LIFE could get even tougher for close to 100 orphaned and abandoned Molteno children.They are being denied foster-care grants - and face the possibility of also losing the care of their foster parents - because the Social Development Department has allowed their foster-care orders to expire.

The Centre for Child Law (CCL) in Pretoria is taking Social Development Minister Edna Molewa and her Eastern Cape counterpart, Nonkosi Mvana, to court for failing to extend the orders made by the Children's Court in the cases of about 93 children.

According to court papers, the minister or MEC's failure to make a determination on whether or not the foster orders should be renewed has resulted in the South African Social Security Agency (Sassa) stopping payment of all their foster-care grants from July last year.

Almost all the foster families, and the children they care for, live in dire poverty, and without the R710 monthly grant many are battling to make ends meet or care properly for the children. The majority of the children in care had lost their parents to HIV/Aids, while others had simply been abandoned.

CCL's legal representative Sarah Sephton, of the Legal Resources Centre in Grahamstown, said foster-care orders lapse after two years unless extended by the minister or the minister's delegate - in this case, Mvana.

Without valid orders, there is no legal basis for Sassa to continue paying the grants.

Carina Du Toit from the Centre for Child Law says in court papers that it also means that the children's placement with their existing foster parents is technically unlawful, so they could be removed at any time.

The court papers indicate that the children, because of the Social Development Department, had fallen through the safety nets set up to protect them - caught between the minister or MEC who had failed to extend the orders and a Child Welfare commissioner who believes it is not within the Children's Court's power to convene fresh inquiries.

But Du Toit believes the Child Care Act is flexible enough to allow the commissioner to hear such matters afresh "as if there had been no previous order", especially given the constitutional imperative that the best interests of the child should be the paramount consideration.

"Once the foster-care orders lapsed the children were placed in a position where they again became in need of care and protection. The lack of a valid order places the children in a particularly vulnerable position and the children are patently children in need of care and protection, as defined in the Child Care Act. I submit that the commissioner for Child Welfare was empowered to hear the matters as if they were new matters under new case numbers for each child."

But this has not happened and the centre was left with little choice but to resort to the Grahamstown High Court. It is asking the court to review the minister or MEC's failure to make a decision to extend the orders and to "substitute" its own order in terms of which the foster-care orders be immediately reinstated. Alternatively, it wants the court to order the commissioner of Child Welfare to consider each child's case afresh.

In addition, the court is also being asked to order Sassa to immediately resume paying the foster-care grants to the foster parents, including arrears from the date the payment was stopped in July last year.