The South African Human Rights Commission - …

1 The South African Human Rights Commission Investigative Hearing into Systemic Complaints Relating to the Treatment of Older Persons Investigative Hearing ReportTABLE OF CONTENTSSUMMARY 3 LIST OF ACRONYMS 41. INTRODUCTION 52. STATEMENT OF THE PROBLEM 63. BACKGROUND TO THE COMPLAINT 74. MANDATE OF THE Commission 85. OVERVIEW OF THE LEGAL FRAMEWORK RELATING TO OLDER PERSONS International Frameworks Universal Declaration on Human Rights (UDHR) and the International Covenant of Economic, Social and Cultural Rights (ICESR) Madrid International Plan of Action on Ageing (MIPAA) Millennium Development Goals (MDGs) Regional Frameworks African charter of Human and People s Rights (ACHPR) National Frameworks Constitution of the Republic of South Africa, 1996 (Constitution) Older Persons Act, 13 of 2006 (OP Act) Older Persons charter (OP charter ) 12 The South African Human Rights Commission Investigative Hearing into Systemic Complaints Relating to the Treatment of Older Persons 6.

2 ISSUES AFFECTING OLDER PERSONS Access to Social Security Impact of HIV/AIDS Access to Health Care Residential Care Facilities Social Abuse 157. ANALYSIS OF FACTORS INHIBITING THE REALISATION OF Rights FOR OLDER PERSONS 168. PROCEDURES SURROUNDING THE HEARING Composition of the Panel Scope of the Proceedings Nature and Structure of the Proceedings Information required by the Panel 179. PROCESS FRAMEWORK Submissions from Respondents Submissions made by the Department of Social Development (DSD) Further submissions made by the DSD Submissions made by the Department of Health (DoH) Further submissions made by the DoH Submissions made by the Department of Public Works (DPW) Submissions made by the South African Police Service (SAPS) Submissions from Stakeholders Submissions made by the Democratic Alliance (DA) Submissions made by the South African Older Persons Forum (SAOPF)

3 Submissions made by Age in Action Submissions made by Operation Compassion Submissions made by Help Seniors Submission by the Department of Justice and Constitutional Development 342 South African Human Rights Commission INVESTIGATIVE REPORT SUMMARYTo date the bulk of the work of the South African Human Rights Commission ( Commission ) relating to older persons has focused on stakeholder engagements and on informing the public generally about violations brought to its attention, either via the press or other means. In addition to dealing with individual complaints regarding the treatment of older persons, the Commission has identified systemic issues of concern that are denying older persons the realisation of constitutionally guaranteed Rights . Consequently, this report broadly outlines these issues, and advocates that the Commission uses its powers to convene a hearing with relevant state departments in order to ascertain the progress that has been made in implementing the provisions of the Older Persons Act.

4 However, while it is acknowledged that a multitude of complaints lodged with the Commission will affect older persons either directly or indirectly, such as water and sanitation; efforts should not be exerted in addressing the same, as the Commission has already embarked on a separate process to address these issues. With this in mind, this report focuses on systemic issues that have a direct impact on older persons, specifically in their experience of attempting to access their constitutional Rights . Ultimately, the Commission recognises that older persons constitute a vulnerable group with unique and differing needs compared to those of other vulnerable groups, such as women, children or people with disabilities, and that they therefore deserve focused attention in order to address and resolve the Rights violations currently being experienced by older African Human Rights Commission INVESTIGATIVE REPORT LIST OF ACRONYMSACHPR African charter of Human and People s Rights CESR UN Committee on Economic, Social and Cultural Rights Commission South African Human Rights CommissionConstitution Constitution of the Republic of South Africa, 1996DA Democratic AllianceDoH Department of HealthDPW Department of Public Works DSD Department of Social DevelopmentDSD (WC)

5 Department of Social Development (Western Cape)EPWP Government Extended Public Works Programme HRC Act Human Rights Commission Act, No. 54 of 1994 ICESR International Covenant of Economic, Social and Cultural Rights MDG Millennium Development Goals MIPAA Madrid International Plan of Action on Ageing MOU Memorandum of UnderstandingNGO Non-governmental organisationNPO Non-profit organisation OP Act Older Persons Act, No. 13 of 2006OP charter Older Persons charter SANC South African Nursing CouncilSAOPF South African Older Persons Forum SAPS South African Police ServicesSASSA South African Social Security AgencyUDHR Universal Declaration on Human Rights WC Western CapeWEAAD World Elder Abuse Awareness Day 4 South African Human Rights Commission INVESTIGATIVE REPORT According to Article 2 of the Madrid International Plan of Action on Ageing (MIPAA), the world is experiencing an unprecedented demographic transformation.

