The Portfolio Committee on Social Development was today briefed by the Department of Justice and Constitutional Development on matters raised during the committee’s public hearings on the Older Persons Amendment Bill.
The committee wanted the department to address concerns raised in public hearings that the proposed amendments may not protect older people’s property rights and that family members sometimes coerce older people to surrender their houses. A related concern at the public hearings that the committee wanted to department to address was the cost of legal fees associated with the transfer of deceased estates, which surviving spouses sometimes struggle to afford.
From the public hearings, the committee also noted submissions that court clerks should receive special training in order to understand the various health-related challenges older people face, such as dementia. Other submissions concerned the desire to bring the courts closer to communities and the availability of sign language interpreters in courts.
Advocate Praise Khambula from the department, told the committee that older people’s property rights are protected by section 25 of the Constitution: No one may be deprived of property except in terms of the law of general application, and no law may permit the arbitrary deprivation of property.
She added that there was further legislative protection to this, in terms of the Domestic Violence Act, which defines disposing of someone’s property without their consent as an act of economic abuse. “It is an act of domestic violence to coerce any person, including an older person, to do or abstain from doing something that he or she has a lawful right to do, such as retaining a property. In such instances, the older person may apply for a protection order against the abuser with whom he or she is in a domestic relationship,” explained Adv Khambula.
In response to the questions around older people unable to pay the legal fees associated with the transfer of their deceased spouses assets, Adv Khambula referred the committee to section 39(3) of the Administration of Estates Act, 1965 (Act 66 of 1965). This section states, “If any heir is unable or could not without hardship be required to pay the costs involved in having any immovable property to which he is entitled according to a distribution account, registered in his name, the Master may authorise the executor to cause a note that the property has been bequeathed or inherited, as the case may be, to be endorsed against the title deeds of the property.”
She told the committee that the Office of the Chief Master has agreements with pro bono attorneys to assist with the transfer of immovable property without the charge of executors’ fee. In addition, the Chief Master has signed a memorandum of understanding with Legal Aid South Africa to assist when the estate qualifies in terms of a means test. However, certain Deeds Office costs will still have to be paid by such estates.
The committee also heard that the department has developed a guide for court clerks to sensitise them to the rights of the older court users. The guide alerts court clerks to the possible physical, emotional and cognitive impairments that often affect older people and also sets out reasonable accommodations with corelating support services, which older court users may require when in court.
“The Justice College is at the final stages of developing a training module and is awaiting the promulgation of Older Persons Bill into law. A training programme will be conducted as soon as this Bill becomes law,” Adv Khambula explained.
The department is also in the process of finalising a project for the rationalisation of the Magisterial Districts and Divisions of the High Court, which is intended to address the pre-1994 spatial planning that was informed by apartheid to fragment and differentiate communities along racial and ethnic lines. This project will consider distance, transport routes and costs, as well as the predominant language in a particular community, so as to ensure equal and equitable access to court services.
The major aim of this project, according to the department, is to bring access to justice closer to people, particularly to older people, people with disabilities and other vulnerable people.
On the availability of sign language interpreters in court, the department said currently there were very few cases that require sign language interpreters, and this minimal caseload does not justify the full-time appointment of sign language interpreters.
“For this reason, the department has partnered with reputable organisations to provide this service, as and when it is required. Each court is required to keep a database of ad hoc sign language interpreters,” said Adv Khambula.
She further explained that in terms of the Criminal and Related Matters Amendment Act, with effect from 5 August 2022, gesture-language is now considered as oral evidence in court. “Demonstrations, gestures or any other form of non-verbal expression, including the use of devices to communicate, are allowed as viva voce/oral evidence,” she said.
Advocate Khambula also told the committee that the department is excited about the amendments to the legislation, as they will address some of the limitations in the justice system. “We were one of the departments that advocated for these amendments because there are certain provisions that we could not implement in our courts. We are looking forward to the passing of the legislation so that we can fully implement it as a department,” she concluded.
The committee welcomed the presentation and was satisfied with the department's responses to the matters raised during the public hearings on the Older Persons Amendment Bill. “On behalf of the committee and the Chairperson, we would like to thank the department and the presenter for adequately replying to what they were asked. They covered everything and answered what was raised during the public hearings,” said committee member Ms Jane Manganyi.
Sakhile Mokoena
6 March 2024
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