TABLE OF CONTENT

Description Page number

1. Introduction 2–3

2. Aim and purpose of social 3–4

security system

3. Influence of International law 4–5

4. Social Assistance 5

Child Grant Support 6

Foster Child Grant 6

Disability Grant 6

Old Age Grant 6

Social Relief Grant 7

5. Social Insurance 7

Occupational for Injuries and 8

Diseases

Unemployment Insurance 8

Road and Accident Fund 8

6. How courts have enforced social 8 – 10

security

7. Opinion and Conclusion 10 – 11

8. References 12

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The South African social security system has a long history of events which led to a
divided country as a result of apartheid, laws and policies which resulted in
discriminatory practices. Due to apartheid a vulnerable group of society was
excluded from social security coverage. Social security system in South Africa can
be tracked back from the apartheid system. To give context to how social security is
operating in the present moment it is important to give background of how the
system was during the apartheid regime. “The provision of welfare in the form of
childcare grants, unemployment and old-age pensions included whites and coloured
only. The apartheid system was also characterised by prejudicing women; thus only
white women over 60 qualified for old-age pensions. Blacks and Indians were
deliberately excluded under the pretext that customary extended familial support
would suffice as a community safety net.”1 The social welfare system under the
apartheid government focused mainly on poor whites excluding the “non- white”
population favouring only the whites.

The Department of Social Welfare divided its social welfare programs for African,
India and coloured people and moved those programs to the Department of Bantu
Administration, Indian Affairs and Coloured Affairs respectively. 2 Having had the
division of social welfare resources, it resulted in an unfair distribution of those
resources as the availability of the benefits was limited to Black South Africans. The
system has changed as time goes by, but racial and inequality concerns have
always played an important role in shaping it. The changes that have been made do
not make the system a perfect one but it has made remarkable progress towards
giving all South Africans access to basic protection. Social security systems in
Europe and the United Kingdom had an impact on social security programs in
developing countries,3 South Africa adopted several components into its social
security system, its distinctive past helped to create a social security system that is
moderately developed for a developing country with a middle income.4

The Constitution was introduced in 1996 and the preamble describes the purpose of
the Constitution which is to “help heal the division of the past and to establish a

1
Liebenberg & Tilley
2
Brown, Marquessa; R. J 1 May 2005
3
Midgley & Kaseke, 1996:1003
4
Jean D. Triegaardt

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society which is based on democratic values and also promote and improve quality
of life of each and every person”.5

Social security is a form of human right and a constitutionalized socio economic right
and is accrued to a person who is in need. Social security is protected in terms of
section 27(1)(c) of the Constitution. The Constitution affords “everyone with the right
to access to social security and social assistance to people who are unable to
support themselves and places an obligation to the state to take reasonable
measures”. Social security system in South Africa has two (2) major elements which
are namely social assistance and Social insurance. A policy mechanism was
introduced in 1997 known as the white Paper for Social Welfare which was
responsible for the development of aspects of social security. The white Paper paved
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the way for legislations reform governing the delivery of social assistance.

This essay seeks to give a brief explanation of the basic functions, the overall aim or
purpose of a social security system and further analyse as to whether the South
African social security system is in accordance with the overall functions and aims of
an ideal social security system.

Aims and functions of social security system

 Social security system acts as a tool in realising some of the rights that
came with the South African Constitution for the improvement of rights,
legislation and increased provision. Social security is one of the socio-
economic rights that are enshrined in the Bill of Rights, the right is
stated in section 27(1) (c) of the Constitution providing 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. 7The social security system has a function of fulfilling this
right in a way.

5
Preamble of the Constitution of the Republic of South Africa
6
Social security law, only study guide for SSL
7
Section 27(1)(c) of the Constitution

2
 The social security system also helps with redistribution of income
which is an effective measure to help close the gap between the rich
and poor by providing some kind of help to the most vulnerable group
of society with grants. Social security system has programs that help to
ensure that everyone has access to a basic level of income regardless
of their ability to work. “Redistribution of income is an effective measure
to reduce income differences and to stabilize the lives of the low-
income class in the situations in which the market economy alone
cannot ensure social fairness. For the redistribution, the income is
transferred among individuals and household through the tax system
and social security systems.”

 The social security system also protects income earners from loss
employment as a result of various reasons such loss of employment by
introducing various kinds of social insurances which is a private sector
and contributory.

