Special protection in pension programmes for women in South Africa
Four male applicants, above the age of 60 but below 65, mounted a constitutional challenge to Section 10 of South Africa’s Social Assistance Act 13 of 2004 and the relevant Regulations, which set the age for accessing an old age grant at 60 for women and 65 for men. The four men contested the age differentiation on the basis that, in their eyes, it violated the equality clause (section 9(3)) and the right of access to social assistance (section 27(1)(c)), both of which are explicitly guaranteed by South Africa’s Constitution. For its part, the South African government, pointing to the race, class and social discrimination faced by African women during apartheid, argued that the aim of the differentiation was to address the inequities faced by women generally and by African women in particular. Subsequent to the initial hearing, the government actually amended the legislation so that the pension age differentiation would be phased out over a three-year period, thus allowing men to access social old age grants from the age of 63 by April 2008; from age 61 by April 2009; and finally achieve equality (at 60) by April 2010.
Ultimately, South Africa’s High Court sided with the South African government and allowed retention of the differentiating scheme at the time the case was heard. This case is significant, foremost, for highlighting the ways in which formal legal enshrinement of social protection programmes coupled with a long-term national action plan greatly increases the protection of the right to social protection of all peoples, especially the most disadvantaged and vulnerable groups. As noted by the Committee on Economic, Social and Cultural Rights, while any given state’s laws and national action plan should take into account the equal rights of men and women, it should also take into account the rights of the most disadvantaged and marginalized groups and at the same time set targets or goals to be achieved and the time-frame for their achievement (General Comment 19). In this case, the South African government has set targets and sought the progressive realization of universal coverage.