Litigation under way to challenge unfair exclusion of millions from Social Relief of Distress grant

27 Jul 2023

The Institute for Economic Justice and #PayTheGrants, through their lawyers at Socio-Economic Rights Institute, announced the launch of a court case aimed at addressing the unfair exclusion of millions of people living in poverty from receiving Social Relief of Distress grants.

Gilad Isaacs, the Executive Director of the Institute for Economic Justice (IEJ), said that court papers were filed on 21 July 2023 challenging regulations that unlawfully and unconstitutionally excluded millions from accessing the Social Relief of Distress (SRD) grant.

The papers filed in the North Gauteng high court include 79 supporting affidavits from people directly impacted by these regulations. The respondents named in the case are the Minister for Social Development, and the South African Social Security Agency (Sassa)

A case of ‘self-sabotage’

“The story of the SRD grant is a story of government self-sabotage,” said Isaacs. The special Covid-19 R350 Social Relief of Distress grant was introduced in April 2020 as a government intervention as jobs were lost owing to the Covid-19 pandemic’s impact on the economy. Despite early issues [like] the exclusion of caregivers and of asylum seekers, this grant actually played an enormously important role,” Isaacs said.

By March 2022, of roughly 16 million eligible people, 10.7 million people were applying for the grant with 10.3 million people being approved for the grant.

“That is an indication of a grant which scaled up faster than any other social grant which South Africans had, and despite the issues, that is a success,” he said.

In February 2022, the national budget was announced and the Treasury budgeted R44-million, which meant only 10.5 million people, out of a pool of an estimated 16 million, would be able to access the grant.

“The Department of Social Development was therefore tasked with deliberately excluding eligible applicants and in June 2022, Sassa and DSD noted that tightening the regulations and administrative processes were undertaken to ensure that they remain within the allocation,” he said.

Isaacs said that whilst the grant has many potentially positive impacts on job seeking, school retention, subsistence activities and spending in the economy, the key purpose of the grant is on poverty and hunger.

“South Africa faces a crisis of hunger, recent data shows that about a fifth of households are food insecure and about a fifth send people out to beg for food every day,” he said.

The grant targets those households, and it has done so insufficiently at its level of R350, but it has been relatively effective with lifting about 2 million people above the poverty line.

The decision to file court papers against the Minister for Social Development and Sassa is a last resort, said Isaacs.

“We sit here reluctantly, this is a last resort. We have made submissions numerous times to every version of the regulations. We have had countless meetings with the department, we have produced policy briefs, fact sheets, information and our colleagues have undertaken enormously brave activist work on this issue,” he said.

The regulations remain in place and the exclusions continue, which is why they have resorted to litigation.

“We are not asking the government to do something different, we are not saying make a different policy. We are saying do what they promised and do it properly, stop excluding the people who you want to be serving,” he said.

The key elements

“The legal basis pertains to both administrative justice, that laws must be enacted in a rational manner, and to the constitutional need to advance the right to social security,” said Isaacs.

The court papers outline various reasons why eligible people are excluded from receiving the SRD grant, including:

the over-broad definition of income used to measure whether an applicant falls below the means-test threshold;

unlawful questions in the online application form;

the exclusionary online-only application process;

flawed bank and database verification processes;

a narrow appeals process that excludes relevant new evidence;

an arbitrary exclusion of qualifying applicants when funds are depleted;

a reduction in the grant’s value over time;

an irrational and retrogressive income threshold; and

widespread and systemic non-payment of approved beneficiaries.

“In each of these, we ask the court for a particular relief, such as altering the regulations, asking the government to put in a plan to address them, or declaring them unlawful depending on the issue,” he said.

Isaacs concluded by emphasising how the government’s approach to the SRD grant is one of self-sabotage, as its own commitment to providing people with much-needed financial support is being undermined by its own budget caps and the unfair administrative process.

An unfair fate

Elizabeth Raiters, who is the deputy chairperson of #PayTheGrants, said that exclusions resulting from the unfair SRD regulations translate directly into a worsened situation for the country’s most vulnerable. Raiters explained that due to the issues with Postbank and the Sassa gold card, a lot of beneficiaries have moved their grants into their personal bank accounts and are now being declined for SRD because they are receiving the child support grant — which is considered income, even though it is not.

Read more in Daily Maverick: Grant recipients battle to renew Sassa/Postbank cards ahead of deadline

Sassa not paying people for months also contributes to the issue.

“As soon as you get pay dates and you get two months’ payment in one month, you will get declined. You essentially get declined because Sassa is back paying you what they owe you,” she said.

Raiters has raised these issues with the Independent Tribunal to no avail.

“They don’t care where the money comes from, what it is for, and who is putting the money in the account, as long as they see that balance in your account you are being declined,” she said.

Raiters said with the Independent Tribunal not effectively doing its job when it comes to appeals, there is almost no hope for beneficiaries.

“They use the same data that Sassa uses, which doesn’t make sense to me. They should be giving beneficiaries a chance to actually show that they do not have income and are not UIF registered,” she said.

Dire poverty, food insecurity, and persistent unemployment are not being addressed by the current SRD regulations.

“It is sad when beneficiaries are crying that their kids are hungry and there is just nothing I can do about it,” she said.

“I am one of those beneficiaries, it is happening to me. I am here as an activist and I am also here as one of those beneficiaries who is suffering this fate and unfair justice that Sassa is doing,” she said.

Perspectives from beneficiaries

Joleen Sampson, an SRD grant beneficiary who has submitted a supporting affidavit said access to the grant, and not individual need, has changed.

“Early in 2020, I applied for the social relief of distress grant and my application was approved. Payments came regularly until March 2023. After this, my application status changed to ‘declined’ due to the system erroneously detecting an alternative source of income, but I am unemployed,” she said.

Sampson said it was challenging to keep a household running without the grant.

“As parents, it is so tough to explain that to your children because they see you as a failure. You used to provide but now there is nothing,” she said.

Vanessa Reece, an SRD grant beneficiary who also submitted a supporting affidavit, spoke about the inadequacy of the grant’s value.

“I have been unable to secure work due to chronic illness. Since developing diabetes, it has been harder to keep in good health. The grant … helps me buy the right food to manage my diabetes. However, it is too little to cover my food and toiletries. No one in my household is employed, this makes it even harder to manage both my health and financial situation,” she said.

Reece said that R350 as sole income is not enough as food is too expensive and the government should increase it.

“With that R350, you buy food for two days but what about the rest of the month?”

Going forward

Isaacs says the objective is to ensure the protection and realisation of constitutional rights. Section 27 of the constitution obliges the government to progressively realise social assistance and food for all those unable to support themselves.

“Government’s failure to meet its constitutional obligations has forced our organisations to bring this court case. It is hoped the legal proceedings will highlight and secure solutions to the unfair and unlawful exclusion of millions of vulnerable, poor, and hungry people from accessing and benefitting from the SRD grant,” said Isaacs. DM

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South Africa

A case of ‘self-sabotage’

The key elements

An unfair fate

Perspectives from beneficiaries

Going forward