One of the main justifications for the severe restrictions imposed on South Africans in the context of the COVID-19 pandemic is the need for the protection of older persons. Unfortunately, the dire scientific warnings identifying older persons as a vulnerable group confronting higher risk from COVID-19 have not translated into the prioritising by the government of social care programmes and services to older persons. The drastic changes in operations at residential facilities for older persons in order to contain the pandemic have caused many residents of the facilities hardship and have affected the standards of care to residents as prescribed in terms of the Older Persons Act 13 of 2006 (“the OPA”). In addition, there have been instances of non-payment of subsidies by one of the provincial Social Development departments to welfare organisations for providing community-based care to older persons. This article seeks to determine whether the government’s application of lockdown regulations and/or the agreements with service providers in the context of the lockdown infringed older persons’ right to access social services and care in terms of section 27 of the South African Constitution. If so, were the limitations of older persons’ rights reasonable and justifiable in terms of section 36 of the Constitution? The article argues that the rights-based approach of the OPA should form the basis for any interventions aimed at protecting older persons, even during pandemics or other disasters. It also suggests measures to ensure that older persons’ social care related rights are taken into account in any future disaster management plans.

 

Keywords: older persons; COVID-19; right to have access to social security; social services; residential care; community-based care.