Poverty: Giving Meaning to the Right to Social Assistance

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Cited authorities (14)

Cited in

Jurisdiction	South Africa
Pages	191-224
Date	16 August 2019
Published date	16 August 2019
Author	June Sinclair
Citation	(2012) 23 Stell LR 191

191

POVERTY: GIVING MEANING TO THE RIGHT

TO SOCIAL ASSISTANCE

June Sinclair

BA LLB LLD

Honorary Professor of Law, University of Pretoria*

“Through our sunless lanes creeps Poverty with her hungry eyes,

And Sin with his sodden face follows close behind her.”

(O Wilde The Happy Prince and other Fairy Tales (2001) 46)

1 Poverty

It is eleven years since Sandra Liebenberg alerted us to the promising

implications of Government of the Republic of South Africa v Grootboom1

(“Grootboom”) for the enforcement of socio-ec onomic rights. She also warned

that “the deep structural problems of poverty and ineq uality in South Afr ica

have created a crisis of i mmediate needs for large numbers of people”.2 She

called for improved implementation of and broader access to social assistance

program mes.

The crisis has dee pened. Inequality has increas ed and the number of

people livi ng in dire poverty re mains unacceptably high.3 This paper seeks

to reinforce Liebenberg’s warning a nd to press for acceptance of the view

that the persist ence of high levels of severe poverty coupled with unfairly

restricted acc ess to social assistance are unconstitut ional.

Primar y responsibilit y for correcting inequitable distributions of wealth

lies wit h the Executive and the Legislatu re. But this undisputed tr uth

* I express my grat itude to and acknowledge the generous support of the Stellenbosch Institut e for Advance d

Studies (STIA S) in the preparat ion of this article

1 2001 1 SA 46 (CC)

2 S Liebenberg “The Right to Soci al Assist ance: Th e Implicat ions of Grootboom for Policy Reform in

South Africa” (2001) 17 SAJHR 232-257 I acknowledge my substant ial reliance on the extensive w ritings

of this author i n formulating the le gal arguments m ade in this art icle

3 M Leibbrand t, I Woolar d, A Fi nn & J Argent Trends in South African Incom e Distribution and Poverty

since the Fall of Apartheid OECD Social, Employment and Migrat ion Working Papers No 101 (2010) ch 2

confirm t hat inequality inc reased between 1993 and 2008 The authors poi nt out that the Gin i coefficient

for per capit a income in creased fro m 0 66 in 1993 to 0 68 in 2000, to 0 7 in 2008 (32-33) The r elationship

between poverty and inequality is complex It is trite that inequality can increase even as poverty decreases

Poverty trends are more contentious, but the authors assert that there has been no marked improvement in

money-metric poverty, that ag gregate poverty has improved marginally, and that declines i n poverty rates

have been driven by social grants (18, 26, 36, 44, 45, 66) Race remains a dominant factor, with highest

levels of poverty and ineq uality a mong black people Res olving the se issues is acce pted by the Nation al

Planning C ommission to b e critical to So uth Africa’s futu re The Nationa l Planning Com mission National

Development Plan (2011), released on 11 November 2011, is a comprehensive proposal submitted for public

comment Its guiding objective and overarching goal, repeated throughout the document, is to eliminate

poverty and r educe inequality by 2030 (see, for example, 1, 2, 78, 326) T he number of households livi ng

below R418 per month in 2009 Rands needs to fall from 39% to zero, and the Gini coefficient from 0 7 to 06

To achieve this ambitious goal, annual GDP growth must average 54% over the period (28, 90) Moreover,

it is GDP per capita that must improve to al leviate the plight of the poor, not merely the nation al average Is

the growth required likely to occur when forecasts of higher inflation and slower growth signal a real risk of

stagfl ation? See furt her nn 22, 23

(2012) 23 Stell LR 191

does not exonerate the courts. Karl Klare’s for mulation of transformat ive

constitutionalism as “an e nter prise of inducing large-scale social change

through nonviolent political processe s grounded i n law”4 underpins the call

made in this art icle for the Constitutional Court to move beyond its cur rent

(strategy of)5 deference to the other branches of govern ment and to conr m,

by giving content and enforceability to the socio-economic right to social

assistance, that its ma ndate is not merely preservative, but transformational.6

Using a palt ry pover ty li ne of R524 per month, we nd nearly half of

roughly 50 million South Africa ns living below it.7 Poverty is heavily

informed by intersecting disa dvantage owing from r ace, gender and socio-

economic stat us resulting from racially discr iminatory education. Black

people constitute rough ly 80% of the populat ion and in 2010 earned 41.2% of

total income while whites, who constitute only 9.2% of the population, earned

45.3% of total income. Fur thermore, 93.2% of the income of the lowest decile

was earned by blacks and on ly 3% by whites.8

4 K Klare “Legal Cu lture and Tran sformative Const itutionalism” (1998) 14 SAJHR 146 150 S L iebenberg

concludes her book, Socio-Econo mic Rights: Adj udication u nder a Tran sformative Constitution (2010)

490, with the view that so cio-economic rights l itigation ca nnot bri ng about t he far-reach ing stru ctural

changes r equired to build a s ociety based on social justice, an d limits her plea to the cour ts to cre ate a

normative framework to stimulate and support initiatives by government and civil society to t ransform

social and economic relat ionships This arti cle presses for a more robust role for the courts The Executive

and Legislative bran ches of government do not favour increased social assi stance to alleviate povert y It is

arguable tha t they do not accept that it is thei r constitutiona l duty to effect stru ctural change in re spect of

social assista nce In such circumsta nces the courts need to ens ure both that these branche s of government

acknowledge th e supremacy of the Con stitution and t hat they formulat e policy and legislatio n consonant

with their constit utional and interna tional-law obligations, rega rdless of their predilection s about welfare

To do so, the courts must re assess their role in pr eserving the leg itimacy of our const itutional democr acy

and must develop a no rmative vision for interpret ing a nd e nforcing socio-econo mic r ights See the

discussion on t he separation of power s in part 8 1 below

5 D Brand “Judicial Deference and Democ racy in Socio-Econom ic Rights Cases in South Afr ica” (2011) 22

Stell LR 614 cla ims that the cou rts have sought t o deal with inst itutional problem s such as the sepa ration

of powers throug h a judicial strat egy of deference

6 The judgment of the Constitu tional Court in Mazib uko v City of Johannesbu rg 2010 4 SA 1 (CC) does not

augur well for futur e attempts t o enforce socio -economic r ights Nor doe s the warn ing issued to judges

by Preside nt Zuma at the Acces s to Just ice Conferen ce hosted by the Off ice of the Chief Just ice at the

Hilton Hotel, Sandton , 08-07-2011

843&tid=36903> that judges have no bu siness altering or for ming policy in the cours e of their work This

function , he claimed, is the sole prerogative of the Executive His (inappropr iate) conception of the import

of the doctr ine of separation of p owers was repeate d at a joint sitting of Pa rliament on 1 November 2 011,

where he is repor ted to have said:

“The Exe cutive must be allowed to condu ct its a dministr ation and policy-making work as freely a s

it possibl y can… T he powers conferred on the courts cannot b e regarded as supe rior to the powers

resulting from a mandate given by th e people i n a popula r vote” W Hartley “Exe cutive Super ior to

Courts, Sa ys Zuma” Business Da y (02-11-2011) 1

No mention w as made of the Constitution of the Republic of South Afr ica, 1996 (“the Constitution”) as

the supr eme law, or the role of the Const itutional C ourt in interpret ing it, a s its cus todian, or the need

for flexible di alogic interactio n between the thre e branches of governme nt to advance the tra nsformative

imperative s of the Consti tution Rathe r, the process of constitution al adjudication is character ised as an

attempt by those oppos ed to the A NC to “co-gover n through the courts” (Hartley B usiness Day (02-11 -

2011) 1) and ha s culminated i n an impending rev iew of the Court’s perfor mance These, an d the effect of

them on at least so me judges, are worr ying developments

7 National Planning Com mission Diagnostic Report (2011) 9 based on The Pre sidency Developmen t

Indicators 2010 (2010) 26 The National Plann ing Commission Natio nal Development Plan refe rs both to

a poverty line of R515 per month with 54% of the popul ation living below it (339), and to a poverty line of

R418 per month per person i n 2009 Rands with 39% of hou seholds living below it (28)

8 RSA Millennium Develo pment Goals Count ry Report 2010 (2010) 29-30

192 STELL LR 2012 2

This paper focuses on income poverty of the adu lt poor who are able-

bodied but cannot nd employment. Many of them work, but their work is

unpaid work, disproportionately women’s work, invisible work, the work of

the caregiver. Some have intermittent, poorly paid, pa rt-time work and no job

security or conventional benets. Some move in and out of such employment.

Many have never had formal employment and have little prospect of  nding

any before they reach the age of 60 and qualify for the older persons grant.

These “non-workers” are not eligible for unemployment insurance because

it is prem ised on contributions a nd they do not meet the requirements of t he

Unemployment Insurance Fund (“UI F”).9 Dur ing the nancial crisis of 2008-

2010 over 1 million jobs were lost, and another 395,000 jobs were lost in 2010.10

The ofcial unemployment rate of 25% does not include those so discouraged

that they have given up seeki ng employment. If they ar e included, the rate

jumps to 37.4%, or 6.6 million people.11

A consequence of this poverty not always a rticulated is that the able-

bodied adult poor ar e forced to rely heavily on the working po or to sustai n

themselves. This situ ation impairs their dignity.12 It also amounts t o tacit

approval by governme nt of the privatisation of its constitutional obligations

to the poor via a transfer of its burden to the working poor, for it is among

them that t he unemployed adult poor live. It is n oteworthy that the Cong ress

of South Afr ican Trade Unions (“COSATU”), fu lly supportive a deca de ago

of the recomm endations of the Commit tee of Enquiry into a Comprehensive

System of Social Secur ity for South Africa (the so-called “Taylor Report”)

for a Basic Income Grant13 (“BIG”) but curiously quiet in recent times, has

reiterated its call for expanded social assistance including a BIG.14 The

privatisation of the St ate’s duty has e normous, ongoing and deleteriou s

consequences for union member s.

9 These features of the group, a nd e specially the plight of women with in it, are cogently descri bed

and analysed by L A Will iams “ The L egal Co nstruction of Poverty: Gender, ‘Work’ a nd the ‘Social

Contract’” (2011) 22 Stell LR 463-482 Unemployment insu rance covers only about 10% of South Africa’s

unemployed: A Govindjee & O Duppe r “Constitu tional Perspe ctives on Un employment Secu rity and a

Right to Work in Sout h Africa” (2011) 22 Stell LR 775 783

10 Statistic s South Africa Lab our Market Dyna mics in South Afric a (2010)

11 Statist ics South Afric a Quarterly La bour Force Sur vey: Quarter 3 (2011) vi This is an improvement on

the second quarter un employment rate of 257% w hich, if discou raged work-seeker s were included, was

38 2% However, the figu res are not considered , even by Statistics South Afr ica, to b e reliable ( M Isa

“Warning Casts Doubt o n Employment Da ta” Business Day (02-11-2011) 2) The labour absor ption rate

hovers around 4 0%

12 Khosa v Ministe r of Social Develop ment 2004 6 SA 505 (CC) paras 41-52 and 80-85

13 Committ ee of Inq uiry int o a Compr ehensive System of Social Security for South Africa Consolidated

Report of the Committee of In quiry in to a Comprehensive System of So cial Sec urity i n South Africa:

Transforming the Presen t – Protec ting the Future (2002) Support for a BIG to eradicate destitution is

offered by LA Willia ms “Issues and Challe nges in Addressing Pover ty and Legal Rights: A Compa rative

United State s/South Africa n Analysis” (2005) 21 SAJHR 436 459-463

14 COSAT U A Growth Path towards Ful l Employment Discussio n Document (2010) para 16 calls for a basic

income gra nt

POVERTY 193

2 Current State responses to poverty and inequ ality

2 1 State policy

The political economy of t he countr y has been and remains volatile. In

tandem with global developments, it has uctuate d substantially in the years

since Grootboom a nd is considerably less amenable now to exp anded social

assistance than it has been at times over the last decade. In policy terms,

we have come through the Reconstruction and Development Programme

(“RDP”),15 G rowth, Employment and Red istribution (“GEAR”),16 and

Accelerated and Shared Growth Initiative for South Africa (“ASGISA”) 17 and

the Millennium Development Goal18 of halving poverty and unemployment by

2014, which is clearly not attainable.19 Now we have the New Growth Path20 to

create 5 million more jobs by 2020, a goal which Ministe r Pravin Gordhan has

admitted (in 2011) we are not on track to achieve21 and the proposed Nationa l

Development Plan aiming at eradicating poverty and reducing ine quality, and

securing nea rly full e mployment by creati ng 11 million new jobs, by 2030.22

A comme ndable intervention t hat provides tempora ry relief to a growing

number of the po or, is the Expanded Public Works Programme (“EPWP”).

But it affords only shor t-ter m work.23 It is worr ying that the National

Development Plan relies so heavily on public works program mes for meeting

15 ANC “Policy Documents: A basic guide to t he Rec onstruction and Development Progr amme” ANC

(accessed 16- 07-2012)

16 National Tre asury Grow th, Employmen t and Redist ribution: A M acroeconomic Strategy (1996)

www treasu ry govza /publications/oth er/gear/all pdf> (acc essed 16-07-2012)

17 Presidenc y Accelerated and Shared Growt h Initiative for South Africa (Asgi SA) (2006)

gov za/asgisa/> (acc essed 16-07-2012)

18 See Index mundi “Mille nnium Development Goals: South Afr ica” Index mundi

com/south_ africa/mil lennium-devel opment-goals html> (acc essed 16-07-2012)

19 C Me th Unem ployment and Pove rty Halved by 2014? Worki ng Paper 56, South African Labour and

Development Research Unit , University of Cape Town (20 09) Meth also makes a cogent claim for the

introduct ion of a universa l basic income g rant See furth er C M eth Basic Income Grant: Th ere Is No

Alternativ e! (BIG: TI NA) Working Paper 54, School of Development Studies, University of KwaZulu-

Natal (2008)

20 Economic Developm ent Departme nt The New Growth Path: T he Framework (2010) 1-34

21 National Treasu ry Medium Term Budget Policy Stateme nt 25-10-2011 (2011) The Mi nister has also called

for a relaxation of labou r laws because we are likely to c reate no more than 4 mill ion jobs by 2020 At the

same time, c uriously, at an inte rnal audit confe rence on 16 August 2011, he urged t hat we need to switch

from welfare to a situat ion where most South Africa ns of working age work for their income (M Isa “SA’s

Job-Creat ion Stalled by Reality” Business D ay (16-08-2011) 2), a clear signal tha t social g rants are not

favoured as a res ponse to dire pover ty

22 National Pla nning Com mission Nation al Developme nt Plan 10 It r eflects th at 65% of black youths are

unemployed The mo st vulnerable gr oup is aged 15-24 years Black youths who fa il to get a job by age 24

are, it states , unlikely ever to get for mal employment (85)

23 The mean period of employment under the EPWP is around 100 days It costs approxim ately R100,000 per

job (S Blaine & P Vecchaitto “Ackerman Joi ns Call to Relax ‘Rigid’ Labo ur Laws” Business Da y (18-08-

2011) 1) For the disad vantages of t hese progra mmes and their inad equacy see further Williams (20 05)

SAJHR 461-462 The Commu nity Works Progra mme (“CWP”) is susceptible of sim ilar comments This

is not to say that such progr ammes are not commen dable They are absolutely nec essary, but insuff icient

The Nat ional Plan ning Com mission Na tional De velopment Plan envisa ges expan sion of t hese jobs as

critical to its solution of creati ng 11 mil lion jobs and red ucing une mployment to 6% by 2030 (91-93)

The ta rget tran slates to 2 million full-time equivalent jobs by 2030 (29) Various sc enarios a re offered

to demonst rate how many more such jobs will be requ ired if tar gets for a diver sified dyna mic economy

are not met (95-96) In scen ario one, the worst case, EPW P jobs will have to make up 231% of all jobs,

a propor tion much high er than for any other se ctor The employ ment guara ntee target is to achieve 100

days of work oppor tunities for 50% of the unemployed each year, using the expanded defin ition of

unemployment (343)

194 STELL LR 2012 2

its very ambitious targets. There is broad agreement that Treasu ry’s wage

subsidy proposal would alleviate the situat ion. This intervention would entail

(tax) incentives for employers to take on unskilled and untrained youths. But it

is regarded by some as too timid and remains hotly contested wit hin the trade

union movement.24

Social justice is an elusive concept. Setting goals that are not achieved and

arguing about what we do not want and what wil l not work, without put ting

into place concrete measures founded in law to eradicat e destit ution and

substantially alleviate poverty in the near future, put social stability at risk. The

truth is that, despite effor ts since the end of apart heid, we have not achieved a

redistribution of wealth conducive to a peaceful future and the entrenchment of

democracy. The expectations of the poor and the working poor remain unmet.

