In a resounding victory for South Africa’s most vulnerable, the North Gauteng (Pretoria) High Court handed down judgment yesterday in the Social Relief of Distress (SRD) grant court case, finding in the IEJ and #PayTheGrants’ favour on every major issue.
The far-reaching judgment affirms that up to 18.3 million people should be able to access the SRD grant (see para 134, 138, 140). It stands to directly benefit both those who currently receive the grant (approximately 7.5 million people), as well as those being unfairly excluded (up to 11 million more). It does this by ensuring that barriers put in the way of grant access are removed. The judgment also orders government to remedy systemic problems of non-payment and late payment of approved beneficiaries. In addition, all current and future beneficiaries will benefit from a ruling that requires the government to urgently, in the next four months, put in place a plan to progressively improve the value of the grant, and to address the retrogression in its value, using official poverty lines as a reference to ensure the grant better covers the cost of living.
Given that the vast majority of those eligible for the SRD grant have dependents, the judgment materially impacts over half the South African population.
The judgment also issued a sharp rebuke to National Treasury, which has overreached into social development policy and imposed unlawful and unconstitutional requirements on SRD grant applicants in an attempt to curtail public expenditure.
The Institute for Economic Justice (IEJ) and #PayTheGrants, represented by the Socio-Economic Rights Institute (SERI), brought the case, supported by 79 grant applicant affidavits. The case was heard by Judge Twala of the North Gauteng High Court at the end of October 2024. Judgment was handed down on 23 January 2024.
SUMMARY OF JUDGMENT
- The SRD grant is not ‘temporary’: The state grounded their case in the argument that the SRD grant was only a temporary measure and therefore could be handled differently to other social grants, and extended, rolled back or terminated at the whim of Ministers. This has long kept beneficiaries in a state of uncertainty and fear. But the Judge disagreed. “I hold the view that SRD grant has the same legal status as the other social grants which are provided for by the SAA [Social Assistance Act] and is not a temporary measure as contended by the respondents.” (para 89).
- Procedural “safeguards”, while legitimate in principle, cannot be designed with the ulterior motive of limiting the number of people who access the grant: The Judge held that application and verification processes imposed by the government—including automated checks on bank accounts and inaccurate government databases like UIF and NSFAS—were not reasonable measures to safeguard the grant from abuse, but were in fact designed to limit uptake of the grant by eligible people, and were therefore unlawful. “The safeguards must be put in place to serve the purpose of the SAA to provide social relief of distress to persons who are of insufficient means and not with ulterior purpose and or to deliberately exclude persons who are entitled to receive the grant benefit.” (para 93).
- Only allowing applications via an online portal, and not at SASSA offices is irrational and illegal: We argued that the exclusively online application process excluded the poorest applications, given that about 22% of the population does not have any internet access according to the General Household Survey. The Judge agreed that “There is no reasonable justification to subject its potential beneficiaries, who are mainly poor and vulnerable members of society, to a solely online application process.” (para 95). And that “There is no reason why the SRD grant beneficiaries should not be provided with an alternative method of applying for the grant like the other grants’ beneficiaries.” The Judge ordered that the regulations be amended to allow for in-person applications at SASSA offices.
- The government must apply a reasonable definition of “insufficient means” when assessing eligibility: We challenged the current interpretation of “insufficient means” used to determine whether a person qualified for the grant, which included any and all monies reflected in a person’s bank account including loans, ad hoc assistance from relatives, and money held on behalf of another person. The treatment of these types of monetary flows as “means” had the effect of excluding millions of eligible beneficiaries. For example, many people’s relatives will send them money in a particular month to help them buy food precisely because they cannot get the grant. Also, many mothers receive money on behalf of their children, for food, clothes, and school supplies. This money does not help the mother meet her own needs, and cannot be considered personal “means”. The judge held that “The interpretation ascribed by the respondents to “income” and “financial support” has the result of excluding and is intended to reduce the uptake of deserving beneficiaries of the SRD grant in order to save money – thus it offends section 27 of the Constitution and is therefore unreasonable and unlawful” (para 118). The Judge issued a declaratory order clarifying that the definition of “means” including “income” and “financial support” refer only to regular payments which benefit the recipient and which the recipient is legally entitled to receive.
