On-line version ISSN 1727-3781
PER vol.13 n.3 Potchefstroom Jan. 2010
Clarence Itumeleng Tshoose. LLB LLM (North-West University). Lecturer, Department of Mercantile Law, College of Law, University of South Africa, South Africa (email@example.com)
The purpose of the article is to examine the right to social assistance for households living with HIV/AIDS in South Africa. In particular, the article focuses on the impact of this pandemic on households' access to social assistance benefits in the wake of the HIV/AIDS pandemic, which has wrought untold sorrow and suffering to the overwhelming majority of households in South Africa. The article analyses the consequences of HIV/AIDS in relation to households' support systems, care and dependency burdens, and the extent to which the household members either acknowledge the illness (enabling them to better engage with treatment options) or alternatively, deny its existence. The article commences by reviewing the literature concerning the effects and social impact of HIV/AIDS on the livelihoods of households and their families. The social reciprocity that underpins households' livelihoods is briefly recapitulated. The article concludes that, while recent policy developments are to be welcomed, the current South African legal system of social security does not provide adequate cover for both people living with HIV/AIDS and their families. More remains to be done in order to provide a more comprehensive social security system for the excluded and marginalised people who are living with HIV/AIDS and their families.
Keywords: HIV/AIDS; disability grant; impact; households; access; poverty; safety net; social security; Constitution.
It is common cause that, since the dawn of human civilisation, no other epidemic has inflicted so much misery and suffering on humankind than the HIV/AIDS pandemic. According to the UNAIDS,1 more than 22.4 million people were living with HIV/AIDS in Africa. Of these, an estimated 1.9 million were newly infected in 2008. Young women remain one of the most vulnerable groups and are twice as likely to be infected as young men.
An estimated 5.7 million people were living with HIV/AIDS in South Africa in 2009, which is more than in any other country in the world.2 It is believed that in 2008, over 250 000 South Africans died of AIDS.3 National prevalence is around 11 per cent, with some age groups being particularly affected. Almost a third of women aged 25 to 29 and over a quarter of men aged 30 to 34 are living with HIV/AIDS.4 According to the Department of Health National HIV and Syphilis Sero-prevalence survey, 10.9 per cent of all South Africans over the age of two were living with HIV/AIDS in 2008. The estimated HIV/AIDS prevalence amongst those aged 15 to 49 was 16.9 per cent in 2008. The scourge of HIV/AIDS amongst pregnant women stood at 28 per cent in 2007.5
South Africa has the largest number of HIV/AIDS infections in the world.6 Apart from the decimation of the most productive segments of the population, the HIV/AIDS pandemic continues to undermine the institutions and human capital development strategies on which future health, security and progress depend. Moreover, the devastation of HIV/AIDS-related deaths is reflected in the social problem of AIDS orphanages and the increasing number of households headed by children in South Africa.
It is against this background that the article discusses the narrow coverage of the non-contributory social security system, which effectively excludes people living with HIV/AIDS and their families, in particular, destitute families. Following this, the article examines the role played by households in mitigating the adverse effects of HIV/AIDS. These households are often left to assume the primary role of taking care of members who are infected by the epidemic. Their vulnerability is linked in many instances to lack of income, poverty, unemployment, access to basic necessities of life, and social assistance. Similarly, these households rely heavily on the informal social security as a safety net. It is in this light that the article argues that HIV/AIDS will rapidly erode the households' coping strategies for survival should it be left uncontrolled.
In addition, the medical model currently used to determine eligibility for access to disability grants is inefficient because it results in large numbers of people being marginalised from benefiting under the system of social security. Accordingly, the article advocates for reforms to the system with a view to achieving a better and integrated system wherein concrete measures aimed at preventing further human suffering should be adopted, as a matter of urgency. The article concludes that, whilst recent policy developments are to be welcomed, more remains to be done in order to provide a more comprehensive social security system for the excluded and marginalised people who are living with HIV/AIDS.
2 Understanding the concept of "social security"
2.1 The concept of social security defined
Determining the ambit of the concept of social security is extremely important not only for the purpose of understanding the constitutional right of access to social security, but also for the purpose of obtaining a broader understanding of what the social security system in the South African context entails. The traditional Westernorientated concept of social security may also not be able to capture the characteristics of the African context sufficiently.7
It accepted that social security is not a fixed concept.8 To define "social security" with regard to the content of the intended scheme may leave insufficient room for the development of social security and to provide for new answers to any new social problems that may arise. Within the South African context, the concept of "social security" is viewed as an umbrella concept, encapsulating, amongst other aspects, the notion of social assistance, social insurance, and a wide variety of private and public measures that provide cash or in kind benefits or both, in the event of an individual's earning power permanently ceasing or being interrupted.9
The glossary in the White Paper for Social Welfare10 defines social security as:
the policies, which ensure that all people have adequate economic and social protection during unemployment, ill health, maternity, child rearing, disability and old age, etc, by means of contributory and non-contributory schemes providing for their basic needs.11
From a constitutional rights perspective, it is clear that there is a close interrelationship between the concept of social security and several other related concepts that constitute the basis of specific fundamental rights, such as the right to have access to land,12 to housing,13 to health-care services and to sufficient food and water.14 In a nutshell, social security denotes programmes that ensure that people have a safety net in those cases in which their earning capacity ceases to exist. In South Africa, social security is founded on social assistance, social insurance, private savings, social relief and social allowance.
2.2 Informal social security issues and challenges
Informal social security refers to self-organised family, community or informal sector coping mechanisms.15 Informal social security represents a way of life within traditional Black "African" communities and it incorporates values that promote togetherness and a sense of belonging.16 Within communities, informal social security is usually distinguished by informal social arrangements that can be divided into traditional support systems and self-organised systems. Generally, selforganised informal social security comprises a particular group of people within the community, including families and neighbours. Examples of self-organised informal social security include stokvels, burial societies and rotation money schemes.17 The African traditional support system is based on the principles of solidarity and reciprocity. Under the traditional support system, the family serves as the line of defence to members who are unable to provide for themselves. The support provided may be in the form of cash or in kind. These informal safety nets have proven to play a significant role in mitigating the impact of HIV/AIDS at family and community levels.
The role played by the family as a safety net is the most effective community response to the HIV/AIDS crisis in South Africa, as affected households in need of food send their children to live with relatives. In most instances, relatives are then responsible for meeting the children's basic needs and other requirements.18 The problems experienced by extended families in taking care of the children relate to lack of knowledge about the available social grants. In other cases, children become caregivers themselves or even heads of households.19 In many cases, such children become increasingly vulnerable to malnutrition, ill health, abuse and exploitation.20 In cases in which older people are caregivers of young children, they are sometimes unaware of the availability of grants, such as the Child Support Grant, the Care Dependency Grant for Disabled Children and the Foster Care Grant.21
It is clear that whilst the informal social security system cannot be dismissed as ineffective, its effect nonetheless diminishes as the impact of HIV/AIDS intensifies. The rising number of child-headed households clearly indicates the extent to which informal safety nets have become stretched. When parents die or are too weak to do anything owing to HIV/AIDS, the trend in most poor families is that relatives take care of the orphans.22 Grandparents, with their meagre social assistance grants, play an important role in looking after their grandchildren.23 In the event that there are no relatives, the eldest child often assumes the role of caregiver for his or her parents (should they still be alive), as well as his/her younger siblings.24
2.2.1 Changes in extended family systems
A primary issue arising from the impact of HIV/AIDS on households is the ability and willingness of extended family members to assist in the care of remaining family members, especially children who have been orphaned. As mentioned, a prevailing assumption in many national HIV/AIDS policies is that "traditional" family structures can and will cope with the pressures caused by the epidemic. However, results from a number of field studies conducted on the subject cast doubt on this assumption. In light of social and economic changes stretching back well into the colonial era, what is often referred to as the "extended" family has evolved into numerous forms across South Africa, bringing in turn numerous variations in coping with the impact of HIV/AIDS.
Family members who have settled for two, three or more decades in rural areas may have weak links with their wider family living in other areas of the country. In such cases, social networks may take precedence over family membership. Families who have little contact with their extended families have a greater likelihood of orphans being abandoned should the current caregiver die. While it is not an either/or situation (that is either extended families are coping or they are not), it does appear that HIV/AIDS is placing new pressures on many families, who are finding it increasingly difficult to cope.
The trend in other cases is that relatives with jobs are expected to play a larger role in direct support of extended family members (such as fostering a child) or indirect support (providing money for medical expenses or school fees). It is usual in South Africa to find salaried workers supporting two, three or more extended family members with their earnings.
