ABSTRACT
Introduction In the 1990s, Apartheid came to an end and South Africa (SA) entered the international human rights community. A new Constitution1 was adopted that included a Bill of Rights with a justiciable2 right of everyone “to have access to social security, including if they are unable to support themselves and their dependants, appropriate social assistance.”3. The Bill of Rights places a positive obligation on the state to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of the right to social security.4 This section gives government a choice as to what types of social security schemes to introduce and time to meet its obligations incrementally as its resources increase. However, the express use of the words “including if they are unable to support themselves and their dependants, appropriate social assistance” ensures that non-contributory social assistance (cash or in-kind) must be one of the measures adopted. This express reference to “social assistance” was a deliberate move by the constitutional experts who drafted the Bill of Rights.5 At the time of drafting, the term social security was beginning to be understood internationally to include both social insurance and social assistance, but social assistance was not as well protected as social insurance. While the latter tends to be contribution-based and linked to employment in the formal economy, social assistance is noncontributory and is particularly important in developing countries like South Africa facing large-scale poverty, structural unemployment and a relatively large informal economy. In 1998, the South African government introduced the new Child Support Grant (CSG) as a replacement to the State Maintenance Grant (SMG). The CSG was seen by some as a progressive first step, by others as a retrogressive step or too small a step forward. Frances Lund, the expert who led the government committee that conceptualized the CSG (the Lund Committee), wrote an insightful account of her experience with the political factors at play at the time of conceptualization (Lund 2008). She painted a picture of the existing grant (the SMG) at risk of being totally removed by the Executive branch of government, a conservative international and national political environment, a very small window
of opportunity to introduce a new modest cash grant that could be incrementally expanded over time, and a developing state faced by real fiscal constraints − large-scale poverty and competing social policy needs. The new grant needed to remove the discriminatory design and implementation features that had resulted in racial disparities in the take-up of the SMG.6 This reform meant it had to be designed to reach millions more children than the SMG, yet not place too much financial strain on the state. The end result was the introduction of a legally entrenched small unconditional cash grant targeted at young children living in dire poverty. However, the proposed CSG was criticized by human rights activists. They criticized, in particular, the low level of the grant (a proposed R75 per child, compared with the SMG which was R127 per child and R200 per mother at the time) and the limitation to children under seven years of age (as compared with the SMG, which provided cover up to 16 years of age). The activists expressed concern about civil society’s exclusion from the Lund Committee process and Executive dominance over the legislative process (Liebenberg 1997; Barberton 1997; IDASA 1997; Stokes 1997; Taylor 1997). They also produced evidence that the new CSG would reduce the government’s expenditure on children’s social grants for the first few years of its implementation and was therefore a retrogressive measure (Stokes 1997; Haarmann and Haarmann 1997). At the parliamentary hearings in April 1997, all the major civil society networks and organizations,7 as well as the country’s human rights watchdogs (the South African Human Rights Commission and the Commission for Gender Equality), expressed their opposition to the retrogressive aspects of the proposed CSG and called for greater consultation and a more expansive grant. The general perspective in civil society at the time was that, given the new constitutional obligations and the large-scale poverty, the Lund Committee, the Minister of Social Development (SD) and ultimately Parliament should have pitched the grant value and age at a higher level. Civil society subsequently continued to campaign for changes to the law and regulations to expand the reach of the CSG beyond the low base at which it was introduced. This campaigning has included large-scale public education drives, parliamentary advocacy and lobbying, research, dialogue with the Executive and litigation. This chapter reflects on aspects8 of this advocacy and analyses how the particular features of the constitutional, legal and political environment in South Africa at the time aided or frustrated these campaigns for expansion of the CSG.
The growth and expansion campaigns The section below describes three of the expansion campaigns, namely the growth in take-up, the expansion of the age limit and the expansion of the qualifying income threshold. The other campaigns with respect to identity documents and the grant amount are not recorded in this paper but reflect similar findings (Lund 2008; Budlender, Proudlock and Jamieson 2008).
