Family Law

Older Persons

Ageism is a violation of the constitutional right of older persons. In terms of section 59(3) of the Constitution, the state may not unfairly discriminate directly or indirectly against anyone on the ground of age. It is also the right of older person to have access to courts and to be treated with dignity and respect as they engage with the justice system.

Who is an older person?

The Older Persons Act, 20061 (Act No 13 of 2006) defines an older person as any man who is 65 years of age or older and any woman who is 60 years of age or older.

How are older persons’ rights violated?

Age discrimination occurs when someone is treated differently simply because of their age. It is a violation of the constitutional right of the older persons to be equal before the law and to have equal protection and benefit of the law. Age discrimination can be direct or indirect.

Is there an obligation to report any crime against older person?

An adult person who knows, or believes or suspect on reasonable ground that an act of domestic violence has been committed against the older persons has an obligation to report such to social worker or SAPS. In terms of section 52(b) of the Domestic Violence Act,1998 (Act No 116 of 1998), a failure to do so amounts to a punishable offence. Likewise a person who has knowledge, reasonable belief or suspicion that a sexual offence has been committed against an older persons who receives community-based care and support services or lives in a retirement building or facility that provides 24 hour care services, must immediately report such occurrence to the police. Failure to do so amounts to a punishable crime in terms of section 54 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No 32 of 2007). A similar sanction applies upon failure to report an act of domestic violence committed against an older person.

What makes older persons vulnerable to abuse?

Ageing comes with many challenges, which include the loss of independence, physical, emotionally and cognitive impairments.

The vulnerability of older persons is a combination of three main factors: health status, cognitive ability and social support.

• HEALTH STATUS. Older persons become “vulnerable decision-makers” as a result of the rapidly changing technological environment which restrict their ability to access information. Sight and hearing impairments and other ailments associated with ageing are the common challenges that increase this kind of vulnerability.
• COGNITIVE ABILITY. Older persons often experience decreased information processing and problem-solving skills due to declining memory capacity, reasoning/evaluation skills, and cognitive flexibility. This often leads to poor decision-making and judgment ability of the older persons.
• SOCIAL NETWORK. Older persons tend to be more vulnerable because they are less socially integrated and more likely to be under stress. “Social isolation” commonly occurs among older persons as a consequence of retirement, loss of a spouse and friends, loss of physical mobility, poor health, etc.

An older person as a State witness is entitled to:

• Be treated with respect and dignity.
• Information on their rights as witnesses. It is advisable that older witnesses be taken to the Court Preparation officer for court preparation before they testify in court.
• Use braille and sign language when they have particular disabilities.
• An interpreter to enable them to testify in the proceedings in the language of their own choice.
• Assistance of a trusted or professional person while giving evidence.
• Intermediary services when testifying when the court deems such services appropriate. The role of an intermediary is to convey the evidence from an older witness to court and vice versa, in a sensitive age appropriate manner.
• Water when testifying in court. An intermediary or Court Manager must ensure that an older witness is provided with a jug of water and glass when testifying.
• Be accompanied to court by a trusted person. Persons providing accompaniment services are entitled to witness fees when authorized by a prosecutor.

An older person as an accused person is entitled to:

• Be treated with respect and dignity when engaging with the court system.
• Information on their rights as accused persons, e.g. the right to legal representation and to apply for the services of a legal representative from Legal Aid SA, if they meet the criteria.
• Be informed that they are innocent until the court proves otherwise.
• Information on their rights, why they are at court, what the court procedures are and what will happen next.
• Use braille and sign language when they have particular disabilities.
• An interpreter to enable them to understand the proceedings and testify in the language of their own choice.

General support services available to all older persons attending court (witnesses and accused)

• Court administrative officials must ensure that older persons and persons with disabilities are given a card / written note with the next court date clearly indicated to ensure that they do not forget the next court date.
• Courts should prioritise cases involving older persons and persons living with disabilities.
• Court administrative officials must ensure that older persons and persons with disabilities remain in court until their cases are finalised.

Support Services available to an older person as a State witness

• Court accompaniment service when coming to court. This service may be provided by a family member or a person from civil society organization. A court accompaniment person is entitled to witness fees, upon request by a prosecutor.
• Court preparation services conducted by the Court Preparation Officer before and after they have testified. Older persons must be treated with respect and dignity when engaging with the court system.
• Clerks should ensure that older persons receive their witness fees as soon as they arrive in court. They tend to get hungry quickly or might need food for medication
• The Criminal and Related Matters Amendment Act, 2021 (Act 12 of 2021) provides that the court may extend intermediary services to older person witnesses in both civil and criminal proceedings, if the court is of the view that the court proceedings will expose the witness to undue psychological, mental, trauma or suffering if he or she testifies at such proceedings.

CONTACT DIRECTORY

Follow this link to view contact details for community based centres and residential facilities for older persons.