3 Analysing the concept of disability
There is no general statutory definition for the concept of "disability" and much depends on the context within which it is used.25 The International Labour Office (ILO) concludes that a distinction may be drawn between three concepts of disability,26 namely:
(a) physical disability, which refers to the total or partial loss of any part of the body, or any physical or mental faculty, irrespective of the economic or occupational consequences of that loss;
(b) occupational disability, which refers to the loss of earning capacity resulting from the inability to follow an occupation previously exercised by the person concerned; and
(c) general disability, which refers to the loss of earning capacity resulting from the inability to take up any of the possibilities open to the person concerned in the general labour market, including those possibilities that might involve a change in occupation and possibly some sacrifice of professional or social status.27
What follows from this definition is that disability is dependent upon the theoretical construct that one uses to understand the term. Disability can be viewed from a medical perspective, which looks purely at the physical or mental impairment and views the degree of severity as the extent to which certain activities of daily living cannot be undertaken.28
This raises numerous practical and administrative problems. Currently within the South African social assistance system, disability is measured and defined entirely by the medical profession.29 Its interpretation determines a person's qualification to receive a grant. Hence, South Africa appears to have opted to integrate HIV/AIDS into existing safety nets, rather than create new ones.
The South African social assistance system is sometimes vague and characterised by inconsistent definitions. This is evident from the definition of "disability" as discussed above.30 A person suffering from HIV/AIDS cannot be classified as handicapped. By definition, a handicapped person is defined as including a blind person, a permanently disabled person, a person with an artificial limb and a person suffering from a mental illness.31 The only status that might include a person suffering from HIV/AIDS is permanently disabled.
4 Disability grant in practice: Issues and perspectives
The Black Sash points out that social grants have many advantages for impoverished and vulnerable South Africans. They are used to purchase essential food and clothing, improving nutrition and basic human welfare. Households that receive grants are less likely to have malnourished or stunted children, and are better able to access essential state services, such as health clinics and schools. In this way, social grants enable recipients to enter into systems of social reciprocity and mutual support, which continue to characterise many impoverished South African communities. They enable recipients to care for their households, underwriting their continued entitlement to support and protection within these networks, and thereby empowering marginalised household members, such as the ill and disabled.32
Despite the extensive reach of South Africa's social grants system, there are certain barriers that prevent very poor and vulnerable people from obtaining the disability grant. These include lack of identification documents, inability to afford transport to government offices, illiteracy, and ignorance as to what they are entitled to and the procedures they are required to follow.33
There are many documented problems with the disability grant administration. These include, in particular, inconsistent practices between provinces, inadequate understanding of the criteria for disability grants (as discussed above) and temporary disability grants, failure to inform people of their rights (such as the right to an appeal following grant refusal), incorrect placement of people on temporary instead of permanent grants and vice versa, delays in processing applications, failure to inform applicants of receipt of a grant, and arbitrary removal of beneficiaries from the grant system.34
Inefficient administrative systems make the process of applying for and receiving a grant too onerous for disabled people. Some of these administrative issues have an unequal gendered impact in cases in which women's security is involved or in which women's childcare responsibilities and other such needs are not recognised.35 The costs (financial, physical and emotional) of attempting to access the grant system and remain on it are high for all grant applicants and beneficiaries. Gathering documents, travelling to government offices and pay points, and negotiating bureaucratic formalities are some of the tasks that place a strain on them. In addition, the high cost of disability means that many disabled people have expenses and difficulties in addition to those of able-bodied people, such as assistive devices, remuneration of caregivers and additional transport costs.
5 Socio-economic realities facing social security in South Africa
The most significant factor distinguishing South Africa from other countries is its experience of colonialism and Apartheid.36 The latter was an era characterised by political relations of domination, and an economic system that excluded and marginalised the majority of the African population from participating in the opportunities offered.37 In prescribing the impact of Apartheid, the proponents of Apartheid ensured that such policies of deliberate impoverishment distinguished the experience and dynamics of poverty in South Africa. As such, the implementation of Apartheid legislation resulted in persistent poverty and extreme inequality.38
The first inclusive democratic elections in 1994 marked a peaceful transition from Apartheid to democracy. This introduced an era of racial and gender equality, multiparty democracy and freedom of movement. The democratic government intended to ensure that the backlog of social needs would be addressed by introducing programmes aimed at socio-economic reform. These programmes included, inter alia, the Reconstruction and Development Programme (RDP); Growth, Employment and Redistribution (GEAR); and Accelerated and Shared Growth Initiative for South Africa (AsgiSA).39
5.1 Unemployment and employment
The unemployment rate in South Africa is ever growing and proving to be the worst enemy of social protection. As more people join the ranks of the unemployed, so the continued financial viability of many formal social security schemes, such as the Unemployment Insurance Fund, the continued existence of informal schemes (for example burial societies and stokvels) and other informal transfer arrangements (for example kinship-based transfers) become uncertain, in dealing with the impact of HIV/AIDS.40 As these schemes focus only on the risk associated with the virus, they fail to address issues pertaining to the integration of people living with HIV/AIDS into the labour market, in order for them to be able to continue to derive an income and support themselves.
The rate of unemployment in South Africa is very high and the reasons for this are two-fold.41 Firstly, economic growth has been too low to absorb the ever-increasing number of young men and women entering the labour market owing to demographic growth and rising participation rates. Secondly, the policies and actions of government, organised labour and business have together resulted in a growth path that has been skewed in favour of joblessness, in that employment has fallen despite economic growth. Crucially, the growth path has entailed rising productivity and rising wages for an ever-decreasing pool of workers, with concomitant shrinkage in unskilled employment opportunities, especially.42
It is within this context that South Africa is often referred to as a country of two nations - one for the rich and the other for the poor. The main reason for this is that living standards in South Africa are closely correlated with race. According to Africa Focus,43 poverty is concentrated amongst Black people. Approximately 61 per cent of black people and 38 per cent of people from a mixed-race (or so-called "Coloureds") are poor, compared with five per cent of Indians and one per cent of white people.44
Using a broad definition (which includes those who are willing to work but are not looking for work), the unemployment rate is estimated at 40 per cent.45 According to Statistics South Africa, the unemployment rate in 2009 was estimated at 24 per cent.46 In 2010, the unemployment rate remained virtually unchanged at 24 per cent, whilst the participation rate stood at 54.8 per cent and the labour absorption rate at 41.5 per cent.47 This clearly indicates the high rate of social backlog that South Africa faces.
5.2 Poverty and inequalities
There is no accepted official definition of "poverty" in South Africa, and a range of commentators outline the complex interaction of methodological and ideological factors in disagreements about the nature and scale of poverty.48 Regarding the various definitions and methodologies, it is accepted that between 45 per cent and 55 per cent of the South African population are poor, and between 20 per cent and 25 per cent live in extreme poverty.49 In South Africa, there is a glaring racial disparity in income poverty. While three quarters of African children lived in poor households in 2007, only 5 per cent of White children lived below the poverty line. Poverty rates for Coloured and Indian children were 43 per cent and 14 per cent, respectively.50
The Report of the Committee of Inquiry into a Comprehensive System of Social Security51 for South Africa discovered that 45 per cent of the population lives on less than US$2 per day. As measured by the World Bank, 25 per cent of African children are physically stunted (that is, short for their age), 10 per cent of Africans are malnourished (that is, underweight for their age), and 60 per cent of the poor receive no social security transfers.
In measuring poverty in South African households, some studies use the US$1 and US$2 a day methodology.52 In public discourse, the US$1 a day level has gained a great deal of prominence. While acceptance of that level helps to popularise notions and maintain the intensity of public debate, it is not necessarily an accurate indicator.
