13. The Minister may provide social relief of distress to a person who qualifies for 30 such relief as may be prescribed. CHAPTER 3 ADMINISTRATION OF SOCIAL ASSISTANCE Application for social assistance 14. (1) Any person who wishe,s to apply for social assistance contemplated in sections 35 6 to 13 must do so in the prescribed manner. (2) In considering an application made in terms of subsection (l), the Agency may conduct an investigation and request additional information. (3) ( a ) If the applicant qualifies for social assistance in terms of this Act, the Agency the must render relevant social assistance. 40 ( b ) If the applicant does not qualify for social assistance in terms of this Act, the Agency must in writing at the applicant’s address or other point of contact stated in the application, inform the applicant- (i) that he or she does not qualify for social assistance in terms of this Act; (ii) the reasons why he or she does not qualify; and (iii) of his or her right of appeal contemplated in section 18 and of the mechanism 45 and procedure to invoke that right. (4) No person may divulge any personal information of an applicant furnished in respect of an application except-- 14 No. 26446 GOVERNMENT GAZETIE, 10 2004 Act No. 13,2004 SOCIAL ASSISTANCE ACT, 2004 (a) to a person who requires it in order to perform a function in terms of this Act; (b) when required to do so by law or by an order of court; or (c) with the coqsent of the applicant. (5) If any information supplied by a beneficiary to the Agency in an application for a grant materially changes after that beneficiary has submitted that application, he or she must as soon as is reasonably possible after that change occurs, inform the Agency thereof. 5 Appointment of procurator I’ 15. (1) A person applying for or receiving social assistance may, subject to subsection (4), appoint a procurator, by a power of attorney, to apply or receive social assistance on 10 his or her behalf, in accordance with the prescribed requirements. (2) Nothing in this section prevents a person applying for or receiving social assistance to withdraw a power of attorney made in terms of subsection (1) and to appoint another person as procurator. (3) In the case of a person who is unable to appoint another as his or her procurator, 15 the Agency, subject to subsection (4), may nominate an adult person or welfare organisation to receive the granr on the beneficiary’s behalf, if the p m o n so nominated satisfies the prescribed conditions. (4) Stamp duty is not payable in respect of a power of attorney given by an applicant to any person to apply for social assistance on his or her behalf or in respect of a power 20 of attorney given by a beneficiary to any person to receive payment of any grant on his or her behalf. (5) A procurator who has knowingly failed to inform the Agency of his or her exceeding 90 days, as contemplated intention to be absent from the Republic for a period in section 16(3), is unfit to act as procurator and may not continue to act as procurator 25 or be nominated or appointed as procurator, unless the Agency decides otherwise as provided for in section 16(5). Discontinuation of payments l o beneficiaries absent from Republic 16. (1) If a beneficiary intends to be absent from the Republic for a period exheeding 90 days, he or she must inform the Agency thereof before leaving the Republic and the 30 Agency must, subject to subsections (2) and (3), suspend payment of a grant until that beneficiary or procurator, as the case may be, appears in person before the Agency and informs the Agency that the beneficiary has returned permanently to the Republic. (2) Despite subsection (l), the Agency may upon written request by a beneficiary or a procurator, in circumstances prescribed by the Minister by notice in the Gczette, 3.5 continue payment of a grant or a portion thereof to that beneficiary or procurator subject to such conditions and for such a period as the Agency may determine. (3) If a beneficiary- ( a ) is absent from the Republic for a period not exceeding 90 days and has not informed the Agency of his or her absence as contemplated in subsection (1); 40 and ( b ) due to a medical, safety or family emergency is likely to be absent from the Republic for a period exceeding 90 days, the beneficiary or procurator, as the case may be, or anyone acting on his or her behalf or in his or her interest, must immediately after such emergency has arisen, 45 submit an affidavit or affirmation to the Agency informing it- (i) of the date when the beneficiary left the Republic, the place where he or she is and any other information the Minister may prescribe by notice in the Gazette; (ii) that