- The utilisation of out-of-date and faulty government databases to assess whether the applicant is eligible is unreasonable and unfair and is therefore unlawful: SASSA and DSD conduct checks on inaccurate government databases like UIF, NSFAS, and SARS IRP5 and these checks are used to exclude people from receiving the grant—based on their supposed employment status or eligibility to receive UIF for example. Millions of applicants since 2020 have been denied their entitlements due to their apparent appearance on government databases. However, the databases are known to be highly inaccurate and out of date. Research has suggested that the majority of SRD grant exclusions based on government database checks are erroneous. The judge noted that, “It is incomprehensible why the respondents would continue to use the government databases verification process knowing that it provides inaccurate information which has the result of excluding eligible applicants from receiving the SRD grant […] The databases verification process is therefore unreasonable and unfair and is used with an ulterior purpose of excluding eligible SRD grant applicants from receiving it.” (Para 125) The judge declared this part of the regulations unconstitutional and invalid.
- The bank verification process (whereby the SASSA checks what money has passed through someone’s bank account that month to determine their eligibility) is irrational and unlawful: For reasons discussed in point 4 above, the bank verification method of checking eligibility on a monthly basis is not capable of determining whether an applicant has “insufficient means” as it includes all monetary inflows. For years SRD grant applicants have suffered invasive monitoring of their bank accounts and punitive consequences for inflows which do not constitute means. The Judge held that the bank verification process is not only inaccurate but actively designed to reduce the number of beneficiaries despite true eligibility rates: “It is unfathomable why the respondent would justify an irrational and arbitrary verification procedure which excludes people who are eligible and entitled to access the SRD grant. I hold the view therefore that the persistence to use the bank verification process is intended to reduce the number of beneficiaries and, by extension, to reduce the cost of the SRD grant and is therefore not in line with the purpose of the SAA. The use of the bank verification process, which is fully automated, is unfair and unreasonable and offends the provisions of section 9 and section 27 of the Constitution” (para 130). In this respect, the judge ordered that the associated part of the regulations is unconstitutional and invalid.
- Access to the grant cannot be cut off due to an arbitrary budget cap being reached: The regulations state that the government can stop paying the grant to eligible beneficiaries once a budget cap set by the National Treasury is reached. We challenged this on the basis that it discriminates between eligible persons and violates the right to social assistance. The budget was not calculated with regard to eligibility, need, and poverty in society, but set arbitrarily by National Treasury and subsequently reduced when SASSA underspent on the grant. The Judge found that “It is unconscionable for government to accept that the number of people who are with insufficient means to support themselves and their dependents is more than 18.3 million but only budgets to provide for 10.5 million. This is so because the regulations have placed barriers to exclude eligible applicants from accessing the SRD grant. The underspending of the budget by the SASSA in the previous financial years is not because there are no eligible persons to meet the estimated number, but it is because of the exclusionary barriers put in place by the regulations.” The Judgment strikes down the relevant regulation as unconstitutional and invalid.
- The government must take steps to progressively increase the value of—and the means-test threshold for—the grant, in line with relevant cost of living indicators: The Constitution requires that the government progressively realise (advance) the right to social assistance for those unable to support themselves. This places an obligation on the government not to roll back the level of social assistance it provides. We argued that because the SRD grant has fallen far behind both inflation and the official food poverty line since 2020 (despite a R20 increase last year) the government is in breach of this constitutional obligation. Moreover, we challenged the fact that fewer people are eligible for the grant now than in 2022 since the means-test threshold has stagnated at R624. This reflected the food poverty line when it was introduced but the food poverty line has subsequently increased to R796. Millions of people living in food poverty, but above the means-test threshold, have been excluded from access. The Judge agreed with our argument, stating: “There is no explanation why both the SRD grant and the means threshold are not linked to measures such as the food poverty line although the purpose of the SRD grant is to alleviate hunger and poverty in society. The respondents do not deny that the SRD grant and the means threshold are worth less than when they were introduced. The ineluctable conclusion is therefore that, by allowing the retrogression of value of both the SRD grant and the means threshold, government’s decision to do so is irrational, arbitrary and in breach of its obligations in terms of section 27(2) of the Constitution” (para 150). The Judgment orders DSD and SASSA to devise a plan to correct this unconstitutional retrogression within four months. In simple terms, this means that the government must make a plan to increase the grant from R370, and to increase the means-test from R624, and in doing so have regard to the actual cost of living.