It is clear that many South Africans live below the breadline. Similarly, in many developing countries, poverty is more rife in rural areas than in urban areas.53 This is mainly because rural areas are generally isolated from urban areas in which there are industries or job opportunities. In addition, people who are unemployed, illiterate and marginalised by the formal social security system are, in most instances, concentrated in rural areas.54 The extent of poverty is illustrated by more than 40 per cent of South Africans living in poverty, with the poorest 15 per cent in a desperate struggle to survive.55 There is a body of evidence that highlights the role of social assistance in South Africa in poverty alleviation. Social assistance is an important source of income for household security and household food security. Further, social transfers or social assistance help to mitigate chronic poverty in so far as part of welfare transfers are invested in "income-generating activities, education, social network and the acquisition of productive assets".56
Poverty plays an important role in the large-scale transmission of malaria and tuberculosis, which are opportunistic infections that in the HIV/AIDS era have become even more important concerns for health authorities. Poverty and disease combine in a vicious cycle in which disease and malnutrition result in poor health, which in turn culminates in low production, low income, low taxation and lack of health facilities. Poor health also feeds into poverty because of diminished household savings and increased debt, lowered learning ability and diminished quality of life.57
Poverty acts to further entrench poor health because of increased personal and environmental risks, increased malnutrition, lack of access to knowledge and information, and a diminished ability to access care. Sexual and reproductive health plays an important role in explaining the persistence of poverty. Lack of knowledge and awareness, which results in low-income earning people not investing in education, contribute to a lack of family planning. The resulting overpopulation and large families exacerbate land shortages, which in turn feed into low production, low productivity and low income, thus closing the vicious cycle.58
Similarly, access to basic services, such as housing, water, land and electricity, remains a problem for many South Africans.59 The programmes that ensure people have access to these basic services are often not well co-ordinated and sufficiently comprehensive.60 In general, sources of income for households in South Africa differ substantially. The poorest households tend to rely heavily on sources such as pensions and social grants, whilst the other households tend to rely on wage income and other sources for income-generation.61
This is an important consideration for social policy, bearing in mind that many low wage earners in urban areas and families affected by the HIV/AIDS pandemic have to maintain their poorer relatives. In doing so, these families are thus effectively assuming some of the social responsibilities that should ideally be taken up by the state.62
This has resulted in many poor households being more vulnerable to the "shocks" of unemployment and ill health, and poorly placed to take advantage of the new opportunities opening in the labour market. Hence, South African society might be viewed in terms of a game of "snakes and ladders".63 The "ladders" are the jobs that people find, whilst the "snakes" are retrenchment, morbidity and mortality of household members. There are many snakes and ladders, but they are not distributed randomly. There are few ladders at the bottom end of society. Lacking social and human capital, and being more vulnerable to HIV/AIDS-related illness, households at the bottom face few ladders and thus few opportunities for upward mobility. The further up the board one proceeds, the more ladders there are, which favours the already advantaged.64
5.3 HIV/AIDS and gender
The gender dimension of the HIV/AIDS epidemic is defined as the array of societal beliefs, norms, customs and practices that define masculine and feminine attributes and behavioural roles in determining an individual's vulnerability to infection, his/her ability to access care, support or treatment, and the ability to cope when infected or affected.65
The gendered dimension of informal social security is imperative in so far as the Constitution guarantees everyone the right to equality. Mostly women, and of these, mostly Black women, are excluded in terms of the formal social security system and t hey make up the majority of the informal social security sector. In order to ensure equity, they should be afforded more protection in terms of the formal social security framework.66
Gender is also an important factor in determining the level and quality of care, treatment and support that HIV-positive men and women receive. The burden of care and the negative economic and social consequences of AIDS fall largely on women. Women in South Africa are more vulnerable to HIV/AIDS than men and children for a variety of reasons. Above all, most women (particularly African women) have been socially, politically and economically marginalised.67
5.4 Access to basic social services
Many of the poor in South Africa live in rural areas, where there is an acute shortage of basic social services and the infrastructure necessary to sustain basic human capabilities.68 The provision of basic services will go a long way towards fulfilling the state's obligation to realise the right of access to appropriate social assistance. A lack of access to basic services aggravates human poverty and condemns the poor to a life without equality, human dignity and freedom. Inequality of access to social services leads to a further widening of the gap between the capabilities and opportunities of social groups.69
Almost ten million South Africans still live in slums, 16 per cent of the population do not have basic shelter and 41 per cent have no access to basic sanitation. Moreover, a rise in the number of informal settlements, high levels of unemployment, a lack of basic amenities and resources, unequal patterns of wealth and land distribution, and environmental degradation have combined to increase the vulnerability of millions of South Africans.70
The targeting of basic social services in urban areas will have an impact on the reasonableness of the state's action. The United Nations Development Programme uses a Service Deprivation Index to measure the backlog regarding deprivation and lack of access to basic services. The findings demonstrate that the number of households that were considered to have been deprived of access to quality basic services increased in 2007.71
6 Impact of HIV/AIDS on poor families
Families are extremely important in society and they form the glue that holds communities together. Families form natural structures in which networks of care and support exist. They constitute a very important social resource which can assist South Africa's against challenges of HIV/AIDS.72 However, HIV/AIDS poses one of the greatest challenges to families in history.73 HIV/AIDS touches at the very heart of families, drawing them closer together or driving them further apart. The illness and resulting death of fathers, mothers, children and siblings changes the very structure of this primary building block and is exacerbated further by the additional financial constraints placed on the family.74
The nexus between caring and families (immediate and extended) is impacted upon as the burden of care starts to exceed the levels of resilience within the family. Families can be and have been constituted in many ways in South African history and various forms of the "traditional" family have been formed in South Africa's troubled past. Contrary to the Western, post-industrialised notion of a nuclear family, the "extended" family is more common in South Africa and Africa. Owing to globalisation, "nuclear" families are, however, not uncommon in South Africa. As the onslaught of HIV/AIDS on families continues, families are headed by grandparents, in the absence of parental figures headed by children and families of mixed race. Single-parent families are becoming more common as well. Within these "new" families, the traditional care roles need to be taken into account and reassessed in cases in which family care networks are activated.75
It is common cause that social assistance programmes significantly mitigate poverty amongst groups of deserving poor - the elderly, disabled and children - and, more broadly, amongst their dependents.76 Consequently, the HIV/AIDS pandemic has had a profound impact on the level of poverty and vulnerability of most South Africans.77 HIV/AIDS contributes to a rise in poverty, whilst poverty reduces the ability of the poor living with HIV/AIDS to cope with the disease. HIV/AIDS generates new poverty as people lose employment and housing tenure. Household incomes fall owing to the loss of wage earners and the high spending, particularly on medical care and funerals.78 Mosoetsa79 points out that
The effects of poverty and the lack of virtually any disposable income have resulted in contradictory effects on collective citizen action. They have either weakened collective action, for example, through the church collections keeping people away from customary sources of succour and support, or they have strengthened it, as in the case of informal burial societies and self-help initiatives based on reciprocity.
In the absence of direct state intervention, the socio-economic situation in the country will deteriorate owing to the impact of HIV/AIDS. Analysts predict that by 2011, more than half of the population will live in households affected by HIV/AIDS. The pandemic will lead to a situation in which many households that would otherwise live close to, but above, the poverty line will be pushed under the basic subsistence level.
These households will be faced with destitution should they not be assisted by the state.80 As it stands, approximately only 30 per cent of the poor are eligible to receive state social assistance grants. This indicates that more than 16 million poor people fall out of the social security support system.81 This is so despite the contention that an appropriate social security system is expected to prioritise the needs of people without any, or with insufficient, income and to encompass those engaged in the informal sector.
In addressing the plight of HIV/AIDS, clearly the underlying conditions that exacerbate the spread of HIV/AIDS need to be addressed. Further, the need for a comprehensive social policy that would uplift the majority of the people who find themselves unemployed should be addressed.
6.1 Impact of HIV/AIDS on children
While it is important to commend the government of South Africa for introducing the Children's Act,82 the profound effects of HIV/AIDS continue to wreak havoc on many households in South Africa. Some of its effects include the loss of a breadwinner, which in turn results in a decline in household income and obliges other household members to take care of sick relatives. At the same time, households have to reallocate their spending to devote a much greater share to health care, including not only drugs and doctors' fees, but also supplies for home care.
The impact of HIV/AIDS also extends beyond those households that are directly affected to the many other households who intervene to provide them with support. In instances in which a household affected by HIV/AIDS disintegrates, members of the extended family frequently take care of the surviving children. The loss of a household member can have long-term effects on the well-being of other members, through the costs of treatment and, especially, should children have to take time off from school for financial reasons or to care for sick relatives.
6.2 Orphans and child-headed households
There are approximately 840 000 children in South Africa who have lost their mothers, mostly because of HIV/AIDS.83 By 2015, it is expected there will be three million AIDS orphans unless comprehensive health interventions make it possible for children's caregivers to live longer.