the beneficiary is, due to an emergency contemplated in this subsection, 50 likely to be absent from the Republic for a period exceeding 90 days; GOVERNMENT 26446 16 No. GAZETTE, 10 JUNE 2004 Act No. 13,2004 ACT, SOCIAL ASSISTANCE 2004 (iii) of the details of the emergency which prevent the beneficiary’s return to the Republic within 90 days of the date referred to in paragraph (a j and verifiable proof thereof; (iv) of the date when the beneficiary intends to return to the Republic; and (v) of an address where the beneficiary, or the person acting on his or her behalf 5 or in his or her interest, as the case may be, can be readily contacted. (4) The Agency must, after receipt of the statement and proof referred to in subsection (3Xb)- ( a ) enter the details of these circumstances on the records of the beneficiary or procurator, as thwase may be; 10 (c) ( b ) consider the statement and such proof before deciding, subject to subpara- graphs (i), (ii) and (iij) whether or not to suspend payment of the relevant grant as contemplated in subsection (1); in writing, in the official language of the Republic in which the application for that grant was made, inform the beneficiary or procurator, or the person acting 15 on his or her behalf or in his or her interest, as the case may be, of the Agency’s decision whether or not to suspend payment of that grant and if it has been decided to continue payment, subject to which conditions such payment will be continued, but the Agency may in exceptional circumstances continue payment of the relevant 20 grant subject only to codiiions in respect of- (i) the maximum period in respect of which such payment will be continued; (ii) the frequency with which further statements must be submitted to the Agency, the facts to be addressed in those statements and the nature and level of proof required; and (iii) any matter relevant to the payment of social assistance which the Minister 25 may prescribe by notice in the Gazette. ( 5 ) If a beneficiary or procurator fails to inform the Agency as contemplated in subsections (1) or (3), the Agency may- (a) immediately suspend payment of the relevant grant; (b) note that failure or refusal and any other information relevant to the absence 30 of that beneficiary or procurator on his or her records; (cj record that the beneficiary’s right to social assistance or procurator’sk-ight to act as a procurator, as the case may be, has, subject to subsection (6), been suspended; (dj take the prescribed steps in terms of the Public Finance Management Act, 1999, to recover any payment made to the beneficiary or procurator, as the case may be, the period exceeding 90 days, during which the beneficiary was absent from the Republic; take any further action contemplated in this Act or other law. (e) 3s 40 (6) If the Agency has taken action contemplated in subsection (S), it must in writing, by registered mail at the last known address in the Republic or by verifiable notification at a point of contact with that beneficiary, inform the beneficiary in the official language of the Republic which he or she is most likely to understand that- (a) his or her right to social assistance in terms of this Act has been suspended, 45 and the reasons therefor; and (bj he or she has the right to inform the Agency within 90 days from the date of postage of the registered mail, of the circumstances or reasons why he or she so failed to inform the Agency of his or her absence, and an alternative address where he or she coulcl have received physical mail. (7) The Agency must after receipt of information, if any, submitted by a beneficiary so or procurator in terms of subsection (6)(b)- ( a ) consider such information and decide, whether or not to re-instate, that beneficiary’s or procurator’s rights in terms of this Act; 18 No. 26446 GOVERNMENT GAZETIT, 10 JUNE 2004 Act No. 13.2004 SOCIAL ASSISTANCE ACT, 2004 (6) in writing by registered mail at the last known address of that beneficiary in the Republic or at an alternative address supplied by that beneficiary or procurator, as the case may be, inform him or her in the official language of the Republic in which he or she submitted that information- (i) of the Agency’s decision; (ii) the reasons for that decision; and (iii) that he or she has a right of appeal contemplated in section 18 and of the mechanism and procedure to invoke that right. Recovery of sums overpaid 17. (1) If the Agency pays money to a person in the belief that he or she is entitled thereto in terms of this Act or any law repealed by this Act, but he or she was not entitled thereto, the amount of money so paid is an amount due and payable to the State by such a person