| The Need for an Over-Arching Legislative Framework - May 2010 |
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 The Need for an Over-Arching Legislative Framework for Social Welfare and Development Services in South AfricaPerspective A compelling need currently exists for the development of a legislative framework for social welfare and development services in South Africa. Thousands of civil society organisations provide core services in this arena, providing and contributing to critical care for our people and communities. Right now, there is an absence of legislation regarding the functioning of the sector as a whole, including the partnership between government and non-profit organisations which is crucial to service delivery. The spelling out of the nature and operation of this partnership would be a critical aspect of a new legislative framework . The proposed legislation will also serve to outline the relationships between the national development agenda and the impact this has for the implementation of a developmental state. It is impossible to suggest that a developmental state can be built in the absence of visionary legislation that defines the human development objectives of the country. A brief background The pre-1994 framework that governed the relationship specifically between social service organisations and government was set out in two Apartheid laws - the National Welfare Act of 1978 and the Fundraising Act of 1978. Between them, these pieces of legislation entrenched racial discrimination and increased the control of the state over community-based organisations and NGOs, subjecting organisations to draconian search, seizure and interrogation. Given the abuse of these Acts to entrench the Apartheid system and to suppress anti-government activities, all but a few clauses were quickly repealed after the coming of democracy. While this action removed major distortions in, and abuses of, the sector, there remains an absence of appropriate legislation to clarify the responsibilities of the social welfare sector, to identify the responsibilities of the three spheres of government in this regard, to guide the relationship between the Department of Social Development and non-profit organisations, and to provide for the funding of these organisations and their projects. Also absent is proper provision for the registration of social welfare organisations - as opposed to registration for NPOs in general via the Non-Profit Organisations Act, which covers civil society organisations in every sector. It does not address itself to the planning needs of the social welfare sector, or to its need for specific controls to address fraud and to protect vulnerable groups. In short, this proposed legislation picks up from where the White Paper for Social Welfare, 1997 left off. Given that government has not moved forward on that landmark policy proposal, it is vital for our ongoing developmental state agenda, that we immediately revisit the key outcomes of the 1997 process and move forward with urgency to ensure we fulfil our Constitutional mandate to build a better life for all. Background of the process of the White Paper for Social Welfare The principles of social transformation embodied by the Reconstruction and Development Programme and commitments made at the 1995 United Nations World Summit for Social Development in Copenhagen laid the foundation for the White Paper for Social Welfare (1997). The process that led up to the development of the White Paper is also widely perceived as having been consultative and inclusive, with many different organisations and sectors making inputs on what social welfare should look like in South Africa. As a result, the White Paper is seen as a ‘consensus document’ on what the guiding principles of social welfare in South Africa are . Despite the progressive principles contained in the White Paper, the progress towards achieving these principles in developmental and social services has been slow. In part this can be attributed to economic constraints, which the White Paper describes: “Since resources are limited, trade-offs must be made between investment in economic growth and human resources, and investment in a social safety net. Welfare expenditure will only be able to expand as higher economic growth rates are achieved.” (White Paper on Social Welfare, 1997:5) Slow progress can also be attributed to political processes during consultation on the White Paper that saw heightened criticism of the social work sector, particularly in response to the discriminatory manner in which it had operated during Apartheid. A dominant argument was that welfare in South Africa should be based on social development (perceived as inclusive) rather than social work (perceived as selective) . Although the synergy between social work and social development was pointed out by the social work sector, observers suggest that “a strong agenda for the transformation of social welfare” determined the policy process that led to the White Paper. Social work was criticised for being unprepared and unable to affect social and community development and, therefore for its inability to redress past imbalances. The White Paper echoes this criticism clearly (See ‘Social Welfare Context’, White Paper for Social Welfare, 1997:6 for more detail) . As a result, the definition and role of social welfare services in a developmental social welfare system remains underdeveloped. The White Paper does not offer an explicit definition of ‘social welfare services’ and the ‘nuts and bolts’ of social and development services in South Africa still need to be clarified and developed in detail. Service delivery in the welfare sector has also been hard to define because it involved specialist types of activity provided by a variety of unevenly spread organisations with different mandates . And, while the White Paper suggests that in the restructuring of the delivery system a “…balance will be struck between rehabilitative, protective, preventive and developmental interventions” (Chapter 2, Section 