reluctant to
develop their own policies, while the provincial Department of Human
Settlements (DHS) has adapted existing housing delivery mechanisms to
approve projects. Typically NPOs at grassroots level also apply to access
capital funding from the provincial DHS to acquire, build or renovate
structures."7
3.2 According to legal academic H Combrinck, "The National Housing Code does
not make express provision for women experiencing domestic violence (and
other persons who are vulnerable due to their special housing needs). These
women may, depending on their housing needs at a particular time and their
own financial resources, benefit from existing housing programmes, but the
availability of these programmes varies widely across provinces. For the Code
to pass the test of reasonableness, it must exhibit the elements of flexibility
and comprehensiveness in recognising the full spectrum of the housing needs
of all people…"8
3.3 The National Housing Code briefly mentions disabled persons, aged persons
and military veterans without dependants in the context of who may benefit
from the Integrated Residential Development Programme but this is not in the
context of group housing. It also refers to "households headed by minors" in
the context of housing assistance in emergency circumstances.9
3.4 The National Housing Code sets out the Institutional Subsidy Scheme10. We
defer to the discussion on the utilisation of this institutional subsidy
7 Community Law Centre & Centre for Disability Law & Policy Workshop Report: Special Needs Housing Policy
Framework in South Africa, 28 June 2012 at page 8
8 Combrinck, Helene (2009), 'Access to housing for women who are victims of gender-based violence', ESR
Review, Vol. 10, No. 2, pp. 2–6 at page 6
9 At Volume 1, page 13 and page 21
10 At Part 3, Chapter 6
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mechanism as set out in the "Overview of the use of housing subsidies for
Special Needs Group Housing in South Africa" (June 2014).
3.5 Part 3 of the National Housing Code sets out the Technical and General
Guidelines. These include a description of certain additions/alterations which
may be made as adjustments to housing units delivered through the National
Housing Scheme “to accommodate the special housing needs of a disabled
beneficiary (or a member of the beneficiary household) to enable them to live
independently”.11 Precautionary measures are contemplated for several
categories of people with physical disabilities, including people who need
walking aids; partial wheel chair users; full-time wheel chair users;
partially/profoundly deaf; partially/totally blind; and partially/total movement
loss/paralysis in the upper body limbs.
3.6 In 2013, the Minister of Human Settlements approved the enhancement of the
National Norms and Standards for the Construction of Stand Alone Residential
Dwellings and Engineering Services, which came into effect on 1 April 2014. In
addition to this, the Minister approved a new house typology that is designed
to cater for the needs of wheelchair users, providing adequate internal space
for the movement of a wheelchair.
3.7 These measures pertain to individuals, able to live independently, applying for
housing subsidies within housing projects.
4 WHITE PAPER: NEW HOUSING POLICY AND STRATEGY FOR SOUTH AFRICA, 199912
("HOUSING WHITE PAPER")
4.1 The policy context of the National Housing Code (Part 2, Volume 1) provides
an overview of the Housing White Paper.
4.1.1 The Housing White Paper acknowledges, in a discussion of Sociological
Issues that "prevalent social problems in South Africa have increased the
11 Part 3 National Housing Code at page 67
12 http://www.dhs.gov.za/sites/default/files/legislation/Policies_Housing_White_Paper.pdf
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need for special needs housing, such as old age homes, homeless
shelters and frail care facilities."13
4.1.2 The Housing White Paper mentions how "State housing policies and
subsidy programmes must reflect a constant awareness of and provision
for the special needs of the youth, disabled people and the elderly. To
this end, special attention will be paid to the possible modification of the
subsidy programme to give effect to this approach."
4.1.3 The Housing White Paper is a historical reference which paved the way for
the proposal that within the framework for the restructuring of the
housing sector, there is a role for NGOs, being that "NGOs should
continue to provide valuable support and assistance to communities,
especially those faced with the challenges of engaging in a sustainable
development process for the first time".14
5 "BREAKING NEW GROUND" A COMPREHENSIVE PLAN FOR THE DEVELOPMENT OF
SUSTAINABLE HUMAN SETTLEMENTS, AUGUST 2004 ("BNG")
5.1 Chenwi explains the BNG: "To accelerate the delivery of houses, the
government introduced the Comprehensive Plan on Sustainable Human
Settlements in 2004 – generally referred to as Breaking New Ground in
Housing Delivery. The adoption of this plan is in line with South Africa’s
commitment to achieving the Millennium Development Goals. It represents a
holistic approach to housing development for the next ten years and requires
the government to redirect and enhance existing mechanisms to move
towards more responsive and effective housing delivery. The government has
committed itself, under this plan, to ensuring the availability of adequate
housing to all. Though the policy seeks to promote sustainable human
settlement and alludes to a commitment to housing projects and
developments that are socially inclusive and integrated, it makes no explicit
mention of special needs housing. However, it emphasises the need for the
delivery of alternative housing and tenure options and forms, and focuses
more on quality rather than quantity of housing. The inclusion of special needs
13 At point 3.3.8
14 Section 5.2.8.2
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housing mechanisms for groups with special needs could thus find its basis
here."15
5.2 According to the Tshwaranang Legal Advocacy Centre ("TLAC") "…one of the
key objectives of Breaking New Ground is “Combating crime, promoting social
cohesion and improving quality of life for the poor.” In terms of this objective,
addressing domestic violence, a crime that fragments families, contributes to
women’s impoverishment and substantially diminishes their quality of life,
would therefore fall within the mandate of the Department of Human
Settlements."16
6 EXISTING SPECIAL NEEDS GROUP HOUSING POLICIES
6.1 We are advised by PPT that Special needs group housing (SNGH) is a well-
established and active de-facto programme in at least three provinces
(KwaZulu Natal, Eastern Cape and to a lesser degree in Gauteng) dating back
to 1998 in the case of KwaZulu Natal. At least R80.4million in SNGH housing
subsidies from Provincial Departments of Human Settlements have been made
available on known SNGH projects up to June 2012 enabling the provision of
improved care and shelter to at least 3300 people in special need in the
provinces of KZN. In the absence of a specific national policy or subsidy
mechanism, these Provinces have made use of a variation of the Institutional
Subsidy Scheme (Chapter 6 of the Housing Code) known as the ‘Transitional’
variation because the housing opportunity is transitional in the sense that it
moves over time from one beneficiary to another. In terms of this mechanism
capital subsidies are provided by Provincial Departments of Human
Settlements to registered NPOs which have the approval of the relevant
Provincial oversight Department (usually Social Development). These NPOs
own, operate and maintain the SNGH facilities. The Western Cape Department
of Human Settlements has developed a draft SNGH Policy which has not yet
been activated and in respect of which it has sought approval from the
15 Chenwi 2007 at page 12
16 Submission to the Portfolio Committee & Select Committee on Women, Youth, Children and People with
Disabilities: Implementation of the Domestic Violcence Act No 116 of 1998 (October 2009) http://www.tlac.org.za/wp-content/uploads/2012/01/Submission-on-lack-of-housing-and-domestic-violence.pdf at page7
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National Department of Human Settlements and MINMEC to make use of the
Transitional subsidy variation.17
6.2 Civil Society groups have advocated that current legislation and policy lack
specifics in respect of special needs housing dating back to 2005. In 2005,
PPT and eThekwini Municipality made a joint special needs housing submission
to the NDHS and various provincial DHSs. A National Special Needs Housing
Forum (“the Forum”) was established in 2005 under the auspices of the Social
Housing Foundation (2005-2009) with representation from a range of NPOs,
civil society organisations, and government departments. The Forum met with
the National Department of Human Settlements in 2008 and tabled a briefing
document with recommendations on how to unblock and mainstream special
needs housing.
6.3 More recently this has been advocated through Joint Civil Society Submissions
to the National Ministers of Human Settlements, Social Development, Women
Children and People with Disabilities; the Portfolio Committee for Human
Settlements; and provincial MECs but as yet with no response. The detailed
and comprehensive submissions to the National Department of Human
Settlements and other Departments were made on the 23 January 2013, 26th
August 2013 and 26th June 2014. These submissions were led by the SNH
Civil Society Organisation (CSO) Task Team which is explicitly mandated by 42
NPOs/CSOs and indirectly by all of the 118 organisations who mandated the
SNH CSO Task Team.18
6.4 Certain shortcomings were set out in a presentation by Combrink entitled
"Comments on DHS 2012 Strategic Plan (with specific reference to ‘Special
Needs Housing’)" presented to the Housing Portfolio Committee on 18 April
2012. The presentation confirms that there is a great demand in practice but
that organisations who are "providing SNH services at grassroots levels do not
17 Source: “OVERVIEW OF THE USE OF HOUSING SUBSIDIES FOR SPECIAL NEEDS GROUP
HOUSING IN SOUTH AFRICA” by PPT and submitted to the National Department of Human
Settlements as part of a joint Civil Society Submission on the 23 January 2013, 26th August 2013
and 26th June 2014.
18 Ibid
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receive adequate support from provincial DHS, local government" and this is
exacerbated "because no national policy on SNH: certain provinces reluctant to
develop own policy"; "Lack of clarity on role of transitional subsidy" and "SNH
becomes ‘invisible’ in national planning environment".
6.5 As such, we endorse the recommendations of the Community Law Centre and
Centre for Disability Law & Policy University of the Western Cape, being that
the Department of Human Settlements:
"Integrate SNH into all aspects of Strategic Plan, not as marginalised ‘add
on’
Issue a policy directive authorising provinces to develop and implement
SNH policies based on existing housing delivery mechanisms
Provide support to provinces in the planning, funding, management and
evaluation of the above SNH projects as envisaged in the Strategic Plan ".
6.6 A multi-stakeholder Workshop Report (2012) substantiates why inter-
departmental co-operation is critical: "The lack of consensus on SNH policy is
due to the lack of communication and involvement from all relevant
government departments. It was suggested that an interdepartmental
secretariat be created and based in the Premier’s office to facilitate
communication on this issue."19
6.7 The possible role of a special needs housing forum has been emphasised by
these stakeholders. "The Department of Human Settlements (DHS),
Department of Social Development (DSD) and Department of Women, Children
and People with Disabilities (DWCPD) were identified as the main departments
that should be engaged with such a forum. A possible scenario could see DHS
leading the development of policy on SNH, then have DSD, DOH and relevant
NPOs work in consultation with each other on actual project delivery with the
full backing of DHS on this issue. Whatever the scenario, each department
needs to be informed of its specific duties and responsibility in the process in
order to avoid a situation where each department abdicates its responsibilities
to another department."
19 Community Law Centre & Centre for Disability Law & Policy Workshop Report: Special Needs Housing Policy
Framework in South Africa, 28 June 2012 at page 11
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7 SUMMARY: LAW AND POLICY RELATING TO HOUSING
The constitutional and legislative mandate to give effect to the right to have access to
adequate housing is clear. There is no debate that the Department of Human
Settlements is tasked with determining the finances, promoting, communicating and
monitoring the implementation of housing programmes in South Africa.20
It is also legislated that the guiding principles and values in housing development
prioritises the needs of the poor, and meeting special housing needs and the needs of
marginalised groups. The overriding principle in the administration of housing
developments is to keep in mind the constitutional basis and maintain a rights based
approach.
Unfortunately, the National Housing Code fails to carry through the guiding principles of
the Housing Act and does not adequately deal with special needs housing. The
mechanism of the Institutional Subsidy Scheme has been adapted by some provincial
Departments of Human Settlements to fund group housing facilities. Experts in the field
(and the Housing White Paper) advocate for adjustments to be made for this subsidy to
be better utilised to enable more group housing funding for persons with special needs.
In addition, the Constitution creates the obligation for different spheres of government to
co-operate with one another by co-ordinating their actions and legislation with one
another. The Housing Act echoes this obligation in setting out how government must
strive to reach consensus on the housing policies of its respective spheres.
20 http://www.dhs.gov.za/content/overview
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B CATEGORIES OF BENEFICIARIES OF SPECIAL NEEDS GROUP HOUSING
8 OLDER PERSONS
8.1 Responsible oversight Department: Department of Social Development
8.2 Source of mandate: Older Persons Act 13 of 2006 ("OPA")
8.3 Obligations, powers and functions of the DSD
8.3.1 Section 3(1) of the OPA empowers the Minister of Social Development in
consultation with the Minister of Finance to "provide financial awards to
service providers that provide services to older persons from funds
appropriated by Parliament for that purpose". Services are defined as
"any activity or programme designed to meet the needs of an older
person". The remainder of the Regulations to the OPA reflect that this is
understood to include the operation of a residential facility. Guidance is
required as to whether or not the interpretation of this definition could be
stretched to suggest that the construction of a group residential facility
amounts to "any activity or programme". We are instructed that in
response to an enquiry from PPT, the DSD confirmed that one cannot
stretch the meaning to include housing/residential facilities and that to
date in PPT's experience the DSD has never made capital funding
available for NPOs.
8.3.2 The term "service providers" is not defined in the OPA but the Regulations
do set out certain requirements of service providers21.
8.3.3 The Regulations to the OPA deal with applications for financial awards as
contemplated in Section 8(1) of the OPA. Service Providers are required
to apply for a financial award using the stipulated application form.
