An analysis of the South African social assistance system as it applies to children in rural communities : a perspective from the Grootboom case

• Date: 01 January 2011
• Pages: 81-96
• DOI: 10.10520/EJC153215
• Author: Gugulethu Nkosi
• Published date: 01 January 2011

An analysis of the South African social

assistance system as it applies to children

in rural communities: A perspective from

the Grootboom case

Gugulethu Nkosi

*

1Introduction

The pre-democratic laws regulating social security benefits favoured white

children.

1

When the democratic government came into power in 1994 it was

concerned about the racial disparities evident in the distribution of social security

benefits and the large-scale nature of poverty, particularly amongst black

children.

2

The government’s response was to entrench social security and social

assistance provisions in the Constitution.

3

Further, the government introduced

various social assistance measures to accommodate the diverse needs of South

African children irrespective of race. The magnitude of the right of access to social

security, including social assistance, is apparent. Section 27(1) of the

Constitution

4

provides that everyone has the right to have access to health care

services,

5

sufficient food and water,

6

and social security, including appropriate

social assistance if they are unable to support themselves and their dependants.

7

*

BProc LLB (UDW now UKZN); LLM (Wits). Senior Lecturer, Department of Jurisprudence, Unisa.

1

Coloured children also benefited from social assistance. African women were largely excluded from

accessing the SMG. An African woman was eligible for this means-tested grant if she applied for financial

support from her partner or the father of her children through a magistrate’s court, and had been unable

to obtain it, or if she was widowed or deserted. See Republic of South Africa Report of the Lund Commit-

tee on Child and Family Support (August 1996), available at http://www.info .gov.za /otherd ocs/19 96

/lund.htm (accessed 2009-11-4). See also Liebenberg and Tilley ‘Poverty and inequality hearings, social

security theme’ (1998) South African Human Rights Commission for Gender Equality 4.

2

Olivier and Kalula ‘Scope and coverage’ in Olivier, Smit and Kalula (eds) Social security: A legal

analysis (2003) 143.

3

See Davis ‘Socioeconomic rights: Do they deliver the goods?’ (2008) 6 I·CON 687, available at

http://icon.oxfordjournals.org/contents (accessed 2010-11-04).

4

The Constitution of the Republic of South Africa 1996 (hereafter the Constitution).

5

Section 27(1)(a).

6

Section 27(1)(b).

7

Section 27(1)(c).

(2011) 26 SAPL82

The role of social assistance is to alleviate poverty. It is therefore important

to understand what it entails, especially in light of the relationship that is being

forged between social assistance a nd other socio-economic rights, particularly the

right to education. The Social Assistance Act Regulation that came into effect on

1 January 2010

8

creates a link between social assistance, specifically the child

support grant, and education.

9

The connection between social assistance, as

advanced in the Social Assistance Act

10

and the Social Assistance Regulations,

will be discussed against the background of the landmark case of the Government

of the Republic of South Africa v Grootboom.

11

Although the deliberations in the Grootboom case concerned section 26 of

the Constitution which provides for the right to housing, the case successfully sets

the pace for how a discourse on socio-economic rights should be approached.

The aim of this paper is to establish whether linking social assistance to education

is significant to the realisation of the right to education.

This paper will first analyse the standard for the realisation of the right of access

to adequate housing as set out in the Grootboom case. Secondly, it will investigate

the government’s constitutional mandate with regard to realising the right to social

assistance as provided for in section 27(1) and (2). The provisions of section 27 will

be discussed against the Grootboom standard and an inference will be drawn with

regard to children who reside in rural areas. Finally, I will draw some conclusions on

the link created between social assistance and the right to education for children

residing in rural areas.

Before expounding on the significance of the Grootboom case to social

assistance, it is important first to explain the concept of social assistance.

2 Social assistance – definitions and historical

perspective

Social assistance

12

is generally viewed as a component of the broader system of

social security. Social security is not a fixed concept. From the constitutional point of

view, it is said to be an umbrella concept into which social assistance is integrated.

13

8

Social Assistance Act Regulations no 32853.

9

In terms of the Social Assistance Act Regulations a primary caregiver in receipt of a child support grant

for the benefit of a child between the ages of seven and eighteen, is required to ensure that such child

attends school. Such primary caregiver is accountable to the Director-General of the National

Department of Social Development for the schooling of such child. The relationship between social

assistance and education will be discussed later in the article.

10

Social Assistance Act 13 of 2004, hereafter referred to as the Social Assistance Act.

11

Grootboom v Oostenberg Municipality 2000 3 BCLR 277 (C). Government of the Republic of South

Africa v Grootboom 2001 1 SA 46 (CC). Hereafter referred to as the Grootboom case.

12

Social assistance is also referred to as social welfare or social protection.

13

Olivier ‘The concept of social security’ in Olivier, Smit and Kalula (eds) Social security: A legal

analysis (2003) 24.