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Older Persons

It’s all that the young can do for the old, to shock them and keep them up to date.1

Once a woman reaches 60, she is considered to be an ‘older person’. Unfortunately, men have to wait a bit longer – five years to be precise. So says the Older Persons Act 2006, which aims to deal with the plight of older people, protecting their empowerment, status, well-being, safety and security.

Growing old has a wide variety of challenges, as we all will find out. But there is another feature – as was quipped2 to me recently: ‘the good news is that, with today’s medical care, we are living longer. And the bad news is that, with today’s medical care, we are living longer …’ This truism is reflected in the statistic released by the United Nations3 in 2005: in 1950, the world housed an estimated 205 million older people, and 606 million in 2002. In 2050 the number is projected to increase to 2 000 million – a tenfold increase in one short century.

The Act falls under the authority of the Minister of Social Development, and it is effectively administered by the Director-General of the Department of Social Development.4

A. Registration of care and support givers

  1. Any person who wishes to provide community-based programmes5 for older persons must register with the Director-General. It is an offence to render a community-based care and support service if you are not registered under the Act.6

  2. Any person who provides home-based care must ensure that the caregivers receive training as prescribed by Regulation. It is an offence to fail to comply with this provision.7

  3. All such caregivers (that is, social workers and health care providers) must be registered with the appropriate statutory council relevant to their particular profession.8 It is a criminal offence to contravene this provision.9

B. Residential facilities

  1. It is an offence to operate a residential facility10 unless it has been registered with the Minister.11

  2. Registration certificates may not be transferred to any other person, and it is an offence to do so (or attempt to do so).12

  3. If a residential facility is closed down, or its registration has been cancelled, the operator thereof commits a criminal offence if he fails to take reasonable steps to ensure that the older persons concerned are accommodated either in other registered residential facilities, or with people who are (in the opinion of a social worker) fit and proper.13

  4. In fact, prior to the facility closing down, the operator must:
    • even before deciding to do so, consult with the Minister;
    • fully report to the Minister on the accommodation of all older persons concerned; and14
    • hand over to the Department all assets bought with government funds,
    • and it is an offence to fail to do so.
  5. It is a criminal offence to discriminate15 unfairly, or indirectly, against an older person applying for admission to a residential facility.16

  6. If a person is refused admission, he can ask for written reasons. The manager commits an offence if he fails to do so.17

  7. It is an offence to admit an older person to a residential facility without his consent.1819

  8. The Director-General can appoint social workers to carry out visits, investigations, interviews, etc. in regard to residential facilities. It is an offence:20
    • to obstruct or hinder somebody in the performance of those functions;
    • to refuse to give that appointed person access to an older person; or
    • to fail to comply with a direction by that appointed person to produce a book or document for inspection.

C. Abuse of older persons

  1. It is an offence to abuse an older person. ‘Abuse’ includes physical, sexual, psychological or economic abuse occurring within any relationship where there is an expectation of trust – and is any of this conduct, or lack of appropriate action, which does (or is likely to) cause harm or distress to the older person.21

  2. If you suspect that an older person has been abused, or suffers from an abuse–related injury, you must immediately notify the Director-General, or a police official. It is an offence not to do so.22

  3. A police official can, if he is satisfied that it will be in the best interests of an older person (or upon a report from a social worker) issue a notice to an alleged offender to leave the home or place where the older person lives. It is an offence not to comply with such a notice.23

  4. It is also an offence to have contact with the older person concerned, in contravention of the written notice.24

  5. A magistrate also can issue an order prohibiting the alleged offender from entering the home or place where the older person resides; or from having contact with the older person. He can set terms and conditions for visitation and/or contact; he can forbid the person concerned to accommodate or care for any older person; or he can authorise that person to give accommodation or care, but then under certain conditions. He can even order that maintenance be paid for the older person. It is an offence to contravene any such order.25

  6. The public prosecutor can summons an alleged abuser to appear before a magistrate. For these purposes, he can also secure a warrant for a social worker to enter the place where the older person resides, in order to conduct investigation. Any person who obstructs or hinders a social worker in the performance of these functions commits an offence.26

  7. It is an offence to refuse to furnish to a social worker, or a health care provider, any information in connection with the alleged abuse of an older person, which such officer requires for the purposes of an investigation.27

  1. George Bernard Shaw: ‘Fanny’s First Play’ (1911) (Induction). 

  2. This is true: It was my Financial Planner, Bruce Grieve at South City Financial Planners. 

  3. Reported in ‘Population Ageing and Health Challenges in South Africa’, by Jané Joubert and Prof. Debbie Bradshaw, of the Burden of Disease Research Unit at the South African Medical Research Council – http://www.mrc.ac.za/bod/bod.htm

  4. The Department’s headquarters are at 134 Pretorius Street, Pretoria, Gauteng (tel: 012 312 7500). 

  5. These are community-based care and support services. A wide variety is contemplated by section 11 of the Act. 

  6. Section 12(2) read with section 13. 

  7. Section 14(1) read with section 14(4).v 

  8. See the Allied Health Professions; the Nursing Profession

  9. Section 14(2) read with section 14(4). 

  10. Which is a building or other structure used primarily for providing accommodation and a 24-hour service to older persons. Obviously, this does not apply to a family member in a private residence. 

  11. Section 18(1)(a) read with section 18(9). 

  12. Section 18(7) read with section 18(3) and section 18(9). 

  13. Section 18(8) read with section 18(9). 

  14. Section 19(3) read with section 19(4). 

  15. On any of the grounds captured in section 9(3) of the Constitution: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth. 

  16. Section 21(1) read with section 21(8). 

  17. Section 21(2) read with section 21(8). 

  18. There are exceptions in the case of mental incapability. 

  19. Section 21(3) read with section 21(8). 

  20. Section 22(5) read with section 22(1). 

  21. Section 30(1) read with section 30(2) and section 30(3). 

  22. Section 26(1) read with section 26(3). 

  23. Section 27(1) read with section 25(4)(b) and section 27(8)(a)(i). 

  24. Section 27(1) read with section 27(8)(a)(iii). 

  25. Section 27(6) read with section 27(8)(b) and section 29(10) and section 29(11). 

  26. Section 28(6)(a) read with section 28. 

  27. Section 28(6)(b) read with section 28(3).