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The Judicial Enforcement of Social Security Rights in South Africa

Enhancing Accountability for the Basic Needs of the Poor
Conference paper
Part of the Veröffentlichungen des Instituts für Deutsches, Europäisches und Internationales Medizinrecht, Gesundheitsrecht und Bioethik der Universitäten Heidelberg und Mannheim book series (IMGB, volume 26)

Keywords

Social Security Supra Note Human Dignity Social Assistance Social Security System 
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References

  1. 6.
    Mashava v President of the RSA and Others 2004 (12) BCLR 1243 (CC).Google Scholar
  2. 7.
    Ibid., para. 51 (per Van Der Westhuizen J). See also: Haroon Bhorat, ‘The South African Social Safety Net: Past, Present and Future’ 4 (1995) 12 Development Southern Africa 595.Google Scholar
  3. 8.
    United Nations Development Programme (UNDP) (principal author: Vivienne Taylor) South Africa: Transformation for Human Development (UNDP, 2000) 55. According to another study, although South Africa is an upper-middle-income country in per capita terms, most households experience either outright poverty or vulnerability to poverty: Julian May (ed.) Poverty and Inequality in South Africa (University of Natal, 1998) 1.Google Scholar
  4. 9.
    The expanded definition of unemployment, which includes discouraged work-seekers, is 41.8%. See: Morné Oosthuizen and Haroon Bhorat, The Post-Apartheid South African Labour Market, (Strategies and Analysis for Growth and Access (SAGA) Working Paper, 2004) 3.Google Scholar
  5. 10.
    This covers a range of economic and legal relationships, including casual, seasonal, home-based, sub-contract work, and employment in the informal sector. See: Jan Theron and Shane Godfrey Protecting workers on the periphery, (Development and Labour Monographs, Institute of Development and Labour Law, University of Cape Town, 2000).Google Scholar
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    Beth Goldblatt & Sandra Liebenberg ‘Giving money to children: The state’s constitutional obligations to provide child support grants to child headed households’ 1 (2004) 20 South African Journal of Human Rights 151. See also: Jeremy Seekings ‘The broader importance of welfare reform in South Africa’ 2 (2002) 28 Social Dynamics at 26–27.Google Scholar
  8. 13.
    See the discussion by Seekings, ibid. Google Scholar
  9. 18.
    The child support grant (CSG) of R180 per month per child is payable to the primary care giver of children under the age of 14 years. The income of the primary care giver is means-tested according to a two-tier means test which sets a higher limit for primary care-givers and their children living in rural areas or in informal dwellings. On the application of the means test, see: Debbie Budlender, Solange Rosa & Katharine Hall At all costs? Applying the means test for the child support grant (Cape Town: Children’s Institute & Centre for Actuarial Research, UCT, 2005).Google Scholar
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    For an overview, see: Anthony Asher & Marius Paul Olivier ‘Retirement and Old Age’ in Marius Paul Olivier, N. Smit and N.R. Kalula (eds.) Social Security: A Legal Analysis (Lexis Nexis, Butterworths, 2003), Chapter 8, 231–299.Google Scholar
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    According to a recent study commissioned by the Department of Social Development, the current social security system with September 2000 levels of take-up effectively reduces the rand destitution gap by 45%. Destitution is defined as the bottom 20% of the expenditure distribution, and the resulting destitution poverty line is R180 per person per month. See: Economic Policy Research Institute, Summary Report, The Social and Economic Impact of South Africa’s Social Security System, (Department of Social Development, 30 September 2004) at 8.Google Scholar
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    Social security programmes now account for 14% of consolidated non-interest expenditure, up from 9.5 % five years ago: Minister of Finance, Trevor Manuel, Budget Speech 2005 [available on-line at http://www.treasury.gov.za/].Google Scholar
  13. 26.
    Ibid., at 59.Google Scholar
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    The only exception may be the possibility of applying and receiving for a limited period of 3 months, the Social Relief of Distress Grant (SROD) which the Social Assistance Act makes provision for (section 13). There are, however, serious problems in the implementation of this grant so that as present it does not serve as effective poverty alleviation measure. See, for example, the settlement agreement made an order of court in Kutumela v Member of the Executive Committee for Social Services, Culture, Art and Sport in the North West Province Case No. 671/2003, 23 October 2003 (B).Google Scholar
