Please note that this article is an extract from the Legal Resource Centre’s Annual report 2012
In a case seeking to improve the livelihoods of refugees living in South Africa, the LRC launched an application on 30 November 2010 contending that the exclusion of minor refugee children with disabilities from the Social Assistance Act, 13 of 2004, was unconstitutional. Although state assistance was provided to adult refugees with disabilities, the same did not apply to disabled child refugees. We represented four applicants and the Scalabrini Centre for Refugees in Cape Town in this case.
In Hassan & Others, the LRC sought to have section 7 of the Social Assistance Act, which provided that only South African citizens were entitled to a care dependency grant, declared inconsistent with the Constitution and invalid. We argued that the Department of Social Development must accept and process applications for care dependency grants for the disabled children of refugees. We submitted that section 27(1)(c), section 28, section 9 and section 10 of the Constitution clearly conferred the necessary rights and failure to grant social assistance in this regard amounted to unfair discrimination. Furthermore, the International Convention relating to children and disability* emphasises the importance of social security for children and the disabled.
After considerable delay, the State Attorney indicated that the Department no longer intended to oppose the application. The Department thereafter amended its regulations to enable such children to receive the necessary social grant. We then prepared an application for Kesangala & Others seeking to have the Department of Social Development amend its legislation to include childcare grants for the minor children of impoverished refugees. In late March 2012, just before the application was to be launched, the Department of Social Development published a change to its regulations. In terms of the notice, the state finally extended social grants to refugees, as required by the Constitution and international law. The social assistance regulations have now been amended to ensure that refugees are eligible for all types of social grants.
*Articles 23 and 24 of the Convention related to the status of refugees provide that the contracting States shall accord to refugees in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals and, more specifically, in respect of “social security”. Social security is seen as those legal provisions in respect of employment, injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme.