Scalabrini Centre of Cape Town and Another v Minister of Social Development and Others (22808/2020) [2020] ZAGPPHC 308; 2021 (1) SA 553 (GP) (18 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

Case No: 22808/2020

In the matter between:

THE SCALABRINI CENTRE OF CAPE TOWN

First Applicant

TRUSTEES OF THE SCALABRINI CENTRE OF CAPE TOWN Second Applicant

and

THE MINISTER OF SOCIAL DEVELOPMENT

First Respondent

THE MINISTER OF COOPERATIVE GOVERNANCE

AND TRADITIONAL AFFAIRS

Second Respondent

THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Third Respondent

SOUTH AFRICAN SOCIAL SECURITY AGENCY

Fourth Respondent

THE MINISTER OF HOME AFFAIRS

Fifth Respondent

JUDGMENT

BAQWA J

INTRODUCTION

1 The applicant is Scalabrini Centre, a juristic person whose principal place of business is 47 Commercial Street, Cape Town, which has brought this application on an urgent basis.

2 The first respondent who is the Minister of Social Development ("the Minister") was served on 25 May 2020 on which date she filed a notice of intention to oppose the application.

3 On 11 June 2020 the applicants' Attorney received an email from the State Attorney on behalf of the Minister, informing them that the Minister would be withdrawing its notice of opposition and filing a notice to abide.

4 The second to fifth respondents were the Minister of Co-operative Governance and Traditional Affairs, the President of the Republic of South Africa, the South African Social Security Agency and the Minister of Home Affairs, respectively and they were served on 22 May 2020 but did not file notices of intention to oppose.

5 Despite the filing of a notice of intention to abide the first respondent was represented by Senior Counsel when the matter served before me. I was informed that the parties were trying to settle the matter out of Court whereupon the case was stood down for that purpose.

ISSUES FOR DETERMINATION

6 The issue to be determined was whether asylum seekers and social permit holders had been lawfully excluded from receiving social assistance in terms of the distress grant for those affected by the Covid-19 pandemic ("the Covid-19 grant") and whether such exclusion was unconstitutional or not.

7 Applicants' Counsel submitted that the exclusion was arbitrary irrational and unreasonable and that it violated the constitutional right of lawful asylum seekers and special permit holders to equality, dignity and access to social security.

RELIEF SOUGHT

8 The relief that the applicant sought, is for an order:

"2. Declaring clause 6 (vii) (cc) (i) of the Directions issued by the Minister of Social Development on 30 March 2020 and as amended on 9 May 2020, in terms of regulation 10 (8) read with section 27 (2) of the Disaster Management Act 57 of 2002 (as amended) ('the amended Directions'?, unlawful, unconstitutional and invalid to the extent that it excludes special permit holders and asylum seekers whose permits or visas (as the case may be) are valid or were valid on 15 March 2020 from eligibility for the Covid-19 Social Relief of Distress grant;

3. Reading in the following word "database" in clause 6 (vii) (cc) (i) of the amended Directions:

"and holders of special permits under the Special Angolan Dispensation; the Lesotho Exemption Permit Dispensation and the Zimbabwe Exemption Permit Dispensation, and asylum seekers whose section 22 permit/visas are valid or were valid on 15 March 2020"

4. In the alternative to paragraph 3 above:

4.1 Suspending the declaration of invalidity in paragraph 2 for a period of 5 days from the date of this order, to afford the first respondent an opportunity to amend the amended Directions to cure the constitutional defect.

4.2 Directing that in the event that the first respondent fails to amend the Directive within that period, the order in paragraph 3 above will take effect.

5. Declaring that Regulation 9(5) of the Regulations to the Social Assistance Act ('Regulations relating to the Application for and Payment of Social Assistance and the Requirements or Conditions in respect of Eligibility for Social Assistance' published under GN R898 in GG 31356 of 22 August 2008) broadens the eligibility requirements for social relief of distress grants during a disaster (as defined in the Disaster Management Act 57 of 2002) to include special permit holders and asylum seekers whose households have been affected by that disaster...”

9 The applicant sought an order relating to filing of anonymised versions of affidavits which are not pertinent to the above main orders together with an order for costs.

BACKGROUND

10 The Minister of Co-operative Governance ("the COGTA Minister") declared a national state of disaster in terms of section 27 (1) of the Disaster Management Act 57 of 2002 on 15 March 2003.

11 Further, and with a view to curtail the spread of Covid-19 virus the COGTA Minister amended the relevant regulations on 23 March 2020 to introduce a nationwide lockdown effective from midnight on 26 March 2020. The lockdown was subsequently extended with the COGTA Minister introducing further regulations which prescribed various levels of restrictions.