Unfullled promi ses of a better life for all that has not materiali sed seventeen

years af ter the A NC came to power provoke growing anger. The poor have

taken to the streets over poor ser vice delivery and low wages but it is obvious

that their g rievances r un much deeper and are essentially about too many

people being too poor to enjoy the fruits of “political freedom”.25 The ANC

Youth League slogan “economic f reedom in our lifetime”26 (accompanied by

calls for nationalisation of mines and bank s, and land grabs) is a power ful

rallying message th at requires only a spark to set off widesprea d civil unrest.

At the point when desperate youths throw caution to the wind, overcome their

fear of increasingly repressive police responses and take to rioting and looting,

democracy and the rule of law wi ll be compromised.27 We will have lost the

chance to hear and resp ond appropriately to messages of desperation and to

correct untenable economic distor tions in our society. Concrete measures that

will demonstrably alleviate pover ty and inequality are required as a matter of

urgency. Comprehensive social assistance is one such measure argued for in

this article.

24 At R5 billion over t hree years it coul d subsidise 423,000 jobs A nn Bernste in, of the Centre for

Development and Enter prise, c onsiders a n appropr iate thre e-year budge t to be R15 billi on (Centre for

Development a nd Enterp rise Jobs for Young Peop le: Is a Wage Subsidy a Good Idea (2011) 4) Unions

point to the risk of “subs titution” – employers usi ng the scheme to reduce their wa ge bill by restruct uring

in order to retrench olde r, unskilled workers and employ in the ir place youths whose wages are subsidi sed

by the S tate The National Union of Metalworkers of SA (“NU MSA”) has descr ibed Mini ster Gordha n

as an enemy who w ill be co nfronted i n the str eets and asks for h im to be fired i f he proce eds with the

proposal (N Ncana “Gord han ‘Is the New Enemy’” Sunday Times Business Times (21-08-2011) 1) Despit e

the cont roversy, wage sub sidies form part of t he National Development Plan’s “proposed active labour

market policies ” (National Plann ing Commission Nat ional Developme nt Plan 29)

25 Political fr eedom properly understood entails the ability to exercise it f ully as a cit izen Abject poverty

curtai ls political freed om

26 See ANC Youth League “ANC Youth Lea gue 24th National Congres s Res olutions – Consolidated:

Foreword by ANC Youth Leag ue Secretar y General - cde Sindi so Magaqa” ANCYL

org za/docs/r es/2011/24resolutions pdf > (accessed 16-07-2012) (emphasis adde d)

27 M Castells Socio-Politic al Movements in the Internet Age: From Cairo to Barcelona pap er presented at

2011 STIAS Le cture Ser ies hosted by Stellenb osch Universit y, Stellenbosch , 16-08-2011, explaine d the

genesis a nd the significance in sever al recent internat ional uprisi ngs of t he use of internet and mobile

phone t echnology Regi me change would not be an issue here, but ongoing political u pheaval and the

attendan t econom ic con sequences that would m ake pove rty alleviation even more d ifficult certai nly

would be

POVERTY 195

2 2 A developmental versus a welfare state

The policy shift away from welfare, despite the content of the Internation al

Covenant on Economic, Social a nd Cultural Rights (“ ICESCR”, which

South Africa has signe d but not ratied), is evident in declarations that

South Africa is a developmental state, should not be a welfare state, and

is committed to st rong economic growth and job creation.28 As a matter

of law, th is stance ignores the fact that arguments about the de sirability or

otherw ise of a comp rehensive so cial secu rity system a re not the p rimary

issue. I nter national law and the Constit ution speci cally commit the

countr y to provid ing welfare, including socia l assistance, to those in need.

Inter preting that comm itment in the spiri t of the Con stitution is the pri mary

issue and it is a rgued here that any legislative scheme reg ulating access

and/or ent itlement to social security mu st not exclude the able -bodied adult

poor. Those negatively d isposed towards welfare ca nnot de ny that it is a

constit utionally entr enched imper ative (the precise nature of which falls to

be inte rpreted). At t he political level, the negative di sposition result s in the

rea lities of pover ty bei ng hid den. Pove rty i s att ribute d to “f orces ov er whic h

we h ave n o con tro l”,29 to “the economy ”, to “global forces”, which we cannot

change. Distr ibutive m easures are labelled “unsust ainable” and removed

from ar enas where they des erve much more searc hing and tran sparent

discussio n. Thi s paper accept s as incontrove rtible that t he persi stence of

poverty under modern economic conditions is, at lea st in part, a pr oduct

of legal a nd polit ical choice s desig ned to serve prefer red soci al policie s.

28 The ICESCR recogn ises the right of everyone to social sec urity United Nations Com mittee on Economic

Social and Cultura l Rig hts (“UN CESCR”) General Comment No 19: Th e Right to Social Sec urity

(art 9) (2008) E/C 12/GC/19 para 23(i) states that in orde r to achieve cover age for disadvantage d and

marginal ised groups, that is, “ever yone”, non-contribut ory welfare schemes wil l be necessary The effect

of government’s growing insiste nce on South Africa’s being a developmen tal state is that progress towards

comprehensive social securit y in the for m of more welfa re is impeded President Zuma’s stat e of the

nation addres s and Finance Minister Gordha n’s budget spee ch in 2011 both focus heavily on developme nt,

economic grow th and the creation of jobs They declare that the coun try’s aim is to put development f irst

and not dependence on welfare (P Gordhan 2011 Bu dget Speech (2011) 16) T he National Development

Plan echoes this ap proach (see nn 22, 23, 24) See furt her Centre for Development Ente rprise Roundt able

Report on Pove rty and Inequ ality (2010), which comes out st rongly in favour of j ob creation and ag ainst

welfare as Sou th Af rica’s solution It fails to addre ss what should be d one to sustai n the poor if the

economic growth up on which its conclusions depend is neither achieved no r, in the foreseeable global

financia l climate, achievable No one i s arguin g for welfa re first and ec onomic grow th later Both are

immediat e and critical elements of an imp roved situat ion for those who seem t o be b eing told to “eat

cake” A stark tr uth is that our developmental aspiration s are la udable but cannot be achieved quickly

enough to palliat e the immediate plight of the poor Nor should these aspi rations be permit ted to diminish

the import of the i nternational-l aw and constitution ally enshrine d right to comprehensive soc ial security

The right to so cial assistance is el ucidated below

29 D Brand “The ‘Politics of Need Inter pretation’ and the Adjudicat ion of Socio-E conomic Right s Claims

in South Africa” i n A J va n der Walt (ed) The ories of Social and Econom ic Justice (2005) 17 19

Depoliticis ation and domesticat ion of poverty ensu e

196 STELL LR 2012 2

Such p olicies, as Lucy Willia ms so cogently points out, a re suscept ible of

change.30

Faster economic grow th, currently seen to be the panace a for global

economic woes, does not necessar ily correct rising inequality. Where grow th

has accelerated in some parts of the world, inequality has also risen. Growth is

not necessarily evenly distributed. Indeed, steady economic growth combined

with high levels of youth unemployment a nd conspicuous consumption on

the part of (corr upt) ruling elites contribute greatly to tr iggering p olitical

instability. T hese features were central in the Arab uprisi ngs in Tunisia and

Egypt and are prevalent in countries like Kenya and Uganda. Telling the youth

of Africa about GDP growth will provoke viscera l responses. “For whom is

the economy grow ing”, they will ask. Mitigating ine quality within count ries

rather t han among them is now acknowledged to be the crucially impor tant

international development challenge.31

The focus of our welfa re system mimics that of the apa rtheid state and

welfare systems in t he United Kingdom and the United States32 whe re full or

nearly full employment was (but is no longer) assumed to be achievable and

where r esidual state int ervention was thought to be needed only to palliate

cyclical unemployment and poverty ensui ng from te mporary economic

downswings and market imperfections. Minimal, temporary state inter vention,

in acc ordance with t he thrust of so-called Washington Consensus thin king,

remains the underpinn ing rationale for targeting vulner able groups in those

30 Williams (2005) SAJHR 446-447, discus sing welfare as a right, an entitlement, points out that all prop erty

rights are hum an artefacts wit h content capable of deter mination throug h chosen social policies Se e also

LA Williams “Beyond Lab our Law’s Parochialism: A Re-envis ioning of the Discourse of Redist ribution”

in AJ van der Walt (ed) Theories of Social and Econom ic Justice (2005) 239 241-245 There was for a time

a glimm er of hope that social assistance wo uld be expan ded The D epartment of Social Develo pment’s

(“DSD”) discussion pa per Creating our Future: St rategic Consider ations for a Comprehens ive System of

Social Secur ity (2008) envisaged not onl y expanded UIF, but also creati ng special grants for u nemployed

youth un der 25 an d caregivers of child ren, recog nising the extreme vulnerabil ity of the se groups The

proposals h ave not gained supp ort from Treasu ry and this is reflected in the most rec ent strategic pl ans/

annual reports of the DSD DSD Strategic Plan 2009 -2012 (2009) para s 3 4 3-3 3 4 ma ke reference to

developing options for unemploye d adults and caregivers of children who are child sup port grant (“CSG”)

beneficiar ies, whil e the 2010-2015 plan conta ins no such refer ence DSD Annual Re port to 2009/2010

(2009) 50 explain s that developing pol icy options for a ba sic income gra nt for unemployed adu lts, youth

benefits and assistanc e for caregiver s has been put on hold and the DSD Annual Performance Plan

2011/2012 (2011) is silent on any such develo pments T he Nation al Develo pment Plan of 2011 s peaks

of a “social floor” below which no o ne should have to live (National Planning Commission National

Developmen t Plan 21, 37, 342) It also speaks of a stro nger social security net and inclusive e conomic

growth (101, 10, 103) But the foc us is on jobs, the so cial wage (housing, education, health et cete ra)

and c ontributory social securit y scheme s (5, 25, 37) T here is no h int of expanding non-cont ributory

social assi stance to clos e the acknowledg ed glaring gap in the cu rrent gra nt system, whi ch excludes the

able-bodied poor aged 18-59 (See, for example, 327, 333-334, 340, 342 ) Lofty goals and objectives for

comprehensive social protect ion abound, bu t nothing is being planned to relieve inco me poverty for the

millions of adults who will not get jobs because of structu ral unemploym ent and do not qualify for any

social gran t This omission r uns counter to th e imperatives of the C onstitution and of t he ICESCR

31 See the insightf ul c ontribution about growt h an d in equality and the possibilit y of the Arab Spr ing

spreading south by J Githo ngo “Th e Povert y of Growth may Feed an Africa n Spri ng” Inte rnational

Herald Tribun e (24-07-2011) 23 Chief Exe cutive of the Inuka Keny a Trust and chairman of the Af rica

Institut e for Governi ng wit h Int egrity, Githongo’s v iews have great reson ance in Sout h Af rica The

National Developm ent Plan recog nises the t hreat of social disor der, wide spread political unrest and

increased crime if povert y and unemploym ent are not add ressed (Nationa l Planning Com mission

National Deve lopment Plan 85-86) But its sol utions are steadfa stly premised on fast er economic growt h

(10)

32 For a compariso n of welfare in South Afr ica and the United St ates, see Willia ms (2005) SAJHR 436

POVERTY 197

jurisdictions.33 With the advent of democracy in South Africa, exclusion from

welfare benets based on race was eliminated. But assumptions underpinni ng

the system, assu mptions about the ability of the economy to absorb a ll adults

and for full or nearly full employment to be achieved by the market were not

reconsidered. The 2011 National Development Plan discloses how vital public

works programmes will be to creat ing nearly full employment, but it does not

challenge traditional crite ria for ident ifying target groups for social gr ants,

criteria inherited from other jurisdictions and applied to whites during the

apartheid era, such as age (being a child, or being old), disability, par ticipation

in w ar.34 Pervasively in government and broader society the se groups are

regarded as the “wort hy” poor, while able-bod ied adults a re not.

