Addressing the proposed amendments to the social assistance act 13 of 2004 (“SAA”)

The Social Assistance Act 13 of 2004 (“SAA”), is a legislative tool that was enacted to provide for the rendering of social assistance to the most vulnerable. The Social Relief of Distress (“SRD”) grant is temporary assistance provided by the government in cash or in-kind (e.g. food parcels) made to those who are in need of immediate assistance and those that do not have sufficient means to support themselves or their dependents.[1] As an immediate response, its goal is to ensure that those who are most vulnerable have access to basic social assistance,[2] and are able to meet their basic needs.

Reason for the amendments

President Cyril Ramaphosa, in the State of Nation Address, announced that the R 350, SRD grant, will be extended for a year ending March 2023. In his statement, the President reasoned that this was necessary “to ensure that no person in this country has to endure the pain and indignity of hunger”.[3] Following the harsh effects of increased unemployment and the lockdown as a result of the Covid 19 pandemic, the administrative and practical efficiency of the SAA came under scrutiny and change was necessary to cater to the financial hardships that were faced by individuals.

On 22 February 2022, Lindiwe Zulu, in her capacity as the Minister of the Department of Social Development called for comments regarding the proposed amendments to regulations relating to the application for and payment of social assistance, and eligibility requirements and conditions for social assistance in terms of the SAA.

Proposed Amendments

1. Regulation 1

• The proposed bill removes the term “Agency branded” from the definition of "Card".[4] The bill does not provide any explanation relating to this change, however considering that the SRD grant offers temporary relief and the administrative burden of providing agency-branded cards to individuals, it is not surprising that this change was proposed; it aims to alleviate an additional administrative burden on the Agency and provide for a more efficient way of processing payments to individuals. However, the Agency still has to ensure that the SRD grants are paid to the correct and intended recipients who qualify.
• The proposed amendments further introduce two new definitions: (a) insufficient means and (b) procedure manual for purposes of SRD.[5] Despite being used in the regulations previously, both terms were not defined. As such, these changes seem to form part of the department’s mandate to ensure that a uniform procedure for social relief of distress exists and is applied consistently across nine provinces, as well as during the administration and review of SRD grant appeals.[6]
• Another change proposed is the redefinition of the term “means”; the definition now focuses on older person grants, disability grants and grants for war veterans.[7] This change means that when dealing with SRDs, the term “means” will be determined in terms of regulation 19. Under Regulation 19, the regulations set out how “means” should be determined and lists items that are considered to be income and assets. This change means that when determining “means” one is no longer limited to an applicant or his spouse as contemplated in the definition of means.

 2.  Regulation 9

• A new paragraph (a) to regulation 9 (1) proposes to include any person who is impacted by a disaster, whether or not such a disaster is declared in terms of the Disaster Management Act 57 of 2002 (“DMA”).

• This seems to be in line with section 13(3) of the SAA that provides that notwithstanding the provisions of the DMA (that relate to the declaration of a disaster), any person may qualify for social relief of distress if his or her household has been affected by a disaster.

• The changes remove the term “representative of a cluster of a foster care scheme” from regulation 9(1).[8]The removal of the representative of a cluster foster care scheme will have no practical impact since the regulations now provide that anyone can apply provided they meet the requirements set out in the regulations.

• Furthermore, the proposed changes introduce paragraph (dd) to regulation 9(1)(b)(ii). In addition to the requirements set out, it provides that a person may only qualify for social relief of distress if he or she is a South African citizen, a permanent resident or a refugee and resides in South Africa who the breadwinner (of that person) does not receive any form of maintenance from a person legally obliged to pay maintenance to him or her. Thus, if an applicant’s breadwinner does receive any form of maintenance from a person legally obliged to pay maintenance, the applicant may not qualify for social relief because they may be considered to have “sufficient means”.

• The proposed amendments (regulation 9 (1)(b)(iii)(b)) seek to also expand the list of people who may qualify for social relief of distress to include holders of a special permit under the Special Angolan Dispensation, the Lesotho Exemption Permit Dispensation, and the Zimbabwe Exemption Permit Dispensation, and asylum seekers with a valid section 22 permit or visa.^[9] The expansion is on the condition that the person is (a) between the ages of 18 and 60, (b) has insufficient means and (c) does not unreasonably refuse to accept employment or educational opportunities.