Influence of International Law

International law has played a vital role in the development of the current social
security system of South Africa. In terms of section 39 of the Constitution of the
Republic of South Africa it is stated that “when interpreting the Bill of Rights, a court
or forum must consider international law and can consider foreign law”. The social
security is a human right that is recognised and promoted internationally by all
governments of the world. International bodies such as the United Nations and
International Labour Organisation have played a vital role in the protection and
promotion of the right of social security.8

The right to social security has been developed through universally negotiated and
accepted instruments that have established as a basic right to social security to
which every human being is entitled. The right to social security has been enshrined
in several human rights instruments which have been adopted by the United Nations,
two of the several instruments which are namely:

8
https://www.oecd-ilibrary.org/sites/d6bc2d63-en/index.html?itemId=/content/component/d6bc2d63-en

3
Universal Declaration of Human Rights, Article 25 of Universal Declaration of Human
Rights states that “Everyone has the right to standard of living adequate for health
and wellbeing of himself and of his family and the right to social security in the event
of unemployment, sickness, old age or other lack of livelihood in circumstances
beyond his control.9

The International Covenant on Economic and Social and Cultural Rights is

considered to be the most important instruments which relates to socio-economic
rights, it recognises and deals with the right to social security, Article 9 “ recognizes
the right of everyone to social security and social insurance”.10 It touches on the
protection of mothers and children, the access to adequate standard of living which
include the right to food, clothing, housing etc. and encourages states to take
“reasonable measures within their resources to realise these rights” 11

Social Assistance

Social assistance is a state provided basic minimum protection which aims to

alleviate poverty and people are subject to meet certain requirements and is survival
for many people who are poor in South Africa and the assistance is in cash or food
parcels or clothes etc. to persons who lack means to support themselves and is
funded by government revenues. Social assistance is concerned with payments of
grants and is regulated by Social Assistance Act 13 of 2004, it was introduced by the
government to improve administration of social grants in order to prevent fraud and
the South African Social Security Agency was created in 2005 as a mechanism to
help speed up delivery of social grant. Grant administration of SASSA are stream
lined.12

People who are in need of social assistance will be subjected to the means test to
determine their eligibility to social assistance to ensure that grants are targeted at the
most vulnerable members of society. Applicants that are married are assessed as a

9
Article 25 of the Universal Declaration of Human Rights
10
Article 9 of the International Covenant of Economic, Social and Cultural Rights
11
Verdag E ‘The legal nature of the rights by the International Covenant on Economic, Social and Cultural
Rights’ in Schulter 0. (Edward Elgar Publishing, 2013) 3 -39
12
Social security law, only study guide for SSL

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couple and their incomes are combined regardless of whether they are married in
community of property or out of community of property.

Child support grant

 To receive this type of grant, the primary care giver of the child must be living
with the child here in South Africa.
 The primary care giver must be a permanent citizen or a citizen in South
Africa.
 The child must be under the age of 18 years.
 The primary caregiver must not earn over R60 000 per annum and if married
the caregivers must not earn more than R12 000.

Foster Child grant

 The child must be 21 years and under and there must be a court order that
the foster parent or parents have been designated.
 It is not subject to means test, the child must be in the care of foster parent.

Disability grant

 For one to be eligible for the grant they must be between the ages 18 and 59.
 They must have been found to be mentally or physically incapable to work by
a doctor as a result of the disability.
 The disability grant can either be temporary or permanent depending on
whether the applicant has recovered from injuries or not based on the reports
of a medical doctor.
 A person may not earn over R96 840 if single and if they are married, they
may not earn a total of over R193 680 if combined as a couple for eligibility of
the grant.

Old age grant

 The grant is eligible to people who are of the 60 and above.

 One has to be a citizen or permanent citizen in South Africa.
 Will be subjected to means test

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Social relief of distress grant

Social relief is for temporary assistance in certain situation such as:

 The death of a breadwinner

 People that have been affected by disaster which can result to loss of shelter.
 Disability which temporary or less than 6 months as a result of an injury but
will not be eligible for disability grant.
 When the country entered lockdown as a result of covid-19, the government
introduced SRD and it was meant for people who are not receiving any form
of income and was limited top South African nationals and permanent
residents who are 18 years and above.