32) this has not yet been achieved. Despite its limitations, the White Paper is a landmark document that embraces developmental social welfare in South Africa. The document also creates the space for critical issues to be further developed in the social and development services sector, an opportunity which has until now not been taken forward by government in a holistic way. Furthermore, there is increasing recognition and acknowledgement amongst government of the contribution of the sector to the developmental state providing momentum for an overarching legislation for the social welfare and development services sector. The basic proposal for an overarching framework The development of an appropriate legal framework could have a huge and positive impact on the social welfare and development sector as a start and contribute to the overall objective of building a developmental state. Such a framework could address areas such as:
Developing more funds for developmental social welfare services was clearly articulated as a challenge by the White Paper. However, to date this challenge has not been met. An audit of the needs that the sector is required to address, the extent of service needed and the extent to which such services exist or are adequate is essential. Financing strategies like the PFASP and NLDTF need to be redrafted with these issues in mind, and costing models need to be developed for the sector which reflects agreed upon norms and standards. This legislation will also provide a contextual location for the broader social security and assistance initiatives of the state, within the broader developmental state agenda. Currently the impact and efficacy of cash grants and social assistance are “lost” or reviewed as separate items as opposed to having contextual integration with social services. We need to both understand and elaborate on the imitate relationship between delivering cash grants and specific human development indicators for recipients. It is not enough for the state to throw money at poor people in the form of cash grants, if such initiatives do not take into account the potential leverage for ongoing human development for people to exit the generational poverty cycle. The recent and sporadic civil society pressure for the state to ratify the ICESCR, is a clear marker that we are failing to capitalise on the opportunities for developing a clear developmental road map for the state, let alone for the progressive realisation of enshrined Constitutional rights. A way forward The White Paper for Social Welfare laid a solid foundation for further development of social and development services. Given the critical services provided by this sector to the most vulnerable people in our society, there is an urgent need to develop a new and better legislative environment for the social welfare and development sector. The mandate of the social and development services sector is also continuously expanding to incorporate new challenges such as the achievement of the MDGs. We would like to propose as a sector, we start to develop this new framework and engage in advocacy relating to the areas that need urgent attention. We ask that you participate in this process, and join us as in creating a reference group, contributing ideas and content, hosting dialogue workshops and work collaboratively to advance the process to develop this legislation. We also re-iterate our call to government to work with the civil society sector to take forward this important development imperative for South Africa. Immediate Advocacy One aspect of immediate action required by government, is the implementation of Act No. 3 of 2001: Advisory Board on Social Development Act, 2001, “To provide for a national advisory structure in the social development sector with the aim of building and consolidating partnership between government and civil society…” Read more here The fact that this matter has been outstanding since 2001 is unacceptable and the immediate appointment of the board will serve as an act of good faith by the state in giving the developmental social services sector and indication of its commitment to provide an enabling environment for their continued efforts towards building a developmental state. General Information and Additional Reading The preparation and ongoing development of this discussion document is further to a resolution of the NWF members meeting of October 2009, where members resolved to: “Call on government to work with the sector to review of the National Welfare Act of 1997. Alternatively, we call on government to work with the sector to develop a new statute to act as a reference point for the provision of social welfare and developmental social services in South Africa” The full text of the resolution can be found here: http://www.forum.org.za/Summary-of-Resolutions-NWF-Policy-Positions-October-2009 Previous drafts and an initial call for interest can be found here: http://www.forum.org.za/policy/res132 http://www.forum.org.za/policy/res131 The idea for a comprehensive review of legislation is not entirely new, Professor Leila Patel argued as much at the NWF General Assembly in February 2008 – you can read the full address here: http://www.forum.org.za/Post-Apartheid-Policy-Environment-for-Social-Welfare The National Welfare Forum took an active role in unpacking the role of the sector during apartheid and Prof. Leila Patel led the preparation and presentation of a submission to the TRC. You can read a submission from the NWF to the TRC here: http://www.forum.org.za/The-Forums-Involvement-in-the-Truth-and-Reconciliation-Process This discussion document is under constant review and input from all affected stakeholders is encouraged. Kindly send any comments you may have to Karen Peters on This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or by fax 011 4920371. The current draft has been prepared for the NWF and it’s partners by Karen Peters, Jackie Loffell and Rajesh Latchman.  Click here to download... 348.55 Kb
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