The right to social security - Addressing women's poverty and disadvantage

South African Journal on Human Rights

Volumn 25, Issue 3, 2009, Pages 442-466

  Goldblatt, Beth ^a,b  

^a UNIVERSITY OF NEW SOUTH WALES   (Australia)

^b UNIVERSITY OF THE WITWATERSRAND   (South Africa)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84864984301     PISSN: 02587203     EISSN: 19962126     Source Type: Journal    
DOI: 10.1080/19962126.2009.11865212     Document Type: Article

References (175)

1. South African Social Security Agency Statistical Report on Social Grants Report no 21 (2009) 9.
2. Government statistics reflect the gender of the children who are the recipients of the grants rather than the caregivers who collect the grants on their behalf. However, 99 per cent of CSG recipients in a national household study were women: Community Agency for Social Enquiry (CASE) Review of the Child Support Grant: Uses, Implementation and Obstacles/ (2008) .
3. South African Social Security Agency (note 1 above) 12. Women accounted for 69 per cent of OAP recipients as at 31 August 2009.
4. The unequal gender construction of the labour market means that women tend to benefit less than men from work-related social security benefits because they take time off work to have children and care for them. This disruption to their working lives also often affects their earning power and job security.
5. The grant equalisation process was completed on 1 April 2010.
6. See discussion of these changes below in part V.
7. South African Social Security Agency (note 1 above) 12. Women accounted for 56 per cent of DG recipients as at 31 August 2009.
8. Also see CASE Investigation into the Increase in Uptake of Disability and Care Dependency Grants since December 2001 (2005) .
9. D Budlender 'Women and Poverty' (2005) 64 Agenda 30.
10. J Seekings 'The Carnegie Commission and the Backlash Against Welfare State-Building in South Africa, 1931-1937' (2008) 34 J of Southern African Studies 515.
11. Prior to 1994, social assistance grants of differing amounts were provided to different race groups based on racist assumptions about need.
12. S Van der Berg 'South African Social Security under Apartheid and Beyond' (1997) 14 Development Southern Africa 481.
13. C De Koker, L De Waal & J Vorster A Profile of Social Security Beneficiaries in South Africa (2006).
14. F Lund Changing Social Policy: The Child Support Grant in South Africa (2008).
15. This is not to suggest that the social assistance system is adequate in meeting the needs of the poor in South Africa. While it recognises the vulnerability of children, the aged and disabled people, it does not provide for people who cannot find work, nor does it compensate unpaid care work, and it only assists certain categories of non-citizens. Its reliance on means testing and administrative problems in delivering grants are also difficulties with the current system.
16. Constitution s 27.
17. Preamble to the Constitution.
18. N Lacey 'Feminist Legal Theory and the Rights of Women' in K Knop (ed) Gender and Human Rights (2004) 13.
19. Ibid 38.
20. Ibid 39.
21. See S Fredman Human Rights Transformed: Positive Rights and Positive Duties (2008) 65 (for her rejection of the indeterminacy argument).
22. Lacey draws on Carole Smart's theory of the power of law and the 'male' state. Lacey (note 15 above) 39.
23. Ibid 42.
24. Ibid 42-7.
25. Ibid 44-5.
26. Ibid 47.
27. This is Lacey's description of Nedelsky's ideas, ibid 52.
28. See also recent work by J Nedelsky 'Reconceiving Rights and Constitutionalism' (2008) 7 J of Human Rights 139.
29. In this article Nedelsky draws on her earlier ideas of a relational approach and those of others such as Martha Minow. She argues (at 141) that rights construct relationships of power, responsibility, trust and obligation. The law should construct relations on the basis of the following three-step test: First, what are the values at stake in a rights dispute?; second, what kinds of relationships would foster those values?; and, third, how can competing versions of a right structure relations differently? For applications of a relational approach in the South African context
30. see M Pieterse 'Relational Socioeconomic Rights' (2009) 25 SAJHR 198
31. A Claassens & S Mnisi 'Rural Women Redefining Land Rights in the Context of Living Customary Law' (2009) 25 SAJHR 491.
32. Ibid 52-3.
33. S Fredman 'Engendering Socio-economic Rights' (2009) 25 SAJHR 410.
34. Also see Fredman (note 19 above) 10.
35. For applications of Nussbaum's work to socio-economic rights in South Africa,
36. see B Goldblatt 'Gender and Social Assistance in The First Decade of Democracy: A Case Study of South Africa's Child Support Grant' (2005) 32 Politikon 239