12 A new social relief grant for affected persons was announced by the President on 21 April 2020 ("the Covid-19 grant"). This was also confirmed by the Minster for Social Development who explained that the grant was aimed at redressing the "deepening [of] poverty and increase [of] hunger as well as devastating...and catastrophic human and social effect" of the pandemic.

13 According to the Minister the grant would be available to "South African citizens, permanent residents and refugees" who were impacted by the national disaster. The grant would be payable by 15 May 2020 after promulgation of the relevant regulations.

14 The applicants hold the view that the pronouncement by the Minister meant that special permit holders and asylum seekers who hold valid permits and visas, at the time of the national disaster was declared, were excluded from benefitting through the Covid-19 grants despite being entitled to the benefits in terms of section 27 of the Constitution.

15 The Minister published a further amendment to the amended Directions regarding the Covid-19 grant. Clause (viii) (ee) provides that the Covid-19 grant of R350 per month would be payable from May to October 2020.

16 More specifically, the grant would be provided to distressed individuals who are:

(i) South African Citizens, Permanent Residents or Refugees registered on the Home Affairs database;

(ii) currently residing within the borders of the Republic of South Africa;

(iii) above the age of 18

(iv) unemployed;

(v) not receiving any form of income;

(vi) not receiving any social grant;

(vii) not receiving an unemployment insurance benefit (UIF) and do not qualify to receive an unemployment insurance benefit;

(viii) not receiving a stipend from the National Student Financial Aid Scheme and other financial aid;

(ix) not receiving any other government COV/0-19 response support; and

(x) not a resident in a government funded or subsidised institution.

17 During May 2020 correspondence was exchanged between the Minister and Scalabrini Centre's Attorneys regarding concerns which the latter had about the exclusion of asylum seekers and holders of special permits from the Covid-19 grant and upon failure to resolve the issue through that form of communication, Scalabrini decided to approach this Court on an urgent basis.

URGENCY

18 The applicants' Counsel argued that the persons it represents would not be afforded substantial redress in due course for the following reasons:

15.1 The Centre had experienced a surge in asylum seekers and permit holders requesting assistance for basic needs such as food. These persons stated that they had been self-employed or running informal businesses until they were prevented from doing so by the lockdown. Some had been employed in industries such as restaurants or the hospitality sector which had also been impacted by the lockdown. Their children had been unable to access the school funding programmes and parents had no income.

15.2 The conditions in which the asylum seekers found themselves were worsening by the day as they had neither savings nor sources of income. The suffering of these persons and their families was immediate and could possibly lead to irreparable harm.

15.3 The Covid-19 grant would only be available for a limited period only, namely, May to October 2020. Unless their application was dealt with on an urgent basis, the matter would have become moot by the time the application was dealt with in the ordinary course.

15.4 the applicant had tried to engage government officials before coming to Court to no avail and that its approach had in the circumstances "prudent and salutary". See South African Traders Forum and Others v City of Johannesburg and Others, South Africans National Traders Retail Association v City of Johannesburg and Others 2014 (4) SA 371 (CC) at para 37.

19 The fact that the matter is urgent is one of those that the respondents have not contested and the facts put forth by the applicants support the conclusion that the application ought to be dealt with as provided for in Rule 6 (12) of the Uniform Rules of Court.

ACCESS TO SOCIAL ASSISTANCE

20 Section 27 of the Constitution deals with health care, food, water and social security and it provides as follows:

"27. (1) Everyone has the right to have access to-

(a) health care services, including reproductive health care;

(b) sufficient food and water; and

(c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights."

(3) No one may be refused emergency medical treatment."

21 The above provisions were pronounced upon extensively in the matter of Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others [2004] ZACC 11; 2004 (6) SA 505 (CC) ("Khosa") in which it was emphasised by Mokgoro J that "everyone" is entitled to the right when she said:

"This Court has adopted a purposive approach to the interpretation of rights. Given that the Constitution expressly provides that the Bill of Rights enshrines the rights of "all people in our country", and in the absence of any indication that the Section 27(1) right is to be restricted to citizens as in other provisions in the Bill of Rights, the word "everyone" in this section cannot be construed as referring only to "citizens".

22 In the Khosa matter the Court, in examining whether the exclusion of permanent residents was reasonable, the Court emphasised that context is all important and at para 49 made reference to specific factors such as the purpose served by social security, the impact of the exclusion on permanent residents, and relevance of the citizenship requirement to that purpose. The Court held that the exclusion of permanent residents from the benefit of old age grant and the child support and dependancy grants was unreasonable for purposes of Section 27 (2).

