Legal Definitions of Elder Abuse and Neglect

6.0 SOUTH AFRICA

6.1 Legislation

Aged Persons Act, 1967 and Aged Persons Amendment Act, 1998

The Aged Persons Amendment Act, 1998, No. 100 of 1998219 ("APAA"), as amended from time to time, was assented to 19 November 1998 and is currently in force. The APAA amends the Aged Persons Act, 1967, No. 81 of 1967220 ("APA"), which focuses on protection of older person in residential care. Section 1 of the APAA amends the APA to include the following definition of "abuse":

'abuse' means the maltreatment of an aged person or any other infliction of physical, mental or financial power on an aged person which adversely affects that person.221

The APA will likely be repealed when the Older Persons Act no. 13 of 2006 comes into force.

Older Persons Act, 2006

The Older Persons Act, 2006, No. 13 of 2006222 ("OPA") was assented to on 29 October 2006 but has not yet come into force. Section 1 of the OPA defines "older person" as, "a person who, in the case of a male, is 65 years of age or older and, in the case of a female, is 60 years of age or older."223 It codifies a narrower concept of elder abuse that limits it to relationships of trust. Section 30 of the OPA creates an offence of abuse of an older person and establishes "that a person convicted of any crime or offence has abused an older person in the commission of such crime or offence must be regarded as an aggravating circumstance for sentencing purposes."224 Section 30 includes the following definition of abuse:

  • (2) Any conduct or lack of appropriate action, occurring within a relationship where there is an expectation of trust, which caused harm or distress or is likely to cause harm or distress to an older person constitutes abuse of an older person.
  • (3) For the purposes of subsection (2), 'abuse' includes physical, sexual, psychological and economic abuse and—
    • (a)'physical abuse' means any act or threat of physical violence towards an older person;
    • (b) 'sexual abuse' means any conduct that violates the sexual integrity of an older person;
    • (c) 'psychological abuse' means any pattern of degrading or humiliating conduct towards an older person, including—
      • (i) repeated insults, ridicule or name calling;
      • (ii) repeated threats to cause emotional pain; and
      • (iii) repeated invasion of an older person's privacy, liberty, integrity or security;
    • (d) 'economic abuse' means—
      • (i) the deprivation of economic and financial resources to which an older person is entitled under any law;
      • (ii) the unreasonable deprivation of economic and financial resources which the older person requires out of necessity; or
      • (iii) the disposal of household effects or other property that belongs to the older person without the older person's consent.225

In November 2007, the Department of Social Development published in the Government Gazette a Publication for Comment entitled, Draft Regulations Under the Older Persons Act, 2006 Relating to Chapter 5 of the Act ("OPA Draft Regulations")226. Annexure B of the OPA Draft Regulations is a National Elder Abuse Protocol based on:

Section 5 of Annexure B of the OPA Draft Regulations defines a number of terms including elder abuse:

This Protocol uses the terms "older person" and "elder" interchangeably. No specific age limit has been applied as this could exclude adults who experience chronic disease, physical or psychological disability, or premature ageing. Elder abuse is defined; as are elder protection and also different forms of abuse…

Elder Abuse refers to a single or repeated act, or lack of appropriate action, which causes harm or distress to an older person, occurring within any relationship where there is an expectation of trust. Harm includes physical, psychological, financial and material abuse, and sexual abuse, as well as neglect, violation of rights and systemic abuse. In terms of Article 30 (2 + 3) of the Older Persons Act 13 of 200, abuse means:

(2) Any conduct or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress or is likely to cause ham or distress to an older person constitutes abuse of an older person.

This Protocol contains the only reference to the notion of systemic abuse as a type of abuse in South Africa.

6.2 Policy

In 1998, in partnership with other relevant government departments and non-governmental organizations, the Department of Health formed a committee to develop a National Elder Abuse Strategy. Two years later, the Department of Health published, National Strategy on Elder Abuse—Baseline Document ("National Strategy").228 Chapter 1 of the National Strategy includes the following definition of "elder abuse", unique for its explicit reference to power imbalances in the discussion of relationships of trust:

3. WHAT IS ELDER ABUSE?

It is difficult in a relatively new and changing field to find agreement on a generic term to describe the phenomenon of Elder Abuse. Definitions are not only needed for "academic" purposes, definitions are needed in legislation and policy where they can compel certain action and direct resources. Cultural diversities complicate the debate on defining abuse even further.

Abuse may be summarised as harm inflicted on an individual usually by someone in a position of power, trust or authority over the individual. It may happen "once-off" or become a regular feature. Others may be unaware that abuse is taking place and for that reason abuse may be difficult to detect.229

Action on Elder Abuse South Africa ("AEASA")230 is a national non-governmental organization focused on elder abuse prevention. AEASA defines elder abuse as:

[A]ny act of commission or omission, intentional or unintentional, that causes an older person to experience distress, harm, suffering, victimization or loss that usually occurs within a relationship where there is an expectation of trust.231

Finally, following public outcry in 2000, in response to media reports about the abuse of older people in residential care, pension line-ups and the community, the Minister of Social Development commissioned an investigation into the abuse, neglect and ill-treatment of older persons. The investigation, which included public hearings before a Ministerial Committee, culminated in the release of the two-volume report, Mothers and Fathers of the Nation: The Forgotten People—The Ministerial Report on Abuse, Neglect and ill-treatment of Older Persons ("Mothers and Fathers").232 Although this publication does not clearly define "elder abuse" it includes rich discussion on definitions of abuse and neglect, aspects of which are worth mentioning:

1.3 DEFINING ABUSE:

In 1987 the term "abuse and neglect of the elderly" was used to describe situations in which individuals over the age of 65 experienced battering, verbal abuse, exploitation, denial of rights, forced confinement, neglected medical needs or other types of personal harm, usually at the hands of someone responsible for assisting them in their activities of daily living…

O'Malley sought to place abuse and neglect within the wider context of inadequate care, defining it as "…The wilful infliction of physical pain…mental anguish…or deprivation by a carer of services which are necessary to the maintenance of mental and physical health". But Hudson & Hudson maintained that the label of abuse could only be applied if it was clear that the carer or the caregiver intended no harm. According to them, O'Malley's definition excluded independent older people who could also be victims of abuse.

Bennett & Kingston ask: What about the carer who inflicts pain, but has no wilful intent (perhaps because of lack of caring skills)?

An interesting argument comes from Pillemer & Wolf who see a tautological problem of using the word abuse to define itself . Even though forms of abuse are distinguished, neglect and abuse are basically defined as neglect and abuse. They prefer the term "elder mistreatment."

Elder abuse remains a taboo subject and professionals and the general public often do not believe that it exists. Pritchard feels that it will take many years before any meaningful agreement is reached on an all-embracing definition of abuse, during which time the problem will be getting worse.

6.3 Court decisions

The South African appellate level court decisions we located which involved an elderly victim and language potentially relevant to shaping the legal definition of elder abuse were characterized by extreme violence. Each of the three cases contained in this review involved a deceased victim and the appellant was charged with murder. The facts, decisions and sentence are summarized below:

S. v. Brandt233:

Brandt travelled to the home of his parents with the intent to kill them in order to elevate his status in a satanic sect. He purchased a knife on the way. He backed out of his plan upon arrival at the family home. Brandt then consumed brandy and smoked dagga. He needed a car and money to get back. He decided to rob his parents' neighbour, a 75-year-old woman. Brandt pretended to borrow a recipe; once in the house, he allegedly decided to kill the woman to appease members of the sect. Brandt stabbed the woman in the neck and staged the scene to look like a suicide. He took her car keys, money, etc. and attempted to drive away, but the car wasn't there. At the time of the offence, Brandt was seventeen years old and thus below the age of majority. At trial the judge applied the minimum sentencing provisions and Brandt was sentenced to life imprisonment. At issue on appeal was whether, given all the circumstances surrounding the crime and the appellant, including Brandt's youth and personal history, the sentence of life imprisonment was appropriate. The judge substituted a sentence of eighteen years.

S. v. Francis234:

Francis was sentenced to death for the murder of a man ("the deceased"), along with charges for aggravated robbery and attempted murder (of "the complainant", the deceased's wife). The deceased, 82, and the complainant, 79, lived alone on a farm. Francis and another, Khanyile, accosted the deceased one night when he went to get something from his car. Khanyile used to work for the couple. Francis entered the house and ushered the complainant at gunpoint out to where the deceased was with Khanyile. The offenders took the victims back into the house; on the way, Francis said to Khanyile that they would have to kill the couple to protect themselves from being identified. The complainant tried to escape twice, but was stopped; Khanyile threatened to kill her both times and eventually shot and killed the deceased. Khanyile also attempted to rape the complainant. The appeal concerned whether the sentence of death was appropriate. The sentence was upheld on appeal.

S. v. Shandu235:

The deceased was an elderly man (69) living in a retirement village. The appellant and others (number of assailants not stated in judgment) took the deceased's home by force at night. They ransacked the home, loaded the stolen goods into the deceased's car. They forced the deceased into the car, drove him 70km to a secluded spot, and shot him in the head. The deceased's body was covered in an inflammable substance and set on fire.

As these summarizes should illustrate, comparing these cases to decisions coming out of other jurisdictions may be of marginal utility. However, they do emphasize the vulnerability of an elderly victim as a factor relevant to sentencing. In Brandt the judge states, "…the offence itself is particularly heinous. The deceased, a defenceless elderly lady, was murdered in the sanctity of her home by the appellant who entered under some false pretext in order to perpetrate a robbery."236 Francis contains the following recitation of sentencing principles:

While regard must be had to all the main objects of punishment when determining an appropriate sentence, it has repeatedly been emphasised [sic] by this Court that in cases of murder of elderly victims in their own homes with robbery as the motive, the factors of retribution and deterrence inevitably tend to come to the fore.237

The Shandu decision includes the targeting of the elderly victims as an aggravating factor, noting "[it was likely the appellant's brother] had 'earmarked and targeted' the deceased's house".238 Shandu was sentenced to death at trial for the murder charge. The appeal of his death sentence was dismissed.

6.4 Conclusion

South Africa is one of the few jurisdictions we reviewed to have created a national statute specifically addressing older adults. The Aged Persons Act of 1967, which addresses abuse in residential care, contains a broad definition of abuse. However, the Older Persons Act of 2006, assented to but not yet law, codifies a definition emphasizing breach of trust and applies to the more general South African population. South African policy generally follows this more narrow approach of limiting abuse to relationships of trust.