MAVERICK CITIZEN OP-ED
A matter of R350: Was the government’s failure to reinstate the Covid-19 Social Relief of Distress grant unconstitutional?
The termination of the Social Relief of Distress Grant and the government’s failure to reintroduce it during the present phase of Level 4 restrictions may not be consistent with the Constitution, in particular the right of everyone to have access to social security.
Sandra Liebenberg is Distinguished Professor and Chair in Human Rights Law at the University of Stellenbosch Law Faculty. She was former Vice-Chair of the UN Committee on Economic, Social and Cultural Rights. Read her profile here.
When President Cyril Ramaphosa announced Level 4 restrictions with effect from 28 June 2021 in response to a third wave of Covid-19, it was not accompanied by the announcement of any social relief measures. Then on Sunday, 11 July Level 4 (with some adjustments) was extended for another two weeks. This time, President Cyril Ramaphosa acknowledged the devastating effect of the pandemic on livelihoods and announced that the Temporary Employer/Employee Relief Scheme (Ters) for those in employment would be resumed for affected sectors of the economy.
However, nothing was said about the special R350 Social Relief of Distress grant (Covid-19 SRD grant). This grant was introduced with effect from May 2020 as part of a package of social and economic relief measures to mitigate the impact of the hard lockdown first imposed in March 2020. It was payable to those over 18 who had no income from employment or any other social grant.
This Covid-19 SRD grant was accompanied by top-ups of a number of social grants and the introduction of a R500 a month caregiver’s allowance for the primary caregivers of children (the “Caregiver Allowance”). As lockdown restrictions were eased in South Africa, the government terminated the top-ups to the social grants and the caregiver allowance at the end of October 2020.
The R350 grant was stopped at the end of April 2021, despite the fact that South Africa was still under a national state of disaster. In spite of an active civil society campaign and Minister of Social Development Lindiwe Zulu’s request to the Treasury for the grant to be extended, there is still no sign of this happening.
The question must be asked: Is the termination of this grant, and the government’s failure to reintroduce it during the current phase of restrictions, consistent with the Constitution, in particular the right of everyone to have access to social security in section 27 of the Constitution?
The Constitutional Court has said that the rights in our Bill of Rights must be interpreted in their historical and social context. It is thus important to consider the impact of the Covid-19 SRD grant in the light of our historical legacy and current context of poverty, inequality and unemployment.
The impact of the Covid-19 SRD grant
By all accounts, the social relief measures were a literal lifeline to millions of people. This was confirmed in a response by Zulu to a parliamentary question in which she highlighted some of the findings of a rapid assessment study of the impact of the Covid-19 SRD grant.
It had a significant impact on the livelihoods not only of those receiving the grant, but also of members of the household of a grant recipient. Around 88% of recipients of the Covid-19 grant pooled the money with their other household incomes to take care of the needs of everyone in the household, thereby increasing its reach in reducing poverty.
About 36 million individuals benefited directly or indirectly from the Caregivers’ Allowance and the Covid-19 SRD grant. Without these social relief grants, poverty — measured in terms of the food poverty line of R585 per person per month — would have increased from 20.6% to 32.1%. According to the minister, the termination of the Covid-19 SRD grant would increase hunger and social alienation, negatively affect economic recovery by reducing household demand and lead to increased social and political stress.
This assessment of the impacts of the social relief grants and their termination is in line with the findings of the NIDS-CRAM Wave 3 Survey. It predicted that “the reduction of social protection while rates of adult and child hunger are still at the highest they have been for a decade will have severe consequences and may compromise child wellbeing in the longer term”.
Most affected would be black women with children — the group with the highest reported rates of weekly hunger.
Although there was some recovery in terms of the estimated three million net job losses between February and April 2020, the first quarter 2021 Stats SA figures reveal the depth of South Africa’s unemployment crisis. In terms of its official definition, the unemployment rate is 32.6%, whereas the more realistic expanded definition (including those no longer actively looking for a job) indicates an unemployment rate of 43.2% (more than 11 million people), with youth unemployment recorded at a staggering 74.7%.
A United Nations Development Project Socio-Economic Impact Assessment of the Covid-19 pandemic on South Africa estimated that 34% of households in South Africa were likely to exit the middle class into vulnerability.
With South Africa in the middle of a crippling third wave and a sluggish vaccine rollout, the prospects of a rapid economic recovery are slim. The socioeconomic impact of the pandemic has aggravated pre-existing structural poverty and inequality, with more than 50% of the population living below the upper-bound poverty line, and one of the highest levels of income and wealth inequality in the world.
In its review of South Africa’s initial report under the International Covenant on Economic, Social and Cultural Rights, the UN Committee on Economic, Social and Cultural Rights observed that the persistence of economic and social inequality since the ending of apartheid “signals that the model of economic development pursued by the State party remains insufficiently inclusive”.
Reasonable measures to realise the right to social security
In terms of section 27 of the Constitution, everyone has the right of access to social security, including if they are unable to support themselves and their dependents. The state is obliged to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of this right.
In its foundational judgment in Government of the Republic of SA v Grootboom, the Constitutional Court identified a number of criteria that courts should take into account when assessing the reasonableness of government conduct. Key amongst these is the principle that government must be responsive to urgent socio-economic needs.
In the words of Justice Yacoob:
“A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality. To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise.
“Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right.” (para 44).
The court concluded that programmes must be put in place to provide relief to people “living in intolerable conditions or crisis situations”. The Covid-19 SRD grant is precisely such a relief programme. As argued above, it caters for those whose socioeconomic needs are urgent and who are at risk of hunger and destitution.
This grant could also have served as a strategic intervention to advance the progressive realisation of the right to social security, particularly for those between the ages of 18 and 59 who lack secure sources of income. This large cohort represents a major gap in the current social security programme. Closing this gap was one of the urgent recommendations to South Africa by the UN Committee on Economic, Social and Cultural Rights.
In its follow-up report to the committee, the government indicated that it has produced a discussion paper on income support for this group, including the consideration of a universal Basic Income Grant. In his report on a rights-based approach to social protection in the post-Covid-19 economic recovery, the UN Special Rapporteur on Extreme Poverty, Olivier De Schutter, highlighted the important role that rights-based social protection systems play in society:
“Building social protection systems on the basis of human rights can significantly contribute to their effectiveness in eradicating poverty and in reducing inequalities, thus making for societies that shall be more resilient in the face of shocks. This means defining social protection neither as an emergency response to a situation of crisis, nor as charity — but rather as a set of permanent entitlements prescribed by domestic legislation, defining individuals as rights-holders and public authorities as duty-bearers.”
By removing the Covid-19 SRD grant, the government has taken a step backwards (a “retrogressive measure”, in socioeconomic rights parlance), rather than advancing the progressive realisation of the right to social security. The effect, as Prof Nic Spaull has noted, is that 17% of households in South Africa “fell out of the social protection system in the country”.
A constitutional crisis of poverty and inequality
These past two weeks, the country has been riveted by the events surrounding former president Jacob Zuma’s imprisonment for contempt of court. Undoubtedly, these events pose a serious test for South Africa’s constitutional democracy. Equally clear is the threat to the legitimacy and stability of South Africa’s constitutional order posed by the deep patterns of poverty and inequality along the intersecting axes of race, class and gender.
Urgent measures are needed to help ensure that the Constitution delivers on its promise to improve the quality of life of all.
The Covid-19 SRD grant represented a modest, but nonetheless significant step towards this goal in the context of an unprecedented public health crisis and decimated livelihoods. Its termination while the crisis persists can only make the constitutional promises ring hollow to those forced to endure the ravages of hunger and poverty. DM/MC
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