Certain documents must accompany the form, including a business plan
of the organisation; audited financial statements for at least six months;
21 Regulation 2(2)(a)-(e)
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background information on receiving previous financial awards; and
disclosure of all sources of funding/income22. Service Providers are not
required by the OPA to be registered as a NPO.
8.3.4 Regulation 2(2)(a) sets out that a financial award may be provided to a
service provider who satisfies the Minister that it "provides a service to
older persons or operates a residential facility and will use the financial
award for the benefit of older persons". This wording implies that a
service provider should already be operating a residential facility in order
to obtain a financial award, rather than be applying for a financial award
for capital funding to construct a residential facility. Guidance was
obtained from DSD as to whether or not this strict interpretation would be
applied, or if the Regulations can be interpreted to include service
providers that intend to operate a residential facility if granted funding to
do so. We were advised by DSD that government facilities may be
established but that DSD does not in practice make capital funding
available to NPOs to build facilities and the financial awards to NPOs are
only for operational and programme purposes.
8.3.5 Regulation 3(c) contemplates that in the contract with the service
provider, "the amount of the financial award including capital and
operational funding" must be included. This indicates that the financial
award may comprise of both capital and operational funding.
8.3.6 These Regulations contemplate the purchasing of assets23 but do not
specifically make mention of the building or construction of assets, such
as residential facilities.
8.3.7 The OPA creates the obligation for the DSD to oversee the registration of
residential facilities, including the issue of a registration certificate in
order for any person or organization to operate a residential facility. An
application form24 must be completed and submitted to the DSD, together
22 Form 1 Annexure A to the Regulations
23 Regulation 5
24 Form 9
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with a list of documents (including a copy of building plans, proof that
residential facility complies with national or local building regulations,
report from DSD, house rules and certificate of health inspector.) The
required accompanying documents do not include financials or details of
funding sources or financing models. It is noteworthy that the application
form does not include the option to apply to the DSD for capital and/or
operational funding of the residential facility. The Regulations governing
the application for an approval of registration of residential facilities make
no mention of a process to apply for the capital and/or operational
funding of residential facilities whatsoever.
8.4 Other policy documents considered:
8.4.1 South African Policy for Older Persons, DSD, March 2005
8.4.1.1 This policy discusses assisted living/sheltered housing and sets out
the history that "(i)n 1995, the Discussion Group on Ageing pointed
out the need for national minimum standards for such
accommodation and proposed enabling legislation so that funds for
this could be transferred from the Department of Housing to the
then Department of Welfare, but this has not yet been addressed".
The policy continues "The Social Housing Foundation, provided for
under the Housing Amendment Act of 1999, has not addressed the
issue of sheltered housing for older persons. This continues to be
seen as the responsibility of the Department of Social Development,
even though the DoSD has neither the funds nor the capacity to
build housing."25
8.4.1.2 The policy concludes "Since the provision of frail care for those in
need of twenty-four hour care is official policy the division of
responsibility between Social Development and Health Departments
needs to be clarified and clear norms and standards established for
the operation of these facilities. Due to the projected increase in the
number of older persons the provision of frail care will need to be
25 At page 44
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increased. If existing facilities are to remain viable, funding will need
to be maintained at a realistic level."
8.4.1.3 This policy is out of date and precedes the OP Act. It is included
merely to indicate the position historically.
8.4.2 Directorate: Care and Services to Older Persons: Implementation
Strategy for Older Persons Legislation26 ("OP Strategy")
8.4.2.1 The OP Strategy sets out the responsibilities contained in the OPA.27
An extract of the responsibilities in respect of financial awards are
set out below.
26 This document is undated. It was furnished as part of an official written reply to National Assembly question
171/2013 addressed by Mrs S P Kopane (DA) to the Minister of Social Development. Date of publication on internal question paper: 14 February 2013. Question asked was "Whether her department has any strategies on how to achieve the full implementation of the Older Persons Act, Act 13 of 2006; if not, (a) why not and (b) how is her department measuring its achievements in this regard; if so, (i) what are the
strategies and (ii) by what year is it anticipated that the Act will be fully implemented?" Response:
"(i) The strategy for the implementation of the Older Persons Act was developed and consulted with Provinces and other stake holders (find attached document Annexure B)
(ii) The Older Persons Act is progressively being implemented and part of it has been fully implemented. Since there are also other competing needs in terms of funding for the implementation of the Act, it is currently difficult to specify when the act will be fully implemented."
27 At page 37
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No specific mention is made of capital and/or operational funding for
residential facilities.
8.4.2.2 The OP Strategy also sets out the responsibilities28 in respect of the
oversight function of the DSD in relation to Residential Facilities.
Once again, no mention is made of funding in this section.
8.4.2.3 The OP Strategy analyses potential risks. In this section, there is a
description of the assets which should be listed in the asset register.
It is clear from this discussion that reference is being made to
movable assets and not to buildings, whether acquired or
constructed29.
8.4.2.4 The OP Strategy breaks down the task of providing financial
awards30:
28 At page 40
29 At page 51
30 At page 74
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8.5 Summary: Older Persons
As set out above, it is unclear from the wording of the OPA, in particular the definition of
"services", whether or not the construction of a group residential facility amounts to "any
activity or programme" for which a financial award (for both capital and operational
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funding) may be applied by a service provider such as a NPO. The practical indication is
that it would not and that as such, financing is not available under the OPA.
9 VICTIMS OF GENDER-BASED VIOLENCE; VICTIMS OF SEXUAL ASSAULT & RAPE;
ABUSED OLDER PERSONS; ABUSED PEOPLE WITH DISABILITIES; VICTIMS OF
HUMAN TRAFFICKING AND VICTIMS OF HATE CRIME ("VICTIMS OF CRIME:
ABUSED PERSONS ")
9.1 Responsible oversight Department: No specific single oversight Department
legislated although the DSD has assumed a leading role (e.g. via the VEP).
9.2 Source of Mandate:
9.2.1 Section 27 of the Constitution of the Republic of South Africa (“the
Constitution”) provides as follows-
“(1) Everyone has the right to have access to—
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support
themselves and their dependants, appropriate social
assistance.
(2) The state must take reasonable legislative and other
measures, within its available resources, to achieve the progressive
realisation of each of these rights.”
9.2.2 The Constitution places a duty on the government to inter alia implement
reasonable legislation and other means to realise the section 27 rights.
9.2.3 There is at present no legislation placing a direct duty on a specific
government department to establish and/or fund shelters for Victims of
Crime: Abused Persons. Each department deals with the victims of crime:
abused persons that fall within the scope of its area of concern.
9.2.4 Very limited legislation deals with the referral of a victim of abuse to a
shelter. The first is the Domestic Violence Act 116 of 1998 (“DVA”) which
places a duty on the SAPS as follows-
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“(2) Any member of the South African Police Service must, at the
scene of an incident of domestic violence or as soon thereafter
as is reasonably possible, or when the incident of domestic
violence is reported—
(a) render such assistance to the complainant as may be required
in the circumstances, including assisting or making
arrangements for the complainant to find a suitable shelter and
to obtain medical treatment.”
9.2.5 The NATIONAL INSTRUCTION 7/1999 to the SAPS ("National Instruction")
published under the DVA expands on the SAPS duty to find a suitable
shelter.
9.2.5.1 The National Instruction lists as a responsibility of the station
commissioner to "liaise with local representatives of the Department
of Welfare, the local Community Police Forum and any other relevant
local institution, to identify local organisations which are willing and
able to provide counselling and other support services (including
medical services and suitable shelter) to complainants"31.
9.2.5.2 The National Instruction also sets out the responsibility of the
members of the SAPS. The member's duty to assist the complainant
to find suitable shelter is set out in Regulation 8. This entails to at
least "provide the complainant with the names, contact numbers
and/or addresses of any organisation in the area which may be able
to provide suitable shelter and relevant support and/or counselling
services" and "at the request of the complainant and, where it is
reasonably possible to do so, contact on behalf of the complainant
an organisation which may render relevant assistance to the
complainant" and "at the request of the complainant, assist in
arranging transport for the complainant to a suitable shelter". A
member may, but only as a last resort, transport a complainant in a
31 Regulation 3
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police vehicle to find a suitable shelter if such a vehicle is available
and there is no other means of transport.
9.2.5.3 The National Instruction does not deal with the establishment or
funding of the shelters referred to therein.
9.2.5.3.1 A 2012 report by Tshwaranang Legal Advocacy (TLAC) and
Heinrich Böll Stiftung Southern Africa makes a detailed analysis
of the policy, funding and practice regarding shelters for
women who have experienced abuse (“TLAC Report”).32
9.2.5.3.2 The TLAC Report notes that despite the legislated duty on the
SAPS to refer victims of domestic violence to a shelter, there is
no provision in the DVA for funding of such shelters.33
9.2.5.3.3 The TLAC Report further notes that "currently there is no
legislative provision for the regulation of South African’s
Shelters for victims of domestic violence and services that they
provide.” Further, “in 2009 the DSD stated that it had
commissioned a feasibility study in order to facilitate the
development of comprehensive legislative framework to
address the regulation of shelters, their accreditation and the
registration of service providers… this had not yet happened.”34
The TLAC Report is a suggested resource for an analysis of the
need for and response to shelters for abused women.
9.2.6 In considering whether or not there is a mandate on the DSD to establish
and/or provide funding for NPOs or other stakeholders to establish
shelters, we must look beyond legislation. According to the DSD, the
“Victim Empowerment Programme (VEP) is a structure established by the
National Crime Prevention Strategy and was launched in 1998. It is an
inter-sectorial and inter-departmental programme. The approach of the
32 http://www.tlac.org.za/information-pamphlets/reports/
33 At page 1
34 Page 12
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Programme is based on building and maintaining partnerships between
government and non-profit organizations, volunteers, academics and
research institutions. The Department of Social Development is the lead
department and hosts the secretariat for the VE Management Team. The
responsibility of the Department is to co-ordinate, manage and facilitate
the development & implementation of victim empowerment policies,
services & programmes. It is also responsible for the National VE
Management Team which provides strategic direction to the
Programme.”35
9.2.6.1 The DSD lists the target groups of the VEP as "Women; Victims of
Gender-Based Violence; Victims of Sexual Assault & Rape; Abused
Children; Abused Older Persons; Abused People with Disabilities;
Victims of Human Trafficking and Victims of Hate Crime."36
9.2.6.2 According to the DSD, its core functions are as follows37-
“Management and oversight over social security, encompassing
social assistance and social insurance policies that aim to
prevent and alleviate poverty in the event of life cycle risks
such as loss of income due to unemployment, disability, old age
or death occurring.”
“Developmental social welfare services that provide support to
reduce poverty, vulnerability and the impact of HIV and AIDS
through sustainable development programmes in partnership
with implementing agents such as State-funded institutions,
Non-Governmental Organisations (NGOs), Community-Based
Organisations (CBOs) and Faith-Based Organisations (FBOs).”
35http://www.socdev.gpg.gov.za/SocialWorkServices/SocialCrimePreventionandVEP/Pages/VictimEmpowermen
t.aspx
36http://www.socdev.gpg.gov.za/SocialWorkServices/SocialCrimePreventionandVEP/Pages/VictimEmpowermen
t.aspx
37 http://www.dsd.gov.za/index.php?option=com_content&task=view&id=31&Itemid=54
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9.2.6.3 There is no express mention of a mandate of function to establish or
fund the building of shelters for the target groups. However, the
DSD lists the following as "Victim Empowerment SERVICES and
PROGRAMMES":
"22 funded Shelters for abused women and their children & Shelter
Network;
4 Shelters accredited to accommodate victims of human trafficking;
1 funded Shelter for male victims of gender-based violence."38
DSD has advised that as at end January 2015, through the Victim
Empowerment Programme it provides funding to 88 Shelters for
abused women and children; 13 shelters pre-accredited to
accommodate victims of human trafficking and established 8
Khuseleka One Stop Centres39.
It would therefore appear that the DSD interprets one of its roles in
VEP to be the funding of shelters. It is not clear from the information
available whether this funding includes the funding of NPOs to build,
manage and maintain shelters. This role is certainly not formalised
in the policy documents that have been considered in this policy
review.
9.2.7 We are further advised by DSD that “In preparation for the development
of the Victim Empowerment Legislation, the National Department of
Social Development commissioned a feasibility study in the year 2009, to
assess whether there is a need for a comprehensive Victim Empowerment
Legislation or to assess the gaps in the existing Victim Empowerment
Legislation. A consortium of NGOs was appointed. Consultation was
conducted with the relevant stakeholders. Interviews were conducted
with the focus groups and other individuals within the VEP sector. A
38 It is noted that only services and programmes up until 2012 have been listed and as such, this information
may be out of date.
39 Ms Anna Sithole “Updated information on the special housing needs: 26 January 2015”
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feasibility report was presented to the Department of Social Development
senior management, VEP Management Team and other interest groups.
The outcome of the Feasibility study recommends the development of the
comprehensive VEP Legislation. The fourth draft Victim Empowerment
Support Services Bill has been developed in the year 201440.
9.2.8 Another policy document to consider is the National Policy Guidelines for
Victim Empowerment (“VE Guidelines”), which create a framework for the
empowerment of all victims of crime.