23 It has been submitted on behalf of the applicant in the present application that the remedy sought is similar to the Khosa case and for that reason it is necessary to examine the purpose of the grant. It is not in dispute that the Covid-19 grant is aimed at creating access to the right to social assistance as provided for in Section 27 (1) (c) and as envisaged in Section 27 (2) of the Constitution. It is common cause that the Declaration of a National State of Distaster and the subsequent lockdown has brought untold suffering to significant sections of the South African population, hence the realisation by the South African government through the Department of Social Development of the need to intervene.

24 Viewed through this prism, it is logical to accept that the asylum seekers and special permit holders have not escaped the negative consequences of not only the pandemic but also of the lockdown. This would inevitably come about not, only due to the inability to move and work but also through the inability to secure resources to buy food and other basic necessities for their families. It is also common cause that the asylum seekers and permit holders are as it were "locked in" in South Africa due to closed borders during lockdown, economic and other circumstances in their countries of origin.

25 For these reasons, a person's immigration status, especially when bearing in mind the Court's pronouncement in Khosa, become irrelevant. For that reason, it must be accepted that it is irrational and unreasonable to utilise such status as a criterion for eligibility for the grant.

THE RIGHT TO EQUALITY

26 "Equality in respect of access to socioeconomic rights is implicit in the reference to 'everyone' being entitled to have access to such rights in Section 27. Those who are unable to survive without social assistance are equally desparate and equally in need of such assistance." Khosa para 42. In stating the above, Mokgoro J, directly and unequivocally linked the right to social assistance to the right to equality.

27 It therefore cannot be argued that only citizens, permanent residents or refugees are the only persons eligible for the Covid-19 relief grant as that would be a direct violation of Section 9(1) of the Constitution.

28 There may be a confusion in the minds of some regarding the differentiation between refugees and asylum seekers. The difference between the two categories may be that the refugee applications for asylum may have been finally adjudicated and accepted.

29 Asylum seekers apply for refugee status under Section 21 of Act 130 of 1998 and in terms of Section 22 of the Refugees Act, an asylum seeker whose Section 21(1) application has not yet been finalised may be entitled to be issued with an asylum seeker visa

which allows him or her to be in South Africa temporarily. Special permit holders on the other hand are persons whose apllications have been processed and accepted by the State and and who are therefore lawfully in South Africa.

ANGOLAN, ZIMBABWEAN AND LESOTHO SPECIAL PERMITS

30 The Angolan Special Dispensation provided for special permits issued to Angolans who were previously recognised as refugees by the South African Government and these are valid until 31 December 2021.

31 The South African Government created amnesty for Zimbabweans who had fled their country as a result of political and economic instability and special permits issued under the Zimbabwean Exemption Permits Programme are valid until December 2021.

32 Lesotho nationals who were working, studying or running businesses in South Africa had been granted special permits which expired on 31 December 2019 and these were replaced by the Lesotho Exemption Permit which is valid for four yeras starting from 1 January 2020.

33 These categories of persons are lawfully in the Republic of South Africa and therefore deserve to be treated as described in paragraph 26 above.

HUMAN DIGNITY

34 Section 10 of the Constitution provides for everyone to be accorded the right to human dignity and to be treated accordingly. See S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC) at para 327. It has been submitted and I accept that the right to human dignity of qualifying asylum seekers and special permit holders with valid permits were violated when they were denied Covid-19 assistance despite the desparate circumstances in which they found themselves.

THE CONSTITUTIONAL ISSUE

35 At the commencement of these proceedings the parties attempted to establish common ground in order to settle the matter. They succeeded partially in that the State conceded most of the issues raised ny the applicant. They could however not reach agreement regarding the constitutionality or otherwise of the first respondent's acrtions and the matter was brought back for a decision by this Court.

36 Regulation 9(1)(b) of the Regulations to the Social Assistance Act provides:

"(1) Subject to the provisions of the Act, a person or representative of a cluster forster care in need of immediate temporary assistance qualifies for social relief of distress if he or she -

a) …

b) is a South African citizen or a permanent resident or a refugee and resides in the Republic and complies with any of the following

conditions..."

37 The regulation ought to be read with Regulation 9(5) which provides:

"(5) Notwithstanding the provisions of subregulation (1), in the event of a declared or undeclared disaster:

(1) a person may qualify for social relief of distress if that household has been affected by a disaster as defined in the Disaster Management Act, 2002 (Act No. 57 of 2002).

(2) the value of social relief of distress paid to a person as a result of a disaster referred to in paragraph (a), may not be recovered from any social grant payment, including an arrear payment.

(3) a list of households affected by a disaster as verified by the Provincial or Local Disaster Management Response Unit will be regarded as the final list for the provision of immediate humanitarian relief."