or, if he or she is deceased, by his or her estate. (2) The Agency must recover the amounts to which a person was not entitled, as contemplated in subsection (l), m accordance with the Public Finance Management Act, 1999. ( 3 ) The Minister shall remit an amount owing by a persnrl in terms of subsection (1) if such a person satisfies the Minister that he or she received the amount without knowing ?!?:.It Flr or she was not entitled thereto. (4) The Inspectorate shall investigate all complaints of alleged fraudulent withholding of the full or partial benefit due to a beneficiary, the holding of such an investigation must not affect the right of a beneficiary to receive the full value of the benefit from date of accrual. Appeal 18. (1) If an applicant disagrees with a decision made by the Agency in respect of a matter regulated by this Act, that person or a person acting on his or her behalf may, within 90 days of his or her gaining knowledge of that decision, lodge a written appeal with the Minister against that decision, setting out the reasons why the Minister should vary or set aside that decision. (2) The Minister may, after considering the appeal and the Agency’s reasons for the \ decision- (a) confirm, vary or set aside that decision; or ( b ) appoint an independent tribunal to consider the appeal in accordance with such conditions as the Minister may prescribe by notice in the Gazette, and that tribunal may, after consideration of the matter, confirm, vary or set aside that decision or make any other decision which is just. Abuse of social grants 5 10 15 20 25 30 35 19. (1) Where the Agency has reasonable grounds to suspect that a beneficiary, parent, procurator, or a primary care giver is abusing the social grant, the Agency may appoint a person to investigate such suspected abuse. (2) If such person finds on objective grounds that such abuse has taken place, the Agency must appoint a person to receive the social grant on behalf of the beneficiary and to use it for the benefit of that beneficiary subject to any prescribed conditions. 40 (3) The Agency may- ( u ) suspend payment of a child support grant, foster child grant or a care 45 dependency grant to a parent, primary care giuer, foster parent or procurator, where the parent, primary care giver, foster parent or procurator- (i) is convicted of abuse or neglect of the child in respect of whom he or she receives a grant; or 20 No. 26446 Act No. 13,2004 GOVERNMENT GAZETTE, 10 JUNE 2004 ACT, SOCLAL ASSISTANCE 2004 (ii) is found by the Agency or the Inspectorate to be incapable of using a grant for the benefit of the child in respect of whom he or she received it; and ( b ) appoint a person to receive the grant in respect of such a beneficiary or child pending the substitution of such parent, primary care giver, foster parent or procurator as the case may be. 5 Restrictions on transfer of rights and payments of social assistance 20. (1) A grant may rrdt 'be transferred, ceded, pledged or in any other way encumbered or disposed of unless the Minister on good grounds in writing consents thereto. 10 (2) Any act in contravention of subsection (1) is void and if the Minister becomes aware of any such act, he or she may order that payment of the relevant grant be terminated or suspended immediately and the Agency must, in writing by registered mail at the last known address of that beneficiary or procurator, as the case may be, inform him or her in the official language of the Republic in which hc or she made the 15 application for the grant- ( a ) of the Minister's decision; (.! 1 of the reasons for that decision; and ( L ) t!t,LL hc or she has a right of appeal contemplated in section 18 and of the mechanism and procedure to invoke that right. 20 (3) A beneficiary must without limitation or restriction receive the full amount of a grant to which he or she is entitled before any other person may exercise any right or enforce any claim in respect of that amount. (4) Despite subsection (3), the Minister may prescribe circumstances under which deductions may be made directly from social assistance grants: Provided that such 25 deductions are necessary and in the interest of the beneficiary. ( 5 ) An amount that accrues or has accrued to a beneficiary or his or her estate in terms of this Act may not be attached or subjected to any form of execution under a judgment or order of a court or by law, or form part of his or her insolvent estate. (6) Notwithstanding the provisions of subsection (l), in the case of death of 9 parent, 30 procurator or primary care giver receiving a grant on behalf of or in respect o f w t h e r person or child as the case may be, the Agency must appoint a person