The Older Persons Amendment Bill has been passed by the NCOP. File Picture
The uMkhonto WeSizwe party (MKP) has opposed the latest amendment to the Older Persons Bill stating it creates a "nanny state" by transferring the agency of capable older persons to the state, which is both unjustifiable and unconstitutional.
The Older Persons Amendment Bill is a comprehensive approach to safeguarding the rights and welfare of older persons.
The Portfolio Committee on Social Development in KwaZulu-Natal received a proposed amendment to the Bill by the Department of Community Safety and Liaison which was put before the National Council of Provinces (NCOP).
The Committee received a briefing from the National Department of Social Development. The Committee resolved to conduct eight public hearings and cluster some districts.
The closing date for written submissions was advertised as October 25, 2024. The public hearings on the Bill were widely advertised. The public hearings on the Bill were widely advertised in the KwaZulu-Natal Legislature website and the print media.
Clause 15 of the Bill provides for the removal and placement of an older person by a social worker, health care provider or police official without a court order.
The removal of the older person by the social worker or health care provider has to be followed immediately by an application for a court order (within 48 hours).
The clause does not have a similar provision in respect of the removal by the police and even though the removal takes place by a law enforcement officer, the decision of the police to remove the older person is not equivalent to that of a court.
Therefore, it was proposed that an amendment be made so that the Department of Social Development, to whom the police removal must be reported within 24 hours, must obtain a court order within 48 hours of the report.
The Committee was invited to attend the Select Committee on Health and Social Services meetings held on November 6 and 13, 2024, wherein the Chief State Law Advisor, the Department’s Legal Services, and the Parliamentary Legal Advisor reported on all the concerns and proposals raised by all the provinces on their negotiating mandate reports.
The Committee held its virtual meeting on Monday, November 25, and noted all provinces were in support of the amendment to the Bill.
However, the MK Party has called the amendment a travesty.
Srinivasen Naidoo and Ishana Barciela MPL representing the MKP stated the Bill was passed by a narrow margin.
“In a shocking display of disregard for constitutional rights, the NCOP has approved a Bill aimed at addressing elder abuse, granting social workers the power to remove individuals from their homes without a court order,” Naidoo said.
“The Bill, passed with a narrow 5-3 vote, has drawn fierce opposition from the MK Party, which decries the measure as a dangerous step toward authoritarianism.”
The party said this law, under the guise of protecting older persons, grants social workers unilateral authority to determine abuse, enabling them to involve law enforcement to ‘house’ individuals in undefined ‘places of safety’. No judicial oversight is required which is a glaring omission that opens the floodgates for misuse and abuse.
“This Bill undermines fundamental rights, reducing the state to a nanny figure with unchecked power over its citizens,” the party said.
“Imagine a scenario where a social worker decides President Ramaphosa is being abused. Without legal due process, he could be forcibly institutionalised. This is not protection; it’s authoritarian overreach.”
Naidoo said the amendment of the Bill has far-reaching implications and stated the potential for abuse is chilling.
“Wealthy or politically connected individuals could manipulate the law to confiscate assets, silence dissent, or settle scores. The absence of court intervention removes a vital safeguard, leaving individuals vulnerable to the whims of potentially corrupt or poorly trained social workers,” he said.
The party emphasised that while elderly abuse is a critical issue, the existing legal framework requiring a court’s assessment of capacity and vulnerability is both robust and sufficient. They argued this new Bill replaces fairness with unilateral state control.
“The approval of this Bill raises questions about the competence of elected officials in the NCOP. How could lawmakers overlook such blatant violations of constitutional protections?
It is evident that many members do not fully understand the implications of the legislation they pass,” Naidoo said.
The party called for widespread public awareness of this travesty and urged civil society, legal experts, and advocacy groups to challenge the Bill.
“This is not only about older persons; it’s about the erosion of rights for all citizens. The calibre of decision-makers in the NCOP is woefully inadequate. South Africans deserve better than this rubber-stamping of draconian laws,” the party said.
The MKP has urged citizens to demand accountability from their representatives and to resist measures that erode democratic safeguards. It said if left unchallenged, this legislation could set a dangerous precedent, turning South Africa into a state where personal freedoms are at the mercy of unchecked bureaucratic power.
robin.francke@iol.co.za
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