Rhetoric, often attributable to government ofcials, that the poor need

and would prefer the dignity of a job to handouts that allegedly encourage

a culture of dependence is misplaced,35 ba sed on misconceptions about

the difference bet ween structura l and cyclical poverty and evocative of an

obdurate commit ment to developmental social welfare t hat limits the transfer

of resources from the productive economy to social services. Advocates of this

model assume that participation i n formal-sector waged work is the solution

to poverty.36

Lucy Williams points out th at the rhetoric also sug gests, not always

subtly, blameworthiness on the part of the adult able-bodied poor.37 T hey are

stigmatised as failures, as lacking family values, as unproductive consumer s of

33 This is not to say t hat social-r ights thin king has n ot changed Se e W Forbath “A Not so Simple Just ice:

Frank M ichelman on Social Jus tice” in AJ van d er Walt (ed) T heories of Social a nd Economic Justice

(2005) 72-107

34 It makes no sugge stion for expandi ng the social gra nt system to cover the a ble-bodied unem ployed poor

Reliance on assump tions inherited f rom the days of apartheid, when job reser vation, privileged edu cation

and other racially d iscriminat ory policies protecting whites made the economy for whites mor e similar

to that of develop ed countries is wholly inapprop riate in South A frica, where p overty and ine quality are

struct ural, sys temic and pervasive, and (exacer bated but) not derived from cycl ical flu ctuations in the

market T he National Development Plan takes c ognisance of this, but considers it possible to e radicate

poverty, achieve nea rly full employment and have ever yone enjoying “a high standar d of living” by 2030,

without exp anding social grants (Na tional Plann ing Commission National De velopment Plan 328, 330-

331)

35 Misplaced , not the least beca use the ICESCR rec ognises unemploy ment as a social ci rcumstance

warrant ing its own c ategory, alongside age, disabilit y et cetera, for eligibility for social as sistance (U N

CESCR General Comme nt No 19 para 16) There is no evidenc e that small grants, of the order of the R280

per month currently payable as a child su pport gra nt would caus e dependenc e Who would prefer such

a grant to a job? On the contra ry, the impor tance of sm all grants in alleviat ing destit ution was re cently

adduced by U NICEF and the Dep artment of Socia l Development, in the k nowledge that the CS G is used

as a hou sehold grant, and is no t confined to childr en (K Ger netzky “ Social Grant ‘Weakened Effec t of

Recession on the Poor’” Business Day (16-08-2011) 2) See further Leibbran dt et al Trends in South African

Income Dist ribution and Poverty since the Fall of Aparthe id The ILO con siders income su pport for the

unemployed t o be an es sential element in creati ng a social protection f loor (ILO World Social S ecurity

Report 2010-2011: Providin g Coverage in Times of C risis and Beyond (2010) 63, cited by Govindjee &

Dupper (2011) Stell LR 787 n 80) The National D evelopment Plan acknowledges ma rket failure an d the

need for a “social floor” and grea ter social justice (Nationa l Planning Commission Nat ional Development

Plan 54 -55), but it rema ins obdurat e about employ ment as th e solution an d proposes that the EPW P be

regarded as part of social protection: “Work provides people with an ear nings f loor and the dignit y of

being product ive rather than dependen t” (334) Bein g dependent on social grant s is clearly frowned upon,

while hav ing to depend on the worki ng poor and recipient s of gra nts intend ed for ot hers is apparently

preferable

36 Williams (2011) Stell LR 4 63, 466, 468, 473, 476 stres ses that this understand ing of waged work ig nores

that labour m arkets are frag mented and is high ly prejudicial to car egivers

37 Williams (20 05) SAJHR 462

198 STELL LR 2012 2

the fruits of the labour of others. An adult who is unable to support himself or

herself and his or her dependants is decient, lazy, not worthy of the protection

expressly provided for in section 27 of the Constitution. These attitudes impair

the dignity of the poor and ignore historical, political and economic forces that

are the con structs of poverty a nd need. They ow from a n acceptance of the

awed assumpt ion of neo-liberal policies for poverty reduction that formal-

sector waged work (complemented by public works programmes) ca n and

will provide adequate family sup port.38 The assumption entails that waged

labour properly makes the family the site pri marily responsible for support

of its members and properly renders the State’s responsibility residual, to be

invoked only in cr ises and only temporarily.39 Williams, calling for inclusive

social assista nce, powerfully claims t hat South Africa’s reliance on m arkets,

public works and the fa mily ec onomy as paramount in reducing poverty

disables it f rom addressing profound struct ural inequa lity. “Privatising

poverty solutions tran sfers many welfare functions to a domestic economy

that cannot accommodate this responsibility” and demonises parents who

cannot provide for their fami lies.40

Arguments for expanded access to social assistance grants should not be

taken in any way to di minish the laudable goals for exp anding the economy

and increasing the number of jobs. But growth on its own leaves intact

unacceptable degrees of inequality and cannot quick ly enough pall iate dire

poverty. Worthy job-creation strategies ignore suffering in the present for

an uncertain claim in the future. Even public works programmes, akin to

employment g uarantee scheme s that have been adopted elsewhere, s uch as

in India,41 are laudable but on their own inadequat e. There is a ti me-bomb

ticking and there are moral and c onstitutional issues that must be aired and

acted upon. Content must be g iven to the com mitment to the founding values

of fre edom, dignity and equality, to the fundamental r ights to e quality and

dignity, and to the socio- economic right to social assistance. In this quest the

courts have a centr al role to play.

38 Williams (2011) Stell LR 463, 464

39 Brand add resses this “do mestication” of pover ty (Brand “ Politics of Need Int erpretation” i n Theories o f

Social Ju stice 19) William s (2005) SAJH R 462 points out that the Constitution al Court in Governme nt

of the Republic of S outh Africa v Groot boom 2001 1 SA 46 (CC) accepted t hat primary r esponsibility for

family subsiste nce rests with the family She also emphasise s that reaffirma tion of the free market and the

family as t he correct fr amework for dealin g with income dis parities per petuates cla ss, racial and ge nder

inequalit y (Williams “Be yond Labour Law’s Parochial ism” in Theories o f Social Justice 254)

40 Williams (2005) SAJHR 4 63 She supports the introduction of a basic income grant (459) Economic

Development Department New Growt h Path 1-34 ack nowledges that the econo my has not been able to

create nearly en ough jobs It rema ins to be see n whether the h ighly ambit ious targ ets in the Nat ional

Developmen t Plan can be achieved Ris k of failure is high, and t he impact of failure wi ll be very serious

So, can we afford not to h ave a “Plan B”?

41 See gene rally 12th Regional Semina r for Labou r-intensive Con struction Prioritising E mployment

Creation in Gover nment Polici es, Progra mmes and Investment s (12-10-2007)

economistsfo rfullemployme nt org/news/Du rban_pa nel doc> (accessed 16-0 7-2012)

POVERTY 199

3 The legislative problem

The Preamble to the Social Assistance Act 13 of 2004 afrm s that the

Constitution42 con fers on “everyone” the r ight t o have access to social

secur it y,43 i ncluding, if t hey are unable to support themselves and t heir

dependants, appropriate social assistance.44 A n interpretation of t hese words

faithful to the spirit of the Constit ution is that they contain a promise t hat

the structure of the legislative system of social assistance c ontaine d in the

Social Assistance Act will be comprehe nsive, formulated to c over all persons

in need, in accordance with their constitutional right s.45 But th is is not the

position.

Section 1 of the Social Assistance Act denes “social assistance” in narrow

and specic terms, as “a social grant in ter ms of the Social Assista nce Act”.

Section 1 goes on to dene “social grant” as a child s upport gra nt, a care

dependency grant, a foster child grant, a disability grant, an older person’s

grant, a war veteran s’ grant and a g rant in aid. There is also a specic section

dedicated to eligibility for social a ssistance.46

Instead of dening social g rant in general terms, such as “a cash t ransfer

paid by the state to persons who demonstrate that they do not have enoug h

income to support themselves and their dependant s”, the legislation lists

the specic grants that a re available in ter ms of the Act. I n other words, the

categories of grants deter mine who is in and who is out.47

The argu ment made in th is article is that this denitional modu s conicts

with the constitut ional provision, which bases the eligibility of “everyone”

to have access to social assistance solely on need. “Being unable to support

42 S 27(1)(c) read with s 27(2) of the Constitution

43 The broader term “soci al se curity” covers the whole gamut of welfare instr uments, includi ng non -

contribut ory soci al assist ance i n the form of social grants and contributor y forms of wel fare suc h as

unemployment in surance and compuls ory retirement fu nding schemes It would seem not to cover

elements of what is s ometimes called the social wage – housi ng, health care, foo d, water – because these

are sepa rately itemise d in other p rovisions of the Constitution Social assist ance is thus a component of

social secur ity Access to it is based solely on the ground that claimants ar e “unable to support themse lves

and th eir depen dants” (s 27 of t he Constit ution) The type of assista nce envisa ged in the ter m “social

assistanc e” suggests the payment of money by the Stat e to an individual, in the form of a gra nt Expanded

Public Works P rogrammes a nd wage subsidies do not, on the basis of the leg islative defin ition, fall int o

the cat egory of “social assi stance” (Th e inclusion in other jurisdic tions of aspects of the so cial wage,

guarant eed income sch emes and public works progra mmes as par t of “social as sistance” can not change

the import of t he way social assista nce is defined in S outh Africa )

44 Note that the adjective here is not the same as that used to qualif y housing in s 26 (“adequate”) or food and

water in s 27(1)(b) (“sufficie nt”) See furt her part 6 below

45 DSD Strategi c Plan 2010-2015 (2010) 2 declare s:

“At the heart of the creation of a carin g and inclusive society has been t he creation and implement ation

of a comprehensive so cial security s ystem ”

But the able-bod ied adult poor rema in excluded

46 S 5(1)(a) of the Social Assistanc e Act requires el igibility in te rms of ss 6-13, which cont ain the specif ied

categories of gr ants

47 The Ministe r of Social Development determines the amou nt payable in terms of the various grants and the

scope of their reach, withi n the defined categories, by means of Regulatio n So, for example, eligibility for

the CSG has be en extended to cove r children aged u nder the age of sixt een (as from 2010), seventeen (as

from 2011) and eighteen (as from 2012) – GN R 1116 in GG 32747 of 27-11-2009 Upon reaching eight een,

majority is attained an d the individu al is no longer a ch ild in term s of the law A new cate gory of grants

would be requir ed to cater for the able- bodied adult poor ag ed 18-59 years

200 STELL LR 2012 2

themselves and their dependants”, the Constitution declares, sufces to entitle

any person to have access to social a ssistance.

The denition and eligibility sections i n the Social Assista nce Act have

the effect of excluding absolutely, and unt il their amendment, al l poor adults

aged eighteen t o 59 years. Some of these pe rsons are able-bodied but si mply

poor; others may also be il l, even chronically i ll, mentally or physically, but

not disabled and thus not eligible for any social grant.48 The group is not small.

The lived experience of the indiv iduals who make up t his group is something

we cannot afford to ignore. They experience the effects of gross income

inequality and p overty t hat prevails in South Africa.49

This art icle argues for the re structuring of the legislative scheme for social

assistance to provide access to social grants for the excluded group and an

interpretat ion of the content of the right to social assistance that is meaningf ul

and in l ine with the founding moral values and transfor mational demands of

the Constitution. Anything less would bet ray a true commitment to social

justice.

4 The constitutional challenge

The argument made here is, rst, that the legislative scheme excluding able-

bodied persons age d between eighteen and 59 from access t o social grants in

the Social Assistance Act is constitutionally invalid. It is more than a disregard

for the foundational values underpinning t he Constitution; it is a violation of

the group’s fu ndamental rights to equality and dignity50 and it runs counter

to the p rinciples of the ICESCR, to which South Africa is a signatory.51 The

denition of social grant a nd the section determining eligibility for a social

grant require a mendment.52

Secondly, the failure of the State to take reasonable legislative a nd other

measures to provide access to the so cio-ec onomic right of access to social

48 The sc ope for manipulati ng, even distorti ng the definition of dis ability, in order to qual ify/disqualif y

or per mit/refuse someone entitlement t o the disability grant i s distur bing Ther e is ev idence that HIV

positive persons del iberately stop takin g their medication in order to retai n disability benefit s (N Nattrass

“Disabilit y and Welfare in S outh Africa’s Era of Unemployment and A IDS” in S Bu hlungu, J Da niel, R

Southhall & J Lu tchman (eds) State of the Nat ion: South Africa 20 07 (2007) 179-200

49 Sketched in the f irst two par ts of this article

50 Contained i n ss 9 and 10 of the Constitut ion

51 South Afric a ha s n ot r atified the ICESCR but s 39(1)(b) of t he Constitution requ ires the courts to

consider internation al law Ar t 9 of the Covenant recognise s the r ight of “ever yone” to social secu rity

and emphasi ses the impor tance of thi s right in gu aranteeing d ignity for al l persons Ar t 2(2) guarant ees

non-discr imination in the exercise of each of the economic a nd social rights enshrined (See also UN

CESCR Gene ral Comment No 20: Non-Discr imination in Economic, So cial and Cult ural Rights (200 9)

UN Doc E/C 12/GC /20 para 2 on t he guarant ees of equalit y and non-dis crimination in relation to rights

to social secur ity and an adequat e standard of living ) UN CE SCR General Comment No 19 para 2 poi nts

out th at the right to social secur ity encom passes t he right to a ccess a nd to maintain benefits without

discrim ination i n order to secur e protecti on from, inter al ia, a la ck of work-rel ated incom e caused by

unemployment , age, disabilit y et cetera Para 16 of this General Comment requires States parties to

endeavour to provide benefits , including social assistance, to cover unemployme nt, and General Comment

No 20 para 29 expres sly lists age as a prohibit ed ground for disc rimination

52 Ss 1 and 5 respec tively

POVERTY 201

assistance for t his group is a breach of the ICESCR a nd of its constitut ional

obligations in respect of a protected s ocio-e conomic right.53

That t he total exclusion of poor, able-bodied adu lts from access to social

assistance is uncon stitutional is a central argument of this article. It is a point

that has also bee n raised by others.54 The cash needs of the able-bod ied adult

poor have not been given adequate attention, in spite of the recom mendations

in the governme nt-comm issioned Taylor Repor t55 for the int roduction of a

universal basic income g rant.

The denial of access to social assistance was the direct subject of litigat ion

in Khosa v Minister of Social Development56 (“Kho sa”). The case concer ned

the exclusion of permanent residents from the Older Pers ons Grant, the Child

Support Grant and the Care Dependency Grant. The legislation in question

expressly re quired applicants for these grants to be South African citizens.