to receive the grant on behalf or in respect of such person or child, and to use it for his or her benefit without suspending the grant, subject tal prescribed conditions. False representations 35 21. (1) A person is guilty of an offence if such person, when applying for social assistance, furnishes information which he or she knows to be untrue or misleading in a material respect or makes a representation which to his or her knowledge is false, in order that he or she or another person may- ( a ) obtain or retain social assistance to which he or she is not entitled in terms of 40 this Act; or (bj obtain social assistance in excess of that to which he or she is entitled in terms of this Act. (2) If any person receives social assistance knowing that he or she is not entitled thereto, or is not entitled to the full amount which he or she is receiving, and he or she 45 fails to inform the Agency thereof, he or she is guilty of an offence. ( 3 ) A beneficiary who knowingly fails to inform the Agency of any material change of information contemplated in section 14(5), is guilty of an offence. Information to be furnished to Agency by third parties 22. (1) Notwithstanding anything to the contrary in any law, an organ of state must, at 50 the request of the Agency and subject to subsection (3), furnish it with all relevant information relating to an applicant or beneficiary. 22 No. 26446 GOVERNMENT GAZETTE, 10 JUNE 2004 Act No. 13,2004 SOCIAL ASSISTANCE ACT, 2004 (2) A financial institution referred to in the definition of “financial institution” in section 1 of the Financial Services Board Act, 1990 (Act No. 97 of 1990), must, notwithstanding anything to the contrary in any law, at the request of the Agency and subject to subsection (3), furnish the Agency with all relevant information relating to the assets and investments of an applicant or beneficiary as may be prescribed and with any additional information requested, if such information is necessary for a decision on an application. (3) A person who in terms of subsections (1) and (2) furnishes information obtained before the commencement of this Act to the Agency must, when doing so, inform the person concerned of that fadt i n writing. , (4) A person who after the commencement of this Act applies for a grant in terms of this Act is deemed to have agreed, by making such an application, that any other person who holds personal information relevant to that application may, without requesting permission from him or her, make that information available to the Agency. Power of Agency to investigate 5 10 15 23. (1) The Agency may, in the performance of its functions, inquire into any matter concerning the rendering of social assistance, and may for such purpose - ( a ) subpoena any ?erson who can furnish information of matclial importance concerning the Inalter under investigation, or who is reasonabl:] assumed to have under his or hex control a book, document or thing that may have a 20 bearing on the investi,gation, to appear within a reasonable period before it and to furnish such information or to produce such book, document or thing, as the case may be; ( 6 ) through its representative administer an oath to that person or cause that person to make an affirmation if that person was or could have been 25 subpoenaed in terms of paragraph ( a ) and he or she is present at the enquiry; (c) through its representative cross-examine any person referred to in paragraph P I . (2) A subpoena to appear before the Agency must be in the prescribed form and must be served on the person by registered mail or in the manner in which it would hqve been 30 served had it been a subpoena issued by the clerk of a magistrate’s court. \, (3) The rules with regard to privilege, which are applicable in the case of a person who has been subpoenaed to give evidence or to produce a book, document or thing before a court of law, apply in respect of the examination of a person and the production of a book. document or thing conternplated in subsection (1). 35 CHAPTER 4 INSPECTORATE FOR SOCIAL ASSISTANCE Inspectorate for Social Assistance 24. (1) The Inspectorate for Social Assistance is hereby established as an organisational component contemplated in Schedule 3 to the Public Service Act, 1994 40 (Proclamation No. 103 of 1994.), and is headed by a person designated as Executive Director. (2) The Inspectorate functions independently of both the Department and the Agency. (3~1 The Public Service Act, 15194, applies to the Inspectorate to the extent that this Act does not provide to the contrary.. 