Where social and economic justice meet: South Africa’s SRD decision affirms a rights-based approach to poverty

by | Jan 31, 2025

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About Justin Winchester

Justin is a DPhil Law candidate researching positive duties to promote and achieve equality funded by a Rhodes Scholarship. Justin holds a BCom (2019) and an LLB (2021) from the University of Cape Town and a BCL (2022/23) from Oxford. Justin previously worked in research and strategic human-rights litigation whilst a Litigation Fellow at the Socio-Economic Rights Institute of South Africa (SERI). He has published articles on equality, human rights, and administrative law.

Over eighteen million of South Africa’s poorest peoples breathed a sigh of relief when, on 23 January 2025, the High Court of Pretoria handed down judgment in Institute for Economic Justice v Minister of Social Development. The judgment not only preserves the social relief of distress grant  (‘the SRD’) but requires the state to increase access to, and the value of, the grant. The result is a resounding success for human rights in the face of poverty.

Background

South Africa (‘SA’) does not have a basic income grant for impoverished, unemployed adults. This proved disastrous when the COVID-19 pandemic caused a public-health State of Disaster and mass retrenchments took place to prevent economic downfall.

To fend off worsening poverty, in May 2020 the government introduced the SRD under the Disaster Management Act (‘DMA’): an unconditional R350 monthly transfer to unemployed, working-age adults who did not receive other grants. At the end of the State of Disaster in April 2022, the SRD continued to be regulated under the Social Assistance Act (‘SSA’).

This lifeline soon began to fray. For example, it became more difficult to apply for the SRD as the application process went exclusively online, excluding those without access to technological devices, data, or network signal. In addition, broad interpretations of “income” that include once-off payments between family members, and the use of outdated databases for eligibility checks, made it increasingly easy to lose the grant. Finally, the value of the grant increased to only R370 in March 2024, meaning that in real terms (i.e., after adjusting for inflation) the SRD’s value was substantially lower than when it was introduced in 2020.

Permeance, Progressive Realisation, and Budgeting for Human Rights

Economic justice think-tank, the Institute for Economic Justice, together with #PayTheGrants, a grassroots advocacy campaign, challenged the SRD’s regulations on several grounds (and succeeded). I focus on three for their far-reaching impact.

First, the judgment holds that the SRD is permanent. The state argued that the SRD was introduced only as a temporary measure to remedy pandemic-induced unemployment. This argument was resoundingly rejected. For Twala J, that the regulation of the SRD was no longer under the DMA but under the SSA meant that the grant assumed the same status as SA’s other grants regulated therein: it was permanent [para 90].

Second, the value of the grant was held unconstitutional. Section 27 of the Constitution enshrines the right to social assistance which the state has a duty to progressively realise. The state not only failed to explain why the SRD’s value was not linked to any discernible food poverty line despite its introduction to combat food poverty. Rightfully, Twala J held the failure to increase the value of the SRD constituted retrogression—the antithesis of progressive realisation [para 147].

Budgetary decisions such as this are the prerogative of the Executive branch, of which courts are slow to interfere. Yet, empowered by the duty of courts to remedy constitutional-rights violations, Twala J ordered the state to set a new value for the grant giving due consideration to “the need to remedy the retrogression in the value of the grant”, “inflation and cost of living”, and “objective income poverty measures” (Order 8.21.2).

Third, the regulations stipulated that eligible persons—over 18.3 million—would be paid the grant subject to available funds, of which the state only budgeted for 10.5 million recipients. Twala J described this failure to budget to fulfil its human rights obligations “unconscionable”, “unthinkable”, and having “no rational basis” (paras 138, 140).

This budgeting point is significant. It represents the priority of human rights over economic policy, disciplining the latter through the obligations of the former. Other jurisdictions can benefit from this logic, first articulated in the SA Constitutional Court’s Blue Moonlight decision, that it is unreasonable for the state to be aware of the problem at hand and set itself up for failure in addressing it.

Rejecting False Dichotomies

The judgment may be appealed. Nevertheless, Twala J reminds us that poverty is as much a human rights issue as it is one of economic policy. The conclusion is not to deal with poverty exclusively through policy (which has traditionally been the case). Rather, it is to recognise the interplay between rights and policy, allowing rights to help inform and enforce the aims of policy. Only then can the worthwhile projects of social and economic justice meet.

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