In addition to barring the mass of South Africa’s victims who did not participate in the TRC, the draft regulations may present additional difficulties for even those victims and their families who did participate. Unlike the draft regulations for medical benefits which make reference to a specific TRC volume 7 and list, the draft regulations for educational benefits provide little of the specificity needed for crafting an effective process for determining whether a person has been “found by the Commission” to be a victim.  It’s not clear: what records of the TRC will be determinative?  Will participation be limited to only those persons who have appeared before the TRC and have been allocated a TRC reference number?  Will victims who failed to collect interim reparations grants still be considered eligible to receive benefits?

This lack of specificity is particularly troubling when one considers that the drafters opted to take a very different approach in the medical context, naming a specific volume of the TRC Report.  Are there discrepancies between those who have been “found” to be victims and those who have been “identified” as such in volume 7?  Are the two categories for all intents and purposes identical or do they in actuality constitute different victim populations?

Will any victims be excluded from assistance if they have not been classified properly?  For instance, is it possible that the wife of a deceased victim may have been “found” by the Commission to be an indirect victim, because she suffered the requisite “harm” under section 1(1)(b) of the Act (“intervening to assist” a victim “in distress”), but was not listed as a victim in volume 7 and thus would be ineligible for medical benefits? Conversely, is it possible for a family member to be on the list of victims in volume 7, but not qualify as a victim under section 1(1)(b) and thus be foreclosed from receiving educational benefits?

Without more information about the content of the operative findings that will be consulted to judge eligibility for educational benefits, it is difficult to gauge how equitable the process will ultimately be and whether or not these provisions will eventually exclude some victims who did have a role before the Commission or who might be considered direct or indirect victims under Section 1(1)(a) or (b).

ii)         Documentary requirements are too onerous in the current Regulations on Education Assistance

It appears that the documentary proof required of applicants is unnecessarily burdensome.  Applicants for education assistance must provide the following documents in support of their application:

• Proof that the victim supports the applicant (if the applicant is a grandchild of the victim), either through affidavit or financial records.
• Certified copies of the applicant’s identity book.
• The letter from the TRC indicating that the person is a victim.
• Banking details of the educational institution, boarding home, party to be owed for the school uniform, and the party to be owed for the costs of transportation (bank name, account number, branch code) as well as a stamp from each bank confirming these details.
• For tuition, proof of the amount payable to the educational institution and proof of enrolment.
• For the boarding home, proof of the amount payable to the boarding home and that the applicant actually lives in this place.
• For the uniform, confirmation that a uniform is compulsory as indicated in the Institution's Code/Rules.
• For transportation, proof of the amount required for transportation and proof that the applicant makes use of this method of transportation.

The logistics of obtaining these documents may be very difficult for certain applicants, depending on the current geographical location and the availability of transportation, particularly with respect to travelling to potentially four different banking institutions at locations that may be far from home.  Further, the BER (Regulation 10(6)(b)) and HER (Regulation 11(6)(b)) both include a provision stating that the “administrator may, if the documents required in the request form are not attached, refuse to consider the request.” While it is unclear to what extent the application can be wholly disregarded without any meaningful consideration, the language of these provisions is ambiguous and leaves room for an administrator to reject an application if any one of these numerous documents is not present.

iii)         Amounts payable

There ought to be policy justifications for the determination of the amounts should be provided by the Department.  A number of questions remain unanswered.

Why is the payment of an allowance for a school uniform only provided if the uniform is a requirement? What about circumstances where the provision of the school uniform is necessary to ensure the child has appropriate clothing to wear to school?

The payment of a transport allowance to a grade R child is not payable where the school is within 1.5km from their place of residence. This would not be an appropriate distance for a child of that age to walk alone and assumes that someone is available to walk the child, when work commitments may prevent this from being possible. This is then increased to 2km for other children, who may also not be of an age where it is appropriate to walk that distance.

The minimum distances which a person must live from the educational institution to qualify for a transport allowance do not apply where the person is handicapped. However, in some circumstances the legislation refers to physically or mentally handicapped and in others it is limited to physically handicapped.  There is no basis for the distinction and a policy justification should be provided or the regulations amended so that all such provisions refer to physically and mentally handicapped.

Payment of boarding or travel allowance will depend on the school the child is attending and consideration will be given to the ‘special needs’ of the child. This term is not defined. Will this only include the needs of physically or mentally handicapped children (as referred to in respect of travel allowances) or will it also take into consideration the capacity of learning institutions to accommodate special learning needs (such as ADHD, etc).  It is unclear why the accounting officer would need a month to publish the new maximum amounts each year when the increase is a fixed 5%.

