i) The proposed regulations limit the class of beneficiaries by conditioning eligibility on proof of “support” or dependency rather than on harm-related need.
Although “dependency” is not defined in the regulations, and it is unclear if the drafters had some specific regulatory definition in mind when they make reference to a “dependent” or to various situations of “support” (e.g. South Africa’s tax code), dependency is a central component of a number of the regulations. Although the proposed approach varies slightly as between educational or medical benefits, a common thread runs through many of the regulations with some odd results: certain relatives of victims must establish a relationship of support either with the victim or someone else, or show “dependency” to qualify to receive benefits. These dependency standards privilege certain victims over others, even though they and their families may have suffered just as much as other victims’ families. Oddly enough, by conditioning eligibility on dependency in many of its provisions, the draft regulations may punish those very relatives and family members who have actually done the most to achieve some level of self-sufficiency and financial independence, even if it is far below that which they would have achieved in the absence of the abuse.
In relation to the education benefits various questions arise: What is the basis for the requirement of ‘support’ by the victim in relation to grandchildren? What about where the victim is deceased and would have supported the person if alive? Why is it limited to a grandchild? The proposed regulations in relation to medical benefits provide a more inclusive definition of – ‘any other person to whom a listed victim has or had a legal or customary duty to support’. What is the justification for defining relationships of “support” differently in respect of medical benefits as opposed to educational benefits?
Similar questions arise in relation to the proposed medical benefits: the definition of relative of a listed victim – includes a parent or someone who exercises parental control over victim, a person married to a victim, a child of a victim or any other person to whom a listed victim has or had a legal or customary duty to support. The regulations regarding higher education include a person that was married to a victim where the victim is deceased. Why are the medical benefits not extended to such persons? Why do they then have to be financially dependent on someone else? In relation to the eligibility of relatives of listed victims, medical benefits are only afforded when the victim is alive and the relative is financially dependent on the listed victim or the listed victim is deceased and the relative is dependent financially on another person. The second limb makes no sense – if the person was financially dependent on the victim and the victim dies, the person is most likely to be in need of medical benefits if they have no other person to turn to for financial assistance.
Both the Basic and Higher Education and Training Regulations cut off benefits to the grandchildren of victims if they are not in a relationship of “support” with the victim. As a cost-saving and policy matter, it may have seemed fiscally appealing for the drafters to draw the line in this way. However, by doing so, they have effectively disadvantaged some grandchildren and their caregivers, while benefitting others. A quick review of the applicable language shows how. The Basic Education Regulations (BER) limits eligibility to those relatives of victims who are:
“(a) a child of a victim, irrespective of whether or not the child was born in or out of wedlock or was legally adopted; and
(b) a child of a person as contemplated in paragraph (a), if the victim supports that child.”
The Higher Education and Training Regulations (HET) limits eligibility to those relatives of victims defined as follows:
“(a) a person who is, or where the victim is deceased, was married to a victim, under any tradition, or a system of religious, personal or family law;
(b) a child of a victim, irrespective of whether or not the child was born in or out of wedlock or was legally adopted; or
(c) a child or a person as contemplated in paragraph (b), if the victim supports that child.”
Under both provisions, the children of victims are eligible to receive the fullest range of educational assistance, subject to certain common income restrictions. Similarly, spouses of deceased or living victims may be eligible for higher education and training, although not, as one would expect given their likely age, for basic educational assistance.
However, the “child of a person” or a “child of a victim” will not necessarily be treated uniformly under these provisions. (See subparagraphs (b) and (c) above. For ease of reference, we will use the words grandchild or grandchildren in this discussion, although it is possible that someone other than a grandchild may be covered by this language.) Grandchildren may be treated differently depending on their or their parents’ relationship with the victim. If grandchildren remain in the “support” of the victim, they would be eligible for educational benefits. However, the grandchildren of deceased victims and grandchildren in the care of a spouse or other relative of a victim would apparently not be eligible, because they would not be in the “support” of the victim.
In sum, a grandchild who is cared for by his grandparents, one of whom is a victim, would be entitled to receive benefits, but a grandchild who is cared for by a grandparent, who is perhaps the spouse of a deceased victim, would not be entitled to educational benefits unless that spouse were found to be an indirect victim in their own right by the TRC under 1(1)(b). This approach privileges dependency over need with potentially harmful consequences.