There are different definitions of an AIDS orphan. International policy makers, such as UNICEF, described AIDS orphans as children aged 15 or younger who had lost either their mother or both parents because of HIV/AIDS. An AIDS orphan may be looked after by the wider family structures or by the community, and is not necessarily a member of a child-headed household. Research suggests that most orphaned children are indeed taken in by their family or by community structures. Only in cases in which other children are looked after by older siblings, who are still children themselves, can one speak of child-headed households. In South Africa, child-headed households are generally those in which the main caregiver is younger than 18 (rather than 15). This is in accordance with the Constitution, which defines a child as a person younger than 18 years. In addition, the definition takes account of the fact that children younger than 21 do not have the legal capacity to perform certain key acts.84
The HIV/AIDS pandemic is reducing life expectancy and raising mortality. An increasing orphan population is perhaps the most tragic and long-term legacy of the HIV/AIDS pandemic. By the middle of 2006, 1.5 million children under the age of 18 years were maternal orphans in South Africa, and 66 per cent of these children had been orphaned as a result of HIV/AIDS.85 Although government and non-government organisations have responded by building orphanages, most of Africa's orphans have been absorbed into extended family networks. Many of these extended family caregivers are ageing and often impoverished grandparents.86
Children orphaned by AIDS are entitled to non-discrimination; consideration of their best interests, and survival and development rights, including education, health, social security and appropriate alternative care. Caregiving takes a significant toll on the caregiver both physically and emotionally, and may even, in some instances, lead to depression and burnout. Caregivers are often expected to be all-enduring martyrs to the cause of caring, whether it be relatively short-term care or long-term care.87
7 Constitutional provisions pertaining to socio-economic rights
The Constitution has had a major impact on social security in South Africa.88 The Constitution makes it clear that it is the supreme law of the country,89 whilst the Bill of Rights applies to all and binds the legislature, the executive, the judiciary and all organs of state.90 The Constitution also enjoins every court, tribunal or forum to promote the spirit, purport and objects of the Bill of Rights when interpreting any legislation.91 Section 27(1)(c) of the Constitution guarantees the right to access to social security.92 There are also other fundamental rights that play a significant role in the context of social security.93 The state is obliged to respect, protect, promote and fulfil these fundamental rights.94
The Constitution provides a base-line framework for the protection of social security rights and other related rights in the sense that it attempts to provide for a minimum standard of living or a safety net for those who are poor and vulnerable in our society. When considering the purpose of providing access to social security to those in need, the Constitutional Court,95 remarked that:
A society had to attempt to ensure that the basic necessities of life were accessible to all if it was to be a society in which human dignity, freedom and equality were foundational. The right of access to social security, including social assistance, for those unable to support themselves and their dependants was entrenched because society in the RSA values human beings and wanted to ensure that people were afforded their basic needs.96
The Constitution refers to the right to have access to social security and not purely to the right to social security. The question can therefore be asked whether the term "access to" can be interpreted as qualifying the right to social security. Initially, the distinction was understood as an attempt to avoid an interpretation that Sections 26 (2) and 27 (2) create unqualified obligations on the state to guarantee the direct provision of social goods to everyone.97
In the Grootboom judgment,98 the Court remarked that:
The right delineated in Section 26(1) was a right of "access to adequate housing" as distinct from the right to adequate housing encapsulated in the Covenant.99 This difference is significant because it requires that housing entail more than bricks and mortar. It requires available land, appropriate services, such as the provision of water, the removal of sewage, and the financing of all of these, including the building of the house itself. The Court in casu reached a different conclusion, holding that the "right to have access to housing" can be interpreted broader than the "right to housing".100
Section 7(2) places positive and negative obligations on the state to realise socioeconomic rights. The duty to respect (negative duty) requires the state and other relevant actors, on a primary level, to refrain from infringing the right, whilst the positive duty requires the state to enact legislation and policies that will ensure realisation of these rights. The rights in the Bill of Rights may also place a duty on the state to act rationally and in good faith, and require the state to justify its failure to fulfil its obligations.101 It may therefore be expected to provide valid reasons for its failure to respect, protect, promote and fulfil the right of access to social assistance.102
The Grootboom case, the most comprehensive judgment on social security-related rights, concerned the forcible removal of a large number of children and their families occupying land illegally, without making alternative facilities available to them.
The Constitutional Court provided explicit guidance on the principles applicable to the interpretation of the socio-economic right of access to adequate housing.103 In particular, the Court commented on the state's obligations under Section 26, which gives everyone the right of access to adequate housing, and Section 28(1)(c), which affords children the right to shelter. In a nutshell, the court commented on the indivisibility and interrelation of fundamental rights, t hat socio-economic rights are mutually supportive, and that the right to access to housing cannot be in isolation to other fundamental rights, such as health care, sufficient food and water, and electricity.
In the Bill of Rights, the Constitution introduces a constitutional imperative in terms of which the government is compelled to ensure the "progressive realisation" of the right to social security. It also imposes an obligation on the state to implement appropriate measures in this regard as follows: "the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of this right."104
8 Role of non-state actors
In a modern economy, non-state actors have come to occupy central positions in the provision of key services and goods essential for individuals. Thus, the government alone cannot realise the socio-economic rights enshrined in the Constitution.105 In essence, multi-actor responsibility denotes that the realisation of the right to have access to appropriate social assistance as enshrined in the Constitution is not the exclusive responsibility of the state.
The Grootboom case emphasised that the Constitution does not require the state to be the sole provider of socio-economic rights. The state's duty differs according to whether people have the ability to realise their rights. In relation to the right of access to adequate housing, the Constitutional Court remarked that:
A right of access to adequate housing also suggests that it is not only the state that is responsible for the provision of houses, but that other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing. The state must create the conditions for access to adequate housing for people at all economic levels of our society. State policy dealing with housing must therefore take account of different economic levels in our society.106
The approach taken by the Court in relation to socio-economic rights indicates that for those with the ability to support themselves and their dependants, the state's duty is not that of direct provider, but only of unlocking the system and providing a legislative framework to facilitate access to social security.107 Multi-actor responsibility may also indicate that it is not only the state that is responsible for the provision of social assistance, but that other agents, such as private companies, charities and non-governmental organisations, and even individuals themselves must be enabled by legislative and other measures to realise the right of access to social security.108
In a context of pervasive absolute poverty and inequality, consideration of poverty alleviation measures is of critical importance. However, the successful addressing of poverty in South Africa depends on the ability of policy-makers to construct sustainable and appropriately targeted interventions, which in turn are able to elicit consensus in a country typified by conflicting political and social objectives.109
The current social assistance grants are largely categorical by nature, as they are only available to those who are (apart from being poor) sufficiently young, sufficiently disabled, or who are not able to work. In the context of the article, the implication is that those whose CD4 count is below 200 and who are not sufficiently disabled110 are left at the mercy of poverty, as there are no universal benefits or state-financed benefits specifically targeted at people who are excluded from disability grants.
Furthermore, as pointed out by Goldblatt,111 there is
... general problems of access to the grant system because of administrative inadequacies, illiteracy, poverty and disempowerment. These are huge obstacles for poor and disabled people, who are already shouldering a great burden of disadvantage. Looking at the experiences of disability grant applicants and beneficiaries through a gender and social model of disability lens reveals a further dimension.
The need, therefore, arises for a radical rethinking of social security goals and policies. Social security thinking and policy-making must not be curative (in the sense of providing compensation), but also preventative and remedial in nature.112 One should concentrate on the causes of social insecurity (for example, social exclusion), rather than on the effects thereof One should also implement measures aimed at preventing human damage, for example, employment creation policies; health and safety regulation; preventative health care; and remedying or repairing damage, such as re-skilling or re-training, access to the labour market, and social integration,113 should be adopted as an integral part of the social security system, alongside compensatory measures.
Beyond the broad policy reforms needed to extend the reach of the social security system, specific changes that could improve the functioning of the disability grant system are required. In short, there is a need for a specific grant for chronic diseases as, presently, people with HIV/AIDS receive temporary disability grants that cease once a person's health has improved. Support for people with chronic diseases is important, as people with chronic diseases are often pushed farther into the poverty trap.
From the above discussion, it is clear that informal social security has developed to such an extent in South Africa that it forms a separate safety net for people excluded and marginalised in terms of the formal social security paradigm. Therefore, informal social security cannot remain conceptually separate from formal social security. One way in which this can be addressed is through the incorporation of informal social security into the definition of social security. It is suggested that the definition of social security be broadened to allow for elements that are also associated with informal social security, namely the involvement of state, as well as non-state actors, by recognising that recipients of social security are not just individuals, but also societies, communities and households, and by defining risk in a non-restrictive manner.
Furthermore, the Committee of Inquiry must be commended for its examination of the current social security system and for its excellent recommendations regarding transformation of the security system into a comprehensive system that will ensure an adequate minimum standard of living for all, with additional assistance for vulnerable groups, and a range of support services to enable the maximum wellbeing and development of children and their families.114 Concerted efforts should be made to alleviate poverty and provide minimum income support measures. Additional improvements are required to the existing grants, with additional measures to reduce the current gaps. Most important is the State's commitment to protecting its citizens and improving living conditions for all, in particular, for the most vulnerable members of society.