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    See: Beth Goldblatt ‘Gender and social assistance in the first decade of democracy — a case study of South Africa’s child support grant’ 2 (2005) 32 Politikon.Google Scholar
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    For a discussion of the administrative barriers in accessing the child support grant as well as perceptions regarding teenagers becoming pregnant in order to gain access to the grant and women abusing the grant, see: Beth Goldblatt & Sandra Liebenberg, supra note 12; Beth Goldblatt’ Teen pregnancy and abuse of the child support grant: Addressing the myths and stereotypes’ (2003) Agenda 71.Google Scholar
  18. 32.
    Report of the Committee of Inquiry into a Comprehensive System of Social Security for South Africa, Transforming the Present — Protecting the Future (Cape Town, March 2002), Ch. 5. Financing options for the comprehensive social protection package are discussed in Ch. 14. The Committee noted that part of the costs of the BIG would be covered by a progressive tax ‘claw-back’ from better-off beneficiaries (see at 134).Google Scholar
  19. 33.
    Ibid., at 62.Google Scholar
  20. 34.
    Ibid., at 15.Google Scholar
  21. 40.
    As Justice Kriegler of the Constitutional Court observed: ‘We do not operate under a Constitution in which the avowed purpose of the drafters was to place limits on governmental control. Our constitution aims at establishing freedom and equality in a grossly disparate society.’ Du Plessis v De Klerk 1996 (5) BCLR 658 (CC) at para. 147.Google Scholar
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    Section 38(d). The most famous case in this regard is Minister of Health and Others v Treatment Action Campaign & Others 2002 (1) BCLR 1033 (CC) (‘TAC’) where a non-governmental organisation successfully challenged the government’s programme on the prevention of mother-to-child transmission of HIV.Google Scholar
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    Permanent Secretary, Department Welfare, E Cape Provincial Government and Another v Ngxuza and Others 2001 (10) BCLR 1039 (SCA).Google Scholar
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    Ibid., paras. 11–12.Google Scholar
  25. 47.
    Section 1(a) of the Constitution. Thus in the case of Mashavha v President of the RSA & Others 2004 (12) BCLR 1243 (CC), the Court referred to social assistance as ‘an area of governmental responsibility very closely related to human dignity.’ (para. 51).Google Scholar
  26. 48.
    For a discussion of this issue, see: Sandra Liebenberg ‘The Right to Social Assistance: The Implications of Grootboom for Policy Reform in South Africa.’ 2 (2001) 17 South African Journal of Human Rights 232 at 239–241.Google Scholar
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    Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC), at para. 34; TAC, supra note 43, para. 46.Google Scholar
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    Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (1) BCLR 78 (CC).Google Scholar
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    Soobramoney v Minister of Health, KwaZulu-Natal 1997 (12) BCLR 1696 (CC).Google Scholar
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    Grootboom, supra note 49.Google Scholar
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    TAC, supra note 43.Google Scholar
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    In its General Comment No. 3, the Committee stated that it ‘is of the view that a minimum core obligation to ensure the satisfaction of at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant... In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.’ CESCR, General Comment No. 3, The nature of States’ parties obligations (article 2(1) of the Covenant) (Fifth session, 1990), UN doc. E/1991/23, annex III at 86 (1991) para. 10. For an application of this concept in the context of the specific rights protected in the Covenant, see: CESCR, General Comment No. 12, Right to adequate food (article 11 of the Covenant) (Twentieth session, 1999), UN doc. E/C.12/1999/5 (1999), para. 17; CESCR, General Comment No. 14, The right to the highest attainable standard of health (art 12 of the Cove nant) (Twenty-second session, 2000), UN doc.E/C.12/2000/4 (2000), paras. 43, 47; CESCR, General Comment No. 15 The right to water (arts 11 & 12 of the Covenant) (Twenty-ninth session 2002), UN doc. E/C. 12/2002/11 (2003), paras. 37–38.Google Scholar
  34. 57.
    TAC, supra note 43, para. 39.Google Scholar
  35. 58.
    Grootboom, supra note 49, paras. 32 and 33.Google Scholar
  36. 59.
    TAC, supra note 43, para. 35.Google Scholar