- SASSA must investigate and rectify payment delays to successful applicants: 10-15% of successful applicants each month have been unable to access their SRD grant payments, due to inadequate payment processes being put in place by SASSA. SASSA failed to provide an adequate explanation for these payment delays during the court case proceedings and instead shifted blame to beneficiaries by claiming they failed to update their bank account or cell phone details on SASSA’s systems. “It should be remembered that the SRD grant is meant for the poor people and to alleviate hunger. For this group of society to not receive the grant timeously or at all has dire consequences. Although this Court is restrained from entering the terrain of the executive arm of government, to address the human indignity being suffered by the successful SRD grant beneficiaries who do not receive their payment, it finds it just and equitable for the government to develop a plan as to how it intends to address the issues relating to non-payment of the SRD grant to successful applicants.” The judge ordered SASSA to investigate the widespread delays and deliver a plan, within four months, to rectify this and implement the plan without delay.
A SHARP REBUKE TO GOVERNMENT
In addition to finding against the government on every major issue, the judgment rebukes the government in three important respects, vindicating what civil society has been arguing for years.
First, the judge explicitly agrees that the government has designed the regulations with unlawful intent. The judge repeatedly notes that the restrictive regulations are not aimed simply to prevent abuse and streamline applications but are designed to exclude those the grant is supposed to serve. For example, speaking of the budget cap the Judge says “This is so because the regulations have placed barriers to exclude the eligible applicants from accessing the grant”. The IEJ, #PTG, SERI, and other civil society organisations have repeatedly drawn the public’s attention to how National Treasury has imposed these illegal restrictions to curtail numbers and reduce the cost of the grant. The judge is rightly scathing of this, arguing that it is “unthinkable why the government and National Treasury, in particular, should not plan and budget accordingly to fulfil its obligations in terms of the Constitution.” Such constitutional negligence is National Treasury’s daily bread, but is now being rejected by the courts as unconstitutional.
Second, the judge rebukes the Minister of Finance and National Treasury for repeated overreach. This is seen both in the actions leading up to the case, for instance, the Judge rebukes the Minister of Finance for encroaching on the terrain of the Minister of Social Development, and with regards to the proceedings themselves where DSD and SASSA left it to National Treasury to address the allegations of rights violations and justify regulations made by the Minister of Social Development. This reflects the unequal power relations within the department holding the purse strings imposing its will.
Third, the judge is rightly critical of the seeming disregard that the government shows towards the human suffering that it’s policy choices have caused, for instance noting that “DSD and SASSA seem to be oblivious to the human suffering and indignation caused by the deployment of regulations with barriers that preclude the eligible SRD grant applicants from receiving it and the inefficient administration and payment of the SRD grant to the successful applicants.”
IMPLICATIONS OF THE JUDGMENT AND THE WAY FORWARD
The judge has given the government clear direction as to what needs to be done to remedy the defects in the regulations and to amend the design and administration of the SRD grant. Despite the government’s claims to the contrary, it is entirely possible to implement a system that both protects against abuse and minimises unfair exclusions. The 2025/6 budget also needs to ensure that the necessary resources are made available. We pledge our support to assist in taking forward these necessary changes.
Some of these changes can be put in place immediately, and some may need to be phased in over the next few months. The judgment itself provides that a plan be put in place to deal with, for example, improvement of the value of the grant, and the means test, as well as administrative issues to ensure that approved grants are paid on time. Administrative changes and changes in the regulations need to be urgently expedited to give effect to the judgment.
Because of the far-reaching impacts of the judgment for so many South Africans, and for the government’s own social protection system, we appeal to the government not to contest this judgment. The judgment paves the way to give effect to the government’s own policies, as articulated by the President, of ensuring a social assistance floor for all, improving and expanding the SRD grant, and transitioning to a system of basic income support. The judgment clearly projects the constitutional requirement to provide social assistance for all who need it.
[ENDS]
For media inquiries, please contact:
- Dalli Weyers | IEJ | dalli.weyers@iej.org.za | 082 460 2093
- Tyler Temoho Kgospula | #PTG | tyler@paythegrants.org.za | 067 044 1201
- Nkosinathi Sithole | SERI | Nkosinathi@seri-sa.org | 076 407 4761