45 (4) The Minister exercises final responsibility over the Inspectorate. ( 5 ) To enable the Minister to exercise his or her final responsibility in terms of subsection (4), the Executive Director must, at the request of the Minister- 24 No. 26446 GOVERNMENT GAZETTE, 10 JUNE 2004 Act No. 13,2004 SOCIAL ASSISTANCE ACT, 2004 ( a ) furnish him or her with information or a report with regard to any case, matter or subject dealt with by the Executive Director, an inspector or any other employee of the Inspectorate in the performance d his or her functions; and (b) provide him or her with reasons for any decision taken by the Executive Director, an inspectlx or any other employee of the Inspectorate in the performance of his or her functions. 5 Independence of Inspectorate 25. (1) No person may in m y way interfere with, hinder or obstruct any member of the Inspectorate in the performance of his or her functions. (2) A person who contravenes subsection (1) is guilty of an (3) All organs of state must accord such assistance as may be reasonably required for the protection of the independence, impartiality, dignity and effectiveness of the Inspectorate in the performance of its functions. offence. 1 0 Funding and employees of Inspectorate 26. (1) The Inspectorate is funded by money appropriated by Parliament for that 15 purpose. (2) The Minister must in ~ ~ , ~ ~ ~ x ~ e n c e with the national Cabinet appoint an Executive Director to head the Inspectorate. (3) The Executive Director reports and is accountable directly to the Minister. (4) The Executive Director must, subject to the laws governing the public service, 20 appoint suitable persons as employees of the Inspectorate in accordance with an organisational establishment approved by the Minister, and that establishment must differentiate between employees who are to be appointed as inspectors exercising powers in terms of section 27 and other employees who are to be appointed to perform other functions within the Inspectorate. (5) The terms and conditions of service of the employees of the Inspectorate are 25 determined by the laws governing the public service. (6) A document issued by the Executive Director in the prescribed form, certifying that a person is an employee of the Inspectorate and has been authorised to exertise the powers and perform the duties contemplated in sections 27 and 28, is prima facie proof 30 of those facts. (7) The Executive Director may for good reason at any time withdraw a document issued under subsection (6), and a person in possession of such a document must, upon being informed of such withdrawal, return that document to the Executive Director. (8) A person who fails or refuses to comply with subsection (7) is guilty of an offence 35 and liable on conviction to a fine or to imprisonment for a period not exceeding two years or to both a fine and such imprisonment. (9) A person who- (a) wilfully discloses information regarding the operations of the Inspectorate; and (b) knows or could reasonably be expected to know that the disclosure would prejudicially affect any of those operations, is guilty of an offence and liable., on conviction, to a fine or to imprisonment for a period not exceeding two years or to both a fine and such imprisonment. Functions of Inspectorate 27. (1) The Inspectorate must- ( a ) conduct investigations; to ensure the maintenance of the integrity of the social assistance frameworks and systems; (b) execute internal financial audits and audits on compliance by the Agency with regulatory and policy measures and instruments; 40 4s 50 26 No. 26446 GOVERNMENT GAZETTE, 10 JUNE 2004 Act No. 13,2004 SOCIAL ASSISTANCE ACT, 2004 (c) investigate fraud, corruption and other forms of financial and service mismanagement and criminal activity, within the Agency and in connection with its functions, duties and operations; (d) establish a complaints mechanism; and ( e ) in general, do everything necessary to combat the abuse of social assistance. 5 (2) The Inspectorate may- (a) of its own accord or upon receipt of a complaint, investigate any alleged contravention of this Act by any person, and may, where appropriate, refer such investigation to the South African Police Service, the Agency or the Inspectorate of Special Operations established by section 7(l)(a) of the 10 National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), or any other organ of state established by law which has the appropriate powers to investigate and act on any alleged contravention of this Act; and (bj investigate any matter in respect of social assistance referred to the it by the Minister, the Director-General of the Department or the Chief Executive 15 Officer of the Agency. (3) The Minister must, in consultation with the Executive Director, in writing, authorise those employees of the Inspectorate appointed as inspectors to perform the functions contemplated in subsections powers contemplated in section 28. (1) and (2) and to exercise the (4) The Minister must, subjzct to ;.his Act and all other applicable law by n,rtice in the Gazette, prescribe procedures regarding the protection of the identity and integrity of a complainant or other source of information. 