Mokgoro J stressed the importance of the intersection of the right to dignity and

the breach of the specic right to s ocial assistance.57 Sandra Liebenberg and

Beth Goldblatt have also cogently a dvanced the imperative of an inter pretive

approach that acknowledges and reinforces the interconnectedness of rights,

accords with the ma ndate to our courts to promote the fou ndational values of

human dign ity, equalit y and freedom, and advance s the transformative goals

of the Constitution.58 The mutually reinforci ng potential of this approach is

conrmed i n Grootboom:59

“All the rights in our Bill of Rights are inter-related and mutually supporting. There can be no doubt

that human dignity, equality and freedom, the foundational values of our society, are denied those

who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables

them to enjoy the other rights enshrined in Chapter 2. The realization of these rights is also key to the

advancement of race and gender equality and the evolution of a society in which men and women are

equally able to achieve their full potential.”60

53 The rig ht is cont ained in s 27(1)(c) of the Constit ution It m ust be rea d with s 27(2), wh ich require s the

State to ta ke reason able legislat ive and other measures, within its available r esources, to ac hieve the

progressive realisation of each of these r ights Ar t 9 of t he ICESCR and the p rovisions in UN CESCR

General C omment No 19 an d UN CESCR General Comme nt No 20 (n 51) are pertinent again here UN

CESCR General Comment No 19 p ara 65 expressly refers to a failure to r eform or repeal legislation

inconsiste nt with the right t o social secur ity as a violation o ccurring t hrough an act of om ission, and see

also para 67

54 See, for example, S Lieb enberg & B Goldblat t “ The I nterrelation ship b etween Equality and Socio-

Economic R ights” (2007) 23 SAJHR 335 360-361; D Bra nd “Between Availabi lity and Enti tlement: The

Constitut ion and the Right to Food” (2003) 7 LDD 1-21; D Bran d “The Rig ht to Food” in D Brand & C

Heyns (eds) Socio-Ec onomic Rights in South Afr ica (2005) 153 181-187; Govindjee & Dupper (2011) Stell

LR 775 798

55 Committ ee of Inq uiry int o a Compr ehensive Syste m of Social Security for South Africa Consolidated

Report of the Co mmittee of Inquir y into a Comprehensi ve System of Social S ecurity in Sou th Africa

56 2004 6 SA 505 (CC)

57 Paras 40- 42

58 Liebenberg & Goldbl att (2007) SAJHR 335 337

59 Governmen t of the Republic of Sou th Africa v Grootboo m 2001 1 SA 46 (CC) paras 23-24

60 As to whether the a ction has to be pursu ed in the Equality C ourt, the pri nciple of subsidiarit y is relevant

It dictates that, once legisl ation has been enacted to give effect to a right in the Constit ution, litigants must

rely on the legislation rath er than the Constitut ion when seeking to protect th e right against infr ingement

It i s not necessa ry to explor e an action in the Equalit y Cour t u nder t he Pro motion of Equa lity and

Prevention of Unfai r Discriminat ion Act 4 of 2000 (“PEPUDA”) where the challenge is the constit utional

validity of legislation See South Africa n National Defe nce Union v Mini ster of Defenc e 2007 5 SA 400

(CC) paras 51-52; Minister of Health NO v New Cl icks South Africa (Pt y) Ltd 2006 2 SA 311 (CC) para

437 and AJ van der Walt “No rmative Pluralism and An archy: Ref lections on th e 2007 Term” (2008)

1 CCR 77 100 -101 Worth noting, thoug h, is t hat, unlike the Consti tution, s 34(1) of the PEPU DA

202 STELL LR 2012 2

5 The challenge based on equality and dignity

Equality and dignity are separ ately guara nteed, f undamental and

interconnecte d rights.61 Much of t he Constitut ional Court’s equality

jurisprude nce is informed by the right to dignity. In Hoffmann v So uth

African Airways62 the Court held that “at the heart of the p rohibition of

unfair discrimin ation is the recog nition that under our Const itution all

human beings, rega rdless of their position in society, must be accorded equ al

di gn it y”.63 Equality is adduced here in a subst antive not a formal sense. And

it entails not just what might be called equ al protection, but encompasses

Frank Michelma n’s insistence on putting welfare right s within a dist ributive

principle of “minimum pr otection”.64

In challenges based on these fundame ntal rights the rst question that arises

is whether there has been discriminat ion. The discrim ination here clearly

renders the excluded group unequal. It der ives f rom the use of a denitional

modus for t he provision of access t o social assistance that excludes able-

bodied adult s aged eighteen to 59 even if it is clear t hat they cannot supp ort

themselves and their dependants. But it remains to consider whether the

discrimi nation is unfair.

If the discrimination is based on a ground listed in sect ion 9(3) of the

Constitution, such as age, a rebuttable presumption of unfairness ar ises.65 If

the discr imination is not based on a ground liste d in section 9(3), unfairne ss

falls to be established by the claima nt. The discrimination complained of

here is based on age. The excluded group falls between the age limits for

the two most prevalent and effective measu res in the State’s povert y-relief

contains a directive principle that includes socio-eco nomic st atus as a possible ground of pro hibited

discrim ination Socio -economic sta tus, in tu rn, is def ined to includ e “a social or e conomic condit ion or

perceived condition of a person who is dis advantaged by poverty, low employment status or lack of or

low-level educa tional qua lifications” (s 1(xxvi)) For a formalis tic and undesirable outcome pe rtaining

to the for mulation of cla ims in ter ms of legislat ion and/or th e Constitutio n see Nokot yana v Ekurh uleni

Metropolita n Municipalit y 2010 4 BCL R 312 (CC) and the crit icism of the judgment by D Bilch itz “Is

the Con stitutional Court Wast ing Away the Rights of the Poor? Nokotyana v Ekurh uleni Metro politan

Municipality” (2010) 127 SALJ 591-605

61 Equalit y is gu aranteed in s 9 and dignity in s 10 of the Const itution On e must be mindful however of

Sandra Fredman’s injunction that dist ributive inequality is largely an economic debate rather than a human

rights, legal is sue: S Fredman “The Poten tial and Limits of an Equal Rights Paradigm in Addr essing

Poverty” (2011) 22 Stell LR 566-590

62 Hoffmann v South African Airways 2001 1 SA 1 (CC) a nd cited by Mokgoro J in Khosa v Minister of

Social Deve lopment 2004 6 SA 505 (CC) par a 70 S ee also Harksen v Lan e NO 1998 1 SA 300 (CC)

63 Hoffmann v So uth African Airw ays 2001 1 SA 1 (CC) para 27

64 FI Michelma n “Foreword: On P rotecting th e Poor throug h the Fourtee nth Amendme nt” (1969) 83 Harv

L Rev 7 11-59, expou nded upo n by WE Forbath “A Not so Simple Justice” in T heories of Social and

Economic Justice 72-107 Michelman regards equality discour se as inadequat e rhetor ic My article is

grounded within t he context of a rich u nderstandin g of substa ntive equalit y in pur suance of a dvancing

our curre nt rights juris prudence, but it is not u nmindful of t he limitations of e quality analysi s

65 In ter ms of s 9(5) of the Constitutio n

POVERTY 203

arsenal.66 The onus would be on the State to prove that th is discrimination is

not unfair.

In Khosa, t he exclusion of perma nent residents from the Child Support

Grant, the Older Person s Grant and the Care Dependency Grant67 was fou nd

to be unfairly discriminator y. It was held to be implicit in the word “everyone”

in section 27 of the Constitution that State provision of social assistance cannot

fairly result in the exclusion of any group in need. The Court said that “[t]hose

who are unable to surv ive without social assista nce are equally desperate and

equally in nee d of such assistance”.68 The exclusion complained of in Khosa,

as here, is absolute. It is permanent until the offending leg islative provisions

are ch anged.69 Mokgoro J stated that the exclusion lim ited the r ights of the

applicants “in a manner that affects t heir dignit y and equality in mate rial

respects” and was thus unfair.70 The denial was, the Court pointed out, total,

and the consequences of denia l were “grave”.71

Context and impact72 on the person or persons affected by the discrimination

are determi ning factors in establishing whether d iscrimination is unfair. And

relevant considerations in this regard are the position of t he complainants

in society and whet her they have suffered in the past from patterns of

disadvantage. In this regard , race, too, m ay be a ground for claiming unfa ir

discrimi nation against 18-59 year olds.

An absence of a basic subsistence need, such as cash, impedes the ability to

full life plans a nd to participate effectively in political, economic and social

life.73 It is clear that, in a society heavily reliant on cash, income poverty is

a cr itical issue. T he absence of cash on a regular basis entails no tra nsport

to seek employment, to at tend a training or other educational programme,

to go to a government of ce to collect a grant, to go to a health clinic to be

immunised or receive medical attention, t o purchase a necessity of life, such

as food. Income poverty diminishes the ability to live with dignity and to

access and benet from what ot her welfare assist ance there is.

For able-bodied adults it depr ives them of t he opportunity to par ticipate in

civil society as full citizens. It may even effectively deny t hem the chance to

66 These ar e the CSG and the Old er Persons Grant The former ac counts for 35% of the cos t of all g rants

and t he latter for 38% The tot al numbe r of g rant reci pients is close to 15 mil lion and will c ost R147

billion for 2011/2012 (Nationa l Treasury 2011 Budget S peech (2011) 25) Ac cording to the f indings of

two collabora tive studies of UNIC EF and the DSD, launched i n August 2011, South Africa’s welfare net,

dominated by the CSG, has dramati cally reduc ed the effect of child pover ty (The grant is paid to the

child’s caregiver As fr om April 2012, it stands at R280 per month ) DSD, SASSA & U NICEF The South

African Child Suppor t Grant Im pact Assess ment: Evidenc e from a survey of children, adolescents and

their househ olds (2012) 2

67 The challenge rel ated to the Social Assist ance Act 59 of 1992, as amended by the Welfare Laws

Amendment Act 106 of 1997 The definition al modus adopted in the Social As sistance Act 13 of 2004 has

not changed, alt hough there are so me differences i n wording They are not m aterial to this a rgument

68 Khosa v Ministe r of Social Developm ent 2004 6 SA 505 (CC) para 42

69 Inclusion could be ach ieved only by adding fu rther categorie s of grants or introduci ng a (universal) basic

income gra nt

70 Khosa v Ministe r of Social Develop ment 2004 6 SA 505 (CC) para 85

71 Para 77

72 See parts 1 a nd 2 of this article

73 S Liebenberg “T he Value of Human Dignit y in Interpr eting Socio-Eco nomic Rights” in A J van der Walt

(ed) Theories of S ocial and Economic J ustice (2005) 140 141

204 STELL LR 2012 2

vote. Exclusion from par ticipatory democracy impoverishes democracy itself.

It threatens the r ule of law.

A not able consequence of income p overty is t he reliance by poor adults

not mer ely on the working poor but on grants targeted at and intende d for

children, the elderly and the disabled. Poor households with members that

fall into t he categories of persons eligible for grants are better off t han those

without them. It would be naïve to imagine that the grants are used exclusively

for the be net of the eligible benecia ries. Govern ment is aware that the

targeted grants are pooled, for use by enti re families. They a re manifestly

being u sed as household grants, a fact which suppor ts the i ntroduct ion of a

comprehensive basic income grant.74

The unavailability of jobs to absorb t he able-bodied unemployed for the

foreseeable future raises the te rrible prosp ect for large numbers of young

people, overwhel mingly black, of becoming ineligible for the child support

grant at eighteen, eking out a miserable ex istence without being employed,

and somehow reachi ng the age of 60 and qualifying for the old a ge g rant. In

large mea sure, these a re the people who live the consequences of apartheid

discrimi nation. They are a vulnerable, disadvantage d group.75

The C our t in Kho sa found that exclusion of per manent residents in need

of social se curity program mes forces them i nto relationships of dependency

upon fam ilies, friends and the commu nity in which they live, casts them in

the role of supplicants, relegated to the marg ins of society.76 This seminal

case clearly conr ms that the legislative denia l of access to social as sistance

compels poor people t o become dependent on their f amily members who are

also poor; it impairs their dignity and it amounts to unfair discriminat ion. The

ensuing quest ion, whet her t he limitation of the rights to dignity and equalit y

for the able-bodied adult poor is justi able, is reserved for the section below

on reasonableness review and the li mitation of rights.

74 Pertine ntly, Finance Minister Gordhan 2011 B udget Spe ech 25 made the point t hat income support to

poor households has be en extende d over t he past decade, mainly t hrough t he phased extension of the

child support gra nt to older children No proposal is being ma de by me for household grants The size and

situation of household s vary too much for the unit to be used as the basis for a househ old grant Moreover,

the Constitut ion confers funda mental and socio-eco nomic rights on individu als A basic income grant for

individua ls would be the preferre d proposal

75 The poor are overwhel mingly black John Kane Berman, of the Instit ute of Race Relations, aler ts us to

the fac t that t here are currently 11 million people bet ween the age of seven and seve nteen, of whom a

third w ill never be e mployed and wil l remain il literate and innumerat e (R Mayer “Rel ax Law to Cre ate

Employment” B usiness Day (15-08-2011) 8) Minister G ordhan in his 2011 Budget S peech also obser ved

that 42% of 18-29 year olds are un employed

76 Khosa v Minister of So cial Developm ent 2004 6 SA 505 (CC) para s 76, 80, 81 It is no teworthy that the

Court is sayi ng that it is the absence of welfare in the for m of social grants that make s the excluded group

dependent and that, b y implicat ion, thei r inclusi on as recipients of welfa re would help t o make them

independe nt of family members , recipients of gran ts and the working p oor This is a powerf ul counter to

the preva iling and false view a bout depende ncy induced by small s ubsistence g rants such as those t hat

would be encompa ssed in a proposa l for a basic income g rant No one would prefer such a grant to a job

On th is point see Will iams (2005) SAJHR 462-463 Govindjee & Dupper (2011) Stell LR 780 poin t to

evidence showi ng the positive impact of social g rants on alleviati ng poverty and on employm ent-seeking

behaviour

POVERTY 205

6 The challenge based on the right of access to social

assistance

The pu rpose of social security is clearly to relieve poverty and is par t of

the State’s strategy to give effect to the objectives of the Const itution. As

Mokgoro J stated in Khosa:

“The right of access to social security, including social assistance, for those unable to support

themselves and their dependants, is entrenched because as a society we value human beings and

want to ensure that people are afforded their basic needs. A society must seek to ensure that the basic

necessities of life are accessible to all if it is to be a society in which human dignity, freedom and

equality are foundational.”77

The Con stitution declares that “everyone” has the right to have access to

social secur ity, i ncluding, if they are unable to support themselves and their

dependants, appropriate social assistance.78 Need is the on ly crit erion for

eligibility.79 Two matters fall to be investigated: What is the content of this

right, and has there b een an infringement.

The right to have access to social assistance is one of a clutch of socio-

economic r ights. Access to health care, housing, food a nd water are others.

The State is required to take reasonable st eps to achieve the progressive

realisation of each of these rights.80 Thus the fact that t he State’s obligation

in respect of one or more of the other rights is d ischarged may justify slower

progress but is not dete rminative in a challenge in res pect of denial of access

to socia l assistance. The existence of what is known a s the social wage, or

the social welfare package, m ade up of elements such as hea lth care, water,

housing, does not obviate the need for access to money. The EPWP, the CWP

and wage subsidies would alleviate unemployment, generate some income and

hence reduce need, to some extent. But they do not fall within the denition of

social assistance and cannot be invoked by the State to justify denial of access

to social assistance.81

The content and meaning of the socio-ec onomic rights in the Bill of Rights

fall to be esta blished via i nterpretation by the court s, which must, in order to

full t heir transformative mandate, promote the values that underlie a n open

and democratic society ba sed on human dignity, equality and freed om:82

“Whenever a court is faced with a claim by a disadvantaged group for equal access to a state benet or

resource, the court must be mindful of the socio-economic rights that entitle all people to have access

to the relevant social goods.”83

77 Khosa v Minister of Social De velopment 20 04 6 SA 505 (CC) para 52 For the position i n terms of the

ICESCR see n 51

78 S 27(1) of the Constitution

79 What is th e significanc e of the conjunct ive “and”? Must it b e established t hat the person cannot suppor t

herself and also cannot s upport her de pendants? Or wou ld it be enough t o establish th at she can suppo rt

herself but not her de pendants (who may or may not qualify for one of the exist ing g rants), or her

dependant s but no t also herself? And is “dependants” to be given a broad m eaning e ncompassing not

only persons in res pect of whom the claimant owes an enforce able duty of support, but other s who rely on

the claimant , such as a life part ner or a de facto depend ant?

