special needs group housing policy: investigation of … · 2018. 12. 12. · sngh review final...

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03032015/PROB20192.215

SNGH Review Final 030315/#3529928v1

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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.

SNGH Review Final 030315/#3529928v1 03032015

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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)

http://www.saflii.org/za/journals/LDD/2007/10.pdf


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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

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

http://www.tlac.org.za/wp-content/uploads/2012/01/Submission-on-lack-of-housing-and-domestic-violence.pdf

http://www.tlac.org.za/wp-content/uploads/2012/01/Submission-on-lack-of-housing-and-domestic-violence.pdf


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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

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


17

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


18

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


19

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


20

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-


21

“(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


22

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


23

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

http://www.socdev.gpg.gov.za/SocialWorkServices/SocialCrimePreventionandVEP/Pages/VictimEmpowerment.aspx

http://www.socdev.gpg.gov.za/SocialWorkServices/SocialCrimePreventionandVEP/Pages/VictimEmpowerment.aspx


24

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”


25

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

http://www.gov.za/documents/minimum-standards-shelters-abused-women


26

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.


27

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

http://www.sabinetlaw.co.za/justice-and-constitution/articles/management-framework-sexual-offences-place

http://www.sabinetlaw.co.za/justice-and-constitution/articles/management-framework-sexual-offences-place


28

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

http://www.justice.gov.za/policy/guide_sexoff/sexoff_guidelines1998.htm

http://www.npa.gov.za/ReadContent412.aspx

http://www.npa.gov.za/UploadedFiles/THUTHUZELA%20Brochure%20New.pdf


29

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)

http://discover.sabinet.co.za/webx/access/netlaw/7_2013_prevention_and_combating_of_trafficking_in_persons_act.htm#section8



30

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




31

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)


32

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


10.2 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.”


33

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


34

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)

http://discover.sabinet.co.za/webx/access/netlaw/38_2005_childrens_act.htm#section194

http://discover.sabinet.co.za/webx/access/netlaw/38_2005_childrens_act.htm#section194

http://discover.sabinet.co.za/webx/access/netlaw/38_2005_childrens_2_form_48.pdf


35

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



11.2.1 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

http://web.up.ac.za/sitefiles/file/47/304/Children%20at%20the%20Centre%20guide.pdf


36

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

http://childrencount.ci.org.za/uploads/brief_child_headed_households.pdf

http://www.dsd.gov.za/index2.php?option=com_docman&task=doc_view&gid=147&Itemid=3


37

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


38

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

http://www.kzndhs.gov.za/Portals/0/docs/Research%20and%20Report/Research%20Report.CHH2010.pdf


39

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


40

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

http://www.socdev.gpg.gov.za/Research%20Document/Child%20Headed%20Households.pdf


41

12 JUVENILE OFFENDERS / JUVENILE AWAITING TRIAL DETAINEES

12.1 Department Responsible: DSD


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.


42

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.


43

“(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.


44

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



45

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


46

13 PEOPLE UNDER SUBSTANCE REHABILITATION


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.


47

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


48

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

http://www.pmg.org.za/report/20080603-prevention-and-treatment-substance-abuse-bill-b12-2008-%E2%80%93-deliberation

http://www.pmg.org.za/report/20080603-prevention-and-treatment-substance-abuse-bill-b12-2008-%E2%80%93-deliberation


49

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


http://www.dsd.gov.za/cda/index.php?option=com_content&task=view&id=115


50

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


51

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.


52

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/

http://www.info.gov.za/view/DownloadFileAction?id=99550

http://www.info.gov.za/view/DownloadFileAction?id=99550

http://www.health-e.org.za/2013/10/16/government-switches-strategy-drugs/


53

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

http://www.health-e.org.za/2013/10/15/freedom-addiction/

http://www.health-e.org.za/2013/10/15/freedom-addiction/


54

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


55

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


56

"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

http://www.dsd.gov.za/index.php?option=com_docman&task=cat_view&gid=32&dir=DESC&order=date&Itemid=39&limit=10&limitstart=10

http://www.dsd.gov.za/index.php?option=com_docman&task=cat_view&gid=32&dir=DESC&order=date&Itemid=39&limit=10&limitstart=10


57

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


58

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)


59

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


60

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


61

15 PEOPLE WITH INTELLECTUAL IMPAIRMENTS

15.1 Responsible oversight Department: Department of Health.


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)


62

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

http://www.health.gov.za/docs/Policies/2013/MENTAL%20HEALTH%20POLICY%20FINAL%2028.1.14.pdf


63

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


64

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.


65

16 PAROLEES, PROBATIONERS AND EX-OFFENDERS

16.1 Responsible oversight Department: Department of Correctional Services

("NDCS").


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)".


66

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


67

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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68

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

http://db3sqepoi5n3s.cloudfront.net/files/140715scsecurity_app_201415.pdf




69

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


70

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

http://www.dcs.gov.za/docs/landing/Corrections@work_01.pdf


71

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

http://www.dgmt.co.za/files/2011/07/DSD-Policy-on-Financial-Awards-March-2011.pdf


72

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


73

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

http://www.slideshare.net/Trialogue/making-csi-matter-navigating-development-funding-p-netshipale


74

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

http://www.pmg.org.za/report/20110823-department-finalization-national-policy-financial-awards-and-npos-pol

http://www.pmg.org.za/report/20110823-department-finalization-national-policy-financial-awards-and-npos-pol


75

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)


76

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

http://www.gov.za/sites/www.gov.za/files/White_Paper_on_Social_Welfare_0.pdf


77

"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


78

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

special needs group housing policy: investigation of … · 2018. 12. 12. · sngh review final...

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