6 By 2050, the number of people 60 years and older will increase to almost 2 billion, constituting roughly 21% of the world s population. This increase is expected to be the most rapid in developing countries, where the older population is anticipated to Africa is no exception to the growing trend of an ageing population that is currently being experienced around the world. According to Nhongo1, sub-Saharan Africa will likely end up with an age structure similar to those of other ageing nations, due to the combination of high fertility and a decrease in infant mortality, resulting in an increase in life expectancy, despite civil war and HIV/AIDS. However, unlike their developed counterparts, sub-Saharan societies are not well prepared for the challenges that an ageing population present, as the needs of older persons continue to grow.

7 These challenges include economic instability, natural disasters, disease and the deterioration of familial relationships. As a result, older persons regularly suffer from age discrimination , which is defined by the author as the systematic and institutionalized denial of the Rights of older people on the basis of their age by individuals, groups, organizations and institutions Nhongo, T (2006) Age Discrimination in Africa , paper presented at International Federation on Ageing Conference (Copenhagen), May/June Ibid, p3. 1. INTRODUCTION5 South African Human Rights Commission INVESTIGATIVE REPORT According to the most recent census conducted in 2011, South Africa s older population (namely those who are above the age of 60) constitutes roughly 8% of the entire population of the country.

8 While older persons are entitled to a monthly social grant of R1 , this has not been adequate in alleviating the levels of poverty experienced by the majority of older persons. The inability of many older persons to access basic services means that their fundamental Rights , guaranteed in the Constitution of the Republic of South Africa, 1996 (Constitution), are not being met; as this is coupled with the historical legacy of social exclusion during Apartheid, it means that the vast majority of older persons are being plunged deeper into poverty. Older persons continue to lack access to adequate health and basic education, to suffer from gender discrimination and abuse, and to be threatened with economic isolation with no prospect of securing employment. Further, due to the country s high unemployment rate, and as recipients of state-funded social grants, many older persons have become responsible for financially supporting their family members; this situation is further exacerbated by the impact of HIV/AIDS, and the fact that so many children are left orphaned by the premature death of their parents.

9 2. STATEMENT OF THE PROBLEM6 South African Human Rights Commission INVESTIGATIVE REPORT In March 2013, the South African Human Rights Commission ( Commission ) received a complaint from the South African Older Persons Forum (SAOPF) relating to the progress and implementation of a register detailing persons convicted of abusing older persons (or any crime or offence) by the Department of Social Development (DSD), as it is prescribed to do so in terms of Chapter 5 (31) of the Older Persons Act, 13 of 2006 (OP Act). Although the DSD has stated that the register is expected to be implemented in October 2013, this complaint forms part of the wide array of socio-economic issues currently affecting older persons in South Africa. Not least of these has been the scourge of attacks on older persons regularly reported in the media, which have resulted in the continuous violation of their Human Rights and an assault to their to this recent complaint, the Commission s approach to combating Human Rights abuses relating to older persons has included the following: investigating individual complaints; publishing statements condemning the Rights violations experienced by older persons in response to media reports detailing such incidents; attending meetings and conferences with interested stakeholders that focus on issues affecting older persons; and informing the public generally about Rights violations concerning older persons.

10 Still, notwithstanding these steps taken by the Commission , older persons regularly continue to have their Rights to the implementation of the OP Act, and while it was still in its draft form, the Commission recognised the need for older persons to participate more actively in the legislative review process. It therefore embarked on a country-wide outreach project, which included public hearings held in conjunction with the DSD, workshops and brainstorming sessions, consolidating the views of more than 300 stakeholders. Presentations from members of the community were also made to Parliament s Portfolio Committee on Social Development. As a result of the Commission s active participation in the process, inadequacies that existed in the OP Bill were identified and rectified prior to the promulgation of the OP , the Commission also played a pivotal role in the establishment of the SAOPF, with the purpose of providing older persons with a platform and a united voice when consulting with government on issues affecting older persons.