80 Ss 26(2) and 27(2) See the discussion o n limitation below

81 Govindjee & Dupper (2011) Stell LR 797-798 Nor are these program mes able on their own quickly enough

to eradicat e severe poverty – Met h Unemployment and Pov erty Halved by 2014? 28-32

82 S 39(1)(a) of the Constitution

83 Liebenberg & Goldbl att (2007) SAJHR 342

206 STELL LR 2012 2

The adjective used for social assistance is “appr opriate”, while there is

no qualier for health care,84 that qualifying housing is “adequate”85 and

that qu alifying food and water is “sufcient”.86 It is not clear why different

adjectives were chosen for the va rious r ights, whether the d ifferentiation

was deliberate, and what it is inte nded to achieve in the interpretation of the

rights. All t he adjectives sig nify a qualitative dimension. But the question

arises whether they entail also a qua ntitative dimension. Put another way,

and for the purposes of this discussion, is the State obliged, subject to t he

internal limitation of the right, that is, reasonableness review, to provide any

social assistance to able-bodied adults in need? How much social assistance is

appropriate? Is zero appropriate? If so, the r ight is empt y.

This issue is funda mental to a substantive analysis of the nor mative

purposes and value s underpin ning socio-econom ic rights and, on the fac ts

in the present enquiry, to establishing the content of the right enshrined in

section 27(1). It demands more of t he courts than the setti ng of normative

guidelines to bolste r socio-economic rights adjudication.87 It precedes, and is

discrete from the exam ination of the internal limitation of the right contai ned

in section 27(2). It calls for consideration of the current standing of arguments

for a minimum core. Althoug h widely thought to have been laid to rest in

Grootboom,88 Minister of Health v Treatment Action Campaign (2)89 (“TAC”)

and Mazibuko v Cit y of Johannesbu rg,90 (“Mazibuko”) the minimum core, a n

accepted c oncept in internat ional law, may yet prove to be a fertile concept,

the more so if one avoids using the term.91

84 S 27(1)(a) of the Con stitution

85 S 26

86 S 27(1)(b)

87 Surely the socio -economic rights in th e Constit ution a re more than guiding principles, or what Lucy

Williams ca lls “soft law”? See Wil liams (2005) SAJHR 439

88 Government o f the Republic of Sou th Africa v Grootb oom 2001 1 SA 46 (CC) where the Cou rt said it did

not have enough i nformation before it to determin e a minimum core obligation (para 33) But som ething

has to be made of its f inding that a programme that excludes a significant segment of socie ty cannot be

said to be reasonable I n this regard see D Bilchitz “Giv ing Socio-Economic R ights Teeth: The Minimum

Core and its Impo rtance” (2002) 119 SALJ 484 501 and D Bilchitz Pover ty and Fundament al Rights: The

Justific ation and Enforcemen t of Socio-Economic Right s (2007) ch 5 He arg ues that the courts im plicitly

use a minim um core

89 2002 5 SA 721 (CC), which appears more clearly to have rejected the possibility of individu al entitlements

See also Willia ms (2005) SAJHR 448

90 2010 4 SA 1 (CC) which, contr ary to the f indings of the SCA , held that the City was under no obliga tion

to provide any pa rticular amou nt of free water to citi zens on a monthly bas is (para 85)

91 See William s (2005) SAJHR 449-451, whose view is that the Constitut ional Court has not closed th e door

on mini mum core T he concept has been endorsed by the UN CE SCR in int erpreting the ICESCR (see

Liebenberg Socio -Economic R ights 148 n 85) And the Cons titution d oes demand that c ourts co nsider

internat ional l aw: s 39(1)(b) Liebenberg Socio-Econo mic Right s 163-173 t raverses the a rguments for

and again st the mini mum core Crit ics of it put for ward impor tant, but not insurmount able, difficu lties

None calls for its abandonment Rather than bas ing it on problemat ic determin ants such as su rvival (see

also Bilchitz Pov erty a nd Funda mental R ights ch 5), Lieb enberg u rges th at one could use notio ns of

participa tory democ racy, dignit y, equality and free dom to det ermine it s import Her view is powerfu l

Predomin ant among the arguments aga inst the minimum core ar e those from judicial deference But fear s

that the co urts will transgress the proper bou ndaries of in stitutional leg itimacy and u surp govern ment’s

function are trapped within a conce ption of bounded separate spher es regarding t he appropriat e roles of

the various br anches of governmen t in a constitution al democracy The arg uments are addu ced to justify

the with drawal by t he courts from the arena of ensuring that socio- economic rig hts have cont ent That

withdrawal is not the rig ht response is a central p remise of this ar ticle Thi s issue and proposa ls for a

better res ponse are canvass ed in the discussion o n reasonableness, b elow

POVERTY 207

Lucy Will iams92 highlights the fact that Khosa differs signi cantly from

Grootboom and TAC. First, Khosa dealt with the constitut ionality of a statute,

rather than merely a programme of the Executive; secondly, there was no

question in Khosa of progr essive realisation of the right to social assistance

for the excluded group – it had been entirely excluded by the Social Assistance

Act. The exclusion of able-bodied poor adults aged eighteen to 59 years, in

issue here, is in pari mater ia with the facts in Khosa. The distinctiveness of

Khosa is that it shifts the enquiry from whet her the St ate has a reasonable

plan to the prior question whether there is an individual, enforceable r ight to

the benet in question. The effect of the Constitutional Court’s nding was

that the socio- economic right to social assista nce effectively granted a group

of ind ividuals (per manent residents) a legally enforceable entitlement. But,

to what? In Khosa, it was to the sp ecic grants in the Social Assistance Act,

from which non-citizens had been excluded. On the facts under discussion the

route to the solution is more elusive, but not, it is submitted, out of reach.93

The arg ument made here is that the courts declare the legislative scheme to

be recongu red to provide access to social gra nts for able-bod ied adults who

satisfy the requ irements for eligibility set forth in s ection 27(1), and in an

amount that would satisfy the requirement of appropriat eness (to be determined

by the relevant govern ment organ), subject to the limitation enquiry contained

in section 27(2). Earlier sections of this article elucidate the need of this group,

their position in society a nd their vulnerability.

Sandra Liebenberg, i n a critical analysis of Mazibuko, explai ns that

developing the normat ive content of socio-ec onomic rights need not imply that

the cour ts set xed, quantitative standards in a rigid and counter-productive

manner. Neither does t he enterprise admit of a  nding that the State is u nder

no obligation to provide any p articular q uantity of the benet envisaged.94

Such a nding denudes the right and impoverishes ou r conception of what

socio-economic rights are intend ed to achieve – the alleviation of poverty

and ensuring that the poor have access to a measure of the guar anteed service

or benet that will permit t hem to live with dignity, as ful l citizens. This

understandi ng of the normative content of socio-econom ic rights would place

a dut y on t he courts to oversee a process requiring the State to determine,

in a context sensitive way, entai ling engagement with the elected bra nches

of governme nt and the broader com munity, what an appropriate, m inimum

level of the benet entails, and to present its determination to the courts for

reasonableness testing in terms of the limitation of the right. Flexibility,

92 Williams (2005) SAJHR 450

93 New grant s would have to be legislat ively created These coul d target ca regivers and the youth, widely

accepted to b e the most vulner able within the broa der group of able-bod ied adult poor See, for exa mple,

DSD Creat ing our Fut ure Or, and much bett er, a basic income gr ant could b e introduce d, on a means

tested basis or, bet ter, universally, and couple d to claw-back mechanisms via the t ax system to reduce the

cost It is the dist ributive potent ial of these sorts of poss ibilities that the co urts should requ ire the elected

branches of gover nment to investiga te

94 Liebenberg Socio-Econo mic Rights 471 The bina ry choice between doi ng nothing and det ermining in

perpet uity a fixed amount is a fals e one, as Lucy Wil liams points out in her crit icism of the appr oach of

the Constitu tional Court in Mazib uko v City of Johannesburg 2010 4 SA 1 (CC) (L Williams “The Role of

Courts in the Qu antitative-Im plementation of Social and Econom ic Rights: A Comparative Study ” (2010)

3 CCR 141 189-197)

208 STELL LR 2012 2

allowing for movement, is implicit. Lack of in format ion and institutional

competence could be addressed without abandoning the enterprise, and would

advance our understanding of the legitimate role of t he courts. And such an

approach would comply with internat ional law.95

Had the Court in Mazibuko conrmed that the residents of Phiri, in their

circumstanc es, were entitled to some amount (to be determined) of free water to

guarantee a life with dignity, the level of scrutiny of the City of Johannesburg’s

programme, including the rigour of the research that underpinned it, would

have been elevated. T he Cour t would have paid careful attention to how

and by whom and by what process the right might be actualised. As it

was, in terse, conclusory la nguage, and without providing in the judgment

any pr obing analysis of the evidence, the Court in effect gave presumpt ive

validity to the City’s assertions about its data and methods of determ ining the

sufciency of its fr ee water supply.96 It adopted an unnecessarily nar row and

restrictive view of a reviewing court’s role, thereby dim inishing the r ight in

question and producing a result inconsistent with the project of transformat ive

constitutionalism.97

Notably, in Khosa, where fundamental and socio-economic rights were at

play, Mokgoro J did not maintain a clear separation of the two stages enta iled

in constitut ional adjud ication of brea ches of fundamental rights.98 Nor is any

separation of the enquiries under section 27(1) and 27(2) evident. Rather, in

acknowledging that the rights of equ ality a nd dign ity were implicated in

the claim for access to social assistance, she adopted a broad approach to

reasonableness review in relation to social assistance. She found it unnecessary

to pronounce on whether reasonableness in se ction 27(2) means something

different (less str ingent) from reasonableness i n the general limitation clause,

section 36. Since the State’s conduct i n relation to t he funda mental rights

was unreason able, it was un reasonable also in relation to the socio-e conomic

right. This broad approach led to a positive outcome and an advance for

transformative constitutional ism that is to be commended. However, as Sandra

Liebenberg has p ointed out,99 it does carry with it the danger of blur ring the

need to determine the substantive, normative content of the socio- economic

right protect ed in section 27(1) before proceeding to deal with the limitation

of the right contained in sect ion 27(2). To allow this blurr ing to go unnoticed,

Liebenberg warns, could weaken the standard of reasonableness applied in

cases involving socio-econom ic rights.

The argument s made above commend a separation of the enquir y required

under the rst subsection of section 27 from the limitation analysis entailed in

the second.100 A nding that the State’s current progra mme is insufcient and

95 For the imperat ives of internat ional law as set out in th e ICESCR, which South A frica has signed but not

ratified , see nn 51 and 91

96 Williams (2010) CCR 189

97 147

98 Khosa v Minis ter of Social De velopment 200 4 6 SA 505 (CC) The stag es are to deter mine fir st whether

there has bee n unfair discr imination and t hen to enquire whet her the limitatio n of the right in questio n is

justifie d in terms of the gene ral limitation cl ause, s 36 of the Constit ution

99 Liebenberg Soc io-Economic Right s 175-176

100 They apply e qually of course to e nquiries unde r s 26 of the Constitutio n

POVERTY 209

that the State is under an obligation to provide access to social a ssistance to

the able-bodied a dult poor, that is, a declaration t hat claimants who establish

the requisite need have a substantive right, would, on it s own, be insufcient

and susceptible of the kind of criticisms of t he outcome of Grootboom. (The

homeless i ndividuals were given no relief other than a declaration that the

government’s housing plan was unreasonable. And the Court’s order did not

include ongoing scrutiny by it of any remedial action taken by government.)101

For the subst antive right to be an individual legally enforceable entitlement,

the content of it must be deter mined and it must be procedurally enforceable,

that is, there must be a process to enforce t he entitlement.102 In this context

a process is called for th at, if it cannot be completed during the court’s

determinat ion of the challenge, would keep the matter under the jurisdict ion of

the court. This issue is given further attention in the section on reasonableness

review, and remedies, below.

7 The positive/negative divide and its signicance in t esting for

reasonableness

Formulating the natu re of the complaint about the denitional modus

regulating access to social assistance in the 2004 Socia l Assistance Act is

complex. As in Khosa, the facts in issue here disclose a challenge to the

validity of the legislation – the Social Assistance Act – based on equality (and

dignity) and also a complaint that the State has not fullled its section 27 duty

in respect of the progressive real isation of the right to social assistance.103

First, for the purposes of both the enquiry about infringement of the right

to equality and for the enquiry about the socio-economic right to social

assistance, the State has a duty not to impair the right or access to it. By

choosing in 20 04 to adopt a den itional modus inherited from the Social

Assistance Act 59 of 1992, which had the effect of excluding the g roup of

18-59 year olds (and certain minor children), the State has done something,

acted to impair the r ight to equal ity and simult aneously to deny the group

access to the r ight to social assistance. This could be classied as a breach

of its negative duties under both r ights. In Grootboom the Court held that the

right to housing incorporates “at the very least” a negative obligation upon the

State to desist from preventing or i mpairing the right of access to adequate

housing.104 Viewed differ ently, the facts could disclose that the State i n 2004

failed to remove the obstacle to access for the group under discussion. Sandra

Liebenberg has pointed out that the terminology used i n Grootboom is wide

101 Governme nt of the Republic of Sou th Africa v Grootbo om 2001 1 SA 46 (CC) para 96

102 On the Cou rt’s unwilling ness in Governm ent of the Republic of South Africa v Grootb oom 2001

1 SA 46 (CC) t o affi rm a direct right see Lieb enberg S ocio-Economic Rights 203-204 She cor rectly

asserts that the circumst ances of a particula r case m ay reveal th at justice will not be served by simply

ordering formulat ion and implement ation of a r easonable programme (205) Williams (2005) SAJHR

439 a rticulates thre e prong s for actu alisation – articulatio n of the substant ive rig ht, t he pr ocess for

enforcement , and practica l implementation To these she adds a fou rth – that co nstitutional e ntitlements

cannot be eli minated by legislat ive action

103 On the issu e of subsidiarity, see n 60

104 Govern ment of the Republic of S outh Africa v Groot boom 2001 1 SA 46 (CC) para 34

210 STELL LR 2012 2

enough t o cover not only a positive act but al so a lack of positive action to

sustain a claim of a breach of the negative dut y.105

It may be that the St ate’s failure to alter t he denition it inherited f rom the

1992 Act, puts it in breach of its positive duty under section 27. It is guilty of

an omission. This is a breach of its posit ive duty to facil itate acc ess.

The State has not deprived the group of exist ing access – t he able-bodied

adult poor have never had acce ss, but its act/omission, as described above,

certain ly impa irs, indeed prevents, access to the right for the group in

question.

What is the signi cance of trying to det ermine whether the State’s act is a

positive one and a breach of a negative duty, or an omission constituting either

a breach of a negative duty or a breach of a positive duty? The classication is

more than a semantic exercise, and one that should not, if we wish to advance

the transformative potential of the Constitution , be pursued purely as a matter

of logic. A s Liebenberg points out, a bre ach of a negat ive duty requires the

invocation of section 36 at the stage when limitation of a socio-e conomic right

is exa mined for reasonableness. The enquiry would mimic that required to

justify a brea ch of the fundamental right t o equality. By contrast, a breach of

a positive dut y calls into play t he internal li mitations of the so cio-ec onomic

rights in section 27. It is not clear that this is a distinction with a difference.

