The goal of the Social Welfare project continues to be the use of law, either by means of litigation or through advocacy and law reform, to ensure implementation of and strengthen the State’s constitutional obligation to support those who are unable to support themselves and their dependants, especially by reason of old age, disability or parenthood. While the primary mechanism for doing so is litigation, social advocacy is not excluded.

Health care is an area of major concern. This is particularly so in the light of the fact that sub-Saharan Africa remains disproportionately affected by HIV and AIDS. Prevention and slow progress towards providing treatment for people with AIDS has not been consistently applied. There are also many new challenges, such as child-headed households and the care, protection and custody of orphans.

Social grants are a particular focus of the work because only 43% of South Africans who are eligible for the grants actually receive them, and the principle obstacles to the rolling out and disbursement of social grants are non-budgetary, and include the lack of clear guidelines, difficulty in determining eligibility, and discrimination against HIV-positive individuals who seek a disability grant.

Vulnerable people, such as the aged, disabled and child-rearing, qualify for social assistance under the Social Assistance Act (“SAA”).  Healthy people between the ages of 15 and 60 do not qualify for any relief, even though they may be living in complete destitution.  The 1998 regulations under the SAA set up a scheme of discretionary social relief to people who are living in “undue hardship”, but this scheme has not yet been implemented by the state.   The result is that there is no access to social assistance for people in desperate need. 

Workers’ compensation is a statutory scheme established in terms of the Compensation for Occupational Injuries and Diseases Act of 1993 (COIDA).  Workers’ compensation is form of social security grant that assists people who are temporarily or permanently disabled as a result of injuries sustained in the workplace.  The compensation scheme replaces the common law and in terms of section 35 of COIDA there is a complete bar on employees suing their employers directly for personal injuries suffered as a result of accidents on duty or diseases contracted at work. Without access to compensation many injured workers find themselves in dire straits and can very quickly descend into a life of extreme poverty. The scheme is inefficient and is run with a particular bias and as a result many injured workers never receive compensation and simply become a part of the poverty statistics.

All the offices of the LRC - namely Johannesburg, Pretoria, Cape Town, Durban and Grahamstown litigate - social welfare cases. In addition the project is supported by the Constitutional Litigation Unit (CLU), which provides specialist backup in several cases being litigated.

The protection and promotion of the human rights of prisoners in South Africa is another area of focus. The current situation of prisoners in South Africa is that they are detained in prisons, which are grossly overcrowded. Young offenders mixed in the same cell as adult offenders As at 30 September 2004, figures from the Department of Correctional Services (“DCS”) state that there are 186,546 prisoners held in cells designed to hold 113,825.  This state of affairs has prompted the Inspecting Judge of Prisons, the Honourable Mr Justice J J Fagan, to describe the conditions as “an impossible state of overcrowding”.

Overcrowding contributes to the following abuses and breaches of prisoners’ rights:

• Inadequate healthcare;
• Increased prison gangs;
• Inadequate security for prisoners;
• Lack of meaningful rehabilitation opportunities.

The number of awaiting trial prisoners and the long time taken for the criminal justice system to process their cases is a violation of rights and a form of imprisonment without trial. In the IPJ Annual Report 2005, the IPJ Office found that there were 52,326 prisoners who were awaiting the commencement or finalisation of their trials. 13,880 of these ATPs are in detention because they are too poor to pay their bail.  In 7 of these cases, the bail set was less than R50.  A total of 9,311 ATPs are detained because they are unable to pay fines of less than R1000.

Another area in which the State is required to shoulder significant responsibility for the welfare of people and that has raised a great deal of concern is that of the treatment of refugees and asylum seekers.