The Constitution is the supreme law, and it provides protection to all those lives within the Republic (s 7 of the Constitution). Chapter 2 of the Constitution contains the Bill of Rights, which is applicable to everyone and is in line with international standards, which promotes the protection of human rights around the world (Universal Declaration of Human Rights). Section 9(3) of the Constitution, provides that no one is allowed to unfairly discriminate on grounds such as age, sex, religion, race and others. This indicates that in South Africa everyone is equal before the law, and they will receive the same treatment if they are in need of protection from the existing law in this country. The country has a long history of inequality and violence. The people who are most vulnerable to these issues are children, women, and older persons. For the purpose of this article, I am going to only focus on older persons who need protection and care. South Africa acknowledged the need to introduce legislation to protect these vulnerable members of our society. For example, the Older Persons Act 13 of 2006 was introduced. The objects of the Act are the following:
‘(a) maintain and promote the status, well-being, safety and security of older persons;
(b) maintain and protect the rights of older persons;
(c) shift the emphasis from institutional care to community-based care in order to ensure that an older person remains in his or her home within the community for as long as possible;
(d) regulate the registration, establishment and management of services and the establishment and management of residential facilities for older persons; and
(e) combat the abuse of older persons.’
The rights found in the Bill of Rights supplement the rights of older persons found in the Older Persons Act. Moreover, this Act dictates that in all matters concerning older persons their rights must be protected, respected and their best interests must be held in consideration. The aim and purpose of this Act are subjected to s 9(3) of the Constitution, namely that older persons must be protected from unfair discrimination on any grounds including their age and sex. Section 39(2) of the Constitution provides that when interpreting legislation, the Bill of Rights must be promoted and protected in terms of the law.
In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) the court held the following at paras 72 and 90:
‘The Constitution is … the starting point in interpreting any legislation. … First, the interpretation that is placed upon a statute must, where possible, be one that would advance at least an identifiable value enshrined in the Bill of Rights; and, second, the statute must be reasonably capable of such interpretation.’
‘The emerging trend in statutory construction is to have regard to the context in which the words occur, even where the words to be construed are clear and unambiguous.’
In Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) the court held the following at para 21:
‘Section 39(2) of the Constitution provides … that all statutes must be interpreted through the prism of the Bill of Rights. All law-making authority must be exercised in accordance with the Constitution. The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance. As such, the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution’s goal of a society based on democratic values, social justice and fundamental human rights. This spirit of transition and transformation characterises the constitutional enterprise as a whole.’
However, s 1 of the Act defines ‘older person’ as a person who in the case of a male to be 65 years or older and for a female to be 60 years or older. The interpretation of this section can show that the Act is unfairly discriminating against males in terms of their sex and age. I find this section to be in contrast with s 9(3) of the Constitution due to its unfair discrimination.
A is a 61-year-old woman exposed to acts of domestic violence in her home and B is a 64-year-old man who is exposed to the same circumstance. Both approached the court respectively seeking intervention. On A’s matter the court applied the Domestic Violence Act 116 of 1998, supplemented by the Older Persons Act, and protection was rendered to her. However, on B’s matter only the Domestic Violence Act was applied and the Older Persons Act was not considered as B is not yet 65 years or older.
If we were to interpret the age difference between A and B we would all agree that B is the older person. However, this Act does not see this because it shows preference to one gender and neglects the other. This begs the question why women are a declared older persons from 60 years of age and men have to be 65 years of age? Clearly there is a need to ensure equality between older persons in this Act.
In conclusion, the definition of ‘older person’ found in s 1 of the Older Persons Act is unfairly discriminating against males in terms of age and sex. To regulate this issue the definition of older person found in s 1 of the Older Persons Act should be amended. Moreover, empowering older people by informing them about their rights can help protect them against abuse. Furthermore, I believe that the South African government must account for their actions towards the protection of the rights of older people and to bring all genders to a similar level and standard of protection for older persons.
Thabo Elias Lekoko LLB LLM (NWU) is a candidate legal practitioner at North-West University Potchefstroom Law Clinic.
This article was first published in De Rebus in 2023 (Oct) DR 18.