20 Power of Inspectorate to request information and to subpoena 28. (1) An organ of state must at the request of the Executive Director furnish the 25 Executive Director with the prescribed information relating to an applicant or beneficiary and with any additional information requested, if such information is necessary for an investigation in terms of this Act. (2) A financial institution as defined in section 1 of the Financial Services Board Act, 1990 (Act No. 97 of 1990), must at the request of the Executive Director or an inspector, 30 furnish him or her with the prescribed information relating to the assets and invTtments of an applicant or beneficiary, and with any additional information requested 'if such information is necessary for an investigation in terms of this Act. ( (3) Any person who, in terms of subsection (1) or ( 2 ) , furnishes information obtained by that person before the commencement of this Act must, when doing so, inform the 35 person about whom such infomation is furnished of that fact in writing. (4) Any person who applies fior a grant in terms of this Act is deemed to have agreed, by making such an application, that any other person who holds personal information relevant to that application may, without requesting permission from him or her, make Executive Director. that information available to the ( 5 ) An inspector may for the purposes of performing the functions contemplated in 40 section 27( 1) and (2)(u)- (a) subpoena a person who can furnish information of material importance concerning a matter under investigation, or who is reasonably assumed to have under his or her control a book, document or thing that may have a 45 bearing on the investigation, to appear before him or her within a reasonable period and to produce that book, document or thing, as the case may be; ( b ) administer an oath to that person or cause that person to make an affirmation if that person was or could have been subpoenaed in terms of paragraph ( a ) and he or she is present at the enquiry; 50 (c) cross-examine any person referred to in paragraph (b). (6') A subpoena to appear before an inspector must be in the prescribed form and must be served on the person by registered mail or in the same manner in which it would have been served if it had been a subpoena issued by the clerk of a magistrate's court. 28 No. 26446 GOVERNMENT GAZETTE, 10 JUNE 2004 Act No. 13,2004 SOCIAL ASSISTANCE ACT. 2004 (7) The rules with regard to privilege which are applicable in the case of a person who has been subpoenaed to give evidence or to produce a book, document or thing before a court of law apply in respect of the examination of a person and the production of a book, document or thing contemplated in subsection (5). CHAPTER 5 5 GENERAL PROVISIONS Delegation i 29. (1) The Minister may in writing- ( a ) delegate to the Member of the Executive Council responsible for social development in a province, the Director-General, the Agency, a staff member 10 of the Inspectorate or an officer of the Department any power conferred upon the Minister by this Act, except the power to make regulations; (b) authorise the Director-General, the Agency, a staff member of the Inspectorate or adofficer of the Department to perform any duty imposed upon the Minister by this Act. 15 (2) The Director-General may in writing- ( u ) delegate to a staff member of tire hpectorate or any officer of the Departmeili any power delegated to him or her in terms of subsection (1)(a); ( b ) authorise that staff member or officer to perform any duty which he or she has been authorised to perfom in terms of subsection (I)@). 20 (3) Any person to whom a power has been delegated or who has been authorised to perform a duty in terms of subsections (1) or (2), must exercise that power or perform that duty subject to the conditions determined by the person who effected the delegation or granted the authorisation. (4) Any delegation of a power or authorisation to perfom a duty under subsection 25 (1)- ( a ) does not prevent the person who effected the delegation or granted the authorisation from exercising that power or performing that duty himself or herself; \$ (b) may at any time be amended or withdrawn in writing by the person who 30 effected the delegation or granted the authorisation. Offences