If the objective is to ensure that living victims are relieved of the burden of financing their grandchildren’s education, if they are actively engaged in their care and upbringing, then the draft regulation succeeds. But if the objective is to ensure that all the grandchildren of victims, whether the victims are deceased or alive, are guaranteed educational opportunity, because of the indelible harm wrought on the family as a whole by the wrongs committed in the past, then this provision fails. This approach is likely to disadvantage women in particular. Widows of victims who may have suffered harm indirectly and who now may be caring for the grandchildren of victims will not be able to obtain assistance, unless they too have been adjudged a victim under Section 1(1)(b). Need, degree and type of harm and family circumstances are ignored. Relations of support and dependency become determinative.
In similar fashion, the proposed Medical Regulations require relatives to jump through several hurdles to establish eligibility for medical benefits, one of these requires a showing of dependency. First, to be eligible, a relative must fall within one of four categories of eligible relatives:
“(a) a parent of, or somebody who exercises or exercised parental responsibility over a listed victim;
(b) a person married to a listed victim under any law, custom or belief;
(c) a child of a listed victim, irrespective of whether the child was born in or out of wedlock or was adopted; or
(c) any other person to whom a listed victim has or had a legal or customary duty to support.”
Next, a relative of a listed victim must establish dependency: “A relative of a listed victim may only request medical benefits if, at the date of the request – the listed victim is alive and the relative is dependent financially on the listed victim; or the listed victim is deceased and the relative is dependent financially on another person.” As with the educational provisions, this language conditions benefits on dependency not need and may bar classes of relatives from receiving benefits. A few examples:
• A widow of a listed victim who is not dependent financially on either the victim or another person;
• A child of a listed victim who is not dependent financially on either the victim or another person;
• A parent of a listed victim who is not dependent financially on either the victim or another person.
By categorically excluding all of these potential beneficiaries – a widow, child or parent if they are not dependent on another – the regulations deprive classes of potentially needy individuals of even those medical benefits that may be linked to the human rights violations, including psychological treatment, despite the fact that all of them may have suffered trauma as a result of their connection to a victim.
The potential inconsistencies in coverage are telling:
Would the 16-year old son of a deceased victim be denied medical benefits if he is not living with a relative or other adult? (His siblings might be receiving benefits if they have remained living at home.)
Would the widow of a listed victim who is working and is financially independent (but only barely) be denied medical benefits even if she is caring for hers and the victim’s children? (Her children would be entitled to medical benefits, but she would not under the current draft regulations.)
In essence a spouse, child or parent who is essentially self-sufficient but not necessarily well-off, may not be eligible even if they have suffered profound trauma, if they have not been identified in volume 7 as victims in their own right.
ii) Means-testing based on a household’s collective income may lead to disqualification of applicants in genuine need
The availability of assistance for victims and relatives of victims depends on the financial need of the beneficiary based on criteria which may not be an accurate predictor of genuine financial need and vulnerability. Means-testing based on a household’s collective income in the BER and HER “Conditions for Assistance” may lead to the disqualification of applicants in genuine need of financial assistance.
The “Conditions for Assistance” of the Basic Education Regulations (BER) and Higher Education Regulations (HER) (Regulations 9 and 10 respectively) require that the applicants’ household have a net monthly income (the household’s collective income after deducting for certain specified expenses) of less than or equal to R8,000 for applicants for assistance with basic education, or R12,000 for applicants for assistance with adult education. The narrow focus on maximum household income level to the exclusion of important considerations, namely the type of employment held by household members and the meaningful and symbolic role of education in the reparations program, is problematic.
While some means of survival may provide an adequate living, the type of employment held may be physically arduous and not suitable for a long term career. By considering the monthly income levels of a household, an administrator may reject assistance to a household that is making ends meet in the short run, but would need education and training to secure their financial situation in the long run.
Depending on the number of people in the household, each may be individually under-employed, but collectively earn beyond the maximum income to qualify for assistance with education and skills training. If each individual contributes a small amount per month working part-time, the situation may arise where a large household earns just above the maximum net income, disqualifying all members from assistance, but with each person only employed at a minimal level. While education and training may be a means of improving an under-employed person’s long-term livelihood and allowing him to seek more gratifying or rewarding employment, the administrator may consider that these individuals are not in a position of financial need and deny assistance.
Statutory law supporting the regulations, such as the Skills Development Act, recognizes how systemic discrimination affects the socioeconomic status of certain vulnerable groups. The narrow focus on household income without taking into account all relevant contextual factors may be inconsistent with one of the general purposes of the statutory framework within which the reparations scheme exists—to improve the socioeconomic circumstances of persons affected by past and present discrimination and human rights abuses. Education plays a key role in a reparations program as a way of symbolically and meaningfully improving the future circumstances of a victim and victim’s relatives impacted by gross human rights violations.