9.2.8.1 In Section 8.1 and 8.2 of the VE Guidelines acknowledge
government’s responsibility to protect women and notes that
although there have been measures to improve the response to
violence against women; the DSD admits that there are still many
challenges. Similarly, there is no specific mention of the provision of
funding for the building of public shelters nor is there mention
funding NPOs to do so.
9.2.9 The Minimum Standard on Service for Victims of Crime is a policy
document created by the Department of Justice and its purpose is to
explain the rights of victims of crime as set out in the Service Charter for
Victims of Crime. This document also makes no mention for the
establishment and funding of shelters for abused women.
9.2.10 The Minimum Standards on Shelters for Abused Women (“Minimum
Standards on Shelters”)41, February 2001, is a document compiled by the
DSD.
9.2.10.1 The purpose as indicated in section 2 is to set the minimum
standards for the operation and management of levels of shelters for
abused, battered and destitute women. In terms of Section 1 of the
Minimum Standards on Shelters the DSD is mandated to “facilitate
and fast track the provision of shelters for abused women, as well as
40 Ms Anna Sithole “Updated information on the special housing needs: 26 January 2015”
41 http://www.gov.za/documents/minimum-standards-shelters-abused-women
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ensuring the availability and accessibility of counselling services to
women and children.”
9.2.10.2 Section 5 of the Minimum Standards on Shelters calls for an
integrated policy framework for developmental social welfare
services and provides as follows-
“The Department advocates for a more holistic, integrated service
rendering. The current policy provides the framework for such
transformation of social welfare services. The framework has three
levels of service delivery, with all levels functioning as a continuum
(prevention and promotion, early intervention, continuum of care
and development). The framework integrates special development
areas such as poverty alleviation, HIV/AIDS, crime prevention,
substance abuse, survivor support including development and
disability within each level and across the focus groups of children,
youth, families, women and older persons. No residential care facility
should be restructured around or focus exclusively on any one of the
special development areas. Shelters could however be structured
around and provide services to one or more of the focus groups.”
9.2.10.3 The Minimum Standards on Shelters does not fully explain the
financing of the standards set therein. Section 5.1.4 deals with
financing policy options and provides that “Use of existing facilities in
the communities, including departmental institutions on a crises
intervention level. Service purchasing and differentiated
programmes could be considered.” Nothing further is mentioned on
the capital and/operational funding for building of shelters. We are
advised by DSD that in practice DSD does not provide capital
funding to NPOs for the building of shelters.
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9.2.11 National Policy Framework Management of Sexual Offence Matters42 (the
“NPF”)
9.2.11.1 The NPF is a policy created in terms of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 6 of 2012 (“Sexual
Offences Amendment Act”). The Preamble to the Sexual Offences
Amendment Act provides that “…the Bill of Rights in the Constitution
of the Republic of South Africa, 1996, enshrines the rights of all
people in the Republic of South Africa, including the right to equality,
the right to privacy, the right to dignity, the right to freedom and
security of the person, which incorporates the right to be free from
all forms of violence from either public or private sources, and the
rights of children and other vulnerable persons to have their best
interests considered to be of paramount importance.”
9.2.11.2 The NPF was published in Government Gazette No.36894 on 6
September 2013 as a "guiding tool to implement the provisions"43 of
the Sexual Offences Amendment Act and "intends to achieve the
broad objects of the Act, which primarily seeks to establish a
Criminal Justice System that is quick, more protective, least
traumatising, more sensitive to the plight of victims, and promotes
cooperative response between all government departments and
institutions.”
9.2.11.3 The NPF provides principles informing budgeting and resource
allocations and specifically mentions the provision of physical
resources which includes victim-centred facilities and that these
must be costed and planned accordingly44. The term "victim-centred
facilities" is not defined and as such, it is not clear that same would
include places of safety or shelters.
42http://www.gov.za/documents/criminal-law-sexual-offences-and-related-matters-amendment-act-national-
policy-framework Page 24
43 http://www.sabinetlaw.co.za/justice-and-constitution/articles/management-framework-sexual-offences-
place
44 At page 24
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9.2.11.4 The NPF details the roles and responsibilities of specific role players.
There is no mention of the role of establishment and/or funding or
places of safety. Roles of the DSD which are listed45 and may be
relevant to shelters are "provide specialist services for victims of
sexual offences" and "provide a funding framework and support for
NGOs contracted to provide services to victims of sexual offences".
The term "services" is not defined in the NPF.
9.2.11.5 In summary, there is no express provision relating to establishment
of or funding of places of safety for abused persons under the NPF.
The Sexual Offences Amendment Act also does not expressly
mention a duty of government or any official to refer a victim of
sexual violence or abuse to a place of safety nor does it provide for
establishment of places of safety for victims of sexual abuse.
9.2.12 The National Policy Guidelines for Victims of Sexual Offences, 1998
("NPGVSO")46 are aimed at providing support to victims of sexual
offences. The NPGVSO outlines the roles of various departments of
government (including Social Development, Justice, Health, the SAPS) in
providing services to victims of sexual offences. The NPGVSO does not
deal with the establishment or funding of the places of safety as a
component of the provision of victim support.
9.2.13 The Department of Justice, more specifically the National Prosecuting
Authority, has an established Sexual Offences and Community Affairs Unit
("SOCA")47. The focus of the SOCA Unit is the enhancing of the capacity
of the NPA to prosecute domestic violence and sexual offences cases.
9.2.13.1 The SOCA Unit is also responsible for leading the Thuthuzela Care
Centres48. While these Care Centres may refer victims of domestic
and/or sexual violence to shelters and/or places of safety, they do
45 At page 34
46 http://www.justice.gov.za/policy/guide_sexoff/sexoff_guidelines1998.htm
47 http://www.npa.gov.za/ReadContent412.aspx
48 http://www.npa.gov.za/UploadedFiles/THUTHUZELA%20Brochure%20New.pdf
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not constitute shelters themselves. The Department of Justice is not
involved in the funding and/or provision of such shelters.
9.3 The Older Persons Act 13 of 2006 ("OPA") is another Act which contemplates
shelters. The OPA mentions that in the instance of older persons in need of
care and protection, the director general or social worker concerned may
“facilitate the referral of the older person to a…shelter.”49 No further mention is
made of shelters in the OPA, nor are there provisions dealing with the
establishment of shelters. Please see further discussion of the OPA at section 8
above.
9.4 The Prevention and Combating of Trafficking in Persons Act 7 of 2013
("Trafficking Act") also makes mention of shelters.
9.4.1 The Trafficking Act was assented to by the President in July 2013 but has
not yet been brought into effect. No regulations have been published in
terms of the Trafficking Act as yet.
9.4.2 The Trafficking Act makes use of the term “temporary safe care”, defined
as "care of an adult person suspected of being a victim of trafficking in a
shelter, private home or any other place approved by the Director-
General: Social Development where that person can be accommodated
safely pending the placement of that person in an accredited
organisation".
9.4.3 The Trafficking Act directs the manner in which the reporting of and
dealing with an adult victim of trafficking should be handled.
9.4.3.1 Section 19(5) sets out that-
"A police official to whom a report has been made in terms of
subsection (1) or (2), or section 8(1)(b) or (2)(b)(i) or 9(2) in
respect of an adult person or a police official who knows or
49 Section 25(4)(a)
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ought reasonably to have known or suspected that an adult
person is a victim of trafficking-
(a) (ii) must where necessary, as a measure of last
resort and with the written consent of the person
concerned, take him or her into protective custody if there
is an immediate threat to the safety of that person, for a
period until the station commander of the police station in
question is satisfied that the threat has ceased to exist,
whereafter the police official may place that person in
temporary safe care referred to in subsection (6);
(b) must, within 24 hours, refer the person to an
accredited organisation and notify the provincial
department of social development of that person; and
(c) must inform the person suspected of being a victim
of trafficking that he or she may apply for a visitor’s visa
to remain in the Republic for a recovery and reflection
period in terms of section 15 if he or she is a foreigner."
(our emphasis)
9.4.3.2 Section 19(6) states that "A police official may place an adult person
referred to in subsection (5) in temporary safe care, pending the
transfer of that person to an accredited organisation."
9.4.3.3 It is clear that DSD is tasked with the care of victims of trafficking
insofar as temporary safe care and that the existence of shelters are
necessary for the police to give practical effect to these provisions,
especially in cases of victim of trafficking being foreigners and/or
having children and being in need of somewhere to live during the
recovery and reflection period before return and repatriation.
9.4.4 The Trafficking Act contemplates "accredited organisations", defined as
"an organisation, including a government institution, accredited in terms
of section 24 to provide services to adult victims of trafficking" and dealt
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with in Chapter 5 of this Act. This definition is wide enough to include a
NPO.
9.4.4.1 The Minister of Social Development is tasked with prescribing a
system for accrediting organisations to provide services to adult
victims of trafficking, as well as the norms and standards for
accredited organisations50. The Minister must also prescribe
circumstances in which such an organization will qualify for financial
assistance "within available resources"51. The term financial
assistance is not defined and neither is "available resources" and
there is no indication as to whether this would include capital and/or
operational funding for the building, establishment, management or
maintenance of shelters by accredited organisations.
9.4.4.2 The Trafficking Act sets out that an accredited organisation must
offer a programme aimed at inter-alia "the provision of
accommodation to adult victims of trafficking"52. Accommodation is
not defined but can be understood in its ordinary meaning to include
shelters.
9.4.4.3 The Minister of Social Development is empowered to make
regulations as to "the circumstances in which accredited
organisations qualify for financial assistance".53
9.4.5 The Trafficking Act stipulates the roles of a range of Ministers and
government departments. Some of those mentioned include "the Minister
in The Presidency responsible for performance monitoring and evaluation,
the Ministers of Finance, Home Affairs, Health, International Relations and
Cooperation, Labour, Police, Social Development, State Security, and
Women, Children and People with Disabilities and the National Director of
Public Prosecutions". It is noted that the Department of Human
50 Section 25
51 Section 24(2)
52 Section 26(1)(a)(i)
53 Section 43(3)(h)
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Settlements is not mentioned in the Trafficking Act, despite the need for
group special housing to give effect to this Act.
9.4.6 It is necessary to monitor developments regarding the commencement of
the Trafficking Act and to provide comment in respect of any regulations
thereto which may be published for public comment.
9.5 Summary: Victims of Crime: Abused Persons
No legislated mandate exists for DSD (or any other Department of Government) to fund,
establish, maintain or manage shelters for Victims of Crime: Abused Persons, nor is
there provision for DSD to fund NPOs to build, establish, maintain or manage such
shelters.
10 CHILDREN
10.1 Responsible oversight Department: Department of Social Development
10.2 Source of mandate:
10.2.1 Children’s Act 38 of 2005 (“Children's Act”)
10.2.1.1 The Children's Act defines temporary safe care as “in relation to a
child, means care of a child in an approved child and youth care
centre, shelter or private home or any other place, where the child
can safely be accommodated pending a decision or court order
concerning the placement of the child, but excludes care of a child in
a prison or police cell”.
10.2.1.2 The Children's Act expressly provides in Section 105(1) that “The
MEC for social development must, from money appropriated by the
relevant provincial legislature, provide and fund designated child
protection services for that province.”
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10.2.1.2.1 Child protection services are detailed in the Children's Act and
include54 "services relating to the integration of children into
alternative care arrangements"; "the placement of children in
alternative care"; "intervention and removal of children in
appropriate cases"; "any other social work service as may be
prescribed." The establishment and/or funding, maintenance
and management of a shelter for children in need of temporary
safe care is not specifically mentioned as a child protection
service.
10.2.1.2.2 Section 105(3) of the Children's Act provides that “Designated
child protection services provided by an organ of state or a
designated child protection organisation only qualify for funding
from money appropriated by a provincial legislature if it
complies with the prescribed national norms and standards
contemplated in section 106 and such other requirements as
may be prescribed.”
10.2.1.2.3 Section 106 empowers the Minister to determine national
norms and standards for child protection and sets out that
these must relate to the following: "Prevention and early
intervention programmes"; "assessment of a child";
"therapeutic programmes"; "after-care"; "family reunification
and reintegration"; "foster care services" ; "integration into
alternative care"; "adoption services" ; "permanency plans";
"education and information"; and "child-headed households".
There is no specific mention of shelters for abused children or
children in need of care and protection as mentioned in the
definition of temporary safe care.
10.2.1.3 Minimum Norms and Standards for Child and Youth Care Centres
("CYCC") are set out in the Children's Act and the Regulations
thereto.55 CYCCs may offer residential care programmes, which
54 Section 105(5)
55 Part V, Annexure B
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essentially amount to shelters for children in need of care and
protection.
10.2.1.4 The Children's Act clearly sets out that the MEC for social
development must, from money appropriated by the relevant
provincial legislature, provide and fund child and youth care centres
for that province.56
10.2.1.5 There is no mention in the Regulations of the manner in which a
NPO should apply for funding of a CYCC from DSD. The application
form for registration of a CYCC57 does not include a section
stipulating requested funding, as opposed to the application to be
designated as a child protection organisation which must include a
business plan which contains "activity-based budgets reflecting the
amount of funds required and the purposes for which such funds will
be utilised."58
10.2.1.6 One of the required documents to submit when applying to register
a CYCC is "the financial statements of the child and youth care
centre including an exposition of the funds available to operate the
child and youth care centre"59.
