The social security rights of children in South Africa

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 HIV/AIDS 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.