There are several points of ambiguity in the proposed regulations relating to how the net household income will be determined.
The regulations do not specify whether the applicant’s financial contribution to the household will be included in the “net income per month of the house.” This may be a significant detriment to some applicants if their own income is included: if the applicant earns an income, including it in the net resources of the household will inflate the financial wellbeing of the household during the time that the applicant wishes to go to school. Particularly where the applicant is one of the larger financial contributors, this may disqualify him or her from receiving assistance for lack of financial need, even though that income will not be available to the household after he or she returns to school.
The regulations are also unclear on whether the maximum net income remains unchanged where multiple children are living in a household that may qualify to apply for assistance. If that is the case, it would have the effect that several children without assistance may be competing for access to the same surplus monthly income, even if the household earns only slightly above the maximum net income cut-off, possibly requiring families to choose which child may attend school.
Finally, for both the BER and HER, assistance is provided with registration fees, tuition, boarding, transportation, and school uniforms. However, a problem that many households face in sending household members, including children, to school is the lost opportunity cost of income that the applicant could provide to the family if he or she doesn’t go to school. For financially vulnerable families, this lost income is prohibitive for many children who could be in school, but the regulations do not currently provide compensation for the families facing this burden.
iii) The proposed regulations contain ambiguities that may bar otherwise eligible applicants from seeking and obtaining benefits.
The draft regulations contain a number of ambiguities that may disadvantage certain classes of victim relatives:
The definition of a “relative of a listed victim” for medical benefits is defined to include “a person married to a listed victim under any law, custom or belief.” The word “married” in this paragraph may be interpreted to mean only those currently “married” to the victim, making it unclear if a spouse who has remarried or divorced would remain eligible for benefits even if they suffered harm indirectly as a result of the human rights violations. This definition stands in sharp contrast to other sections of the proposed regulations. The HER contains the following language: “a person who is, or where the victim is deceased, was married to a victim, under any tradition, or a system of religious, personal or family law.”
As detailed above, neither dependency nor support are not defined. What level of financial assistance constitutes support? “Child” is undefined.
iv) The Regulations Proposed Time Limitations are Unduly Restrictive
Educational assistance under the proposed regulations is subject to a series of tight time-constraints. Some of these temporal limitations are likely to detract from the effectiveness of the program.
Both the Basic Education Regulations (BER) and the Higher Education Regulations (HER) contain sunset clauses, setting a five-year limit on the overall duration of the program, as follows: “the regulations apply for a period of five years from the date of commencement thereof.”
Educational support must be sustained over time. The program should have been designed in such a way as to allow beneficiaries to complete as full a cycle of education as possible, if the program is to have a genuine impact and be truly reparatory. The shortness of these sunset provisions undercuts this objective. Essentially arbitrary in nature, the sunset provisions do not take into account whether “learners” are successfully enrolled and are perhaps nearing completion of educational programs. The impact becomes particularly evident, when you consider a student who hopes to bundle benefits. As written, the educational programs covers programs that could theoretically cover a time span of 13 years for basic education (Grades R-12) as well as varying lengths of time for adult education and professional training programs. The sunset clauses effectively place a cap on achievement: a learner may only receive assistance for five-years of education.
The Regulations and broader statutory scheme create the expectation that a beneficiary will receive assistance at multiple levels of their education. One of the “Objects” of the HER identified in regulation 2(3), is providing assistance in respect of “more than one category of assistance”, which cover basic through advanced degrees of education. The time limitations are inconsistent with this type of assistance, since most individuals will likely only have the time to finish one complete and part of an additional program, depending on what level they are already at.
Further, the South African Skills Development Act for instance, one of the statutes included in support of the regulations, states that its purpose is to “improve the employment prospects of persons previously disadvantaged by unfair discrimination and to redress those disadvantages through training and education.” However, limiting the assistance provided to a 5 year window of opportunity is an arbitrary decision limiting the extent to which disadvantaged persons may meaningfully improve their situation.
Other family circumstances may also intrude, barring beneficiaries from requesting assistance soon enough to help them. For instance, if a family cannot find a way to compensate for the learner’s lost income in the legislatively-established five year period, the person is unlikely to pursue a degree program. In addition, an adult with little or no basic education may need up to 4 years just to qualify for the higher education programs. More information is needed to discuss expected annual income at different levels of education and the costs of tuition for advanced programs, but it should be at least highlighted that those working towards advanced education programs should be able to do so without the disincentive of losing assistance during the most expensive years of education.