Lastly, the socio-economic conditions of many South Africans are inextricably linked to the high rate of HIV infection. Job creation and social reform are vital. The large
scale and long-term commitment to these causes are the only real solutions to controlling the epidemic. Furthermore, there is a need to recognise the role played by informal social security as a safety net for households infected by HIV/AIDS if we are to win the battle against HIV/AIDS. In addition, there is a need for a transformation process in our social security paradigm, the need for social security to champion the needs of vulnerable people and establish structures focusing on community-based activities, such as the improvement of their education, training, and employability. This will enable members of the community to live a sustainable life rather than one of dependency on the state social security system. In conclusion, the South African government has come a long way in responding to the HIV/AIDS epidemic, but is still falling short of what is possible, and lacks the progress that has been made by its neighbours and other countries in a similar standing.115
Alexander 2010 ROAPE Alexander P 2010 "Rebellion of the poor: South Africa's service delivery protests - a preliminary analysis" ROAPE 37(123) 25-40 [ Links ]
Booysen 2004 SAHARA-J Booysen F 2004 "Social grants as a safety net for HIV/AIDS - Affected households in South Africa" SAHARA-J 45-56 [ Links ]
Booysen and Summerton 2002 JHPN Booysen FR and Summerton J 2002 "Poverty, risky sexual behaviour, and vulnerability to HIV infection: Evidence from South Africa" JHPN 285-288 [ Links ]
Davis, Cheadle and Haysom Fundamental Rights in the Constitution Davis D, Cheadle H and Haysom N (eds) Fundamental Rights in the Constitution: Commentary and Cases (Juta Kenwyn 1997) [ Links ]
Dekker Informal Social Security Dekker AH Informal Social Security: A Legal Analysis (PhD thesis UNISA 2005) [ Links ]
Didiza "Land and agrarian reform in South Africa" Didiza T "Land and agrarian reform in South Africa: 1994-2006" (Unpublished paper presented at the International Conference on Agrarian Reform and Rural Development March 2006 Brazil) [ Links ]
Donnelly and Dunn 2006 BJIR Donnelly E and Dunn S 2006 "Ten years after: South African employment relations since the negotiated revolution" BJIR 1-29 [ Links ]
Dreyer and Maqoko 2007 HTS Theological Studies Dreyer Y and Maqoko Z 2007 "Child-headed households because of the trauma surrounding HIV/AIDS" HTS Theological Studies 717-731 [ Links ]
Foster 2004 "Safety nets for children affected by HIV/AIDS in Southern Africa" Foster G "Safety nets for children affected by HIV/AIDS in Southern Africa" in Pharoaha R (ed) A generation at risk? HIV/AIDS, vulnerable children and security in Southern Africa (Institute for Security Studies Pretoria 2004) 65-92 [ Links ]
Goldblatt 2009 Development Southern Africa Goldblatt B 2009 "Gender, rights and the disability grant in South Africa" 2009 Development Southern Africa 369-382 [ Links ]
Gupta, Whelan and Allendorf Integrating Gender Gupta GR, Whelan D and Allendorf K Integrating Gender into HIV/AIDS Programmes (WHO Geneva 2003) [ Links ]
Haarmann Social Assistance in South Africa Haarmann CD Social Assistance in South Africa: Its Potential Impact on Poverty (PhD thesis UCT 2000) [ Links ]
Heller, Caldwell and Factor 2007 Ment Retard Dev Disabil Res Rev Heller T, Caldwell J and Factor A 2007 "Aging family caregivers: Policies and practices" Ment Retard Dev Disabil Res Rev 13(2) 136-142 [ Links ]
Hlabyago and Ogunbanjo SA Fam Pract Hlabyago KE and Ogunbanjo GA 2009 "The experiences of family caregivers concerning their care of HIV/AIDS orphans" SA Fam Pract 506-511 [ Links ]
HSRC National HIV Prevalence HSRC South African National HIV Prevalence, Incidence, Behaviour and Communication Survey: A Turning Tide amongst Teenagers? (HSRC Press Cape Town 2009) [ Links ]
Hunter and May "Poverty reduction strategy" Hunter N and May J "The Poverty reduction strategy: Lessons for poverty reduction strategies in South Africa" (Unpublished paper presented at the Third Meeting of the African Learning Group 3-5 December 2003 Addis Ababa) [ Links ]
ILO Introduction to Social Security ILO Introduction to Social Security (ILO Geneva 1984) [ Links ]
Jansen van Rensburg and Olivier "South African poverty law" Jansen van Rensburg L and Olivier MP "South African poverty law: The role and influence of international human rights instruments" in Williams L (ed) International Poverty Law: An Emerging Discourse (Zed Books London 2006) 107-141 [ Links ]
Joyce Oxford School Dictionary Joyce M (ed) The South African Oxford School Dictionary (OUP Cape Town 1996) [ Links ]
Kaseke "Informal social security" Kaseke E "Informal social security in Eastern and Southern Africa" in Towards the Development of Social Protection in the SADC Region 17-19 October 2001 Johannesburg [ Links ]
Kingdom and Knight 2005 J Afr Econ Kingdom G and Knight J 2005 "Unemployment in South Africa, 1995-2003: Causes, problems and policies" 2005 J Afr Econ 813-848 [ Links ]
Klasen and Woolard 2005 J Afr Econ Klasen S and Woolard I "Surviving unemployment without state support: Unemployment and household formation in South Africa" 2005 J Afr Econ 1-51 [ Links ]
Landman et al Breaking the Grip Landman JP et al Breaking the Grip of Poverty and Inequality in South Africa, 2004-2014: Trends, Issues and Future Policy Options (Ecumenical Foundation of South Africa Bellville 2003) [ Links ]
Malherbe 2000 NQHR Malherbe R 2000 "A new beginning: Introducing the South African Constitution and the Bill of Rights" NQHR 45-65 [ Links ]
Meintjes et al Children 'in Need of Care' Meintjes H et al Children 'in Need of Care' or in Need of Cash? Questioning Social Security Provisions for Orphans in the Context of the South African AIDS Pandemic (Children's Institute and Centre for Actuarial Research Cape Town 2003) [ Links ]
Meintjes et al 2010 AIDS Care Meintjes H et al 2010 "Orphans of the AIDS epidemic? The extent, nature and circumstances of child-headed households in South Africa" AIDS Care 40-49 [ Links ]
Mosoetsa Legacies of Apartheid Mosoetsa S The Legacies of Apartheid and Implications of Economic Liberalisation: A Post-Apartheid Township (Crisis States Research Centre London 2004) [ Links ]
Mpedi 2004 ZIAS Mpedi LG 2004 "HIV/AIDS in South Africa: Towards comprehensive social protection?" ZIAS 243-270 [ Links ]
Mubangizi 2005 Development Southern Africa Mubangizi J 2005 "Poverty, human rights law and socio-economic realities in South Africa" Development Southern Africa 277-290 [ Links ]
Mubangizi 2008 AJLS Mubangizi JC 2008 "Protecting human rights amidst poverty and inequality: The South Africa post-Apartheid experience on the right of access to housing" AJLS 130-146 [ Links ]
Noble, Ntshongwana and Surender Attitudes to Work Noble M, Ntshongwana P and Surender R Attitudes to Work and Social Security in South Africa (HSRC Press Cape Town 2008) [ Links ]
Olivier Obiter Olivier MP "Access to justice in welfare law and litigation: Judicial reform in South Africa" 2006 Obiter 470-501 [ Links ]
Olivier and Kaseke "Informal social security" Olivier MP and Kaseke E "Informal social security and formal social security: Developing an integrative approach" (Unpublished paper presented at the SADC Core Group of Social Security Specialists Regional Conference on "Social Security in the Making: Developments in the Informal Economy and Informal Social Security" (November 2004 Gaborone) [ Links ]
Olivier et al Extension of Social Security Olivier MP et al (eds) The Extension of Social Security Protection in South Africa: A Legal Inquiry (Siber Ink Claremont 2001) [ Links ]
Olivier et al Introduction Olivier MP et al (eds) Introduction to Social Security (LexisNexis Butterworths Durban 2004) [ Links ]
Olivier and Klinck Social Insurance and Social Assistance Olivier MP and Klinck E Social Insurance and Social Assistance: Towards a Coherent Approach (Friedrich Ebert Stiftung Johannesburg 1999) [ Links ]
Olivier, Smit and Kalula Social Security Olivier MP, Smit N and Kalula ER (eds) Social Security: A Legal Analysis (LexisNexis Butterworths Durban 2003) [ Links ]
O'Regan 1999 ESR Review O'Regan K "Introducing socio-economic rights: Opening address" 1999 ESR Review 1(4) 2-3 [ Links ]
Phaswana-Mafuya, Peltzer and Petros Social Work in Health Care Phaswana-Mafuya N, Peltzer K and Petros SG "Disability grant for people living with HIV/AIDS in the Eastern Cape of South Africa" 2009 Social Work in Health Care 533-550 [ Links ]
Seekings Social Stratification Seekings J Social Stratification and Inequality in South Africa at the end of Apartheid (Centre for Social Science Research Cape Town 2003) [ Links ]
Seekings Deserving Individuals and Groups Seekings J Deserving Individuals and Groups: Justifying the Shape of South Africa's Welfare State (Centre for Social Science Research Cape Town 2007) [ Links ]
Seekings and Nattrass Transformation Seekings J and Nattrass N "Distribution and redistribution in post-Apartheid South Africa" 2002 Transformation 50 1-30 [ Links ]