It appears that any financial aid, assistance or concession received from the state is to be deducted from the amount for which the person would otherwise qualify under the regulations. This is inappropriate and such financial aid should only be considered as part of the gross income of the applicant and treated in the same manner as other forms of income. Arguably the people who qualify for such aid are the most likely to need assistance under these regulations.

iv)        Administrator discretion

If there are not sufficient funds available for a year then the administrator gets to determine which of the requests are the most deserving.   There is no provision made for assessing whether the funds made available for that year (which is determined by the accounting officer) were appropriate (which is unlikely given they then prove to be insufficient).  There should be opportunity to review the amount allocated where it proves insufficient.

The determination of ‘most deserving’ in respect of higher education or training refers to ‘the level of education of a victim or a relative of a victim’. It is unclear how these criteria will be applied.

The regulations allow the administrator to refuse to consider a request if the documents required by the form are not attached. This is inappropriate given the power imbalance between the requester and the state, the level of literacy in the country and particularly among the group who are the target of this legislation. The administrator should be obliged to assist the requester.

The administrator gets to elect the period that a requester has to respond to a notice informing them that the administrator intends to recommend the refusal of their request for assistance. This is inappropriate and a minimum time period must be inserted (suggest 30 days) to protect the interests of the requester.

The person that verifies the decision of the administrator only has the power to refer the recommendation back to the administrator for reconsideration if they do not consider that all the requirements of the regulations have been met. There is no capacity to do so on the basis that they do not agree with the amount recommended or that they do not agree with the assessment of who is the ‘most deserving’ (unless there is a flaw in the procedure itself). While the fund administrator then has discretion regarding payment of monies, there is no provision which gives an express right to that person to pay someone where a contrary recommendation has been made or to pay an amount other than that recommended. This, in effect, means that unless the requester applies for a review of a decision by the DG no review is done of the discretion applied by the administrator. A substantive review step should be included as a matter of ordinary procedure.

There is no time limit in which the DG must respond to an appeal other than ‘as soon as circumstances permit’. This is not appropriate and a maximum time period must be inserted (such as 30 or 60 days). The requester must have certainty regarding when a decision will be made, remembering that a child may not be able to attend school for the year if a decision is not made quickly. Furthermore, some certainty should be provided as to when an application for judicial review under PAJA can be instituted.

v)         Other concerns

Education is a key component of a reparations program, as it has the potential to give meaning to the sacrifices and loss of many victims, providing them with the tools to build a better future for themselves and their children. The current regulations contain no provision for screening and evaluating educational programs that will ultimately benefit from the President’s Fund through victims who enrol in them. Some institutions, attracted by the public payment, could be driven to create cheap and inadequate programs for victims, so quality standards should be established. Also missing, are provisions to cover other educational expenses such as school supplies and school breakfast/lunches. The DoJ should be mindful of schools in certain communities that may experience an influx of students, and the regulations should provide for additional resources to those schools or for building new schools if needed.

The Constitution states that “everyone has the right (a) to a basic education, including adult basic education; and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible.”[1] Arbitrarily denying education assistance to thousands of victims of gross human rights violations, even when such education assistance was intended by the TRC to be a part of community reparations, is not making education “progressively available and accessible.”

In addition, some of the figures specified in the regulations contribute to this inaccessibility. The Basic Education regulations stipulate that the net household monthly income cannot exceed R 8,000 after deducting mortgage/rent, transport expenses, taxes, pension and medical contributions, R 300 per family member for living expenses, and statutory contributions.[2] This seems problematic if a child is in grade 10 and a family’s net income is R 9,000—too high to qualify for assistance, but too low to even cover the school fee which will likely be higher than the entire net income. The same problem arises under the Higher Education and Training regulations for a young person who wants to go to college in a family with a net monthly income of R 12,000—too high to qualify for assistance, but too low to even cover the higher education fees which will likely be higher than the entire net income.[3]

Lastly, it is worth noting that the closed victims’ list policy of the education regulations, which refer to the South African Schools Act, is also contrary to the spirit of this law, as expressed in its Preamble, which recognizes the need to “redress past injustices in educational provision, provide an education of progressively high quality for all learners and in so doing lay a strong foundation for the development of all our people’s talents and capabilities, advance the democratic transformation of society, combat racism and sexism and all other forms of unfair discrimination and intolerance, contribute to the eradication of poverty and the economic well-being of society, protect and advance our diverse cultures and languages, [and] uphold the rights of all learners . . . .”[4]