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DEPARTMENT OF SOCIAL DEVELOPMENT

The relief sought further that the aforesaid Ministers In addition, the context of a National State of Disaster
take reasonable measures in order to give effect to the would render the exclusion of people who are legally
rights of children with severe or profound disruptive in the country very difficult to defend, since their non-
behavioral disorders by drafting an inter-sectoral policy citizen status would make them even more vulnerable.
that ensures that attitudinal and environmental barriers The legal opinion obtained by DSD confirmed DSD’s
that hinder their full and effective participation in position that there was little prospect of success if the
society on an equal basis with others be removed. matter was opposed. This legal opinion was shared with
all the cited Departments including National Treasury.
An out of court settlement was reached by the parties
wherein an Inter-sectoral policy on children with severe The High Court ordered that the Minister “attend to the
or profound disruptive behavior disorder is now in quantification of the costs to be incurred in providing
the process of being developed by the Departments the COVID-19 Special Social Relief of Distress grant to
of Social Development, Health and Basic Education. special permit holders or asylum seekers”, and that the
The court settlement further provides for certain Directives be amended to include the holders of special
interim measures to be implemented in ensuring that permits under the Special Angolan Dispensation,
children with a severe or profound disruptive disorder the Lesotho Exemption Permit dispensation and the
are provided with appropriate services including Zimbabwe Exemption Permit Dispensation, and asylum
prevention and early intervention programmes to seekers whose section 22 permits/ visas are valid or
caregivers and families of those children. were valid on 15 March 2020. Eligible asylum seekers
and special permit holders whose applications for the
The policy will be enacted into law addressing the COVID-19 SRD Grant are approved will be entitled
challenges faced by children with severe or profound to payment of the grant as if their grants had been
disruptive behaviour disorder which are not addressed approved on the date of the order.
in the Children’s Act 38 of 2005. The court order therefore
has an impact that will activate the amendment of the The Minister of Social Development amended the
Children’s Act. directives, in compliance with the court order, to
include asylum seekers and special permit holders to be
The North Gauteng High Court matter re the eligible to access COVID-19 Social SRD Grant and they
Scalabrini Centre of Cape Town V Minister for were gazetted on 02 July 2020.
Social Development & Others

The Minister of Social Development, was litigated
against, on the exclusion of special permit holders and
asylum seekers from accessing the Special COVID-19
Social Relief of Distress (SRD) Grant. In the main, the
relief sought was for the clause in the Directions issued
by the Minister of Social Development on 09 May 2020
to be declared unlawful, unconstitutional and invalid to
the extent that they exclude special permit holders and
asylum seekers whose asylum permits or visas are valid
or were valid on 15 March 2020 from eligibility for the
Special COVID-19 SRD Grant.

The applicants argued that the asylum seekers and
special permit holders who are lawfully in South Africa
are in the same position as permanent residents and
recognised refugees: They are lawfully present in the
country; they are subject to the lockdown; they have
limited ability to travel and, in many instances, they
cannot work. Many cannot provide for their most basic
needs and those of their families. The centre argued that
their exclusion from access was arbitrary, irrational and
unreasonable, and violated the constitutional rights to
equality, dignity and access to social security.

The DSD, after conducting urgent internal research
found that section 27 of the Constitution, read together
with Section 9 and existing case law, addressing the right
to social security and the right to non-discrimination
would make it difficult to successfully defend the case.
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