Sloth-Nielsen Realising the Rights of Children Sloth-Nielsen J Realising the Rights of Children Growing Up in Child-Headed Households: A Guide to Laws, Policies and Social Advocacy (Community Law Centre Cape Town 2004) [ Links ]
Tshoose AJLS Tshoose CI 2009 "The emerging role of the constitutional value of Ubuntu for informal social security in South Africa" AJLS 12-19 [ Links ]
UNDP Human Development Report UNDP Human Development Report 2009 (Palgrave Macmillan New York 2009) [ Links ]
Register of legislation
Age of Majority Act 57 of 1972
Children's Act 38 of 2005
Constitution of the Republic of South Africa, 1996
South African Social Assistance Act 13 of 2004
Register of government publications
GN 1108 in GG 18166 of August 1997
Register of international agreements
African Charter on the Rights and Welfare of the Child 29 Nov 1999
Convention on the Rights of Persons with Disabilities 13 Dec 2006
International Covenant on Economic, Social and Cultural Rights 16 Dec 1966
Register of cases
Government of the Republic of South Africa v Grootboom 2000 11 BCLR 1169 (CC)
Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 SA 504 (CC)
Register of Internet sources
Akoojee and McGrath 2005 http://bit.ly/iiPRuh Akoojee S and McGrath SI 2005 Post-basic education, training and poverty reduction in South Africa: Progress to 2004 and vision to 2014 http://www.dfid.gov.uk/r4d/PDF/Outputs/PolicyStrategy/Akoojee_McGrath_SAfrica_PBET_WP2.pdf [date of use 24 Nov 2010] [ Links ]
Aliber 2001 http://bit.ly/ehNeEu Aliber M 2001 Study of the incidence and nature of chronic poverty and development policy in South Africa: An overview http://www.chronicpoverty.org/uploads/publication_files/WP03_Aliber.pdf [date of use 28 Nov 2010] [ Links ]
Black Sash 2010 http://bit.ly/hAkpNG Black Sash 2010 Black Sash Submission to the Portfolio Committee of the Department of Social Development www.pmg.org.za/files/docs/100420blacksash.doc [date of use 28 Nov 2010] [ Links ]
Collins and Leibbrandt 2007 AIDS Collins D and Leibbrandt M The financial impact of HIV/AIDS on poor households in South Africa 2007 AIDS 21(supplement 7) S75-S81 [ Links ]
Committee of Inquiry into a Comprehensive System of Social Security for South Africa 2002 http://bit.ly/eD2waC Committee of Inquiry into a Comprehensive System of Social Security for South Africa 2002 Transforming the present - Protecting the future http://www.imsa.org.za/files/Library/NHI/2%20%20NHI%20in%20SA/History%20of%20NHI%20in%20SA/NHI%20%20tranforming%20present%20-%20protecting%20future%202002.pdf [date of use 24 Nov 2010] [ Links ]
Gillespie, Norman and Finley 2005 http://bit.ly/eHMIyd Gillespie S, Norman A and Finley B 2005 Child vulnerability and HIV/AIDS in Sub-Saharan Africa: What we know and what can be done http://www.eldis.org/vfile/upload/1/document/0708/DOC23173.pdf [date of use 24 Nov 2010] [ Links ]
Gupta 2000 http://bit.ly/fCda90 Gupta GR "Gender, sexuality and HIV/AIDS: The what, the why and the how" (Unpublished paper presented at the 13th International AIDS Conference 9-14 July 2000 Durban) http://siteresources.worldbank.org/EXTAFRREGTOPGENDER/Resources/durban_speech.pdf [date of use 24 Nov 2010] [ Links ]
Guthrie 2002 http://bit.ly/f8HJwn Guthrie TA 2002 A comprehensive package of family social security benefits in South Africa - A framework proposed by the Children's Institute http://www.ci.org.za/depts/ci/pubs/pdf/poverty/workpap/compsss.pdfhttp://bit.ly/f8HJwn[date of use 28 Nov 2010] [ Links ]
Hall 2010 http://bit.ly/gC08Ao Hall K 2010 Income and social grants - Children living in poverty http://www.childrencount.ci.org.za/uploads/factsheet_14.pdf [date of use 28 Nov 2010] [ Links ]
ILO 2000 http://bit.ly/fhR51l ILO 2000 HIV/AIDS: A threat to decent work, productivity and development http://data.unaids.org/pub/Report/2000/20000524_threat_decent_work_en.pdfhttp://bit.ly/fhR51l[date of use 28 Nov 2010] [ Links ]
International Federation of Red Cross and Red Crescent Societies 2009 http://bit.ly/igmAu9 International Federation of Red Cross and Red Crescent Societies 2009 Plan 2009-2010 http://www.ifrc.org/docs/appeals/annual09/MAAKV00109p.pdf [date of use 24 Nov 2010] [ Links ]
Lee 2004 http://bit.ly/eawYR5 Lee S 2004 The vulnerability of women street traders to HIV/AIDS: Local government opportunities for action http://www.heard.org.za/downloads/thevulnerability-of-women-street-traders-to-hiv-aids-local-government-opportunitiesfor-action.pdf [date of use 28 Nov 2010] [ Links ]
Legido-Quigley 2003 http://bit.ly/hhD06G Legido-Quigley H 2003 "The South African old age pension: Exploring the role on poverty alleviation in households affected by HIV/AIDS" (Paper presented at the Fourth International Research Conference on Social Security 5-7 May 2003 Antwerp) http://www.issa.int/pdf/anvers03/topic2/2legido-Quigley.pdf [date of use 28 Nov 2010] [ Links ]
Mathambo and Gibbs 2008 http://bit.ly/gQRtnW Mathambo V and Gibbs A 2008 Qualitative accounts of family and household changes in response to the effects of HIV and AIDS: A review with pointers to action http://www.jlica.org/userfiles/file/Mathambo%20&%20Gibbs%20Qualitative%20accounts%20of%20family%20and%20househol.pdf [date of use 28 Nov 2010] [ Links ]
Monama 2006 http://bit.ly/iasC0Y Monama M 2006 Poverty punishes SA workers http://www.fin24.com/Economy/Poverty-punishes-SA-workers-20061001 [date of use 28 Nov 2010] [ Links ]
Olivier and Mpedi 2003 http://bit.ly/eZ1Dzl Olivier MP and Mpedi LG "Extending social protection to families in the African context: The complementary role of formal and informal Social security" (Paper presented at the Fourth International Research Conference on Social Security 5-7 May 2003 Antwerp) http://www.issa.int/pdf/anvers03/topic2/2olivier.pdf [date of use 28 Nov 2010] [ Links ]
Research Surveys 2006 http://bit.ly/dHAZh8 Research Surveys 2006 South Africa's state of mind as we enter 2006 http://www.bizcommunity.com/PressOffice/PressRelease.aspx?i=112297&ai=9553 http://bit.ly/dHAZh8[date of use 29 Nov 2010] [ Links ]
Richard 2006 http://bit.ly/eGq0aQ Richard K 2006 South Africa 2006: Challenges for the future http://richardknight.homestead.com/files/SouthAfrica2006ChallengesfortheFuture.pdf [date of use 24 Nov 2010] [ Links ]
RSA 2008 http://bit.ly/enDmAb RSA 2008 AsgiSA Annual report 2007 http://www.info.gov.za/view/DownloadFileAction?id=80162 [date of use 28 Nov 2010] [ Links ]
RSA 2010 http://bit.ly/dxl7cB RSA 2010 Country progress report on the declaration of commitment on HIV/AIDS http://data.unaids.org/pub/Report/2010/southafrica_2010_country_progress_re port_en.pdf [date of use 28 Nov 2010] [ Links ]
Statistics South Africa 2003 http://bit.ly/eHweR7 Statistics South Africa General household survey July 2002 http://www.statssa.gov.za/publications/P0318/P03182002.pdf [date of use 28 Nov 2010] [ Links ]
Statistics South Africa 2009 http://bit.ly/a0NOlU Statistics South Africa Mid-year population estimates 2009 http://www.statssa.gov.za/publications/P0302/P03022009.pdf [date of use 28 Nov] [ Links ]
Statistics South Africa 2010 http://bit.ly/fjIBnx Statistics South Africa 2010 Quarterly Labour Force Survey Quarter 3 2010 http://www.statssa.gov.za/publications/P0211/P02113rdQuarter2010.pdf [date of use 28 Nov 2010] [ Links ]
UNAIDS 2009 http://bit.ly/diiIWp UNAIDS 2009 AIDS epidemic update http://data.unaids.org/pub/Report/2009/JC1700_Epi_Update_2009_en.pdf [date of use 28 Nov 2010] [ Links ]
Wienand A The Role of HIV Literacy - A Community Healthy Worker Perspective (CSSR Working Paper No 197) (2007 Centre for Social Science Research: Aids and Society Research Unit UCT http://www.commerce.uct.ac.za/Research_Units/CSSR/Working%20Papers/papers/wp197_AW.pdf [date of use 1 December 2010] [ Links ]
List of abbreviations
|African Journal of Legal Studies|
|AsgiSA||Accelerated and Shared Growth Initiative for South Africa|
|BJIR||British Journal of Industrial Relations|
|CSSR||Centre for Social Science Research|
|ESR||Review Economic and Social Rights in South Africa Review|
|GEAR||Growth, Employment and Redistribution|
|HSRC||Human Sciences Research Council|
|ILO||International Labour Office|
|J Afr Econ||Journal of African Economies|
|JHPN||Journal of Health, Population and Nutrition|
|Ment Retard Dev Disabil Res Rev||Mental Retardation and Developmental Disabilities Research Review|
|NQHR||Netherlands Quarterly of Human Rights|
|RDP||Reconstruction and Development Programme|
|ROAPE||Review of African Political Economy|
|RSA||Republic of South Africa|
|SA Fam Pract||South African Family Practice|
|SAHARA-J||Alliance Journal of Social Aspects of HIV/AIDS Research|
|UNAIDS||Joint United Nations Programme on HIV/AIDS|
|UNDP||United Nations Development Programme|
|UNICEF||United Nations Children's Fund|
|WHO||World Health Organization|
|ZIAS||Periodical for Foreign and International Labour |
and Social Law
* I would like to express my gratitude to Prof Melvin Leslie Mbao (Executive Dean of the Faculty of Law, North-West University, Mafikeng Campus), for his input and comments during numerous discussions on the topic.