But it would be if the reasonableness requirement in section 27 is different

from that in terms of a sect ion 36 enq uiry.106 The point was raised in Khosa,

but not decided.107

The positive/negative divide is fu lly traversed by Liebenberg and her

arguments will not be recited here. The nub of the issue is whether a potential ly

less stringent standard of s crutiny owing from the internal limitation in

section 27 than the str icter standard owing from section 36 is inevita ble and

should be allowed potentially to alter the outcome of socio-economic r ights

litigation. Liebenberg powerfully cal ls for an approach by the cou rts that will

not allow the classication of the breach as one of a negative or a positive duty

to affect the outcome of the case and hence the right s of persons i n need of

socio-economic assist ance. She calls rather for an approach t hat is faithful to

the tran sformative imperatives of the Constit ution a nd its underlying values,

one that t ranscends the positive/negative div ide, es pouses the purpose of the

rights i nvolved a nd gives to t hem substantive, nor mative content. In calling

for strong re asonableness she is also promoting a needs-based interpretation

over one that is rigidly rights base d.108

The basis for the following section of this paper, dealing with the limit ation

provisions and reason ableness rev iew, is that t he approach a dvocated

by Liebenberg is compelling and that it would be counterproduct ive for

105 Liebenberg Socio-Econo mic Rights 214 UN CES CR General Com ment No 19 to the ICESCR classif ies

as a violati on an omission t o take steps to reform/re peal legislation inconsistent w ith a guara nteed right

(para 65)

106 Liebenber g Socio-Economi c Rights ch 4, especial ly parts 4 6-4 7

107 Khosa v Mini ster of Social Deve lopment 2004 6 SA 505 (CC) par a 83

108 See S Liebe nberg “Needs, Rights and Tran sformation: Adjud icating Social R ights” (2006) 17 Ste ll LR 5

15-19

POVERTY 211

courts to seek to establish d ifferent meanings and standard s of scruti ny for

determin ing reason ableness, depending on whether the limitation enquiry

is one about fundamental rights as opposed to socio-ec onomic rights. The

interconnecte dness of all the rights is incontrovert ible. Moreover, in many

cases, including the one under discussion here, there are two challenges in

issue, implicating both kinds of rights. T he denitional denial of access to

social assistance is, it is arg ued, an infringement of the r ights to equality and

dignity, and the State’s failure to provide social assistance is, it is argued, a

violation of the socio-economic right of everyone in need to have access to

appropriate social assist ance.

8 Limitation of rights and reasonableness review

The rig hts of equality and dignity are not absolute and may be limited in

terms of section 36, the general limit ations clause in the Constitution. The

limitation, i n a law of general application, must b e reasonable and justiable

in a n open and democratic so ciety based on dignity, equality and free dom,

taking into account the nature of the right, the impor tance of the pur pose

of t he limitation, the extent of the li mitation, the relationship between t he

limitation and its purpose, and less restrict ive mea ns to achieve the purpose

of the limitation.109 T he cases reveal that the courts do not go th rough the list

sequentially. Rather, the approach is a broad one that uses the criter ia to guide

an overall exploration of the reasonableness of the lim itation.

The socio- economic rights to housing, health care, food, water and social

security are subject to limitat ion intern al to the sections that confer them. The

State is required to take “reasonable legislative and other measures, withi n

its available resources , to achieve the progressive realisat ion of each of thes e

ri ghts”.110 The means chosen by the State to limit the right of the adult poor to

access, the extent of the limitation, and less restrictive means of achieving the

purpose of the limitation are at issue, as are the resources available to the State to

full its obligation. Policies adopted by the State that increase socio-economic

vulnerabilit y of disadvant aged groups should trigger stringent scrut iny of the

State’s claims of justication.111 A nd where the State has omitted t o take any

steps to ensure that a disadvantaged group has access to basic social resources

and ser vices, a high standard of scr utiny of any just icatory defence is also

called for. Akin to the analysis required in terms of the general limitations

clause, this scrutiny incorp orates a propor tionality analysis requiring the

State to show that it ha s exhausted all reasonable alternatives to ensure t hat

disadvantaged group s do not exper ience a denial of acc ess.

The concept of reasonableness review was developed in Grootboom112

(housing), Soobramoney113 (health care), TAC114 (health care) and Khosa115

109 Termed propor tionality See s 36(1)(a)-(e) of the Constitu tion

110 Ss 26(2), 27(2)

111 Liebenberg S ocio-Economic R ights 226

112 Govern ment of the Republic of S outh Africa v Groot boom 2001 1 SA 46 (CC)

113 Soobra money v Minister of Heal th, (KwaZulu-Natal) 1998 1 SA 765 (CC)

114 Minister of He alth v Treatment Action C ampaign (2) 2002 5 SA 721 (CC)

115 Khosa v Mini ster of Social Deve lopment 2004 6 SA 505 (CC)

212 STELL LR 2012 2

(social a ssistance). Mazibuko116 (water) is the latest case and has attracted

criticism117 for its retreat from the promising approaches of its predecessors,

especially that of Grootboom and Khosa.

Reasonableness review under taken without an a priori determination of

the conte nt of the right in question can, as adverted to above,118 degener ate

into a wea k, normatively thin concept of reasonableness th at puts at risk t he

transformative values of the Con stitution.119 The exercise, unmoored from a

substantive a nalysis of the normat ive purposes and va lues underpinning the

right120 becomes v ulnerable to criticisms apposite in respect of the ndi ng

of t he Constitutional Court in Mazibuko: process-oriented, formalistic and

cu rs or y.

8 1 Separation of powers

Doctrinal ly, the separation of powers, judicial deference, judicial prudence,

call it what one will, takes centr e stage in reasonableness e nquiries, as it did

in Mazibuko. Acceptance of the need to separate the enquiry to deter mine the

content of the right from the subsequent e nquiry about justication for the

limitation of the right would bring into question in both stages the proper limits

of the court’s role. But the doctrine tells us no more than that, broadly speak ing,

matters of policy are the domain of the elected branches of governme nt. Lucy

Williams points out t hat the concept is too abstract to provide much pr actical

guidance to cour ts adjudicating socio-economic rights on how to attain a n

outcome th at goes beyond mere aspiration and gives en forceable content to

the justiciable r ights enshrined. Asserting that current notions of sup remacy

of the representative branches of gover nment and unquest ioning acceptance

of t he latter’s superior inst itutiona l capacity are si mplistic and outdated,121

she points out that the inclusion of enforceable socia l rights in constitutions

throws up cha llenging questions and int errogates our prevailing conceptions

of democracy.122 A nd Sandra Liebenberg adds that placing an obligation on

the State to ensure that everyone has acce ss to socio-economic r ights will

require a degree of intervention which has signicant implications for pre-

existing policy and resour ce allocations.123

Williams shows how two courts, both functioni ng withi n the doctri nal

constraint of the separation of p owers, produced very different outcomes

in their exercise of judicial oversight in socio-economic rights cases. T he

116 Mazibuk o v City of Johannesb urg 2010 4 SA 1 (CC)

117 See Willia ms (2010) CCR 189-197; Liebenbe rg Socio-Econo mic Rights 466-4 80, especially 478

118 See part 6

119 Liebenber g Socio-Econom ic Rights 223

120 467

121 William s (2010) CCR 141 n 1 Lieben berg Socio-e conomic Rights 71-75 revisits the issue of inst itutional

competence and urges that th e complexit y and experti se requi red in socio-e conomic r ights ca ses are

present als o in complex com mercial litig ation and othe r specialised fields She ma kes the same p oint in

relation to overstati ng the polycentric nature of some matter s, and warns that courts should not too read ily

abdicate thei r duty to adjudicat e in such cases

122 On the concept ion of de mocracy that South Af rica has opted for, see D Brand “Writi ng the Law

Democratic ally: A Reply to Theu nis Roux” in S Woolman & M Bishop (eds) Constitutional Conversat ions

(2008) 97 98-107

123 Liebenberg So cio-Economic Rig hts 191

POVERTY 213

judgment of the German Federa l Constitutional Cou rt (“FCC”) in t he Hartz

IV case124 and the South African Const itutional Court judgment in Mazibuko,

are compared in order to highlight that it was not the concepts and philosophy

underlying separation of powers that disclosed what the cour ts did. In practice,

what judges do is a fu nction of t heir values, assumptions, se nsitivities and

commitment to tr ansformative constit utionalism, sometimes collectively as

“the judiciary” (or some members of it), and sometimes individually. Their

work product in determin ing proper standards of judicial review reects their

understandi ng of the con straint of the doctrine and their own conception of

whether and how to call the elected branches of government to accou nt. This

understandi ng, Williams concludes, is linked to controversial political and

philosophical values, moderated to a lesser or greater extent by the judge’s

commitment to social ju stice.125

These assertions acquire powerful resonance when the outcomes of the

two cases a re compared. Both courts accepted that they cannot substitute

their policy preferences for those of gover nment. Both cou rts accepted that

it is not their function to deter mine quant itative minima for a guar anteed

social service.126 But whereas the German court played a central role in

exercising ongoing judicial oversight of the govern ment’s programmes, the

South African Const itutiona l Court took a hands-off app roach that left the

applicants bereft of any legally enforceable entitleme nt and gave minimal

direction to t he elected branche s of government for set ting acceptable

standards for the service in question.127 The lofty rhetoric proffered by the

Court about water being essential to life was undercut by its nding that the

State was under no obligation to provide a specic amou nt of free water to the

applicants. Fearf ul that any other nding would give to everyone in need an

immediately enforceable right, it retreated u nimaginatively behind a veil of

institutional incapacity and accepted the evidence of the government authority

about its programme as seemingly “indi sputable”.128 Williams compellingly

demonstrates how court s confronted with issues of enforceability of socio-

economic rights in the fut ure can work with the doctri ne to achieve much more

meaningfu l and acceptable outcomes tha n the Constitutional Cour t achieved

in Mazibuko. It is the clutch of real possibilities she proposes for our courts,

without requiring the m to eschew doctr inal constraints, which constitutes the

124 Hartz IV BVerfGE 125, 175, referred to by Willia ms (2010) CCR 143 n 3 and discussed by her 148-162

The case concerned the reduction by the Stat e of the amou nts of cert ain basic s ubsistence soc ial grants

and was challe nged by unemployed ind ividuals and thei r dependants o n the basis of a breach of t he right

to dignity, cont ained in the Ger man Basic Law

125 Williams (2010) CCR 199

126 It shou ld be noted that bot h the High Court and the Supreme Court of App eal in the Mazibuko case

were pre pared to order (b ut did no t agree on) precise quantities of free water See Mazibuk o v Cit y of

Johannesburg 2008 4 SA 471 (W ) and C ity of Johannesburg v Mazibu ko 2009 3 SA 592 (SCA) Both

judgments were set aside by the Const itutional Co urt in Maz ibuko v Cit y of Johanne sburg 2010 4 SA 1

(CC)

127 A detailed crit ique of the approach taken in Mazibu ko v City of Johannesburg 2010 4 SA 1 (CC) is offered

by Willia ms (2010) CCR 189-197 The points are cogent and entirely pertinent for the p resent enqui ry,

although not recited here Fu rther t renchant cr iticism of the judg ment is of fered by Liebenberg Socio -

Economic Right s 466-480

128 Mazibuko v C ity of Johannesbu rg 2010 4 SA 1 (CC) para 84

214 STELL LR 2012 2

key value of her comparison. Williams i s not in any se nse urging the courts

to compete with or attempt to claim ascend ancy over the elected branches of

government. Rather she joins the call of others for the Constitutional Cou rt to

fashion a proper role for itself as custodian of t he Constitution and to foster

dialogue between the th ree branches of government and civil society.129

Sandra Liebenberg de cries a construction of str ict boundaries between the

three branches of government that has the potential to frus trate transformative

adjudication of socio-economic rig hts:

“In its idealized, static form, the separation of powers doctrine may be ritually invoked by the courts

as a way of avoiding their constitutional mandate to interpret and enforce constitutionally guaranteed

rights.”130

She stresses what is e nvisaged by t he Constitution – a exible, dialogic

model of the doctrine which does not focus on transgres sion by any one branch,

but rather on whether the branches remain able to part icipate in an ongoing

interactive process of mutu ally dening and redening their bou ndaries.131

It remains to be seen whether South Africa’s current Executive can be

persuaded to adopt this model, but the signs are not auspicious.132 I f the

Executive does not mollify its current view that it alone has the prerogative

to make policy, a nd if the cour ts fail to ensure that t he political branches of

government f ull their constitutional obligations133 poor claimants in socio-

economic rights cases will justiably regard the Constitution as mere paper. It

is often the failure of the political branche s to ful l their obligations, whether

because of oversight, bu reaucratic inertia or ca pture by powerf ul inter est

groups, th at forces the poor to resort to litigation. The court s stand between

them, nal fr ustration and political upheaval.

Mazibuko was a missed opportunit y for our highe st c our t t o a dvance

the f undamental values that under pin the Bill of Rights. Passing so re adily

responsibility for the matter to other branche s of govern ment is also

problematic, for they are the opponents in the litigation. Although the approach

of the Court to its r ole in thi s case implies that future challenges a re destined

to fail, an alternative to this bleak outcome, a n examination of what judicial

imagination to fash ion a remedy might yield, is put forward below.

129 Williams (2010) CCR 190-199 S Woolman & H Botha “Limitations: Share d Constitutional Inter pretation,

an Ap propriate Normative Framework and Hard Choices” in S Woolman & M Bishop Const itutional

Conversations (2008) 149 163-168 favour a sh ared project of constit utional int erpretation involving a ll

three branc hes of government; and Brand (2011) Stell LR 614 explores a shift in perspecti ve from a binary

to a triangula r view of constitution al review that would enable the courts to engage not only t he other

branches of govern ment, but also the “sovereig n people” He advocate s a sh ift away from adversarial

adjudication t o a more inquisitori al model (630-637)

130 Liebenberg S ocio-Economic Ri ghts 67

131 69-7 1

132 See n 6

133 Which the Const itutional Cour t has said they are obliged to do – Doctor s for Life International v Spe aker

of the Nat ional Assemb ly 2006 6 SA 416 (CC) paras 108, 112-117, cited by L iebenberg Soc io-Economic

Rights 70

POVERTY 215

8 2 Pursuing the social assistance claim

On the facts under discu ssion, the cour t would b e approached by, say, a

group of per sons aged between eighteen and 59134 who are desper ately po or,

claiming access to their r ight to appropriate social assistance. The Social

Assistance Act, as claimed earlier in th is ar ticle, unfa irly excludes them.

There has been a violation of their right s to equality and to dignity. The same

legislation de nes them out of eligibility for social as sistanc e and the State

has done nothing to give effect to the right – it has done nothing to expa nd

the cat egories of grants to include any able-bodied adults sufferi ng income

poverty, nor are there any plans or programmes afoot that might achieve some

progressive realisation of the right.135 This state of affair s, and the i mpact

of the denial of access to social a ssistance for the claimants calls for strict

scrutiny of the State’s justicatory claims.136 Grootboom set a reason able

review standard requiring cour ts to assess whether the programme in question

is inter alia comprehensive, balanced and exible. The current programme for

social a ssistance is inconsistent with the normat ive vision called for by the

Constitution’s transformative aspirat ions.