Care dependency grant

 Care dependency grant is given to care givers of child living with disability.
 The child must be 18 years and below
 An applicant for care dependency grant may not earn more than R240 600
per year and if married the couples combined income may not be over R499
200 per annum.13 14

Social Insurance

Social insurance as a function of social security system has programs that are
created to support the development of people by giving them resources that they
require for their livelihood, the system also helps in reducing poverty and contributing
to social fairness by offering financial security.Social insurance is also designed to
protect income earners and their families against loss of income as a result of
injuries at work, retirement, retrenchment and etc. social insurance is contributory, it
is designed to achieve a reasonable level of income maintenance and includes
benefits of unemployment, ill health, old age, pregnancy etc.15

Occupational Injuries and Diseases

13
https://www.sassagrants.co.za/sassa-means-test-asset-and-income-threshold/ ,
14
For people who receive a grant or need to receive one. 7 April 2017| by Gabrielle Kelly and GroundUp Staff
Information| South Africa, Updated 27 July 2023
15
Social security law, only study guide for SSL

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The Compensation for Occupational Injuries and Diseases Act, regulates injuries
and diseases in South Africa, is a system for compensation for employees who are
injured as a result of accidents that have occurred in the workplace by providing
them with benefits only for people who fall under the definition of “Employee” in
terms of the Act and provided that they have entered into a contractual agreement
which is written or is oral.16

Unemployment Insurance

Unemployment Insurance is regulated by the Unemployment Insurance Act and

Unemployment Insurance Contributions Act. It provides for payment of
unemployment insurance benefits and regulates the collection of contributions and
establishes the unemployment insurance fund. An employee is required to pay a
certain percentage remuneration of an employee to South African Revenue
Services. In terms of the UIA benefits are paid out when employee they are
employed as a result of an illness, maternity or temporary unemployment.17

Road Accident Fund

Is responsible for providing compulsory social insurance cover to all users of South
African roads to compensate people who are injured as a result of the negligent
driver. In terms of section 3 of the Road Accident Fund clearly states that the aim of
the fund is to pay compensation in accordance with the Act for damages which has
been caused by the driver. Road Accident Fund provides for 2 types of personal
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cover or their families and indemnity cover to wrongdoers.

HOW COURTS HAVE ENFORCED SOCIAL SECURITY

Courts have played an important part in enforcing the right to social security and to
ensure that constitutional obligation is fulfilled to give light to the Constitutional
obligation of the state which is to provide everyone with access to social security to
people who cannot provide for themselves. In the of case Soedigeng it was stated
that “SASSA is required to promote, respect and fulfil rights in contained in the Bill of
Rights” meaning that any violation of social assistance as entrenched in section
16
Compensation of Occupational Injuries and Diseases Act 130 0f 1993
17
Unemployment Insurance Act 63 of 2001
18
Road Accident Fund 56 of 1996

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27(1)(c) of the Constitution can be challenged in the court of law. The South
African Constitution also affords everyone with “ the right to have a dispute resolved
in a fair public hearing before a court or forum" in terms of section 35.

NGALO V SOUTH AFRICAN SOCIAL SECURITY AGENCY

The applicant in the matter sought to enforce her constitutional right to access to
social security which is enshrined in section 27(1)(c) of the Constitution. Ms Ngalo
was an unemployed citizen and a mother to Inathi Duba who is suffering from septic
arthritis. A doctor examined her and confirmed that the child qualifies for care
dependency grant because she will have a long term disability. The court looked at
the fact that section 7 of the Social Assistance Act does provide that a parent or care
giver of a child who receives care due to a disability are eligible for a dependency
grant. The court further looked at the decision of Mbanga v MEC for Welfare and
Another, the court ordered that it was reasonable for a decision of an application for
social grant to be taken within 3 months and it was unreasonable for SASSA to take
32 months to approve an application and the failure to take a decision on social
security constitutes an infringement of the applicant’s constitutional right and just
administration action. 20

KHOSA AND OTHERS V MINISTER OF SOCIAL DEVELOPMENT AND OTHERS,

MHLAWUALE AND ANOTHER V MINISTER OF SOCIAL DEVELOPMENT

The two cases about the constitutionality of certain provisions of the Social
Assistance Act 59 of 1992, the in the case are permanent residents here in South
Africa. Khosa challenged the constitutionality of section 3(1) of the Act which stated
that social grants are for aged South African citizens and the Mahlaule case
challenged the constitutionality of section 4(b)(ii) and 4B(b)(ii) of the Social
Assistance Act 59 of 1992 which stated that child grant was reserved for citizens of
South Africa. The applicants in the two cases contended that the exclusion from the
scheme is inconsistent with the provisions set out in the constitution in terms of
section 27(1)(c) which states that everyone has a right to access to social security

19
Soedigeng v The Chief Executive of South African Social Security Agency 1682/07(2011) ZANWHC 1
20
Ngalo v South African Social Security Agency

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and further argued that the right to equality in terms of section 9 and the right to
dignity in terms of section 10 of the Constitution and lastly they contended that the
rights contained in section 28 has been infringed by the exclusion according to the
Mahlaule case.