1 UNAIDS 2009 http://bit.ly/diiIWp.
2 RSA 2010 http://bit.ly/dxl7cB. South Africa, a member state, during 2001, affirmed its declaration of commitment in responding to HIV/AIDS. In particular, member states agreed to report to the UNAIDS General Assembly every two years on their progress in responding to HIV/AIDS.
3 Statistics South Africa 2009 http://bit.ly/a0NOlU.
4 HSRC National HIV Prevalence.
5 AVERT sa http://bit.ly/4cwcZY.
6 UNAIDS 2009 http://bit.ly/diiIWp 16.
7 Olivier, Smit and Kalula Social Security 24.
8 Olivier et al Extension of Social Security 23.
9 Olivier et al Introduction 23-24.
10 Gen Not 1108 in GG 18166 of August 1997.
11 Gen Not 1108 in GG 18166 of August 1997, Chp 7.
12 S 25 Constitution of the Republic of South Africa, 1996 (hereafter the Constitution).
13 S 26 Constitution.
14 S 27 Constitution 1996.
15 Kaseke "Informal social security" 245.
16 Tshoose 2009 AJLS 14-18.
17 Olivier and Kaseke "Informal social security" 3-6.
18 ILO 2000 http://bit.ly/fhR51l 9.
19 Meintjes et al 2010 AIDS Care 40-48. There is a long history in South Africa of children - and especially children living in circumstances of poverty - not being constantly parented by either one or both of their biological parents. The majority of these children live with other adults as caregivers for at least periods of their lives (ie living with "social" rather than biological parents). This continues to be the case, for both children who face orphanhood, as well as those who do not. Children frequently experience a sequence of different caregivers, and many children are brought up without paternal figures, or live in different households to their biological siblings. For example, general household survey data (Statistics South Africa 2003 http://bit.ly/eHweR7) indicates that of the almost 15 million children under 18 whose parents were recorded as alive, only 45 per cent were living with both parents at the time of the survey, whilst 36 per cent were living with their mother and not their father, 3 per cent with their father and not their mother, and 17 per cent were living with neither parent. The majority of those children not resident with their parent(s) were resident with relatives. Similarly, the majority of children who are orphaned (maternal, paternal, or double) are cared for by their relatives. Because of the characteristically non-nuclear nature of South African households, in many instances, children remain in their homes upon the death of their parent(s), with a continuum of care provided by other adults with whom they are resident at the time (Meintjes et al Children 'in Need of Care' 3-43).
20 Gillespie, Norman and Finley 2005 http://bit.ly/eHMIyd.
21 Hlabyago and Ogunbanjo SA Fam Pract 506-508.
22 Foster 2004 "Safety nets for children affected by HIV/AIDS in Southern Africa".
23 Legido-Quigley 2003 http://bit.ly/hhD06G.
24 Meintjes et al 2010 AIDS Care 40-48.
25 Olivier and Klinck Social Insurance and Social Assistance 80.
26 A 1 of the Convention on the Rights of Persons with Disabilities states that: "Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others". The Convention does not explicitly refer to HIV or AIDS in the definition of "disability". However, states party to the Convention are required to recognise that in cases in which people living with HIV (asymptomatic or symptomatic) have impairments that, in interaction with the environment, result in stigma, discrimination or other barriers to their participation, they can fall under the protection of the Convention. States party to the Convention are required to ensure that national legislation complies with this understanding of disability. Some countries have accorded protection to people living with HIV/AIDS under national disability legislation. Other countries have adopted anti-discrimination laws that either explicitly include discrimination on the basis of HIV status or can be interpreted to do so. Such laws offer a means of redress against HIV/AIDS-related discrimination in a number of areas, such as employment or education.
27 ILO Introduction to Social Security 74.
28 Olivier et al Introduction 312-318.
29 S 9 of South African Social Assistance Act No 13 of 2004. A person is, subject to the provisions of S 5, eligible for a disability grant, if he/she: (a) has attained the prescribed age; and (b) is, owing to a physical or mental disability, unfit to obtain by virtue of any service, employment or profession the means needed to enable him/her to provide for his/her maintenance.
30 Social Assistance Act No 13 of 2004 338-339. Similarly, S 9(b) defines "disability" as a physical or mental impairment that substantially limits one or more of the major life activities of such individual, a record of such impairment, or being regarded as having such impairment.
31 Joyce Oxford School Dictionary 203.
32 Black Sash 2010 www.pmg.org.za/files/docs/100420blacksash.doc. The Black Sash is a non-profit human rights organisation committed to the realisation of human rights in South Africa.Their official website can be accessed at http://www.blacksash.org.za/.
33 Goldblatt Development Southern Africa 272-274.
34 Goldblatt Development Southern Africa 272-274.
35 Goldblatt Development Southern Africa 272-274.
36 Aliber 2001 http://bit.ly/ehNeEu 6.
37 Official Apartheid began with the National Party's election in 1948, although elements existed before. At its root was the legal segregation of South Africa by race (White, Black, Coloured and Indian) and, under guise of separate development, the maintenance of White supremacy. Politically, this meant that non-Whites, the large majority, lacked those democratic freedoms enjoyed by Whites. Geographically, it meant that for non-Whites, residency was restricted to the Bantustans (homelands) or to townships within urban or industrial zones (Donnelly and Dunn 2006 BJIR 1-10).
38 Hunter and May "Poverty reduction strategy" 3.
39 Mpedi 2004 ZIAS 1. For further reading on the subject, see Malherbe 2000 NQHR 45-65. The programmes that preceded RDP include GEAR, the Land Reform programme and AsgiSA (for more information on the programme, see http://www.info.gov.za/asgisa/). The objective of land reform is to redress the injustices caused by the Apartheid policy of dispossession of land; the promotion of a policy of affirmative action within a viable economic development to ensure, amongst other things, access to land with secure rights for residential settlement; as well as access to good agricultural land, which will create new opportunities. Also see Didiza "Land and Agrarian reform in South Africa" 5. In 1996, the government adopted GEAR, a macroeconomic policy aimed at strengthening economic development, broadening employment and redistributing income and socioeconomic opportunities in favour of the poor. AsgiSA aims at reducing unemployment and poverty before the year 2014. However, to date, both GEAR and AsgiSA have failed to deliver the promised economic and job growth or significant redistribution of income and socio-economic opportunities in favour of the poor (Richard 2006 http://bit.ly/eGq0aQ 5-8).
40 Olivier and Mpedi 2003 http://bit.ly/eZ1Dzl 13.
41 According to the key indicators published by Statistics South Africa, the absorption rate of the unemployed moved from 41.3 per cent in 2009 to 41.5 per cent in 2010, whilst the labour force participation rate stood at 54.8 per cent. The unemployment rate was 24.5 per cent in the third quarter of 2009. Similarly, the fourth quarter saw the deterioration of the labour market rather than recovery with 870 000 jobs lost. As a result, the number of unemployed increased by 292 000 and discouraged work seekers increased by 518 000.