  37. 61.
    Grootboom, supra note 49, para. 33; TAC, supra note 43, para. 34.Google Scholar
  38. 62.
    See: Grootboom, ibid., para. 41.Google Scholar
  39. 63.
  40. 64.
    Soobramoney, supra note 53, para. 16; Grootboom, ibid., para. 43.Google Scholar
  41. 66.
    Grootboom, supra note 49, para. 46.Google Scholar
  42. 67.
  43. 68.
  44. 69.
    Ibid., paras. 39 and 40.Google Scholar
  45. 70.
    Ibid., para. 39.Google Scholar
  46. 71.
    Ibid., para. 43.Google Scholar
  47. 72.
    Ibid., paras. 40–43.Google Scholar
  48. 73.
    TAC, supra note 43, para. 123.Google Scholar
  49. 74.
    Grootboom, supra note 49, para. 44.Google Scholar
  50. 75.
    Thus in Grootboom (ibid.) the Court held: ‘It is fundamental to an evaluation of the reasonableness of State action that account be taken of the inherent dignity of human beings.... In short, I emphasise that human beings are required to be treated as human beings.’ (at para. 83). See: S. Liebenberg ‘The value of human dignity in interpreting socio-economic rights’ 1 (2005) 21 South African Journal of Human Rights 1.Google Scholar
  51. 76.
    Grootboom, supra note 49, para. 45.Google Scholar
  52. 77.
  53. 78.
    General Comment No. 3, 1990, supra note 56, para. 9.Google Scholar
  54. 80.
    Grootboom, supra note 49, para. 71Google Scholar
  55. 81.
    Ibid., para. 76.Google Scholar
  56. 82.
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  57. 83.
    See, for example: Julia Sloth-Nielsen ‘The child’s right to social services, the right to social security, and primary prevention of child abuse: Some conclusions in the aftermath of Grootboom’ 2 (2001) 17 South African Journal of Human Rights, 210.Google Scholar
  58. 84.
    TAC, supra note 43, para. 79.Google Scholar
  59. 85.
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    See, for example, Centre for Child Law & Ano v Minister of Home Affairs and Others 2005 (6) SA 50. The case concerned the rights, including the socio-economic rights of unaccompanied foreign children in South Africa.Google Scholar
  61. 88.
    Beth Goldblatt & Sandra Liebenberg, supra note 12; Sandra Liebenberg ‘Taking stock: The jurisprudence on children’s socio-economic rights and its implications for government policy’ 5 (2004) ESR Review 2.Google Scholar
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    David Bilchitz ‘Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socio-Economic Rights Jurisprudence’ 1 (2003) 19 South African Journal of Human Rights at 5–11; Marius Pieterse ‘Coming to terms with the judicial enforcement of socio-economic rights’ 3 (2004) 20 South African Journal of Human Rights 383 at 406–407.Google Scholar
  63. 91.
    See: Soobramoney, supra note 53, para. 28.Google Scholar
  64. 92.
    Thus, for example, it may be used to argue for an expansion of the currently very limited Social Relief of Distress Grant (SROD). See: supra note 27.Google Scholar
  65. 93.
    The Court’s jurisprudence suggests that the Court is not favourably disposed to granting direct benefits to individuals, but prefers to focus on the reasonableness of government’s programmes: Grootboom, supra note 49, paras. 68, 95; TAC, supra note 43, paras. 35, 39, 125. For a discussion of this issue, see: Sandra Liebenberg’ south Africa’s Evolving Jurisprudence on Socio-Economic Rights: An Effective Tool in Challenging Poverty’ (2002) 6 Law, Democracy & Development 159.Google Scholar
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    Mashavha, supra note 6, para. 51. The State intends establishing a Social Security Agency in terms of the Social Security Agency Act 9 of 2004 with primary responsibility for the administration of social assistance in terms of the Social Assistance Act. At the time of writing the Act had not yet brought the Act into force. See: Ex Parte: Minister of Social Development and Others 2006 (5) BCLR 604 (CC).Google Scholar
  67. 95.
    Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 (6) BCLR 569 (CC).Google Scholar
  68. 96.
    Ibid. See particularly the discussion at paras. 79–85.Google Scholar
  69. 97.
    Ibid., paras 86–98.Google Scholar
  70. 98.
    Ibid., para. 60.Google Scholar
  71. 99.
    Ibid., para. 61.Google Scholar
  72. 101.
    Section 9 of the equality clause prohibits direct or indirect unfair discrimination on a range of listed grounds (including race, sex, gender, sexual orientation, age, disability etc.). These do not represent a closed list. Other unlisted grounds (e.g. citizenship, HIVstatus etc.) may be recognised as an analogous ground of differentiation if they have an adverse effect on the dignity of the individual, or some other comparable effect: Harksen v Lane NO and Others 1997 (11) BCLR 1489 (CC), para. 46. See, for example, Hoffmann v South African Airways 2000 (11) BCLR 1211 (CC) (HIV-positive status recognized as analogous ground of discrimination). Section 9(2) also provides expressly that restitutionary measures (affirmative action) may be taken ‘[t]o promote the achievement of equality.’Google Scholar