10.2.1.7 The Children Act states that "An accredited organisation operating a
child and youth care centre only qualifies for funding from money
appropriated by a provincial legislature if it complies with the
prescribed national norms and standards contemplated in section
194 and such other requirements as may be prescribed."60
10.2.1.8 There is no indication of whether the funding contemplated in this
section includes capital funding for a NPO to build a CYCC or only
56 Section 193
57 Form 48 http://discover.sabinet.co.za/webx/access/netlaw/38_2005_childrens_2_form_48.pdf
58 Regulation 31(2)(d)
59 Regulation 78(m)
60 Section 193(3)
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operational funding to maintain and manage a CYCC. We are advised
by DSD that in practice, funding from DSD is limited to operational
funding.
10.2.1.9 A useful resource is the Centre for Child Law's 2012 Publication
"Children at the Centre: A Guide To The Registration Of Child And
Youth Care Centres in terms of the Children’s Act No 38 of 2005, as
amended."61 This publication only makes reference to operational
funding.
10.3 Summary: Children
The Children's Act clearly creates an obligation on DSD to fund CYCCs, although it is not
clear from the Regulations as to the process to make application for such funding. It
seems that funding would not extend beyond the operational funding to include capital
funding to develop CYCCs. We are advised by DSD that government facilities may be
established but that DSD does not in practice make capital funding available to NPOs to
build facilities and the financial awards to NPOs are only for operational and programme
purposes.
11 CHILD HEADED HOUSEHOLDS
11.1 Responsible oversight Department: Department of Social Development
11.2 Source of Mandate:
11.2.1 The Bill of Rights states that "Every child has the right—
(b) to family care or parental care, or to appropriate alternative care
when removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social
services"62.
11.2.2 A Child-headed Household63 is generally defined as a household wherein
the head child is younger than 18 years old i.e. a household consisting of
61 Accessed at http://web.up.ac.za/sitefiles/file/47/304/Children%20at%20the%20Centre%20guide.pdf
62 Section 28
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no adults, only children. There are differing understandings of the
definition for example to include a household headed by a person over 18
who is still attending Secondary School.64
11.2.3 The National Guidelines for Statutory Services to Child-Headed
Households, April 201065 (“Child-Headed Household Guidelines”)
11.2.3.1 Compiled by the DSD, the introduction states that “The guidelines
will inform service delivery to children living in child-headed
households and ensure that Section 137 of the Children’s Act No. 38
of 2005 as amended is effectively implemented.”66
“The aims of these Guidelines are:
to provide an understanding of the legal rights of children
in child-headed households and highlight State’s
responsibilities and obligations towards such children as
dictated by the international and national instruments,
including the Constitution of South Africa, Act No. 108 of
1996 and other relevant legislation and policies;
to provide a broad picture and overview of the needs of
children in child-headed households;
to identify services, resources and safety nets available for
children living in child-headed households;
to provide guidance to social workers in rendering
statutory services to child-headed households;
to assist in developing and implementing the Strategic
Plan of the Department.”67
63 See Meintjes H, Hall K, Marera D & Boulle A (2009) Child-headed households in South Africa: A statistical
brief. Cape Town: Children’s Institute, University of Cape Town accessed at http://childrencount.ci.org.za/uploads/brief_child_headed_households.pdf for a discussion on misconceptions of child headed households.
64 GP Research (see citation below) at page xiii
65 http://www.dsd.gov.za/index2.php?option=com_docman&task=doc_view&gid=147&Itemid=3
66 Section 137 specifically deals with Child-headed households
67Section 1.1
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11.2.3.2 Section 3.7 of the Child-Headed Household Guidelines highlights the
rights in terms of the Constitution and further states that “Children
in child-headed households are equally entitled to social assistance
in much the same way as children living with adult carers. The
equality clause (section 9) and the dignity clause in section 10
provide a platform to advocate for and address the problems of child
poverty and exclusion and should be used to protect the rights of
children living in child-headed households.”68
11.2.3.3 In terms of the Child-Headed Household Guidelines there are two
main grants for child headed households:69
Child Support Grant (“CSG”) in terms of which a child over the age
of 16 who is heading a household can apply for the CSG on behalf
the younger children s/he is supporting; and
Care Dependency Grant (“CDG”) which is for children who require
home based care as a result of severe mental or physical disabilities.
The CDG can benefit children up to the age of 18.
11.2.3.4 The Child-Headed Household Guidelines also provides a list of
stakeholders who can assist in addressing the needs of child-headed
households and the ways in which they can do so. The list includes
government departments, NGOs, academic institutions, international
NGO’s and donor agencies.
11.2.3.5 The role determined for the Department of Human Settlements is to
"Ensure that the housing needs of child-headed households are
addressed through low cost housing schemes"; "Provide housing,
including shelter, to vulnerable children"; and "Support initiatives of
other government departments".70
68Refers to Section 9 and 10 of the Constitution
69 Page 36 and 37
70 At page 62
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11.2.3.6 The ways in which stake-holders can assist in term of the Child-
Headed Household Guidelines do not deal with the establishment
and/or funding of group housing for children who live as a child-
headed household.
11.2.3.7 The Child-Headed Household Guidelines state the statutory
mandated role-players in relation to child-headed households. The
extract below71 lists the roles of the DSD:
11.2.3.8 No specific reference is made to the establishment or funding of
group homes specifically for the placement of orphaned or
vulnerable children derived from Child-Headed Households. If the
DSD determines that the requirements for the Child-Headed
Household are met in the specific situation, the measures are
implemented for the household to remain intact. If not, for example
where the household head is under 16, the children may be placed
into a CYCC or for adoption or foster care72.
11.2.4 KZN Human Settlements: Research on Child-Headed Households (June
2010)73 ("KZN Research")
71 At page 57
72 At page 43
73 http://www.kzndhs.gov.za/Portals/0/docs/Research%20and%20Report/Research%20Report.CHH2010.pdf
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11.2.4.1 The KZN Research does not amount to a policy and no mandate is
created in terms thereof. It is included in this review to highlight
concerns and recommendations made in respect of child-headed
households.
11.2.4.2 The KZN Research sets out by way of background that "the research
emanated from concerns expressed by Human Settlement
stakeholders citing the housing needs of child-headed households as
a critical policy issue that should be addressed by the Department of
Human Settlements. There is a huge demand to target the needs of
CHH as part of the broad vulnerable groups as there is a concern
that the increasing issues arising from CHH is not being adequately
addressed by the Department’s current policies and programmes".74
11.2.4.3 The KZN Research makes the following recommendations75:
11.2.4.3.1 "Existing Child headed households in a project area during the
beneficiary identification stage, be referred to the Department
of Social Development: Directorate: HIV & Aids, for formal
placement preferably in a non-institutional environment."
11.2.4.3.2 "Continue to provide the option of the Institutional subsidy
through the Provincial Transitional and Aids Policies for NGO’s,
CBO’s, NPO’s and other section 21 companies to establish
community family homes and transitional care centres."
11.2.4.3.3 "The Departments of Human Settlement, Social Development,
Health, Co- operative Government and Traditional Affairs and
Home Affairs should establish and maintain a consultative and
co-operative relationship through the relevant forums to deal
with issues related to CHH."
74 At page 5
75 At page 10
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11.2.5 CHILD-HEADED HOUSEHOLDS IN GAUTENG PROVINCE: A survey of the
prevalence and experiences of families in Gauteng, DSD, 11 December
200876 ("GP Research")
11.2.5.1 The GP Research does not amount to a policy and no mandate is
created in terms thereof. It is included in this review to highlight
concerns and recommendations made in respect of child-headed
households.
11.2.5.2 The recommendations in the GP Research emphasise the view that
"child-headed households should be legally recognised as a valid
alternative family form, with the provision that they are vulnerable
and require additional support and supervision. Rather than making
the default action that these children be removed and placed in
‘alternative’ care (meaning something other than the child-headed
household), we argue that the norm should be first to give the
household a chance to stabilise and mature, with the benefit of
additional services. Only if there is actual evidence of vulnerability,
such as abuse or malnutrition, should the children be placed in
care."77
11.2.5.3 None of the recommendations in the GP Research mention the need
to establish and/or fund community family homes, transitional care
centres or group residential facilities.
11.3 Summary: Child-Headed Households
No mandate is created for the establishment by the DSD itself or its funding of
community family homes, transitional care centres or group residential facilities
developed by NPOs specifically for the placement of orphaned or vulnerable children in
need of care and protection who derive from Child-Headed Households. We defer to the
summary above on children in general.
76 http://www.socdev.gpg.gov.za/Research%20Document/Child%20Headed%20Households.pdf
77 At page 138
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12 JUVENILE OFFENDERS / JUVENILE AWAITING TRIAL DETAINEES
12.1 Department Responsible: DSD
12.2 Source of Mandate:
12.2.1 International obligations
12.2.1.1 United Nations Convention on the Rights of the Child
12.2.1.2 United Nations Guidelines for the Prevention of Juvenile Delinquency
12.2.1.3 United Nations Standard Minimum Rules for the Administration of
Juvenile Justice "The Standard Minimum Rules provide a set of basic
principles to promote the use of non-custodial measures, as well as
minimum safeguards for persons subject to alternatives to
imprisonment. The Rules are intended to promote greater
community involvement in the management of criminal justice,
specifically in the treatment of offenders, as well as to promote
among offenders a sense of responsibility towards society. When
implementing the Rules, the State shall endeavour to ensure a
proper balance between the rights of individual offenders, the rights
of victims, and the concern of society for public safety and crime
prevention. The State shall develop non-custodial measures within
their legal systems to provide other options, thus reducing the use
of imprisonment, and to rationalize criminal justice policies, taking
into account the observance of human rights, the requirements of
social justice and the rehabilitation needs of the offender."
12.2.1.4 United Nations Rules for Juveniles Deprived of their Liberty (JDL
Rules) "The JDL Rules aims to establish minimum standards
accepted by the United Nations for the protection of juveniles
deprived of their liberty."
12.2.1.5 The Constitution of South Africa at section 28(1) deals with the right
of every child to not be detained except as a measure of last resort,
kept separately from detained persons over the age of 18 years, and
treated in a manner and kept in conditions that take account of the
child’s age.
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12.2.1.6 Correctional Services Act "The Correctional Services Amendment Act
no 17 of 1994 amended section 29 of the Correctional Services Act
so that children under 14 awaiting trial could never be held for
longer than 24 hours, and those over 14 (but under 18) charged
with serious offences (listed in a schedule to the Act) could only be
held for 48 hours . The aim of the legislation was to ensure that in
the majority of cases young people would be released into the care
of their parents or guardians to await trial, and where this was not
possible, they would be held in Places of Safety."
12.2.1.7 Interim Protocol for the Management of Children awaiting Trial
(2002) "This document is collaboration between four Departments,
namely the Department of Justice and constitutional Development,
the Department of Social Development, the Department of Safety
and Security and the Department of Correctional Services. The
purpose of the document is to clearly identify the roles and
responsibilities of each department."78
12.2.1.8 Child Justice Act Act 75 of 2008 (“CJA”)
12.2.1.8.1 The DSD is responsible for the provision and management, in
terms of Chapter 13 of the Children’s Amendment Act, 2007
(Act No 41 of 2007), for Child and Youth Care Facilities.
12.2.1.8.2 Section 27 of the Constitution provides that every child has the
right to “(b) to family care or parental care, or to appropriate
alternative care when removed from the family environment;"
and "(c) to basic nutrition, shelter, basic health care services
and social services”.
12.2.1.8.3 Section 26(2) and (3) of the CJA set out the approach to be
followed when considering the placement of a child as follows-
78 12.2.1 – 12.2.7 sourced from Blue print, Minimum Norms and Standards for Secure Care Facilities in South
Africa, DSD, August 2010 at pages 47-51.
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“(2) Prior to a child’s first appearance at a preliminary inquiry
within 48 hours after arrest—
(a) a police official must, depending on the age of the
child and the alleged offence committed by the child,
consider the placement of the child in a suitable child and
youth care centre in accordance with section 27 (a); or
(b) if placement referred to in paragraph (a) is not
appropriate or applicable, a police official must detain the
child in a police cell or lock-up, in accordance with section
27 (b);
(c) a child and youth care centre in accordance with
section 29”
12.2.1.8.4 Section 29 of the CJA deals with the placement of a child in a
youth care centre and provides that
“A presiding officer may order the detention of a child who is
alleged to have committed any offence in a specified child and
youth care centre.”
12.2.1.8.5 Section 76 deals with sentencing of a child to compulsory
residence in a child and youth care centre and provides as
follows
“(1) A child justice court that convicts a child of an offence may
sentence him or her to compulsory residence in a child and
youth care centre providing a programme referred to in section
191 (2) ( j) of the Children’s Act.”
12.2.1.8.6 The CJA does not legislate the establishment, registration,
management or maintenance of child and youth care centres,
nor the funding of NPOs to do so. No mandate is created by this
Act and all forms of residential care mentioned here are
references to the institutions enabled by the Children's Act.