37. S Liebenberg 'The Value of Human Dignity in Interpreting Socio-economic Rights' (2005) 21 SAJHR 1.
38. C Albertyn & B Goldblatt 'Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality' (1998) 14 SAJHR 248
39. C Albertyn 'Defending and Securing Rights through Law: Feminism, Law and the Courts in South Africa' (2005) 32 Politikon 217
40. S Jagwanth & C Murray 'Ten Years of Transformation: How has Gender Equality in South Africa Fared?' (2002) 14 Canadian J of Women and the Law 255
41. M O'Sullivan & C Murray 'Brooms Sweeping Oceans? Women's Rights in South Africa's First Decade of Democracy' (2005) Acta Juridica 1
42. E Bonthuys 'Institutional Openness and Resistance to Feminist Arguments: The example of the South African Constitutional Court' (2008) 20 Canadian J of Women and the Law 1.
43. C Albertyn 'Women and the Transition to Democracy in South Africa' (1994) Acta Juridica 39.
44. S. Liebenberg (ed) The Constitution of South Africa from a Gender Perspective (1996).
45. Minister of Health v Treatment Action Campaign (TAC) 2002 (5) SA 721 (CC) which required the government to provide antiretroviral treatment to prevent mother-to-child transmission of HIV.
46. Khosa v Minister of Social Development 2004 (6) SA 505 (CC) which required the government to extend the provision of social assistance grants to permanent residents.
47. Volks NO v Robinson & Others 2005 (5) BCLR 446 (CC).
48. S v Jordan (Sex Workers Education and Advocacy Task Force & Others as amici curiae) 2002 (6) SA 642 (CC).
49. For example, J Fudge 'Substantive Equality, The Supreme Court of Canada, and the Limits to Redistribution' (2007) 23 SAJHR 235
50. G Brodsky & S Day 'Beyond the Social and Economic Rights Debate: Substantive Equality Speaks to Poverty' (2002) 14 Canadian J of Women and the Law 185.
51. Brink v Kitshoff 1996 (4) SA 197 (CC)
52. Prinsloo v Van der Linde 1997 (3) SA 1012 (CC)
53. President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC)
54. Harksen v Lane NO & Others 1998 (1) SA 300 (CC).
55. Brink (note 36 above)
56. Hugo (note 36 above)
57. the minority judgments in Volks (note 33 above)
58. Bannatyne v Bannatyne (Commission for Gender Equality as amicus curiae) 2003 (2) SA 363 (CC)
59. S v Baloyi 2000 (2) SA 425 (CC).
60. C Albertyn & B Goldblatt 'Equality' in Woolman et al Constitutional Law of South Africa 2 ed (2007) 35-1
61. Albertyn (note 29 above).
62. S Liebenberg & B Goldblatt 'The Interrelationship Between Equality And Socio-Economic Rights Under South Africa's Transformative Constitution' (2007) 23 SAJHR 335
63. Fredman (2009) (note 27 above).
64. Historically, social security systems assumed that male workers would be supported by women who would take responsibility for household reproduction and care of children. Although many developed countries have moved away from this model towards a dual-earner/dual-carer model, the changes have not succeeded in addressing all of the gender imbalances in the workplace or reproductive sphere.
65. See S Razavi & S Hassim (eds) Gender and Social Policy in a Global Context (2006).
66. G Brodsky 'Gosselin v Quebec (Attorney General): Autonomy with a Vengeance' (2003) 15
67. Canadian J of Women and the Law 194, 214.
68. Also see G Brodsky, R Cox, S Day & K Stephenson 'Gosselin v Quebec (Attorney General)' (2006) 18
69. Canadian J of Women and the Law 189, 220.
70. P Darooka 'Social Security: A Women's Human Right' Discussion Paper no 2 (2008) 2.
71. M Molyneux 'Mothers at the Service of the New Poverty Agenda: The PROGRESA/Oportunidades Programmes in Mexico' in Razavi & Hassim (note 40 above) 43.
72. This will be discussed in more detail in part V - Old Age Pension.
73. Molyneux (note 43 above)
74. C Moser Gender Planning and Development: Theory, Practice and Training (1993)
75. B Goldblatt 'Citizenship and the Right to Child Care' in A Gouws (ed) (Un) Thinking Citizenship: Feminist Debates in Contemporary South Africa (2005) 117.
76. United Nations (UN) Committee on Economic, Social and Cultural Rights (ESCR) 'General Comment 19 on the Right to Social Security' (art 9) (2007).
77. Ibid paras 1 & 28.
78. Ibid para 2.
79. Ibid para 3.
80. Fredman (note 19 above) 232-6.
81. Note 46 above, paras 16, 18, 19 and 33-4.
82. Ibid para 16.
83. But as Darooka points out, this failure to recognise women's unpaid work is also a failure to recognise them as economic agents. 'Women not only need protection because their earnings are interrupted but also because they are not always engaged in paid work and therefore, may not have earnings at all' (note 42 above) 5.
84. Note 46 above para 28.
85. Ibid paras 29-32.
