Poverty : giving meaning to the right to social assistance

Abstract

The article points to the incidence and impact of poverty and the inadequacy of current policies to deal with it. It presses for acceptance of the view that the persistence of high levels of severe poverty coupled with unfairly restricted access to social assistance grants are unconstitutional. Acknowledging that the elected branches of government bear primary responsibility for correcting the inequitable distribution of income, it argues that the courts cannot defensibly stand back, employing arguments of deference and institutional incapacity while the Constitution of the Republic of South Africa, 1996 demands a transformative vision that will give content to the socio-economic rights enshrined. 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 access to social assistance grants. It claims that the definitional modus in the Social Assistance Act 13 of 2004 is unfairly discriminatory and violates the rights to dignity and equality of the group. It also argues for an interpretation of the socio-economic right to social assistance that would be faithful to the transformational vision of the Constitution. Not only should the offending sections of the Social Assistance Act be declared invalid and in need of re-crafting, but section 27 of the Constitution must be interpreted to give enforceable content to the right it protects. To achieve this will require an understanding of the separation of powers and the reasonableness standard developed by the Court different from the approach taken, for example, in Mazibuko v City of Johannesburg 2010 4 SA 1 (CC). Substantial reliance is placed on the commendable decision of the Constitutional Court in Khosa v Minister of Social Development 2004 6 SA 505 (CC). Reasonableness review, progressive realisation and available resources are traversed before a clutch of remedies is examined. The structural interdict, entailing a process in which the Court retains jurisdiction, and used so creatively in Colombia, is advocated to remedy a situation in which the Executive has failed to achieve its own goals for tackling unemployment and poverty. If the Constitutional Court demurs while growing civil unrest damages our democracy, the Court's legacy will be irretrievably tarnished. It must reconsider its role as the custodian of the Constitution and make the business of interpreting constitutional text within a normative vision its business.