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12.2.1.9 Blue print, Minimum Norms and Standards for Secure Care Facilities
in South Africa, DSD, August 2010 ("Secure Care Policy")79
12.2.1.9.1 Secure Care refers to "a residential facility and/or programme
of intervention which ensures the appropriate physical,
behavioural and emotional containment of young people who
are charged with crimes and who are awaiting trial or
sentenced."80
12.2.1.9.2 The Secure Care Policy does make provisions for the out-
sourcing of the management of secure care programmes,
despite that having traditionally been one of the functions that
have been performed by the state only. The Secure Care Policy
explains81: "However, since the crisis in this service (1994), this
service has been out-sourced. Out-sourcing is an acceptable
practice in the public service. Out-sourcing is subcontracting a
service to a third party to deliver the service. The decision to
outsource is often made in the interest of lowering cost or
making better use of time and energy, or lack of special
knowledge and expertise within the organisation, and obtaining
operational efficiency. The intention of out-sourcing is not to
permanently relinquish this function. Outsourcing has to be
time bound and should not be seen as a permanent option for
the delivery of a service.
Within this context, more and more secure care programmes
are currently being out-sourced… no two provinces have the
same approach to outsourcing services within secure care. This
results in out-sourced programme having a number of
anomalies and very little synergy. The blueprint addresses
these anomalies with outsourced services within secure care in
79 http://www.dsd.gov.za/index2.php?option=com_docman&task=doc_view&gid=214&Itemid=3
80 At page 3
81 At page 69-70
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provinces. An out-sourcing strategy should be developed with a
plan to guide the process of outsourcing and retrieval after an
agreed upon period of time."
12.2.1.9.3 Norms and standards for outsourcing are detailed in the extract
below82:
12.3 Summary: Juvenile offenders / juvenile awaiting trial detainees
The mandate created by the Children's Act extends to children who are juvenile
offenders or awaiting trial detainees insofar as CYCCs. There is also a policy based
mandate on the DSD to provide safe care, which may be outsourced to NPOs on the
fulfilment of certain conditions. The principles for outsourcing detailed in the Secure Care
policy could have application to other social services mandated to be provided by the
DSD. We are advised by the DSD that while the outsourcing of certain operational
requirements may occur, the physical facilities remain State funded and owned.
82 At page 94
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13 PEOPLE UNDER SUBSTANCE REHABILITATION
13.1 Responsible oversight Department: Department of Social Development
13.2 Source of mandate: Prevention of and Treatment for Substance Abuse Act 70
of 2008 ("the Substance Abuse Act")
Objectives of the Act: "to provide for the registration and establishment
of treatment centres and halfway houses"
Section 20: Establishment of public halfway house
"(1) The Minister may, in consultation with the MEC, from funds
appropriated by Parliament for that purpose, establish, maintain and
manage halfway houses to provide homes for -
(a) service users who, in terms of this Act, have been
discharged from a treatment centre or have been granted leave
of absence from any such centre;
(b) service users referred to in section 32 and 3383;
(c) persons referred to in sections 35 and 37; and
(d) persons who are receiving or undergoing treatment for
dependency on substances in a facility of a provincial
administration or who have received or undergone such
treatment in any facility approved by the Director-General."
13.2.1 Public halfway house is defined as "a halfway house that is owned and
financed by the government or an organ of state to provide a sober living
environment for service users who have completed a formal treatment
programme for substance abuse and who require a protected living
environment in order to prepare them for reintegration into society."
13.2.2 Halfway house means "a public or private halfway house that has been
established or registered to provide a sober living environment for service
users who have completed a formal treatment programme for substance
83Reference here is to voluntary and involuntary service users, being people who are abusing or dependent on
substances and who receive services in a treatment centre or halfway house.
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abuse and require a protected living environment in order to prepare
them for reintegration into society."
13.2.3 The Prevention and Treatment of Drug Dependency Act, 1992 (Act No. 20
of 1992) was repealed by the Substance Abuse Act84.
13.3 Obligations, powers and functions of the DSD
13.3.1 Several sets of Regulations have been published under the Substance
Abuse Act. The regulations cover inter-alia the following:
i) Registration of Treatment Centres and Halfway Houses (Chapter 4);
ii) Guidelines Regarding Adequate Shelter and Hygiene at Treatment Centres and
Halfway Houses (Annexure C, Regulations 44(1)(b) and (c));
iii) Basic Fire Safety Measures at Treatment Centres and Halfway Houses
(Annexure E, Regulation 44(1)(f)).
13.3.2 As set out above, the Substance Abuse Act recognises two forms of
halfway houses, being public halfway houses (section 20) and the
registration of private halfway houses (section 21). The Substance Abuse
Act creates the obligation for the DSD to oversee the registration of
private halfway houses, including the issue of a registration certificate in
order for any person to establish or manage a private halfway house. An
application form85 must be completed and submitted to the DSD, together
with a list of 14 documents (including a feasibility study, business plan,
financial statements, admission criteria and fees structure). It is
noteworthy that the application form does not include the option to apply
to the DSD for funding of a private halfway house. Additionally, section
21 of the Substance Abuse Act makes no mention of a process to apply
for the capital and/or operational funding of private halfway houses
whatsoever.
84 See section 66(1)
85 Regulation 30, Form 5
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13.3.3 Section 7(1) of the Substance Abuse Act empowers the Minister of Social
Development to "provide financial assistance to service providers that
provide services in relation to substance abuse". Services are defined as
"prevention, early intervention, treatment, reintegration and after care
and any other interventions". This definition does appear to be widely
stated and could possibly be interpreted to include halfway houses as
"any other intervention", though this is not specifically stated. It is
suggested that clarity is required here. The Regulations to the Substance
Abuse Act deal extensively with Service Providers86 and set out the
format of the application form to enter into a contract with the DSD to
provide services. Service providers must be registered NPOs. These
Regulations contemplate the purchasing of assets but do not specifically
make mention of the building or construction of assets, such as halfway
houses. The Substance Abuse Act does envisage a service provider
procuring immovable property87 under this Section and that ownership of
immovable property purchased with financial assistance from the Minister
should be registered to the State.
13.3.4 As set out above, it is unclear from the wording of the Substance Abuse
Act whether NPOs which run private halfway houses could apply for
funding in terms of Section 7(1) as service providers. It is further unclear
whether such funding would be limited to operational funding or if capital
funding could be made available to build group housing specifically to be
used as private halfway houses for substance dependents.
13.3.5 It is noteworthy that at the time of deliberation and public comments on
the Prevention of and Treatment for Substance Abuse Bill, there was
debate as to the difference between public halfway houses and private
halfway houses88.
86 At Chapter 2
87 Section 7(3)
88 "Ms Bogopane-Zulu noted the inconsistencies between Clauses 14 and 15 and stressed the need to sort out
the differences between public halfway houses and private halfway houses" See "Prevention of and Treatment for Substance Abuse Bill [B12-2008]: Deliberations on inputs by other departments" 3 June 2008 accessed at http://www.pmg.org.za/report/20080603-prevention-and-treatment-substance-abuse-bill-b12-2008-%E2%80%93-deliberation
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13.3.5.1 At the time of deliberations of the Bill in Parliament in June 2008 it
was indicated that "there were no public halfway houses in the
country". It was suggested that before the Bill would be passed
there would have to be careful consideration of the costings report
and that a letter from National Treasury would be required with
regard to these costings of the envisaged public halfway houses.
13.4 Roll out of halfway houses
13.4.1 The Substance Abuse Act commenced on 31 March 2013. The Substance
Act set out that cabinet must adopt a "National Drug Master Plan
containing the national drug strategy and setting out measures to control
and manage the supply of and demand for drugs in the Republic." The
National Drug Master Plan (2013-2017)89 ("NDMP") was approved by
Cabinet on 26 June 2013, and was to be implemented with effect from
July 2013 by the Central Drug Authority (CDA).90
13.4.1.1 The NDMP does not make mention of public (or private) halfway
houses and very briefly mentions treatment centres. It does mention
the challenge to "Implement the revised legislation on substance
abuse (Act 70 of 2008) and its accompanying regulations"91 which
would include to establish, maintain and manage halfway houses but
this is not specifically dealt with. The NDMP interviewed community
members on the environmental and individual oriented factors
needed to be dealt with in order to combat substance abuse, one of
which was "Rehabilitation or provision of access to and application of
detoxification, rehabilitation, aftercare and re-integration with
society for those suffering from substance abuse/dependence"92. The
NDMP also identifies the government outcome of "Suitable human
settlements and improved quality of household life" as being
89 Accessible at http://www.dsd.gov.za/index2.php?option=com_docman&task=doc_view&gid=414&Itemid=3
90 http://www.dsd.gov.za/cda/index.php?option=com_content&task=view&id=115
91 At page 27
92 At page 45
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relevant to the NDMP93. The extract set out below shows this
outcome, together with indicators of achievement, baseline data,
suggested targets and functional areas, i.e. those departments and
other stakeholders who would be expected to achieve them94:
13.4.1.2 One of the specific NDMP outcomes mentions95 treatment and
aftercare services, though not halfway houses specifically:
13.4.1.3 The NDMP then identifies the particular departments as "pivotal in
the fight against drugs", setting out a brief description of these
departments and their functions in respect of "dealing with the drug
problem."
93 At page 78
94 At page 83
95 At page 98
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13.4.1.4 Once again, the NDMP does not specifically mention halfway houses.
It does however mention treatment centres at community level.
Treatment Centres are defined in the Substance Abuse Act and are
distinct from Halfway Houses.
13.4.1.5 Similarly, in its mention of National Treasury in this section, no
mention is made of the need to fund the establishment,
maintenance and/or management of public and/or private halfway
houses.
13.4.1.6 The NDMP fails to deal with halfway houses and the obligations of
the DSD in this regard, as part of the holistic strategy to combat
substance abuse.
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13.4.1.7 In a media report96 in October 2013, the CDA made the following
statement with reference to the NDMP:
“The plan is to increase the number of treatment centres but
also to have treatment centres in every province,” said Peter
Ucko, CDA’s chair of marketing and communication. “We also
want to look after care services because of the high rate of
relapse among substance abusers.”
13.4.1.8 The report continues:
"According to CDA Chairperson Mogotsi Kalaeamodimo, the
plan aspires to implement the country’s 2008 Prevention of and
Treatment for Substance Abuse Act, which mandated treatment
centres in every province as well as the creation of public
halfway houses. Halfway houses allow recovering substance
abusers to live in home where, under monitoring and follow up
care, they can begin to re-integrate into society by, for
instance, looking for work.
Currently, public sector drug treatment facilities are only
available in the Western Cape, Gauteng, Mpumalanga and
KwaZulu-Natal.
No public halfway houses currently exist in South Africa.
The Department of Social Welfare recently requested additional
funds from Treasury to build treatment centres in provinces
lacking treatment centres – the North West, Free State, Eastern
Cape and Northern Cape. According to Kalaeamodimo, a facility
has already been built in Limpopo but is not yet operational.
Uninsured people battling substance abuse usually access state
rehabilitation services via court orders or social worker
96 http://www.health-e.org.za/2013/10/16/government-switches-strategy-drugs/
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referrals. A lack of state-run facilities means that non-
governmental organisations play a key role in filling the gap,
particularly the South African National Council on Alcoholism
and Drug Dependence (SANCA)."
13.4.2 The DSD's Annual Report for the year ended 31 March 201497 ("the
Annual Report") also mentions very little on halfway houses.
13.4.2.1 The Annual Report deals with Substance Abuse as a whole,
mentioning certain "significant advances" in respect of capacitating
all nine provinces to implement the Substance abuse Act. The
Annual Report mentions securing R150 million from National
Treasury "to establish four public treatment centres in provinces that
do not have such facilities. These facilities will be built in the next
three years."98
We are informed by the DSD that a public treatment centre is a
facility that provides public in patient substance dependency
treatment and is residence based.
13.4.3 The Substance Abuse specific strategic objectives also mention treatment
services, rather than halfway houses. No objectives are established in
respect of the establishment, maintenance and management of public
halfway houses, despite the statutory mandate created in the Substance
Abuse Act. Similarly, there is no mention of funding private halfway
houses.
97 Accessed http://db3sqepoi5n3s.cloudfront.net/files/141015dsd_ar.pdf
98 At page 71
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13.4.4 On 9 May 2014, the frameworks for conditional grants were published by
the National Treasury99. A Substance Abuse Treatment Grant under Social
Development Grant was including with the purpose to "provide funding
for the construction of substance dependency treatment facilities in the
provinces of Northern Cape, North West, Eastern Cape and Free State."
Once again this refers to treatment facilities rather than halfway houses
and makes no mention of funding for NPOs to build and/or operate
private halfway houses. The amounts allocated are 2014/15: R29 million;
2015/16: R48 million; 2016/17: R48 million. According to the notice,
provinces were supposed to submit their first draft project charter and
assessment of project charter to the national department by 14
November 2014.
99 Government Gazette No. 37613
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13.5 Summary: People under substance rehabilitation
The statutory mandate of the DSD to provide special needs group housing for people
who are rehabilitating substance abusers is clear from the Substance Abuse Act although
it is unclear if this extends to such housing provided and owned by NPOs. Regulations
have also been promulgated to create minimum norms and standards to give effect to
this mandate. There appears to be confusion as to the difference between public halfway
houses and treatment centres. Alternatively, halfway houses have been overlooked for
purposes of the NDMP and the Anti-Substance Abuse Programme of Action 2011-2016,
which also fails to mention this term.