38 In the Minister's media release of 29 April 2020 she relied on Regulation 9 as authority for the application of the Covid-19 grant to citizens, permanent residents and refugees exclusively. This was clearly a misdirection on her part as Regulation 9(5) widens the eligiblity requirements for access to social relief of distress during a national disaster. On a proper reading of Section 9(1) and 9(5) the persons who qualify ought to include asylum seekers and special permit holders. Such an interpretation would be consistent with the Bill of Rights in that it would protect not only the equality and dignity but also the right to social assistance. See Makate v Vodacom Ltd 2016 (4) SA 121 (CC) para 89.

39 The correctness of the above approach to the interpretation of relevant legislation is in line with what Yacoob J said in Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) at para 83 whe he said:

"[83]. ..the proposition that rights are interrelated and are all equally important is not merely a theoretical postulate. The concept has immense human and practical significance in a society founded on human dignity, equality and freedom. It is fundamental to an evaluation of the reasonableness of state action that account be taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the reasonableness of state action concerned with housing is determined without regard to the fundamental constitutional value of human dignity. Section 26, read in the context of the Bill of Rights as a whole, must mean that the respondents have a right to reasonable action by the state in all circumstances and with particular regard to human dignity."

CONCLUSION

40 In the context of social assistance for asylum seekers and special permit holders, the interrelatedness of the rights of equality, human dignity and access to social assistance cannot be overemphasised. Conditions created by Covid-19 and the subsequent lockdown declaration served only to highlight the need for State authorities to bear this interrelationship in mind when implementing the relevant regulations. Failure to do so could only lead to the result that the regulations be declared unconstitutional such as in the present case.

41 Whilst it cannot be disputed that the Covid-19 pandemic must be fought by all means necessary, it must be constantly borne in mind that the Constitution and the Bill of Rights in particular, ought to be the touchstone against which the formulation and implementation of regulations is measured.

THE ORDER

42 Having considered the evidence and submission by Counsel, I make the following order:

42.1 The forms and service and ordinary time periods provided for in the rules are dispensed with and this application is dealt with as one of urgency.

42.2 It is declared that clause 6(viii)(cc)(i) of the Directions issued by the Minister of Social Development on 30 March 2020 and as amended on 9 May 2020, in terms of regulation 10(8) read with section 27(2) of the Disaster Management Act 57 of 2002 (as amended) ("the Amended Directions") is unlawful, unconstitutional and invalid to the extent that it excludes special permit holders and asylum seekers whose asylum seeker permits or visas (as the case may be) are valid or were valid on 15 March 2020 from eligibility for the Covid-19 Social Relief of Distress grant.

42.3 With effect from the date of tis order Amended Directions are to be read as though the following words appear after the word "database" in Clause 6(viii)(cc)(i) of the Amended Directions:

"and holders of special permits under the Special Angolan Dispensation, the Lesotho Exemption Permit dispensation and the Zimbabwe Exemption Permit Dispensation , and asylum seekers whose section 22 permits/visas are valid or were valid on 15 March 2020".

42.4 The Minister of Social Development, in consultation with and assistance of the relevant departments, shall within 5 days of this order, attend to the quantification of the costs to be incurred in providing the Covid-19 Social Relief of Distress grant to special permit holders or asylum seekers whose asylum seeker permits or visas are valid or were valid on 15 March 2020.

42.5 The Minister of Social Development shall, within 5 days after the quantification envisaged in paragrapgh 42.4 of this order, publish the amended clause 6(viii)(cc)(i) of the Directions issued on 30 March 2020 and as amended on 9 May 2020, in terms of Regulation 10(8) read with Section 27(2) of the Disaster Management Act 57 of 2002 (as amended) ('the Amended Directions") to include special permit holders and asylum seekers whose asylum seeker permits or visas are valid or were valid on 15 March 2020, for eligibility for the Covi-19 Social Relief of Distress Grant.

42.6 Eligible asylum seekers and special permit holders whose applications for the Covid-19 SRD Grant are approved will be entitled to payment of the grants as if their grants had been approved on the date of this order.

42.7 The applicants are granted leave to file two versions of the supporting affidavits deposed to by asylum seekers and special permit holders - an anonymised version that will be kept in the public court file and a confidential version that has been made available to this Court and the legal representatives of the parties. The anonymised versions do not contain the names and identifying information of the deponents to the supporting affidavits.

42.8 There is no order as to costs.

S. A. M BAQWA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Heard on

: 18 June 2020

Judgment delivered : 18 June 2020

Appearances:

For the Applicants : Adv E Webber and C Thabatha

Instructed by

: Norton Rose Fulbright South Africa Inc

For the 1st Respondent : Adv. G Bafilatos

Instructed by

: The State Attorney