  73. 102.
    Khosa, supra note 95, para. 74.Google Scholar
  74. 103.
  75. 104.
    Ibid., para. 76.Google Scholar
  76. 105.
    Ibid., para. 77.Google Scholar
  77. 106.
    Ibid., para. 82.Google Scholar
  78. 107.
    Ibid., para. 59.Google Scholar
  79. 108.
    The UN Committee on Economic, Social and Cultural Rights views such national strategising and planning as part of the core obligations of State Parties to the International Covenant on Economic, Social and Cultural Rights. See, for example, General Comment No. 14, supra note 56, para. 43 (f).Google Scholar
  80. 113.
    See: Nick De Villiers ‘Social Grants and the Promotion of Administrative Justice Act’ (2002) 18 South African Journal of Human Rights 320; Clive Plasket ‘Administrative Justice and Social Assistance’ (2003) 120 South African Law Journal 494.Google Scholar
  81. 115.
    Kate v MEC, Dept of Welfare, Eastern Cape [2005] 1 All SA 745 (SE) at para. 5.Google Scholar
  82. 116.
    A mass cancellation of social grants took place as a result of a re-registration drive aimed at eliminating fraud in the administration of social grants, but was effected in complete disregard of the basic principles of administrative justice. See, for example, Ngxuza, supra note 45; Bushula & Others v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government 2000 (7) BCLR 728 (E).Google Scholar
  83. 117.
    See, for example, Vumazonke v MEC for Social Development, Eastern Cape, and Three Similar Cases 2005 (6) SA 229 (‘Vumazonke’), para. 9. The High Court held in this case that the delay by the provincial department of social development in taking a decision on applicants’ application for social grants was unreasonable in terms of section 6(2)(g) read with section 6(3)(a) of PAJA. In the previous cases of Mahambehlala v MEC for Welfare, Eastern Cape and another 2002 (1) SA 342 (SE), and Mbanga v MEC for Welfare, Eastern Cape and another 2002 (1) SA 359 (SE), the High Court held that any delay beyond three months in taking a decision on an application for a welfare grant is unreasonable in the absence of special circumstances.Google Scholar
  84. 118.
    See: Mahambehlala & Mbanga, ibid.Google Scholar
  85. 119.
    Mjeni v Minister of Health and Welfare, Eastern Cape 2004 (4) SA 446 (Tk); East London Transitional Local Council v MEC for Health, Eastern Cape, and Others [2000] 4 All SA 443 (Ck).Google Scholar
  86. 120.
    Jayiya v MEC for Welfare, Eastern Cape 2004 (2) SA 611 (SCA).Google Scholar
  87. 121.
    Kate (SECLD), supra note 115, para 25.Google Scholar
  88. 122.
    Ibid., para. 23.Google Scholar
  89. 123.
    Ibid., para. 21.Google Scholar
  90. 124.
    Vumazonke, supra note 117.Google Scholar
  91. 125.
    Ibid., paras 9–10.Google Scholar
  92. 126.
    Ibid., para. 18. The SA Human Rights Commission is one of the’ state Institutions Supporting Constitutional Democracy’ established in Chapter 9 of the Constitution. The powers and functions of the Human Rights Commission are set out in section 184 of the Constitution complemented by The Human Rights Commission Act 54 of 1994. These include the power to conduct investigations on human rights issues (section 9), to make recommendations and report thereon to the Present and Parliament (section 15). In addition, the Commission has the constitutional function to request relevant organs of State to provide it ‘with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment. ‘(section 184(3)). The latest report of the Human Rights Commission on the right to social security pursuant to the exercise of this constitutional duty can be accessed on-line at http://www.sahrc.org.za/5th_esr_socialsecurity.pdf.Google Scholar
  93. 128.
    Vumazonke, supra note 117, para. 22.Google Scholar
  94. 129.
    The MEC for The Department of Welfare v Kate Case No: 580/04, 30 March 2006 (SCA) [judgment unreported at the date of writing]. In this case the delay in processing and approving the Respondent’s disability grant was thirty seven months (para 10).Google Scholar
  95. 130.
    Ibid., para. 33.Google Scholar
  96. 131.
    Ibid., para. 30.Google Scholar
  97. 132.
    Magidimisi N.O. v The Premier of the Eastern Cape and Others Case No. 2180/04 (Bisho High Court) [judgment unreported at the date of writing].Google Scholar
  98. 137.
    Khosa, supra note 95, para. 52.Google Scholar

Copyright information

© Springer Verlag Berlin Heidelberg 2007

Authors and Affiliations

  1. 1.Human Rights LawStellenbosch UniversitySouth Africa

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