42 Statistics South Africa 2010 http://bit.ly/fjIBnx.
43 Official website accessible at http://www.africafocus.org/.
44 See also Mubangizi 2008 AJLS 133-138.
45 Klasen and Woolard 2005 J Afr Econ. In South Africa, two different concepts of unemployment are used routinely: the strict (narrow) and the expanded (broad) definition. The narrow definition applies a job-search test and includes those individuals who are willing to work and are actively searching for work. The broad definition includes individuals who have not searched for work in a four-week reference period but who have reported being available for work, and have said they would accept work should a suitable job be offered. Discouraged jobseekers are included in the expanded definition of "unemployment" (Kingdom and Knight 2005 J Afr Econ 9).
46 Statistics South Africa 2010 http://bit.ly/fjIBnx.
47 Statistics South Africa 2010 http://bit.ly/fjIBnx.
48 The poverty base-line is a measure of the minimum living level. Therefore, South Africa does not have an official poverty benchmark. It is estimated that just under three million households live on less than R1 000 a month and that half of the country's households survived on less than R20 a day. These unfortunate South Africans have household incomes well below the University of South Africa's Bureau of Market Research's poverty base-line of R1 945 a month for an average family (Monama 2006 http://bit.ly/iasC0Y). See also Akoojee and McGrath 2005 http://bit.ly/iiPRuh 10. For further reading on the subject, see Mubangizi 2005 Development Southern Africa 277.
49 Seekings and Nattrass Transformation 1-30.
50 Hall 2010 http://bit.ly/gC08Ao.
51 Committee of Inquiry into a Comprehensive System of Social Security for South Africa 2002 http://bit.ly/eD2waC.
52 Committee of Inquiry into a Comprehensive System of Social Security for South Africa 2002 http://bit.ly/eD2waC.
53 Olivier and Mpedi 2003 http://bit.ly/eZ1Dzl 10.
54 Seekings and Nattrass Transformation 11-15.
55 Landman et al Breaking the Grip 1-10.
56 Booysen 2004 SAHARA-J 48-55.
57 Booysen and Summerton 2002 JHPN.
58 Booysen and Summerton 2002 JHPN.
59 Alexander 2010 ROAPE 25-35.
60 Noble, Ntshongwana and Surender Attitudes to Work 8-9. See also, Olivier et al Introduction 99-100.
61 Olivier et al Introduction 7.
62 Olivier et al Introduction 7-8.
63 Seekings Social Stratification 5-131.
64 Seekings Social Stratification 37.
65 Gupta, Whelan and Allendorf Integrating Gender 5. The danger of economic dependency is that women's economic dependency increases their vulnerability to HIV/AIDS. Their vulnerability makes them more likely to exchange sex for money, and that, per se, exposes them to HIV/AIDS. See Gupta 2000 http://bit.ly/fCda90. See also Lee 2004 http://bit.ly/eawYR5 3-10.
66 Dekker Informal Social Security 144.
67 Lee 2004 http://bit.ly/eawYR5 3-10.
68 Research Surveys 2006 http://bit.ly/dHAZh8.
69 UNDP Human Development Report.
70 This information is based on a large extend on the information supplied by the International Federation of Red Cross and Red Crescent Societies 2009 http://bit.ly/igmAu9.
71 UNDP Human Development Report 8-9.
72 Mathambo and Gibbs 2008 http://bit.ly/gQRtnW 25-34. See also Social Tract Module on The impact of HIV on families, vulnerable groups and youth, accessible at http://www.doh.gov.za/docs/misc/hiv/manual/impact_families.pdf.
73 Family and household responses are influenced by contextual factors, such as cultural understandings of HIV/AIDS, strength of connection with kin and other social networks, gender and patriarchy, customary patterns of childcare, and access to resources and livelihoods. It is critical to acknowledge difficulties households experience in responding to the epidemic. Problems such as discrimination, stigmatisation and uncertainty about the future may influence the care provided to a household member living with HIV/AIDS. A family affected by HIV/AIDS goes through four identifiable life or career stages. These are a life before HIV, finding out about a member's HIV status, living with a person with HIV/AIDS, and surviving the death of a family member from AIDS. Each of these stages brings its own psychological burdens, and influences family functioning.
74 Collins and Leibbrandt 2007 AIDS.
75 See Social Tract Module on The impact of HIV on families, vulnerable groups and youth, accessible at http://www.doh.gov.za/docs/misc/hiv/manual/impact_families.pdf.
76 Seekings Deserving Individuals and Groups 5.
77 In light of the above discussion, it is clear that death represents serious negative income shocks to poor households and poor communities. Households try to cope with this through a sustained commitment to funeral insurance. Despite this, households are inadequately insured and funerals impose significant costs on the household, the extended family and the community. In contrast, health insurance is conspicuous by its absence. It is disconcerting that financial provisioning for medical treatment and care seem to take second place to coping with the costs of death. This funeral insurance seems to crowd out other savings and insurance provisions. There is also a strong dependency on a single income provider in most of the households. The relevance of this finding to a discussion of the impact of HIV/AIDS in particular is the vulnerability of such providers to illness and death.
78 UNDP Human Development Report 7.
79 Mosoetsa Legacies of Apartheid 13-14.
80 Haarmann Social Assistance in South Africa 105.
81 UNDP Human Development Report 89.
82 Children's Act No 38 of 2005. Certain sections in this Act lower the age of majority to 18 and allow those above 12 to access HIV testing and contraceptives with immediate effect, gaining much approval from the Children's Rights Centre. The Act sets out principles relating to the care and protection of children, defines parental responsibilities and rights and makes provision for matters such as children's courts, adoption, child abduction and surrogate motherhood. The principles call for the prioritisation of the best interest of the child, the right to the child being able to participate in any matter concerning that child, children living with disability or chronic illness and a child's right of access to court. The Act also clarifies the grey area that currently exists in relation to the age of adulthood, whereby the Age of Majority Act of 1972 stipulates the age of 21 as the age of majority, whilst a child is defined as someone under the age of 18. However, someone is neither a child nor an adult between 18 and 21. The Children's Act of 2005 clarifies this grey area and brings it in line with S 28(3) of the Constitution. The Department of Social Development has explained that now under the Children's Act of 2005, "any person under 18, unless married or emancipated by order of court, is a child and any person over 18 is an adult". It added that the Constitution and the African Charter on the Rights and Welfare of the Child defined a child as any person under the age of 18 years. The Department further said that the government felt that the changed socio-economic and political circumstances in South Africa justify the advancement of the age of majority to 18 years.
83 Dreyer and Maqoko 2007 HTS Theological Studies 717-731.
84 Sloth-Nielsen Realising the Rights of Children 1-10.
85 Hlabyago and Ogunbanjo SA Fam Pract 506-508.
86 UNICEF 2006 http://bit.ly/fn7VU5. See also Heller, Caldwell and Factor 2007 Ment Retard Dev Disabil Res Rev 136-142.
87 Hlabyago and Ogunbanjo SA Fam Pract 506-508.
89 S 2 Constitution.
90 S 8(1) Bill of Rights.
91 S 7(2) Bill of Rights.
92 S 27(1)(c) states 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".
93 Such as the right to housing (S 26), right to equality (S 9) and the right to administrative justice (S 33).
94 S 7(2) Constitution.
95 Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 BCLR 569 (CC) 573 A.
96 Olivier 2006 Obiter 9.
97 Davis, Cheadle and Haysom Fundamental Rights in the Constitution 345.
98 Government of the Republic of South Africa v Grootboom 2000 11 BCLR 1169 (CC), para 35, per Yacoob J (hereafter Grootboom).
99 International Covenant on Economic, Social and Cultural Rights 1966.
100 Grootboom para 345, per Yacoob J.
101 O'Regan 1999 ESR Review 2.
102 S 33(1) and (2) of the Constitution provide that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. In S 2, the Constitution further provides that everyone whose rights have been adversely affected by administrative action has the right to be given written reasons therefore.
103 S 26 Constitution.
104 S 27(2) Constitution.
105 Olivier, Smit and Kalula Social Security 85.
106 Grootboom para 44, per Yacoob J.
107 Grootboom para 36.
108 Grootboom para 35.
109 Committee of Inquiry into a Comprehensive System of Social Security for South Africa 2002 http://bit.ly/eD2waC.
110 Phaswana-Mafuya, Peltzer and Petros Social Work in Health Care 541-544.
111 2009 Development Southern Africa 378-379.
112 Olivier et al Introduction 31-32.
113 Jansen van Rensburg and Olivier "South African poverty law" 108-110.
114 Guthrie 2002 http://bit.ly/f8HJwn 28-31.
115 See, for example, Wieland The Role of HIV Literacy - A Community Health Worker Perspective 35. See also the information supplied at http://www.avert.org/aidssouthafrica.htm.