86. UN Committee on ESCR 'General Comment 16 on the Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights' (art 3) (2005).
87. Note 46 above para 32.
88. Note 46 above para 32.
89. Note 56 above.
90. Constitution s 27.
91. S Liebenberg 'The Right to Social Assistance: The Implications of Grootboom for Policy Reform in South Africa' (2001) 17 SAJHR 232.
92. Also see S Liebenberg 'The Judicial Enforcement of Social Security Rights in South Africa' in E Riedel (ed) Social Security as a Human Right (2007)
93. M Swart 'Social Security' in Woolman et al Constitutional Law of South Africa 2 ed (2007) 56D-1.
94. Khosa (note 32 above).
95. Ibid para 42.
96. Ibid para 52.
97. L Williams 'Issues and Challenges in Addressing Poverty and Legal Rights: A Comparative United States/South Africa Analysis' (2005) 21 SAJHR 436, 468, has argued that courts must take care not to reinforce hierarchies of entitlement, such as within the group of non-citizens, ie permanent residents, legal immigrants, refugees and illegal immigrants, in a way that deepens the vulnerability of the worst off.
98. The Constitutional Court did, however, find that refugees were not entitled to the same rights as citizens and permanent residents in Union of Refugee Women v Director, Private Security Industry Regulatory Authority 2007 (4) SA 395 (CC) para 45.
99. Also see Fredman (note 19 above) 239
100. citing Geoff Budlender, for a similar concern about how the courts might treat temporary residents.
101. Liebenberg (2001) (note 61 above) 239.
102. Liebenberg (2001) (note 61 above) 240.
103. M Minow 'Redefining Families: Who's In and Who's Out?' (1991) 62 U of Colorado LR 269
104. J Millbank 'The Role of Functional Family in Same-Sex Family Recognition Trends' (2008) 20 Child and Family Law Quarterly 182.
105. Liebenberg (2001) (note 61 above) 240.
106. Discussed in part VI below.
107. Liebenberg (2001) (note 61 above) considered two of the state's obligations as they were developed in Grootboom in interpreting s 27(2) - the duty to improve the implementation of social assistance programmes; and, the duty to expand access to social assistance programmes. These two dimensions are considered here in relation to the interpretation and elaboration of the right with regard to the needs of women.
108. Liebenberg (2001) (note 61 above) 241-7.
109. These issues will be discussed in more detail in the sections dealing with the CSG (part VI) and the DG (part IV) below.
110. Liebenberg (2001) (note 61 above) 253.
111. Ibid 254.
112. See N de Villiers 'Procedural Fairness and Reasonable Administrative Action within the Social Assistance System: Implications of Some Settled Class Actions' (2006) 22 SAJHR 405.
113. Liebenberg (2001) (note 61 above) 254-7.
114. As suggested by Nedelsky (note 25 above) 160, using the examples of policies that enable single mothers needing training to gain economic independence and policies that enable parents to stay at home without compromising their full social and political participation.
115. V Taylor (chairperson) Transforming the Present - Protecting the Future. Report of the Committee of Inquiry into a Comprehensive System of Social Security for South Africa (2002) (Department of Social Development) .
116. F Lund (chairperson) Report of the Lund Committee on Child and Family Support (1996) .
117. Department of Welfare White Paper for Social Welfare (1997) Government Gazette no 18166 Notice No 1108.
118. See Razavi & Hassim (note 40 above) 43
119. B Hobson Gendering Welfare Regimes (1994)
120. AS Orloff 'Gender and the Social Rights of Citizenship: The Comparative Analysis of Gender Relations and Welfare States (1993) 58 American Sociological Review 3, 303
121. L Gordon Women, the State and Welfare (1990).
122. See J Sohrab Sexing the Benefit (1996) for a discussion of gender inequality in EC Social Security.
123. See J Gornick & M Meyers Gender Equality: Transforming Family Divisions of Labour (2009).
124. For example, the Centre for Applied Legal Studies (CALS) at the University of the Witwatersrand conducted a project on gender and social security between 2003 and 2008.
125. CALS Proceedings of the Gender and Social Security Seminar (2004).
126. Darooka (note 42 above).
127. The grant amount is R1,080 after 1 April 2010.
128. JM Mays 'Feminist Disability Theory: Domestic Violence Against Women With A Disability' (2006) 21 Disability and Society 147
129. H Meekosha & L Dowse 'Enabling Citizenship: Gender, Disability And Citizenship In Australia' (1997) 57 Feminist Review 49
130. A Schriempf '(Re)fusing the Amputated Body: An Interactionist Bridge For Feminism And Disability' (2001) 16(4) Hypatia 53.
131. K Crenshaw 'Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics' (1989) U of Chicago Legal Forum 139
132. N Iyer 'Categorical Denials: Equality Rights and the Shaping of Social Identity' (1993) 19 Queen's LJ 179.
133. For a discussion of the South African courts' adoption of this approach
134. see Albertyn & Goldblatt (note 38 above) 51-2.
135. B Goldblatt 'Gender, Rights and the Disability Grant in South Africa' Development Southern Africa 26 (2009) 369-82.
136. Ibid 377.
137. Ibid 376.
138. Ibid 377.
139. Ibid 376-8.
140. CASE (note 6 above).
141. This issue has been considered by the Department of Social Development which commissioned a study by M Schneider, G Boyce, C Desmond & J Goudge Developing a Policy Response to Provide Social Security Benefits to People with Chronic Diseases (2007)
142. The need for a chronic illness benefit is also included in the National Strategic Plan for HIV/AIDS and STI 2007-2011 of the South African National AIDS Council 120-1 .
143. Roberts & Others v Minister of Social Development & Others TPD Case no 32838/05, as yet unreported.
144. De Koker (note 10 above) 647.
145. E Duflo 'Grandmothers and Granddaughters: Old Age Pension and Intra-household Allocation in South Africa' (2000) NBER working paper .
146. The Minister of Welfare Hansard (1995) 20/6/1995 col 3042.
147. Taylor (note 80 above) 98.
148. Roberts (note 97 above).
149. CALS at the University of the Witwatersrand and the Community Law Centre at the University of the Western Cape were admitted as amici curiae. The South African Human Rights Commission also intervened but with respect to different arguments concerning the rights of gay couples.
150. President Mbeki 'State of the Nation Speech to Parliament' .
151. Finance Minister Trevor Manuel 'Budget Speech to Parliament' (2008) .
152. Mbeki's speech (note 104 above).
153. This issue is discussed in greater detail in Liebenberg & Goldblatt (note 39 above) 348-50.
154. In October 2009 the South African Cabinet extended the CSG to all children aged 15 to 18. Department of Social Development 'Social Development Minister reminds the public of the age extension for the Child Support Grant (CSG)' (2010) .
155. During 2008, a case to extend the CSG to children aged 14 to 18, was brought in the Pretoria High Court by the Legal Resources Centre of behalf of the Alliance for Children's Entitlement to Social Security (ACESS), Mahlangu v Minister of Social Development and Minister of Finance. The arguments related to the rights of children, the right to social security and equality. The distinction between a child of 13 and a child of 16 for the purpose of welfare provision may be unfairly discriminatory and a violation of the excluded children's rights. The judgment is pending.
156. This case, like the gender equalisation of the OAP case, Roberts (note 97 above) was an effort to extend the reach of the social assistance system to additional categories of poor South Africans. It seems, like Roberts that despite the failure of the Court to deliver a judgment, the litigation pushed government to change the policy.
157. A Case, V Hosegood & F Lund 'The Reach and impact of Child Support Grants: Evidence from KwaZulu-Natal' (2005) 22 Development Southern Africa 467
158. De Koker (note 10 above)
159. CASE (note 2 above).
160. As discussed in Goldblatt (note 28 above).
161. Discussed in Lund (note 11 above).
162. Goldblatt (note 28 above).
163. Lund (note 11 above) 115.
164. A report on the ANC election promises (B Boyle & M Malefane 'The ANC's Costly Election Promises' The Times (30 November 2008) talked of providing a 'care-giver's benefit' of R100 per month for mothers.
165. Lund (note 11 above) 116.
166. Including from women themselves, often older women.
167. B Goldblatt 'Teen Pregnancy and Abuse of the Child Support Grant. Addressing the Myths and Stereotypes' (2003) 56 Agenda 79.
168. N Fraser & L Gordon 'A Genealogy of Dependency: Tracing a Keyword of the U.S. Welfare State' (1994) 19 Signs: J of Women in Culture and Society 309.
169. M Steele 'Report on Incentive Structures of Social Grants in South Africa' (2006).
170. See reference to this in M Richter 'Womb Fee Myth Totally Busted Why would a Teenage Girl go through the Trouble of having a Baby to Access a Grant of a Measly R7 a day?' The Star (1 December 2008).
171. Note 43 above.
172. See S Hassim 'Global Constraints on Gender Equality in Care Work' (2008) 36 Politics and Society 388.
173. For example, ACESS, the Children's Institute at the University of Cape Town, the Legal Resources Centre, the Black Sash and others.
174. Boyle & Malefane (note 113 above).
175. B Goldblatt 'Women and a Basic Income Grant' (2003) GRP Bulletin.