• It is unclear from the regulation what it means to “refuse to accept employment or educational opportunities” or how the Agency will acquire such information or monitor the applicants. Thus, clarity is needed on the application of this provision because of the practical difficulties that may be faced by the Agency when implementing this provision.

• The proposed amendments also include those awaiting payment of an approved social grant.Thus, people who are awaiting payment of an approved social grant may also qualify for a SRD grant.Previously, persons were not entitled to a social grant in respect of themselves and a SRD grant simultaneously.

• If the aim of this amendment is to provide immediate relief to those applicants awaiting social grants this seems counter intuitive because the SRD application itself may take longer to process.

• Furthermore, a person or a representative of a household that is affected by a disaster whether or not declared may qualify for a SRD grant and social grant simultaneously.[10]

3. Regulation 11

• The proposed amendments modify the documentation required to be submitted with social assistance applications.

• The proposed regulation 11 stipulates that the agency may allow an application for social assistance to be completed through any other form of communication including electronic means and such application can be approved in the absence of documentation, where such information can be verified by alternative means. Previously, the regulation only provided that if no valid proof is obtainable, a sworn statement or an affidavit in the prescribed format could be accepted.

• In addition, regulation 11 provides that by virtue of an application for social assistance, an applicant grants consent for the agency or the Independent Tribunal, where relevant, to verify his or her identity, residency, sources of income, social security benefits or any other information required to assess an application with: (a) the Department of Home Affairs, (b) Social Security institutions, (c) Financial institutions, and (d) any other government or a private institution deemed necessary. The old regulation 11 made no mention of this consent being granted.

• This amendment seems to contribute to the efficiency of the Agency in processing applications where such information can be easily verified from other sources such as credit bureaus and financial institutions.

4. Regulation 14

• In terms of regulation 14, an application for a SRD grant must be made on the relevant form. The proposed amendments clarify that the said application must be made on the relevant form manually or electronically and must be completed and signed by the applicant or his or her procurator. It further provides that the Agency must approve or reject the application for a SRD grant social within a reasonable timeframe, previously, the regulation provided that this must be done immediately.

• Where an application for a SRD grant is approved, the agency must inform the applicant in writing by electronic communication or any other means of communication. Where the application is rejected, in addition to communicating this in writing electronically or any other means of communication, the agency must inform the applicant of his or her right, to lodge an appeal electronically, or by any means of communication.

• In advancing compliance with the Protection of Personal Information Act 4 of 2013 (“POPIA”), the amendments provide that the agency must ensure that all personal information and biometrics received are processed, stored and protected in terms of POPIA and the Electronic Communications and Transaction Act 25 of 2002.

 5. Regulation 14A

• The proposed amendments introduce an appeal procedure against the decision of the agency in respect of awarding social relief of distress grants.

• In terms of the proposed regulation 14A, it provides that:
  • a minister must appoint persons (Independent Tribunal) to consider social relief of distress appeal applications;
  • when appealing, the applicant or procurator must not be allowed to provide any evidence or information which was not provided to the agency at the time the application for social relief of distress was made;
  • when reviewing the application, the Independent Tribunal will consider an appeal by reassessing the decision of the agency against the latest information available and has the power to either confirm or set aside the decision and it must finalise the decision within a period of 90 days from the date which the appeal was received.

• South Africans had concerns about the pace of the appeals for the SRD grant.[11] The introduction of regulation 14A is necessary to set out a clear procedure for appeals for the SRD and a timeframe it must take to process such appeals. However, appellants are not allowed to submit new evidence or information. This may be of concern where a decision was made based on incorrect or outdated information. Even though the Independent Tribunal can reassess a decision based on the latest information available, the applicant should be given an opportunity to submit updated details about their application.

• Regulation 14A also prescribes a review procedure that a party may take to review a decision that was taken by the agency, SASSA.

 6. Regulation 16(2)

• Instead of providing that a SRD grant "must", it provides that the SRD grant "may" be issued monthly but not be paid for a period exceeding three successive months, without the confirmation that the person is still in need of assistance. This provision gives discretionary power to the Department of Social Development to pay SRD grants and also ensures that only beneficiaries that are eligible receive the grant.

The proposed amendments to the regulations of the SAA seem promising. It appears as these amendments form part of the department’s ongoing mandate to ensure that a uniform procedure for SRD grants exist and is applied consistently across South Africa.

This article has been prepared by partner Sushila Dhever and candidate attorney Caleb Mapatha.