In addition to the overall sunset provisions, each individual program puts a cap on the length of time a beneficiary may receive benefits. These individual limits seem less problematic generally, because they seem to closely approximate the number of school terms needed to achieve the degree sought. This may however be problematic for adults who only have time to study part-time and will take longer than the allocated time to complete a given program. The regulations are unclear on this point, but it appears that if an adult follows part-time studies, the same time limit is in force, restricting further the level of education he/she may obtain under the regulations. The time periods vary by degree program:
- Grade R (reception year preceding grade 1): one year
- General Education (7-15 years or 9th grade): five years
- Further Education (grades 10, 11 and 12): 3 years
- Further Education and Training (levels 2 to 4 of the National Qualifications Framework as contemplated in the South African Qualifications Authority Act): 3 years
- Higher Education (above grade 12): 5 years
- Skills Development: (presumably the 5 year sunset)
Regulations 10(3)(1) of the BER and 11(3)(a) of the HER specify a two-month deadline from when the Regulations come into commencement for requesters to apply for assistance for the current year. In practice, this deadline is likely to prove too short. If the two-month cut-off is missed, the beneficiary may miss a large portion of the first of the five year time limit to begin the educational program. It often takes lengthy planning and preparation to make child care and living arrangements for a family before an adult can return to school, which might further detract from the window of opportunity presented to beneficiaries.
v) The proposed regulations provide little information about the scope and type of medical benefits that are covered under the program. This uncertainty may undermine the effectiveness of the regulations overall if victims are not made aware of the type of assistance they are intended to receive.
Whereas the BER (Regulation 2) and HER (Regulation 3) both outline the “Objects and application of Regulations”, the medical benefits regulations (MBR) are less clear as to the extent and type of medical assistance to be provided. As currently drafted, the proposed legislation does not provide sufficient guidance about the scope of medical benefits available to victims and their relatives and dependents. Many issues remain outstanding:
Will beneficiaries be entitled to receive treatment only for those conditions that they can show are attributable to the harms suffered? Will beneficiaries be entitled to long-term services or only short-term treatment?
Regulation 4(1) specifies that “medical benefits in the form of health services must be rendered” to beneficiaries of the scheme. The definition of health services (provided in the National Health Act) is broad and includes reproductive care, emergency care, basic nutrition and health services for children, and medical treatment for arrested, detained and accused persons. However, Section B, Question 4 of the application form for medical benefits requests information about “the harm suffered as a result of the conflicts of the past, which information served as the basis on which the TRC identified the person as a victim.” The form further notes that the information will be used to determine whether the person requesting benefits is a listed victim of the TRC or relative of a victim. It is unclear why this question is necessary, given the TRC has already listed which victims have been recognized. This question suggests instead that the information about the original harm suffered may be used as a means of determining whether benefits will be granted or not to an applicant.
The complexity and uncertainty in the application process may discourage applicants from seeking medical services due to the financial risk of having to pay for services following a rejected application. Given that the purpose and scope of the MBR is not fully articulated, applicants will likely be uncertain about whether their applications for medical assistance will be approved or rejected. Without establishing criteria or specific examples of the services that will be compensated, the risk of having to pay the cost of the service itself may be prohibitive for applicants who could never afford the service without assistance.
Some provisions in the regulations are cause for particular concern in the application process. Approval for the treatment is not granted before services are provided. Regulation 6(2) states the health institution must ensure the medical treatment is rendered to the applicant, “despite the fact that the dedicated official must still verify the request.”
Even though the health institution is required to provide the service regardless, the regulations do not specify who will bear the cost of the treatment if the application is rejected.
Regulation 6(4) lists the criteria which the dedicated official must be satisfied are met for the request to be approved, which presumably are the bases for the denial of a request. One of those criteria is whether the applicant is a listed victim or relative of the listed victim as contemplated in regulation 3(1), information which the applicant must provide in the form with supporting documentation. It appears that each time an applicant requests medical assistance, this is the necessary process. While Regulation 5(6) requires the head of the health establishment to “assist a person in completing” the form, and ensure that it is “completed properly,” this may be an undue administrative burden on health care institutions.
 The relevant definition never uses the word grandchild or grandchildren. However, grandchildren would certainly fall within these definitions and would most assuredly be impacted, as would any other child who fits within these definitions.
 Oddly enough, in the proposed medical regulations, the drafters created another design twist, adding a new classification of relatives: “any other person to whom a listed victim has or had a legal or customary duty to support.” Would this include grandchildren? Who else would it include?