Abstract:
The concept of social security was introduced into the South African constitutional
system through section 27 of the Constitution of the Republic of South Africa, 1996.
Section 27(l)(c) of the Constitution states that everyone has the right to have access to
social security including, if they are unable to support themselves and their
dependants, appropriate social assistance and that the state must take reasonable
legislative and other measures, within its available resources to achieve the
progressive realisation of these rights. Section 28 of the Constitution relates directly
to the social security rights of children and drafted as an internally unqualified
constitutional right. The Constitutional Court has, however, in The Government of the
Republic of South Africa and Others v Grootboom and Others 2000 11 BCLR 1169
(CC), subjected section 28 to the same internal limitations as the other social security
rights in the Bill of Rights.
The question which this study addresses is whether or not South Africa government is
in compliance with its constitutional and international law obligations in respect of the
social security rights of children. Social assistance in respect of children takes the
form of grants, specifically the child support grant, the foster child grant and the care
dependency grant. Due to the categorical nature of children's social security rights, it
is submitted that the state is currently conforming to neither the guidelines laid down
in the Grootboom case in respect reasonableness and progressive realisation, nor its
international obligations in terms of the International Covenant on Economic, Social
and Cultural Rights, the United Nations on Convention on the Rights of the Child, the
African Charter on Human and People's Rights and the African Charter on the Rights
and Welfare of the Child.
In response to this submission the following are some of the recommendations
flowing from this study:
1) In respect of the child support grant, the amount of the grant should be
increased to correspond with the prevailing poverty rate and linked to
inflation; the grant should be made more universally accessible, to include
child headed households, refugee children, children of non-citizens and all
children under the age of 18; the means test should be reviewed or done away
with completely and the take-up rate of grant should be improved.
2) The care dependency grant should be extended to include non-citizen and
refugee children as well as children with minor disabilities, chronic illnesses
and HIVIAIDS or a supplementary needs grant for such children should be
introduced.
3) Foster parents should be provided with incentives to take in HIV-positive
children or children with disabilities.
4) The courts should, either themselves, or by a mandate to government, start
developing minimum core entitlements in respect of basic rights.