Clarity is needed as to whether NPOs running private halfway houses or wishing to
establish private halfway houses may apply for capital and operational funding to do so
from the DSD at all or as service providers under Section 7(1). It is also unclear as to
whether or not private halfway houses have been prioritised as a need of and service for
persons affected by substance abuse, as contemplated in Section 7(1)(b). This is a
requisite for funding to be made available to service providers, as they must be
rendering "prioritised services"100.
14 PEOPLE WITH DISABILITIES
14.1 Responsible oversight Department: Department of Social Development.
14.2 Source of mandate
There is no legislation that is specific to disability in South African law. Issues relating to
disability are dealt with in a range of Acts. There is no Act that regulates group housing
for people with disabilities. We are advised that the DSD is currently in the process of
drafting a Disability Bill.
14.2.1 Integrated National Disability Strategy White Paper, 1997 ("the INDS")
14.2.1.1 The INDS includes the following recommendation101:
100 Regulation 3(1), Chapter 2
101 Recommendation 14
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"It is recommended that the Department of Housing, in
consultation with the Departments of Welfare and Health, the
South African Federal Council on Disability (SAFCD), the
National Housing Board and other relevant stakeholders,
facilitate the development of national guidelines and minimum
norms and standards for:
a. additional subsidies to the existing housing subsidy
scheme;
b. subsidies for capital expenditure for residential group
homes, and
c. funding for the transformation of existing large
institutions into smaller group home units."
The recommendation does not create a mandate or statutory
obligation. It is noteworthy that INDS identifies the Department of
Housing as being primarily responsible for this role.
14.2.2 Department of Social Development ("DSD") Policy on Disability
(undated)102 ("Disability Policy")
14.2.2.1 The Disability Policy sets out as one of its aims to "facilitate the
provision of integrated social services to people with disabilities"103.
One of the Disability Policy objectives is to "define the role of social
development in service provision to People with Disabilities"104.
14.2.2.2 The "provision of Residential Facilities" is listed as a core service of
the DSD105. However, when listing the primary roles and secondary
roles of the DSD106, the Disability Policy makes no mention of group
housing or residential facilities. Secondary roles such as "Provision of
102http://www.dsd.gov.za/index.php?option=com_docman&task=cat_view&gid=32&dir=DESC&order=date&It
emid=39&limit=10&limitstart=10
103 At page 15
104 At page 15
105 At page 29
106 At page 25
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transport; Provision of assistive devices; Promoting employment
opportunities; Facilitating for inclusive education processes;
Provision of medical rehabilitation and Economic empowerment to
people with disabilities" are listed but the group housing special
needs of people with disabilities is excluded here.
14.2.2.3 The Disability Policy deals with Residential Facilities for People with
Disabilities.107 Activities in respect of providing residential facilities
are set out in some detail. No mention is made of the funding of or
provision of financial assistance or awards to service providers
and/or NPOs to build, establish, maintain and manage residential
facilities. Further, no mention is made of a duty on DSD to build
residential facilities or group housing.
14.2.2.4 The Disability Policy lists the removal of a person with disabilities to
a residential care facility as a statutory intervention "to prevent
secondary abuse".108 The provision of residential facilities is listed
but again, there is no mention of funding for same.
14.2.2.5 The Disability Policy mentions the variety of role players involved in
the provision of social services for people with disabilities. "Housing"
is mentioned in the list of role players. No further detail is provided
as to the role of Housing in the provision of residential facilities.
14.2.2.6 The Disability Policy deals briefly and broadly with the allocation of
resources to service providers, stating that it must be done in terms
of DSD Policy on Financial Awards to Service Providers109 (see
discussion of this policy below).There is no inclusion of specific
details in respect of funding of residential facilities.
107 At page 35
108 At page 39
109 At page 42
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14.2.3 UN Convention on the Rights of People with Disabilities ("UNCRPD")
14.2.3.1 South Africa ratified the UNCRPD and its Optional Protocol in
November 2007. The UNCRPD subsequently entered into force on 3
May 2008.
14.2.3.2 Article 28 creates the duty on State Parties to "take appropriate
steps to safeguard and promote the realization of this right including
measures to ensure access by persons with disabilities to public
housing programmes."110
14.2.3.3 Final Draft UNCRPD Country Report ("the Country Report")
14.2.3.3.1 South Africa is required to prepare a Country Report to analyse
the situation and status of persons with disabilities and how the
UNCRPD is being implemented and achieved in the country.
14.2.3.3.2 The Country Report sets out the following:
110 Article 28(2)(d)
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14.2.3.3.2.1 Under the heading " Adequate housing and basic services"
the Country Report states as follows:
14.2.4 Disability Framework for Local Government 2009-2014, Department:
Provincial and Local Government ("Disability Framework")
14.2.4.1 The Disability Framework does not deal specifically with group
housing or residential facilities for people with disabilities. There is
mention of housing under challenges, with a focus on same being
inaccessible to people with disabilities. The Disability Framework
considers the role of national departments111 and lists that of
Housing to be:
111 At page 37
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and that of Social Development to be:
14.2.4.2 The Disability Framework identifies "a lack of adequate funding to
support disability-related initiatives"112 as one of the key issues and
challenges that people with disabilities face in achieving equality,
inclusion and empowerment. The Disability Framework suggests that
"in addition to the coordinating function, provincial governments
should build municipal capacity in a number of ways, such as
facilitating or funding aspects of the Disability Framework."113 The
Disability Framework does not cover the funding of NPOs to provide
services for people with disabilities by Provincial and Local
Government.
14.3 Summary: People with Disabilities
There is no statutory mandate on any government department to establish and/or fund
residential facilities for people with disabilities. The Disability Policy determines an
obligation on DSD to provide residential facilities. However, this is not expanded on in
any detail, nor does it create the specific mandate to fund NPOs or other service
providers to build, establish, manage or maintain residential facilities for people with
disabilities. A role on the part of Housing is alluded to, but no detail is provided as to
what this role is. The UNCRPD creates obligations on the State in general to ensure
access to public housing programmes. The Country Report paints a picture of slow
implementation of this obligation. The INDS recommendations echo those of the Housing
White paper to modify existing subsidy programmes and suggest additional subsidies
and capital expenditure subsidies.
112 At page 16
113 At page 38
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15 PEOPLE WITH INTELLECTUAL IMPAIRMENTS
15.1 Responsible oversight Department: Department of Health.
15.2 Source of mandate:
15.2.1 Mental Health Care Act 17 of 2002 ("MHC Act")
15.2.1.1 The MHC Act creates a duty on the Minister of Health to designate
health establishments as psychiatric hospitals or care and
rehabilitation centres.114The Minister may also designate health
establishments for State patients115 and for "prisoners who are
mentally ill"116.
15.2.1.2 The MHC Act also contemplates the "establishment of child,
adolescent and geriatrics facilities to promote their mental health
status and their admission, care, treatment and rehabilitation at
health establishments"117. The MHC Act does not set out by whom
same would be established nor how they would be funded.
15.2.1.3 Finally, the MHC Act empowers the Minister of Health to make
regulations on "authorisation and licensing of health establishments
administered under the auspices of State, a non-governmental
organisation or private body providing mental health care, treatment
and rehabilitation services and conditions to be attached to such
authorisation or licence."118 This is the only indication in the MHC Act
that a non-governmental organisation or private body may provide
mental health care, treatment or rehabilitation services.
114 Section 5
115 Section 41
116 Section 49
117 Section 66(1)(h)
118 Section 66(1)(o)
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15.2.1.4 The Regulations to the MHC Act set out conditions for authorisation
and licensing of private hospitals providing mental health services119.
There is no mention of the option to apply for funding from the
Department of Health. Community facilities, including a residential
or day-care facility for 5 people or more must be licenced with the
provincial Department of Health. The requirements to obtain such a
license do not include the provision of any financial information of
the community facility (such as a business plan, budget, annual
financial statement, funding sources) and there is similarly no
provision for the application for funding under the Regulations.
15.2.1.5 The MHC Act is completely silent on any type of funding or financial
assistances or rewards of service providers (being NPOs or private
bodies) for the establishment, management and/or maintenance of
group housing facilities for mental health users. No mandate is
created to fund special needs group housing under this Act.
15.2.2 National Mental Health Policy Framework and Strategic Plan 2013-2020120
("the MH Plan")
15.2.2.1 The MH Plan provides a breakdown of community residential
healthcare as at 2005, however does not specify who is funding or
managing these facilities. Gauteng had the highest number with 24,
followed by KZN with 13. In the North West and the Northern Cape
there were 0.121
15.2.2.2 Goals established to be reached by 2020 include122:
119 Chapter 9 of the Regulations
120 http://www.health.gov.za/docs/Policies/2013/MENTAL%20HEALTH%20POLICY%20FINAL%2028.1.14.pdf
121 At page 17
122 At page 23
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15.2.2.2.1 It is unclear to which provisions of the MHC Act are being
referred as the basis for community programmes to be funded.
As indicated above, the MHC Act only provides for licensing, not
for funding of voluntary and consumer organisations.
15.2.2.3 The financing goals for 2014 as set out in the MH Plan123 do not
mention the funding of community residential care.
15.2.2.4 The MH Plan outlines the roles and responsibilities. Regarding non-
governmental organisations it sets out that "The Provincial
Departments of Health will licence and regulate the provision of
community-based mental health services by NGOs and for-profit
organisations, such as community residential care, day care
services, and halfway houses. This is in keeping with section 43 of
the regulations of the Mental Health Care Act."124
15.2.2.5 Appendix 2 to the MH Plan sets out Inter-Sectoral Roles and
Responsibilities. The Housing Sector is set out below125:
123 At page 25
124 At page 32
125 At page 46
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15.2.2.5.1 It is clear that the Department of Health considers the housing
sector related responsibilities for mental health users to lie
squarely with the Department of Human Settlements.126
15.2.2.6 National Health Act 61 of 2003
15.2.2.6.1 The National Health Act does not refer to shelters, residential
care facilities or any other forms of group housing. No mandate
arises from this Act.
15.3 Summary: People with Intellectual Impairments/Mental Health User
A non-governmental organisation or private body may provide mental health care,
treatment or rehabilitation services, including residential facilities. Such community
facilities must be licensed by the Department of Health. The MHC Act is completely silent
on any type of funding or financial assistances or rewards of service providers (being
NPOs or private bodies) for the establishment, management and/or maintenance of
group housing facilities for mental health users. No mandate is created for the
Department of Health or any other government department to fund special needs group
housing under MHC Act. The MH Plan makes it clear that from the perspective of the
Department of Health, the housing sector related responsibilities for mental health users
lie squarely with the Department of Human Settlements.
126 All responsibilities for the DSD related to social grants rather than housing. At page 45.
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16 PAROLEES, PROBATIONERS AND EX-OFFENDERS
16.1 Responsible oversight Department: Department of Correctional Services
("NDCS").
16.2 Source of mandate:
16.2.1 Correctional Services Act 111 of 1998 at section 16(1) "Correction,
development and care programmes and services" which reads as follows-
"(1) The Department may provide correction, development and care
programmes and services even when not required to do so by this
Act."
16.2.2 Probation Services Act 116 of 1991 at section 3 "Programmes for the
combating of crime and the rendering of probation services" which reads
as follows-
"The Minister may, in respect of different categories of persons,
establish or cause to be established programmes or services which
are aimed at-
(g) the establishment, financing and registration of
shelters".
Shelter is defined to mean "an institution where shelter is
temporarily provided for, and aftercare is temporarily rendered to –
(a) (i) persons who have been released from prison;
(ii) persons who are subject to supervision; and
(iii) persons at whom a programme referred to in Section 3
is aimed,
and who have no lodging or refuge immediately after such release or
during such supervision or the implementation of such programme;
(b) Families of persons referred to in paragraph (a)".
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16.3 Obligations, powers and functions of the NDCS
16.3.1 The NDCS has approved127 a Draft Policy on Halfway House ("the HH
Policy"). It is our instruction that this policy has been adopted as final.
The main purpose of the HH Policy is to "provide a uniform directive on
the adoption of the existing Halfway House for use DCS officials."
16.3.2 The HH Policy defines Halfway House as "a Community Based Residential
Facility or centre which accommodates parolees and probationers who are
eligible for release and do not have monitorable addresses."
16.3.3 The HH Policy is clear – "the DCS does not intend to build or own Halfway
Houses". Rather, it intends to develop partnerships with selected Non
Profit Organisations for the adoption of "all existing Halfway Houses
operated by these organisations."
16.3.4 The HH Policy aims inter-alia to "provide minimum criteria for funding of
Halfway Houses" and to "provide funding to all Halfway Houses and foster
continued learning aid exchange knowledge between them". A guiding
principle of the HH Policy is that "the Department shall deposit funding
into the bank account of the nominated Non-Profit Organisation."128
16.3.5 The HH Policy further aims to "Encourage Halfway Houses to source other
funding from other Government Departments."129 The HH Policy does not
elaborate on this objective, nor does it explain the meaning of "other"
funding nor establish which other Government Departments are
contemplated here or on which basis such funding should be sought.