The implications of a nding relati ng to the content of the right, as

pressed for above, that the a ble-bodied adult poor do have a substantive

right to appropriate social assistance, must go beyond a mere declaration of

invalidity of the governing legislation.137 O’Regan J, in Mazibuko, considered

it appropriate for the Court to question a failure of government to do anything

to cater for those most desperately i n need and to req uire it to set t argets for

progressive realisation:138

“The purpose of litigation concerning the positive obligations imposed by social and economic rights

should be to hold the democratic arms of government to account through litigation. In so doing,

litigation of this sort fosters a form of participative democracy that holds government accountable and

requires it to account between elections over specic aspects of government policy.

When challenged as to its policies relating to social and economic rights, the government agency

must explain why the policy is reasonable. Government must disclose what it has done to formulate

the policy: its investigation and research, the alternatives considered, and the reasons why the

option underlying the policy was selected. The Constitution does not require government to be held

to an impossible standard of perfection. Nor does it require courts to take over the tasks that in a

democracy should properly be reserved for the democratic arms of government. Simply put, through

the institution of the courts, government can be called upon to account to citizens for its decisions.

This understanding of social and economic rights litigation accords with the founding values of our

Constitution and, in particular, the principles that government should be responsive, accountable and

open.”139

134 Hypothet ically, made up of some p ersons betwee n the ages of eighte en and 24 years, s ome caregivers of

children i n receipt of the CSG, some bet ween the ages of 25 and 35, some bet ween 36 and 59

135 See fur ther n 30

136 Liebenberg S ocio-Economic Rig hts 197

137 Despite its theoretical import ance, t he uns upervised declarato ry ord er gra nted i n Gover nment of the

Republic of Sout h Africa v Groo tboom 2001 1 SA 46 (CC) offered no relief to the claimants (such as

emergency tem porary housin g) and entailed no ongoin g supervisor y role for the Court Se e also n 94

138 Mazibuko v C ity of Johannesbu rg 2010 4 SA 1 (CC) para 67

139 Paras 160-161, citations o mitted, cited also by Wil liams (2010) CC R 144 As Williams points out, the

judgment did not l ive up to this vision It ducked these issues , found without deep enquir y tha t the

legislative scheme for basic wat er was adequ ate, a nd dis missed the cla im It said one thing and d id

another

216 STELL LR 2012 2

Following this approach, and drawing on that of the German court in Hartz,

a court would ask whether the Legislature has openly provided a description of

the goal of ensuring a subsistence level that does justice to all the constitutional

rights involved.140 The cou rt would enquire whether a suitable met hod of

calculation for assessing what an appropr iate level of social assista nce should

be has bee n developed and whether all the necessary facts were ascertained;

and it would consider whether the Legislature has used plausible gures in

light of its chosen methodology. If the response to these sorts of questions is

awed, relief is due.141 It would also set out what positive steps, in the context

of reasonableness, have to be taken by the Legislature to explain its choices to

exclude persons in the position of the claimants; to provide information on the

process it has followed in reaching those conclusions and in r eviewing them.

The court is not, it must be stressed , being asked to ta ke over the duties of the

elected branches of government , but it must scruti nise their actual conduct and

decisions by requiring them to provide detailed evidence of the considerations

and proc esses that i nformed their policy choices and budgetary allocat ions.

The court mu st maintain a role of oversight including, where nece ssary to its

deliberations, sending the matter back for remedial action and report ing back,

within a set time l imit.142

8 3 Available resources: The affordability argument

Determin ations of what social assistance is appropriate do not accou nt for

what is affordable. It will be common for socio-economic rights cases to have

resource-allocat ion i mplications that bring into question the extent to which

it is proper for the courts to intrude into the accepted budgetary domain of

the political branches of governme nt.143 And the lat ter, as respondents , may

legitimately assert that there are insufcient resource s to provide the service,

in this case the social assistance, to the extent or in the amount that acceptable

calculations have demonstrate d would be appropr iate.

The cost of exte nding socia l gra nts to all persons who cannot support

themselves and their dependants would u ndeniably be very high. It would

have substantial dist ributive implications; it would af fect the national

140 The UN CESCR has stated that a State part y must take all reasonable steps to the maximum of its available

resources to achie ve progressively the rea lisation of the provision s of the Covenant, which include the

right to social assistance, and it must do so withi n a tran sparent and participator y dec ision-making

process at n ational level: UN C ESCR An Evaluatio n of the Obligation to Take Steps to the Maximum of

Available Resourc es’ under an Optional Protocol to the Cov enant (2007) UN Doc E/C 12/2007/1 para 11,

cited by Liebenbe rg Socio-Econom ic Rights 196

141 Williams (2010) CCR 158 n 57

142 William s (2010) CCR 145-146 Brand (2011) Stell LR 630-637 presse s for an adaptation of the a dversarial

approach of our court s t owards more of an inquisitorial model whe re c ourts remain more dir ectly

involved

143 As Theun is Roux points out, the co urt is not at libert y to substitute its ow n view of how resources shou ld

be allocated for that of the Legisla ture and Execut ive but, if its motive is t o enforce the rig hts enshrine d,

the political bra nches should “accept the reso urce-allocat ion effects of the court’s decision as a neces sary

part of the constit utional compact ” T Roux “Leg itimating Transfor mation: Political Resour ce Allocation

in th e South African Constitut ional Cour t” (2003) 10 Democr atization 92 98 As to the se paration of

powers argu ment and instit utional capacity, see p art 8 1 above

POVERTY 217

budget.144 Again, t he court itself cannot determine what is affordable but,

since the information critical to such a determ ination lies within the exclusive

knowledge of the political branches of government, the onus must be on them

to divu lge i n a transpa rent way their calculat ions of the cost implications of

providing the ser vice and to provide proof of their inability to meet those

costs.145 Where the government does not place convincing evidence before

the court demonstrating that it lacks the ne cessary resources or has other

more urgent claims upon its resources, orders with budgetary implications are

appropriate.146 And g ross costs of mak ing social assistance comprehensive

must be offset by the potential for clawing back some of these costs through

the tax syste m and taking into accou nt increased nal consumpt ion by

households.147 The se issues requi re proper calculations to be done and

provided to the court.

On the facts under discussion, the cost of ful l provision, versus prog ressive

realisation would be impor tant to the court’s enqu iry. Full provision that is

unaffordable does not automat ically mean th at the State can do nothing for

anyone in the excluded group:

“[E]quality in relation to resources can only be achieved as the aspirational end of progressive

realisation, where everyone is entitled equally to an adequate level of service-provision.”148

Some ine quality is permissible in the interi m. At this point, singl ing out

the most vulne rable in the excluded group for relief – eighteen to 24 year

olds, and caregivers of children who are the beneciaries of Child Support

Grants, for example, would be one avenue a cou rt should want to be sure

144 Liebenbe rg Soci o-Economic Rights 195 argu es for the courts to a dopt a view that t he availa bility of

resources ca n b e a ssessed beyond the para meters of existing budge tary allocation s t o the relevant

depart ment or sphere of governm ent Surely she is cor rect

145 Liebenberg S ocio-Economic Righ ts 197 n 360 and U N CESCR General Commen t No 20 pa ra 40

Despite its c ommendable outcome, the c ourt i n Khos a v Minister of Soc ial Dev elopment 2004 6 SA

505 (CC) u ndertook no detailed examination of the cos ts or impl ications of its findi ng Admitt ing that

the infor mation before it was ina dequate, but reassured by the fact that the estimated c ost of extend ing

the gra nts in issue to non-citiz ens would be a mere frac tion of the to tal cost of so cial grants , it assert ed

without much ado t hat the extension wou ld have limited impa ct on State spendi ng and was manageable

146 Liebenbe rg Socio-Econo mic Rights 193, assessing th e jurisprude nce

147 Meth Basic In come Gran t: There Is No Alternat ive! (BIG: TINA) 31-33 point s to the simu lations t hat

were done for the Taylor Comm ittee showing th at a grant of R100 per month in 20 00 prices was feasi ble

These simulations, unlike those of the o pponents of a BIG, make a distinct ion betwee n gross and net

costs Takin g into account changes in th e tax system requiring t he top two inc ome deciles to sacrifice a

portion of increase i n consumptio n they would o therwise e njoy, and takin g into accou nt total in creases

in consu mption, the net cost of the BIG wa s calculated to be ar ound 35-40% of the gro ss cost Met h is

adamant that the increase i n tax for the top de ciles would no t be intoler able and tha t keeping t he value

of the BIG const ant at R100 in 2000 t erms would be fea sible into the fut ure He berate s Treasury for not

devoting ti me to both the m icro- and macr o-economic iss ues or, at least, for not making its work public

Instead , outsider s have built the m odels nec essary to ad dress the af fordability issue He lame nts the

precious yea rs that have bee n wasted becaus e of political and /or ideological object ions to the BIG Most

cogently, he war ns that no ac count has bee n taken by gover nment of the c hances and con sequences of a

failure of its plans for creatin g jobs and growing the economy at rates that are not achieva ble His message

about impend ing social and polit ical upheaval is echoed i n this article

148 Bilchitz (2010) SALJ 604 See a lso 591 603

218 STELL LR 2012 2

is ex plored.149 Another, wh ich ha s the advantage of major reduction in

administ rative cost and complexity would be t o order that the sums be done,

properly, for a Basic Income Gr ant. Bald declarations of unaffordability are

not enough.150 Simulation exercises by economists would be indispensible to

a proper evaluation by the c our t of assertions of unaffordability ad duced by

the State.

In a tru ly participative democracy that goes beyond elect ing a government

every ve years, the “everyone” of the Constitution has a right to know why his

or her r ights are being cu rtailed. The sp ending priorities of the government,

set forth in appropriation bills that con rm the budget each year, should also

be explained and jus tied. The nancial i mpact of the failure to ar rest the

depletion of resources by cor ruption, gene rally, but more especially in the

Departme nt of Social Development, requires inter rogation in the context of

recasting the debate about t he resources available for realising the right of

“everyone” to appropriate social assist ance:151

149 This is not an argument for such an approach, but it cannot be said to be illegiti mate Th e increa sed

vulnera bility of caregivers of child ren is acknowledged in U N CESCR General C omment No 19 para

32 The National Planning Comm ission identifie d the youth as par ticularly vul nerable to unemploy ment

(National Planning Commission Na tional Deve lopment Plan 10), as did t he DSD Crea ting our Fu ture

The cour t would need to know what an extension to each of the age g roups eighteen t o 24 would cost, at

various levels of support A youth unemploy ment grant set at the level of, say, the CSG currently R280 per

month, or arou nd US$1 5 per day, could be conside red Powerful ar guments can be m ade to demonstr ate

how dif ficult and costly it would b e to ide ntify the able-bodie d adult poor Such arguments point to a

basic inc ome grant as the bet ter solution The work of Charles Met h is imme nsely valuable here: Meth

Unemploymen t and Poverty Halve d by 2014?; Meth Basic Income Gra nt: There Is No Altern ative! (BIG:

TINA); C Meth Th e (Lame) Duck Unchai ned Tries to Count the Poor Work ing Paper 49 (2008)

150 Rail C ommuters A ction Grou p v Trans net Ltd t/a Metrora il 2005 2 SA 359 (CC) para 88 Meth Basic

Income Gr ant: There Is No Alter native! (BIG: T INA) 29 explain s the dif ficulty of identifyi ng the able-

bodied poor i n making the arg ument for a universa l BIG

“The able-b odied poor … have no ne of the disting uishing char acteristics so ne cessary for t he

successfu l running of bureaucratic s ystems Someone who is poor and unem ployed is disting uishable

from someone wh o has a flouris hing informal- economy business , only by close observat ion ”

Close observatio n ent ails a deg ree of ad ministrat ive co mplexity in determin ing who is and who is

not e ligible for a grant that is ver y expe nsive Ove r- and under-inclusion are considera ble problem s

The adv antages of a univer sal BIG wou ld be the reduction of complexit y and the curr ent huge cost of

admini stration Smart- card technology and the exper ience of SARS could make for a much more efficient

and stream lined system of soci al assistance wit h far less opport unity for corr uption

151 A major aspect of the affordabi lity issue is the excessive cost of admin istering the system of socia l grants

In 2011 the budget for ad ministrat ion of the South Afr ican Social Secu rity Agency (“SAS SA”) was R57

billion ( R9 billion for social securit y admin istration a s a whole) M ore integr ated admi nistration must

be ef fected a s a matter of urgenc y and the u se of smart-car d technolo gy to reduce fraud should al so

be explore d There are 15 3 mil lion grant beneficiar ies (roughly 30% of the population), of whom 10 3

million are ch ildren, representing 69% of recipients The c ost of social as sistance grants in 2011 was

R97 6 billion, of which R35 6 billion was for the CSG ( National Treasu ry National Budget Review 2011

(2011) 100-102) The rampant corr uption uncovered in SASSA is well known See T Reddy & A Sokomani

Corrupti on and Social Grants in S outh Africa Monogr aph 154, Institute for Secu rity Studies (200 8) T he

Special Invest igating Unit (“SIU”) re ports that R25- R30 billion of the governme nt’s procurement budget

is lost to corr uption each year (D de Lang e “Graft Costs SA R30bn – Hof meyr” Cape Times (13-10-2011)

1) This Unit was c ontracted in 2005 to investiga te social grant fraud It r eports that 120,0 00 publ ic

servants are on the so cial pension sy stem and that it has obtai ned 16,800 convict ions (G Khanyil e “SIU

Costs Mor e than It Is Worth , Says Mi nister” S unday Inde pendent (30-10-2011) 2) In 2010 the Audit or

General, unable to verify information relating to R10 5 bill ion, gave the DSD a disclaimer (L Ensor

“Official s in Hot Sea t over Deficit Bungling at Soci al Gra nt Agency” Busine ss Day (15-06-2011) 3)

Recovery of eve n a part of thi s enormous wast age could fun d a substantial expansion of the s ocial grant

system And t hen there are the not orious unspent b udgets in several gover nment depar tments

POVERTY 219

“Requiring the State to demonstrate that it is doing all that it reasonably can to increase its control

over resources, and to allocate and spend them efciently … fosters a culture of justication and

dialogue encouraged by transformative constitutionalism.”152

8 4 Appropriate remedies

What remedies might the Constitutional Court fashion to achieve a result that

respects the different roles and fu nctions of the three branches of government

but does not in sist on bright-line boundaries that restrain its imagination

and impoverish the imp erative of transformative constitutionalism? The

Constitution confers wide powers on the c our ts to grant appropr iate relief,

including a declaration of rights.153 Read with a provision requir ing a striking

down of laws inconsistent with the Constitution, its powers enable courts to

craft any order that is “ just and equitable”.154

It has been argued here that the denitional modu s of the Social Assistance

Act constit utes unfair discrimination and that the legislation is unconstitutional.