The court found that the provisions of the Social Assistance Act 59 of 1992 to be
unconstitutional and also stated that the term “everyone” used in section 27 includes
non-citizen and permanent residents and everyone is equal before the law and has
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the right to equal protection and benefit of the law.

Courts have played a vital role in interpreting and giving content to the right to
access to social security, the right to access to social security cannot be interpreted
in isolation to other rights because the rights are connected.

OPINION AND CONCLUSION

According to the International Labour Organisation (ILO), an ideal social security

system should provide social protection for everyone, should be non-segregated and
should be based on solidarity.22 The right to social security in South Africa forms part
of the relevant ILO instruments being the social security convention, it is an
obligation that puts duty on the government to take reasonable measures to afford
the right of the people as well as respecting them in exercising those rights. South
African history shows how far the country has progressed from pre-apartheid to post-
apartheid in terms of the operation of the social security system. Under apartheid
South Africa used race as a way of classifying population into Africans, Coloureds,
Indians and Whites groups, this had an impact on how social security was
administered as one population group would be favoured over the others resulting in
unequal distribution of resources.

The new era of improved rights for South Africa After apartheid meant that there
would be recognition of access to social security as a Constitutional right as
regulated in section 27(1) (c). Now in general, the South African social security
system can be said to meet the criteria of an ideal social security system because

21
Khosa and others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social
Development
22
International Labour Organization

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social protection is provided for a wide range of people by the system, that would
include people who are with outwork, those who are living with disabilities and
families with children. A recommendable progress has been made in South Africa in
broadening social assistance in way that reduce poverty and inequality. “However
South Africa still lacks a comprehensive social protection system. There are various
inadequacies between the provisions of the current system and the situation and
risks faced by different population groups.”23

It has become apparent that the South African social security system is built and
based on noble principles that aim at reducing the socio-economic marginalization of
the poor and the system is all about achieving this through a number of schemes
24
which it has introduced. The different types of grants that have been introduced
have been provisioned to remove hurdles that prevent the vulnerable group of
society from accessing education, health care and employment thereby decreasing
the number of people who live in poverty.

In closing the social security system has had a powerful impact at all levels of society
by providing both working class and unemployed citizens. Courts and international
law has played an important part in shaping the social security system in what it has
become. The South Africa security system has been transformed and cover all,
citizens and permanent citizens in South Africa, all in all South Africa has a fairly
developed social security for a developing country that has a brutal history of
apartheid.

23
https://www.oecd-ilibrary.org/sites/d6bc2d63-en/index.html?itemld=/content/component/d6bc263-en
24
Micheal R. et al ‘One Kind of Freedom: Poverty Dynamics in post-apartheid South Africa’ 2001 Vol.19 (3)

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References list

1. A review of the Development of Social Security Policy in South Africa July 2013,
by Stephanie Brockerhoff.
2. Informal Social Security: A legal analysis by Adrieif Hendrina Dekker – April -
2005
3. Overview of the South African Social Security System Corruption and Social
Grants in South Africa, Trusha Reddy and Andile Sokomane, Monograph No 154,
November 2008
4. SOCIAL ASSISTANCE: LEGAL REFORMS TO IMPROVE COVERAGE AND
QUALITY OF LIFE FOR THE POOR PEOPLE OF SOUTH AFRICA by
CLARENCE ITUMELENG TSHOOSE, February 2016

Legislations

5. Constitution of the Republic of South Africa 108 of 1996

6. Occupation for Compensational Injuries and Diseases Act 130 of 1993
7. Road Accident Fund 56 of 1996
8. Social Security Agency 9 of 2004
9. Unemployment Insurance Act 63 of 2001
10. Unemployment Insurance Contribution Act 4 of 2002
11. White Paper of Social Welfare 1997

Cases

12. Khosa and Others v Minister of Social Development and Others, Mahlaule and
Another v Minister of Social Development (CCT 13/03, CCT 12/03) [ 2004]
ZACC; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) 4 March 2004
13. Mbanga v MEC for Welfare, Eastern Cape and Another 2002(1) SA 35 (SE)
14. Ngalo v South African Social Security Agency (SASSA) (2740/11) [2013]
ZAECMHC 4; [2013] 2 ALL SA 347 (ECM) (14 February 2013)

Internet sources

15. https://www.studoc.com/en-za/document/university-of-south-africa/social-
security-law/ss12601-study-unit-1-introduction-to-social-security/9021720
16. https://static.pmg.org.za/docs/2003/appendices/030

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