16.3.6 The Draft Policy Procedures on Halfway House stipulate that "Area
Management level will be responsible to budget annually for the provision
of funds for the coordination, management and administration of the
127 On 25 June 2013
128 At page 8
129 At page 8
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various processes applicable to these procedures." This document refers
to Halfway Houses as "Community Based Residential Facilities (CBRF)". It
also establishes that it is the responsibility of the Community Liaison
Officer to allocate budget for the Halfway House and to deposit funding
into the bank account of the nominated Non-Profit Organisation. This is to
take place on a monthly basis130.
16.3.7 The HH Policy sets out the oversight and regulatory functions of NDCS
officials, mainly through the Regional Commissioners and Area
Commissioners131.
16.4 Roll out of the HH Policy
16.4.1 The NDCS includes Halfway Houses in its Strategic Plan for the Fiscal
Years 2012/2013 – 2016/2017 ("the 2012 Plan").132 The 2012 Plan
reports that "Considerable progress has been made on the Halfway House
and as this plan is presented, the pilot has taken-off and the first house
in Naturena is completed; accommodating 6 juvenile parolees as a pilot."
The Strategic Overview mentions the Halfway House Policy as one of the
planned policy initiatives. "The piloting of Halfway Houses for parolees
without monitorable addresses" is listed as one of the strategies to down
manage overcrowding.
16.4.2 The NDCS Performance Plan 2012/2013133 sets out the performance
indicators and targets for the Community Reintegration Sub-Programme
of Programme 5: Social Reintegration. The performance indicator is
"Framework for Halfway Houses and piloted halfway houses". Targets are
set out as follows134:
130 At page 21
131 At page 9
132 Accessed http://www.dcs.gov.za/docs/landing/Strategic%20Plan%202012%20FINAL.pdf
133
http://www.dcs.gov.za/Publications/Annual%20Reports/DCS%20Annual%20Performance%20Plan%202012-13.pdf
134 At page 43
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16.4.3 The updated strategic analysis set out in the NDCS Performance Plan
2014/2015135 ("the 2014 Plan") specifically mentions that "Two significant
changes in the business process resulted in the initiation of policy
development in relation to Halfway Houses and the electronic monitoring
of parolees. These policies will be implemented during 2014/2015."136 The
2014 plan sets out the strategic objectives and annual targets for
2014/2015 – 2016/2017 and includes the target number of parolees
"reintegrated through halfway house partnership". Relevant extracts137
from the 2014 plan is set out below:
135 http://db3sqepoi5n3s.cloudfront.net/files/140715scsecurity_app_201415.pdf and
http://www.pmg.org.za/print/report/20140715-department-correctional-services-its-2014-strategic-plan-deputy-minister
136 At page 10
137 At page 46, 47
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16.4.4 It is unclear whether service level agreements ("SLAs") have in fact been
rolled out for six halfway houses as set out in the estimated performance
above. Our research has identified two halfway houses, being Victoria
House in Naturena and Beauty for Ashes in the Western Cape.
16.4.5 The 2014 Plan sets out that the Director: Community Liaison is
responsible for gathering the information on whether or not these targets
are reached.138
16.4.6 Halfway houses would fall under Programme Social Reintegration in the
budget below:
16.4.7 This inclusion of the objective to increase the number of parolees
reintegrated through halfway house partnerships as a programme
indicator may be viewed as a positive move to provide special needs
group housing. However, as there is no specific line item for halfway
house funding set out in the budget, it is unclear as to what amount of
funding will be made available to carry out this policy. We are instructed
that it is PPT's understanding that DCS expects NPOs to provide the
138 At page 79
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facilities and that the DCS will determine the residents of each halfway
house and will provide operational funding to approved projects.
16.4.8 In July 2014, Acting National Commissioner Zach Modise addressed a
two-day National Management Committee ("NatManCo") meeting held in
Cape Town. According to a report on this address139 highlighting a
number of decisions taken by the NatManCo meeting, "A task team has
been established to evaluate some of the department’s projects and
campaigns, including … halfway houses … to determine their continuance
or not".
16.5 Summary: Parolees, probationers and ex-offenders
NDCS has created a policy to provide special needs group housing for parolees and
probationers in the form of halfway houses. This policy is a component of their Social
Reintegration Programme. Operational funding is to be sourced from the Social
Reintegration Programme budget of the NDCS. SLAs are to be signed with existing
halfway houses run by NPOs. Services and programmes are to be rendered by the NPOs
in terms of the SLA and the policy, to be monitored and evaluated by NDCS. Regulation
and oversight of these halfway house facilities lies with the NDCS. The policy is clearly
limited to existing halfway houses and does not contemplate the building of new halfway
houses or other form of community based residential facilities.
139 Corrections@Work Staff Newsletter of the Department of Correctional Services, Jun-Aug 2014 ISSN 2312-
4393 at page 4 accessed at http://www.dcs.gov.za/docs/landing/Corrections@work_01.pdf
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C GENERAL LEGISLATION AND POLICY CONSIDERED
17 DSD POLICY ON FINANCIAL AWARDS TO SERVICE PROVIDERS (MARCH
2011)
17.1 As has been indicated in the policy review above, certain Acts do allow for
financial assistance or support ("financial awards") for services delivered in
relation to certain social service functions of the DSD, such as the prevention
and treatment of substance abuse, residential facilities for older persons and
assistance of victims of human trafficking. Ordinarily, these Acts include the
power to make regulations to determine the circumstances in which service
providers, including NPO's, can qualify for financial awards.
17.2 In addition to the regulations specific to particular Acts, the DSD has
developed the Policy on Financial Awards to Service Providers 2011
(“PFASP”)140 with, inter-alia, the following objectives141:
"To create an enabling environment for the provision of social services by non-
profit organisations.
To define the roles and responsibilities of the three spheres of government in
the implementation of the policy.
To define the relationship between the government (national and provincial
Departments of Social Development) and non-profit organisations who deliver
social services.
To provide a mechanism for embracing and supporting new and emerging
organisations for the benefit of previously disadvantaged communities.
To facilitate transformation of services rendered by the non-profit
organisations.
To provide mechanisms for financing of non-profit organisations rendering
social services.
To serve as a basis for the development of a legal mandate for the financing of
non- profit organisations."
140 http://www.dgmt.co.za/files/2011/07/DSD-Policy-on-Financial-Awards-March-2011.pdf
141 At page 15
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17.3 The PFASP provides for funding of a range of programmes under the following
broad categories:
"Services to children and families; Prevention of HIV and AIDS and support to
people infected and or affected by HIV and AIDS and social protection; Youth
Care and Development; Services to Women; Victim empowerment services;
Services to people with disabilities; Social Crime Prevention and social
support; Poverty Alleviation Programmes; Services to older persons;
Prevention and support services for alcohol and substance abuse; Social relief
of distress; and Community empowerment services and development,
including life skills, education and celebration of national and international
days; Community development and related social mobilization programmes;
Food security services; Research and Development and Training and Capacity
building". 142
17.4 As has been indicated above, the building of special needs group housing
(including shelters and residential facilities) is not specifically mentioned in the
PFASP.
17.5 Financing is dependent on availability of government resources and priorities
of the DSD which are illustrated in Department’s Strategic Plan, Annual
Performance Plans and service delivery specifications. This policy further
provides that the DSD, irrespective of its constitutional obligation, "it is not the
sole provider of all social services to meet the broader needs of communities.
Non-profit organisations and civil society organisation are expected to raise
funds from other sources such as other state departments, donor
organisations, corporate social responsibility programmes from the private
business sector, through trusts and foundations and the proceeds from
lotteries."143 No clarity is provided as to how funds should be sourced from
other state departments and from where such a mandate for these
departments to provide funds is derived.
142 At page 31-32
143 Section 10
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17.6 The Programme Financing approach in the PFASP does not stipulate that
programmes include the building of special needs group housing or other
immovable assets. The PFASP explains that DSD "will finance or purchase
services from service providers or non-profit organisations through a process
of call for proposals. These processes will be outlined in the NPO financing
guideline". The content here is not specific and refers to further policies to be
drafted. We are advised by DSD that funding is limited to operational costs
and that capital funding is not provided.
17.7 The PFASP is silent on conditions for the management and disposal of assets
acquired by service providers with financial awards and as such, is also silent
as to the ownership or requirements for registration of immovable property
developed (if such development is in fact possible) with funds appropriated
from DSD in terms of the legislation providing financial awards to service
providers providing social services in terms of specific Acts, including those set
out above.
17.8 In an explanatory presentation entitled "DSD PRIORITIES AND POLICY ON
FINANCIAL AWARDS TO SERVICE PROVIDERS 25 MAY 2011"144, the DSD
explained that desire to "move from subsidization to programme financing in
accordance to national norms and standards and costing models to ensure
uniformity". The presentation highlighted that financing would be based on
affordability and departmental priorities.
17.9 On 22 August 2011, Parliamentary Committee on Social Development was
briefed on its revised Policy on Financial Awards. It was noted that "Guidelines
were also to be drawn and implemented to deal with interaction between the
Department and the various non-profit and non-government organisations
(NPOs and NGOs) which whom it formed partnerships or agreements to
provide social services. It was noted that the initial policy on financial awards
was implemented in 1995 but the running of this policy over the next five
years revealed several shortcomings in the delivery of social services, and,
more importantly, in the failure to achieve real transformation. The more well-
144 http://www.slideshare.net/Trialogue/making-csi-matter-navigating-development-funding-p-netshipale
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established and better-funded NGOs, and those in the urban areas, had
continued to be used, and there was lack of real service at grassroots level.
Other problems included the lack of effective policy, the need for enhanced
service specifications, and the need to adopt a new approach to financing.
Lack of uniformity in implementing the policy was another problem, and it was
not properly aligned with all legislation. Sometimes the NPOs failed to disclose
funding or to comply with the legislation. A joint strategic committee had
reviewed and approved a new Policy, which would be implemented from 2012.
The main areas strengthened by this included a recognition of the significance
of partnerships, and improvement in relationships. The roles and
responsibilities would be more clearly identified and specified. An important
aspect revolved around effective management of financing services."145
17.10 Shortly thereafter, in September 2011, a second meeting of the Portfolio
Committee was held where the PFASP was discussed together with a
submission made in respect thereof by a range of NPO's in the children's
sector. One critique raised in their submission was that "the document does
not adequately recognise that the funds provided to NPOs are an essential
element of government delivering on its own mandate and obligations". A
resulting recommendation was made by the NPO sector "that the name of the
DSD policy should be changed to “Funding of Social Service Providers” rather
than “Financial Awards for Service Providers”. The word “awards” implied that
the funding was a gift from Government, whereas the funding should properly
be viewed as payment for services rendered. The NPOs should be properly
contracted to provide the services, and paid a full cost for delivering quality
services."146 This is a critical point. If there is a legislated mandate for DSD to
provide certain social services this means that the government is obliged
either to provide these services itself, or to ensure that others (such as service
providers including NPOs) provide the services147.
145 http://www.pmg.org.za/report/20110823-department-finalization-national-policy-financial-awards-and-
npos-pol
146 http://www.pmg.org.za/report/20110913-childrens-institute-national-policy-financial-awards-and-npos-
policy-
147 Children's Institute, Submission on Department of Social Development’s Policy on Financial Awards to
Service Providers to the Parliamentary Portfolio Committee on Social Development Date: 13 September 2011 at page 6
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17.11 Summary: Although the PFASP establishes a structured process for
Government collaboration with and funding of NPOs providing specified social
services and establishes an obligation on the DSD to provide such funding, it is
not specific in respect of the provision of capital funding for the construction of
special needs housing nor is there precedent of it having been used for such
purposes.
18 NON PROFIT ORGANISATIONS ACT 71 OF 1997 ("NPO ACT")
18.1 The NPO Act assists NPOs to understand the State's responsibility to them. The
NPO Act sets out that "Within the limits prescribed by law, every organ of state
must determine and co-ordinate the implementation of its policies and
measures in a manner designed to promote, support and enhance the capacity
of non-profit organisations to perform their functions."148 This provision is
mandatory.
18.2 The NPO Act establishes a Directorate for Non-profit Organisations, which is
housed within the Department of Social Development.
18.2.1 The NPO Act sets out the responsibilities of the Directorate, which include
"facilitating the development and implementation of multi-sectoral and
multi-disciplinary programs."149 The term "programs" is not defined. As
such, there is no indication as to whether or not this could include a
special needs group housing building development which caters to a
range of vulnerable people in terms of multiple social services and
legislation. It is also unclear whether "facilitating" would be construed to
mean the provision of funding by the Directorate to a NPO or service
provider to develop and implement such program. We are instructed that
in practice, NPOs are not provided with capital funding for the
construction of SNH facilities. The funding is typically utilised for
operational purposes or for furniture, equipment and maintenance.
148 Section 3
149 Section 5(d)
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18.2.2 The NPO Act sets out the effect of registration as a NPO. The listed effects
do not make reference to qualification for financial assistance or rewards
for the provision of social services to the DSD or any other government
department. As set out above, some legislation does require service
providers applying for financial assistance to be registered as NPOs.