“Reading in”, as a remedy, des pite its effective use in the case of Khosa, is

not the appropr iate solution in this case. Although the Act is under-inclusive

in its exclusion of the able-bodied adult poor, the legislative scheme for social

grants does not admit of a simple “read ing in”. It needs to be substantially

re-craft ed to be comprehensive in its denitions and its scope.155 For reasons of

institutional competence and democratic legitimacy, a declaration of invalidity

suspended for a xed period and a declaration of r ights would appear to be

more appropriate.156 Although the su spension of invalidity will allow “an

unconstitutional state of affairs”157 t o continue, striki ng down the whole Act

or the denition sections158 would cre ate as untenable a situation as would a

reading i n of the excluded group. A de claration of rights can accompany the

order of invalidit y. Its pur pose is to stipulate the obligations of the part ies in

terms of the Constit ution.

152 Liebenberg Soci o-Economic Rights 198 The UN CESCR Gene ral Comment No 20 para 13 requires every

effort to be m ade to use all res ources at a State party’s disposal to eliminate d iscriminat ion and rejects a

defence of lack of resou rces unless th is has been demons trated

153 S 38 of the Constit ution

154 S 172, which provides also for limiting the retro spective effect of an order of invalidity and for suspendi ng

such order for a per iod to allow the compet ent authority to c orrect the defect

155 See the guid elines fo r testi ng the appropriat eness of the reading-in remedy in Nat ional Coa lition for

Gay and Lesb ian Equality v Mini ster of Home Affairs 2000 2 SA 1 (CC) paras 75 an d 76 and Liebenberg

Socio-Eco nomic Rights 384 The si ze of the group to be a dded, the budget ary implication s and the range

of possible policy opt ions are import ant consideratio ns

156 The decla ration of invalid ity should be mad e non-retrospe ctive so that, i f it comes into forc e, it does not

do so from the date of the coming into op eration of the 2004 Social Assist ance Act, or of the Constitution

See Liebenberg S ocio-Economic R ights 388 and the author ity there cited

157 This expressio n is ta ken f rom the Colombian health-car e con text Williams (2010) CCR 196 n 173

describes the remedies crafted by the Constit utional C ourt of Colombia for healt h care for int ernally

displaced per sons as “exceptional ly creative” Operatin g within the conf ines of the separatio n of powers,

the Court has, as a remedy, declared the existence of “a n unc onstitutional state of affairs”, retained

jurisdict ion, obliged government to subm it periodic reports including cost est imates for rectify ing the

matter, to n egotiate with th e stakeholders a nd NGOs and, if unable to afford t he solution, to de clare that

it is “reg ressing” in t he enforcement of rights I n such an event , the Court would retain jurisdiction and

oversee govern ment plans to develop the c apacity to bring a n end to the uncons titutional stat e of affairs

158 The provision r equiring fu ndamental ame ndment is s 1 of the Socia l Assistance Act But a lso implicated

are ss 5(1)(a) and 6-13 (see part 3 of this ar ticle)

220 STELL LR 2012 2

In Grootboom, no specic relief for the applicant com munity was ordered,

but three declar atory orders were made. One requi red the State to devise and

implement in accord ance with its resources a programme progressively to

realise t he right of access to adequ ate housing; a second demanded that the

programme i ncluded rea sonable measures to provide relief to peo ple with no

access to land , no roof over their heads and who were l iving in intolerable or

crisis situat ions; the third declared that the housing programme in question

fell short of what was required in the second order.159 From that time on, the

Court was no longer seize d of the matte r. Declarator y orders in similar terms

for the able-bod ied adult poor who are income destitute would clearly be

necessary. But the normative vision and the tran sformative imper atives of the

Constitution requi re more.

Should there be interim relief for the applicants? Should the court be

content that the elected branches of govern ment, left to their own devices,

will undert ake t he ne cessary corrective action timeously and effectively,

without fur ther input and oversight from it, taking i nto account the impact of

the violation on the claimants?

Determin ing whether the litigants (and per sons similarly situ ated) should

be afforded im mediate relief can be complex.160 On the facts in issue here, it

would seem to be possible but difcult to single out a group of able-bodied poor

for inte rim social assistance, leavi ng others similarly situated without such

succour. What would be the amount of an interi m grant? Still to be determined

is what amount would be “appropr iate” in terms of section 27(1) and whether

such an amou nt is within the resources available. It might be possible, albeit

not the best solution, to single out the most vul nerable groups, such as youths

aged 18-24 years and caregivers of children receiving ch ild support grants,

as a measure of progressive realisat ion. Because the issues around welfare,

social protec tion and social assistance are contentious, admitti ng of a range

of const itutionally valid policy options and implement ation, an appropriate

approach by t he court would be to require the Executive a nd the Legislature

to ta ke the lead in ensuring a realisation of the transformative vision of the

Constitution.161

In Grootboom the Constitutional Court took on trust that government would

be willi ng and able to comply w ith its orders. T his article has demonstrated

that govern ment is ideologically and politically antipathetic toward s welfare

generally and towards social grants in part icular. It is argued in and outside of

government, notably by the well fed, that expanded social assist ance, even on

a temporar y basis, will ruin the economy. The millions of jobs that will ow

from rapid economic growth and the prom ise of better educat ion and trai ning

must satisfy the poor and hungry for now a nd until (unrealistic?) targets, not

159 Governme nt of the Republic of Sout h Africa v Grootboom 2001 1 SA 46 (CC) para 99 Liebenberg Socio -

Economic Right s 400-401 explain s how a negotiated sett lement affected th e orders made by the Cou rt

160 See the di scussion of this issu e and the relevant case s by Liebenberg Socio -Economic Rights 391-393

161 A mand atory order is appropr iate where the natu re of the benefits ca n be def ined clearly and provided

relatively ex peditiously It se ems unli kely that such an order would be ma de for the extension of social

assistanc e to the able-bodied a dult poor

POVERTY 221

reached in the past, are reached in the future, by 2030 when, the National

Development Plan predicts, poverty wi ll be “eradicated”.162

No cour t should have difculty with the proposition that the govern ment

does not accept that it is und er an obligation progressively to realise the right

of everyone to access to social assista nce. In the current political cli mate

there can be no condence that ef fective a nd expeditious steps wil l be taken

to f ull obligations set forth i n the declarator y orders envisaged.163 On this

basis,164 str uctural remedies are indispensable, not as a last resort, but integral

to ensuring a just and equitable outcome in l ine w ith the transformat ive

imperatives of the Constit ution.

Structu ral remedies give the court the oppor tunity to monitor compliance

with its orders but also have a broader f unction that u nderpins participation

by affected communities in the process of developing measures to actualise

the normative content of the court’s orders. The process of engagement, as has

been shown by the Constitut ional Court of Colombia, continues until the court

is satised that the const itutional inf ringement has been rectied.165 T hese

orders accommodate the difculty of issui ng a once-off order in in stances

where reform of the law requires an ongoing process of development over

time. They provide the political branches of government the latitude to devise

policies and plans to give effect to the court’s orders, while preserv ing ongoing

judicial super vision. A “political blockage” which makes the relevant public

institutions unresponsive to reform t hrough normal channels and processes

is a powerful reason for a cour t to issue a structural i nterdict.166 Oppositional

stances relating to the separation of powers can be avoided by orders that

encourage acc ountability, resp onsiveness and openness i n the solving

of complex problems through collaborative lear ning between the parties

themselves and between them and the court. In order to devise solutions to the

problem in issue here, the court should use the structural remedy to oversee the

development and i mplementat ion of a national plan for truly comprehensive

social assistance that gives nor mative content to the right in question and that

162 The National Planning Commission National Developmen t Plan targets 11 million additional jobs by

2030, the eradic ation of poverty and a r eduction in inequ ality See furt her nn 3, 23, 34

163 This v iew is streng thened by the stance tak en in the Nat ional Develop ment Plan Gover nment ideology

on welfare i s unchanged Pla nning Min ister Trevor Manuel’s pos ition, made clea r when he was Fi nance

Minister, has not chan ged The poli cy focus rema ins job crea tion and a so cial wage appr oach (housing,

health, educa tion) now to include public works pro grammes, to res olve poverty and unempl oyment That

grants ar e negatively regarded is cle ar:

“The type of public employ ment that the Commission advoc ates is not just income transfer in disg uise

It i s abou t inc ulcating a n ew mi ndset that empowers people to contribute to their communit ies ”

National Plan ning Commission Na tional Developm ent Plan 344

The Plan states that what is re quired is “shifting from a paradigm of entitlement to a development

paradigm that promot es the development of capabilities, the creation of opportunit ies and the participation

of al l citi zens” (5) Commun ities mu st “be come th eir own engi nes of development, and government

must suppo rt this” (4) No one disputes t his view But it is unreali stic for it to be considered a complete

alternat ive to expanded soc ial assistance And it is argued here that it is not i n line with the vision of the

Constitut ion

164 And, for f urther rea sons, see Liebenber g Socio-Economi c Rights 408-409

165 The creative remedies fashioned b y the Colombian Co nstitutional Court are cit ed by Williams (2010)

CCR 196 n 173 (see n 157 above) See al so Liebenberg Socio -Economic Rights 424

166 Liebenbe rg Socio-Econom ic Rights 435

222 STELL LR 2012 2

satises t he transformative imperatives of the Constitution.167 It should also

appoint a team of experts from discipli nes central to the success of such a

plan. Econom ists and ta x and technology experts must be commissioned to

underta ke a range of simu lations to deter mine costs, put forward claw-back

mechanisms within the tax system and examine technological tools to guarantee

effective distribut ion and a dministrative integrit y for a comprehensive social

assistance system .168 Sa ndra Liebenberg stresses the t ransformative potential

of these remedies and urges that the cour ts should neither be reluctant t o use

them nor regard them as exceptional where systemic socio-econom ic rights

violations are before them.169

9 Conclusion

That redistribution of income to eradicate poverty is required in the interests

of advancing social justice and human rights i n South Africa is surely not a

contentious proposition. That it should be a project of the political branches of

government to obtain the political buy-in that would make such redistr ibution

acceptable and then to effect such changes to the law as are necessary is clear.

Continuing povert y “contrad icts the Constitution”.170

It is not ideal for judges to have to order the elected branches of government

to ful l their constitutional duties and to adjudicate upon whether the action

they t ake satises the demands of the supreme law. The se demands a re not

self evide nt. They acquire meaning only through interpretation. And it has

been acknowledged that moral and political issues are inextricably tied in with

giving meaning to the words of the Constitution. In this context, a commitment

by the judges, both privileged and burdened with the ta sk of doing so in order

to achieve the nor mative v ision and the transformative aspirations of the

Constitution, is f undamental.

If the New Growth Path and the National Development Plan do not produce

the requisite nu mber of jobs to cater for the able-b odied adult poor and there

is no “Plan B” to deal with the consequences, the choice for the Constitutional

Court in so cio-e conomic rights cases w ill become stark. Sheltering

formalistically behind the se paration of powers, claiming t hat formulating

a nor mative conception of the Constitution in inter preting its text is not its

167 This should be a policy pr iority, to accord with UN CESCR General C omment No 19 para 41 Para 68

expresses the duty to develop a national strategy and impleme ntation plan to reali se the r ight to so cial

securit y (including non-co ntributory sch emes)

168 Powerful argu ments for the use of pos itive econ omic th eory b y juri sts eng aged in projects of social

justice, and expressly including t he question of affordabilit y of a Ba sic Income G rant, are made by SA

du Ples sis “New Tools for the C onstitutional Bench” in AJ van der Walt (ed) The ories of Social and

Economic Just ice (2005) 37 52-53 The ser vices of several economist s were used by the National Panni ng

Commission du ring its prepara tion of the National Devel opment Plan Their work is valu able, but should

be complemented by th at of those whose views differ fr om those of government about th e proper role and

potential of an expanded social grant system, inclu ding a basic i ncome grant Charles Meth’s impo rtant

work has been cited in this a rticle nn 19, 147; his work and t hat of like-min ded economists merit serious

attention

169 Liebenber g Soci o-Economic Rights 438 T he Const itutional Court in Colombia has i ssued s tructur al

interdict s and courts in Argentina and India have employed technique s of engage ment such as constituting

special fora to a dvise them: Brand (2011) Stell LR 635; and see n 157 above

170 Former Ch ief Justice PN Langa “The Role of the Const itution in the St ruggle again st Poverty” (2011) 22

Stell LR 446

POVERTY 223

business, will deeply tarnish its legacy. It will amount to an avoidance of the

Court’s own share of legal, moral and political responsibility for realising what

the poor, t he histor ically marg inalised, believe the Constitution promises:

social justice. And if violence and social and political upheaval provoked by

unbearable poverty damage the ru le of law while the Cour t demurs, it will

be ha rd pressed to persuade anyone that, in the interests of its institutional

legitimacy, or because of its delity to a form alistic i nter pretation of the

content of socio- economic rights, it had to refrain from fashioning a role for

itself that would do just ice to it s duty to be the custodian of the Co nstitution.

How deeply impoverished the constitut ional project will be.

SUMMA RY

The ar ticle points to the in cidence and i mpact of pove rty and the inadequ acy of cur rent policies

to deal wit h it. It pre sses for accepta nce of the view tha t the persistenc e of high le vels of severe

poverty coupled w ith unfairly restr icted access to social ass istance grants ar e u nconstitutiona l.

Acknowledging that the elect ed branches of government bear primar y responsibility for correct ing the

inequitable distribution of income, it argu es that the cou rts cannot d efensibly stand back , employing

argument s of deference and instit utional incap acity while the Constitu tion of the Republic of South

Africa, 1996 demands a tran sformative vision th at will give content t o the socio-econo mic right s

enshrin ed. The particular focus of the article is income poverty of unemployed, able-bodied adults

aged 18-59 years and the constitutional right of everyone to acce ss to social assistance grants . It claim s

that t he denit ional modus in th e Social Assistance Act 13 of 2004 i s unfairl y discri minatory and

violates the r ights to dignit y and equality of th e group. It al so argue s for an int erpretation of t he

socio-econ omic right to social assista nce that would b e faithful t o the transfor mational vision of the

Constitut ion. Not only should the of fending sections of the Social Assista nce Act be declared i nvalid

and in nee d of re-craf ting, but sect ion 27 of the Const itution must be interpreted to give enforce able

content to the right it prot ects. To achieve t his wil l requir e an understand ing of the se paration of

powers and the reasonable ness standard developed by the Cour t different from the approach ta ken, for

example, in Mazi buko v City of Johanne sburg 2010 4 SA 1 (CC). Substantial relianc e is placed on the

commendable decision of the Constitutional Court in Khosa v Ministe r of Social D evelopment 200 4

6 SA 505 (CC). Reaso nableness review, prog ressive realisatio n and available res ources are tr aversed

before a clutch of remedies is exam ined. T he struc tural i nterdict, entailing a process in wh ich the

Court r etains jur isdiction, and used so creat ively in Colombia, is advocated t o remedy a sit uation in

which the Executive has fa iled to achieve its own goals for tackli ng unemployment and pover ty. If the

Constitut ional Court d emurs while g rowing civil un rest damages our democracy, t he Court’s legacy

will be irretr ievably tarnished. It must reconsider its role as the custodia n of the Const itution and make

the business of i nterpreting co nstitutional text w ithin a normative v ision its business.

224 STELL LR 2012 2

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Poverty: Giving Meaning to the Right to Social Assistance

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