19 NATIONAL WELFARE ACT 100 OF 1978 ("NWA")
19.1 The NWA establishes the South African Welfare Council ("SAWC") and regional
welfare boards. The functions of the SAWC are advisory in relation to general
welfare policy and the measures required to deal with social problems and
provide social services. The role of the SAWC is to provide information and
guidance. There is no provision in the NWA that binds the Minister of Social
Development to adhere to such advice.
19.2 Regional Welfare Boards are mandated to "determine the existing and future
welfare needs of the inhabitants or any particular section of the inhabitants of
its region or any part thereof, and for this purpose investigate and consider
any representations received in this connection"; and to "plan and prepare in
the prescribed manner a welfare programme"150.
19.2.1 The NWA is silent on the funding of such welfare programmes.
19.2.2 Welfare programme is not substantively defined. In our reading of the
NWA, there is no indication that a Regional Welfare Board is precluded
from suggesting special needs group housing developments by a NPO and
the capital funding thereof as a welfare programme in response to
welfare needs.
20 WHITE PAPER FOR SOCIAL WELFARE 1997151
20.1 This White Paper represented a change in the inter-relations between
government and NPOs towards a more participatory approach. The White
Paper contemplates the funding of social welfare programmes-
150 Section 12
151 http://www.gov.za/sites/www.gov.za/files/White_Paper_on_Social_Welfare_0.pdf
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"24. A shift will be made from the subsidisation of social work posts and
unit costs of facilities and services to the financing of social welfare
programmes in accordance with the principles and guidelines for
reprioritisation set out in Chapter 2.
(a) The national Department of Welfare will develop national guidelines
on the financing of welfare programmes. These guidelines will be
developed in consultation with stakeholders. Recommendations will
be made regarding the nature and scope of programmes to be
financed, including the strategies to be employed; the development
of eligibility and financing criteria; the setting of norms and standards
for programmes; the development of user-friendly application,
monitoring and accountability procedures; changes in the accounting
and budgeting system of the public sector; and an approach to the
management of the transition from the old financing system to the
new.
(b) Some social welfare programmes may be financed in full through
contractual arrangements between Government and organisations
which are able to deliver an efficient and effective service, while
others will be partially Government-financed. Such contractual
agreements will be reached after tendering to deliver the services.
Organisations, institutions and accredited private practitioners or
consortiums of private practitioners and organisations are potential
contractors.
(c) The Government will finance statutory programmes, including related
services and facilities and alternatives such as family placements and
supervised community-based options. Appropriate and affordable
criteria, norms and standards for the delivery and funding of
statutory services will be developed and set. Such financing will be
phased in over the five-year period of the budgetary reform plan and
within the limits of Government resources.
(d) The departments of welfare will embark on a planned process to
facilitate the fundamental restructuring of the financing of welfare
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services. Capacity-building initiatives will facilitate the changes and
assist under-developed CBOs to meet the requirements of
programme financing. This is necessary if services are to reach
underprivileged communities.
(e) All systems and administrative and accountability procedures must
be user-friendly and efficient. The change to programme financing
will be completed within five years.
(f) The financing of social welfare programmes will be based on
approved business plans and will reflect the priorities of the
Government of National Unity. Standard business plans will be
developed to be used by all the provinces. Clear outputs and
performance audits will be required.
(g) During the change from one system to another, the Government will
finance welfare services according to the current formula. Pending
the outcome of the guidelines on the financing of welfare
programmes, an interim arrangement will be devised, and nationally
agreed upon criteria will be formulated for the reprioritisation of
current programmes. These interim arrangements will be devised in
consultation with the parties concerned. During this interim period
welfare organisations will provide business plans to indicate how they
have reorientated or are reorientating their services towards
reconstruction and development, what they have done, and what
they are doing to achieve equity."
20.2 The White Paper does refer to a responsibility on Government to provide
capital funding, making provision for "Appropriate infrastructural programmes
and facilities" to be developed. It does not expressly state that funding for
capital projects will be made to NPOs nor does it specify which government
department would provide such funding. In the cited examples, special needs
group housing is not mentioned specifically. The provision is qualified though-
"Existing infrastructure will be more effectively utilized and further capital
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projects will only be developed after a rigorous needs assessment"152. We are
advised by the DSD that it does not make capital funding available to NPOs.
20.3 The White Paper deals succinctly with the overlap of responsibilities of
government departments, clarifying that "various Government departments
will be encouraged to develop complementary financing policies in order to
achieve shared social goals" which is enabled by "ongoing communication and
information exchange on the financing of joint social programmes". The White
Paper acknowledges the possibility for departments to be jointly involved in
the implementation of legislation and states that "those involved in developing
infrastructures will be encouraged to address the financing of ongoing running
costs."153
20.4 It is our view that the spirit and purport of the White Paper as set out above
would be met through a collaboration between the DSD and the Department of
Human Settlements to make capital funding available for the establishment of
special needs group housing by NPOs in situations where there is an assessed
need for same.
152 Section 27 at page 48
153 Section 28
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D. SUMMARY OF MAIN FINDINGS AND RECOMMENDATIONS
21 Through the process of reviewing the legislation and policies set out above, the
following has been ascertained:
21.1 A clear obligation exists on DHS to prioritise the provision of housing for
people with special needs including the disabled, marginalised women and
other discriminated groups, particularly in light of the increased need for
special needs housing (including old aged homes, homeless shelters and
health care facilities).
21.2 In some instances, certain oversight Departments have specified their
expectation that the Department of Human Settlements should provide such
capital funding (e.g. the Mental Health Plan of the Department of Health in
respect of community residential care identifies the DHS as being responsible
to develop policies and provide housing for people with intellectual disabilities
through the national housing programme; the Integrated National Disability
Strategy White Paper (1997) identifies the DHS as the Department primarily
responsible for persons with disabilities and specifically envisages capital
subsidies for group homes; the South African Policy for Older Persons (March
2005) indicates that the DHS failed to provide ‘sheltered housing’ for older
persons and that the DSD has neither the capacity nor the funding to build
such housing; the DSD Policy on Financial Awards to Service Providers
indicates that they are not the sole source of funding for NPOs and that they
have an expectation that NPOs will raise funds from other sources including
from other state departments).
21.3 The Department of Human Settlements is constitutionally required to
implement the housing programmes in South Africa. There is an obligation
created by the Housing Act that in the development of housing, the needs of
certain vulnerable, marginalised and poor persons must be promoted. The
Housing White Paper describes a duty on the State to reflect constant
awareness of special needs in housing policies and subsidy programmes. At
the time of the Housing White Paper, some 15 years ago, there was already
the acknowledgement that with an increasing prevalence of social problems
comes an increased need for shelters, old age homes and other group housing
facilities.
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21.4 The Department of Human Settlements is failing to directly and adequately
fulfil the mandatory requirements of the Housing Act. Stakeholders and
industry experts are vocalising the insufficiency of trying to fit special needs
group housing into the Institutional Housing Subsidy. The disability sector
identified the problem as far back as 1997 in the INDS – there was a need
then to facilitate the development of national guidelines and minimum norms
and standards for additional subsidies and subsidies for capital expenditure for
residential group homes. 17 years later, this need has not yet been met.
21.5 Simultaneously, special needs group housing in varying forms (such as
halfway houses, residential care facilities, secure care, CYCC's and shelters) is
described in various Acts. This legislation creates certain mandates on the
Departments of Social Development, Correctional Services and Health and the
existence of these facilities (both State and NPO owned and operated)
practically effects the implementation of these Acts. The special needs group
housing contemplated in the legislation considered above is a statutory
mechanism to protect vulnerable groups. Special needs group housing facilities
are social services but simultaneously also housing programmes which should
accordingly fall under the scope of the national housing framework.
The need for varying forms of Special Needs Group
Housing in legislation & policy as social services
(eg. Residential Facilities for people with disabilities
and/or older person; halfway houses for parolees and/or
substance dependents, mental health care
community residential care facilities, safe care, CYCCs
and shelters for Abused Persons incl. victims of
human trafficking)
The constitutional & statutory mandate on
the Department of Human Settlements to give priority to needs of the poor, promote the meeting of special
housing needs and promote housing needs of marginalized women & other disadvantaged
groups.
SNH
Policy or
Policy
Directive
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21.6 The White Paper for Social Welfare of 1997 confirms that various Government
Departments will need to provide ‘complementary funding policies in order to
achieve shared social goals’. This could include co-operation in respect of the
provision of capital funding by the Department of Human Settlements for
purposes of special needs group housing provided by NPOs under the auspices
of a specific oversight Department such as Social Development, Health or
Correctional Services.
21.7 Several of the Acts considered contemplate a role for NPOs. In some of the
legislation, the terminology used is ‘service provider’. Examples of this include:
the DSD Policy on Financial Awards to Service Providers (which is crosscutting
over several Acts and types of service provision); service providers under the
MHC Act where NPOs or private bodies may provide community residential
facilities pursuant to a licence from the Department of Health; halfway houses
under the DCS; the Older Person’s Act; the Substance Abuse Act; shelters for
Abused Persons falling under the National Policy Framework pertaining to
sexual offences; group residential facilities under the Trafficking Act.
21.8 The White Paper for Social Welfare (1997) represents a change in the inter-
relations between government and NPOs towards more participatory approach
and some social welfare programmes may be financed in full through
contacted arrangements between Government and organisations such as NPOs
which are able to deliver an efficient and effective service.
21.9 The common finding is that several pieces of legislation facilitate outsourcing
of services for people with special needs to NPOs as service providers and
enable the provision of certain types of funding, but do not extend far enough
to include the provision of capital funding for the development, building and
establishment of group residential facilities provided by such NPOs. This
represents a clear and significant gap in the current legislation.
22 We are of the view that the relevant oversight Departments of Social Development,
Health and Correctional Services (“Oversight Departments”) and the National
Department of Human Settlements each have a significant role to play in creating
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an enabling environment for NPOs to roll out special needs group housing projects.
These Departments should co-operate to determine the optimal and complementary
roles they should play. Oversight Departments can provide, as is currently the case,
operational and / or programme funding while the National Department of Human
Settlements can assist with capital funding for the development of special needs
housing in terms of a national policy or policy directive. It is recognised that there is
a desperate need for a national housing programme that focuses on special needs
and enables NPOs to access capital funding to fulfil this need.
23 In respect of which Department should provide the capital funding to NPOs for
purposes of special needs group housing facilities, as set out above, it is clear from
the Considered Legislation perused in the preparation of this Legal Opinion that this
mandate and obligation lies with the Department of Human Settlements.
24 It is suggested that a national policy or policy directive is imperative to clarify how
capital funding from the Department of Human Settlements can be provided to
NPOs for purposes of the provision of special needs group housing. The policy
should also deal with ownership, management and disposal of immovable assets
and whether any financial assistance can be rendered in terms of future property
maintenance.
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ANNEXURE “A” – CONSIDERED LEGISLATION
In preparing the Legal Opinion, the following legislation and policies were
considered:
Constitution of South Africa, Act 108 of 1996
Housing Act 107 of 1997
National Housing Code, 2009
White Paper: New Housing Policy and Strategy for South Africa, 1994
Breaking New Ground (BNG): A Comprehensive Plan for the Development of Sustainable
Human Settlements, 2004
Integrated National Disability Strategy White Paper, 1997
Department of Social Development Policy on Disability (undated)
UN Convention on the Rights of People with Disabilities
Disability Framework for Local Government 2009-2014, Department: Provincial and
Local Government
Children’s Act 38 of 2005
Child Justice Act 75 of 2008
Blue Print Minimum Norms and Standards for Secure Care Facilities in South Africa, DSD,
August 2010
National Guidelines for Statutory Services to Child-Headed Households, April 2010
United Nations Standard Minimum Rules for the Administration of Juvenile Justice
Older Persons Act, 2006 (Act 13 of 2006)
South African Policy for Older Persons, DSD, March 2005
Directorate: Care and Services to Older Persons: Implementation Strategy for Older
Persons Legislation
Domestic Violence Act, No 116 of 1998
National Instruction 7/1999 to the SAPS
National Policy Guidelines for Victim Empowerment
Minimum Standards on Service for Victims of Crime
Minimum Standards on Shelters for Abused Women, February 2001
National Policy Framework Management of Sexual Offence Matters
National Policy Guidelines for Victims of Sexual Offences, 1998
Criminal Law (Sexual Offences and related matters) Amendment Act No 6 of 2012
The Prevention and Combating of Trafficking in Persons Act No 7 of 2013
Prevention of and Treatment for Substance Abuse Act 70 of 2008
National Drug Master Plan (2013-2017)
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National Welfare Act 100 of 1978
Non-Profit Organisations Act 71 of 1997
White Paper for Social Welfare 1997
DSD Policy on Financial Awards to Service Providers, March 2011
National Health Act 61 of 2003
Mental Health Care Act 17 of 2002
National Mental Health Policy Framework and Strategic Plan 2013-2020
Correctional Services Act 111 of 1998 as amended
Probation Services Act 116 of 1991
Criminal Procedures Act 51 of 1977
White Paper on Corrections in South Africa, 2005
Department of Correctional Services Policy on Halfway House
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