Constitutional Perspectives on Unemployment Security and a Right to Work in South Africa

• Jurisdiction: South Africa
• Author: Avinash Govindjee
• Pages: 775-803
• Published date: 16 August 2019
• Date: 16 August 2019
• Citation: (2011) 22 Stell LR 775

775

CONSTITUTIONAL PERSPECTIVES ON

UNEMPLOYMENT SECURITY AND A RIGHT TO

WORK IN SOUTH AFRICA

Avinash Govindjee

BA LLB LLM LLD

Professor of Law, Nelson Mandela Metropolitan University

Ockert Dupper

BA LLB LLM SJD

Professor of Law, Stellenbosch University*

1 Introduction

South Af rica’s unemployment r ate is one of the highest in the world, a nd

signicantly higher than those of other middle i ncome economies.1 When

using the narrow International Labour Organisation (“ILO”) denition2 (which

is the ofcial de nition in South Africa), South Africa’s unemployment rate

currently stands at 25%.3 If t he broad denition of unemployment is used

(which includes discour aged work seekers), the unemployment rate swells to

36.6%.4 W hile urban unemployment rates are already very high, particularly

striki ng and u nusual are the higher rural unemployment rates (particula rly

in the so- called former “homelands”) which are far higher t han anywhere

in the developing world.5 Also noteworthy is t hat these unemployment rates

differ greatly by race, age and gender.6 I n 2011 Africans had much higher

(ofcial or narrow) unemployment rates (28.9%), compared to Coloureds

(23.6%), Indians (10.8%) and Whites (5.6%).7 Age is also a major deter minant

of unemployme nt. Unemployment disproportionately impacts on the youth,

* The autho rs wish to acknowledge the technical assista nce of Ms Zikhona Maroqa , an undergr aduate

student and research assistant at the Nels on Mandela Me tropolitan University, and Mr Marius R oetz, a

post-gradu ate student and re search assista nt at Stellenbosch Univer sity

1 H Bhorat “Unemployment in South A frica: Descript ors and Determi nants” (2007) Develo pmental Policy

Research Unit, Uni versity of Cape Town 2

OtherPDFs/Unem ployment_in_ South_Afr ica4 pdf> (acces sed 05-08-2011)

2 Art 20 of the ILO Social Se curity (Mi nimum Standa rds) Convention 102 (1952) (“ILO Convention 102”)

states:

“The conting ency covered shall includ e s uspension of earn ings, as defined by nat ional laws or

regulation s, due t o inabilit y to obt ain suita ble employment in the case of a person protected who is

capable of, and avail able for, work ”

3 Statistics South Africa “Qua rterly Labou r Force Survey, Qua rter 3, 2011” (2011) StatsOnline xii

www statss a govz a/Publication s/P0211/P02113rdQuarter2011 pdf> (acce ssed 01-11-2011)

4 Statistics South Africa “Qua rterly Labou r Force Survey, Qua rter 4, 2010”(2011) StatsOnline 12

www statss a govz a/publications/ P0211/P02114thQuar ter2010 pdf> (accesse d 01-11-2011)

5 S Klasen & ID Woolard “Survivi ng Unemployment without State Support: Unemploy ment and Household

Formation in Sou th Africa” (2008) 18 J Africa n Economies 1 2

6 On women and unemploy ment in general , see C Cooper “Women a nd the Right to Work” in B Goldblatt

& K McLean (eds) Women’s Social and Econ omic Rights (2011) 247 248

7 Statistics South Africa “Qua rterly Labou r Force Survey, Qua rter 3, 2011” (2011) StatsOnline xii

www statss a govz a/Publication s/P0211/P02113rdQuarter2011 pdf> (acce ssed 01-11-2011)

(2011) 22 Stell LR 775

© Juta and Company (Pty) Ltd

affecting about 35% of those below the age of 25.8 Of pa rticular concer n is

the unemployment rate of African youth , which stood at 53.4% at the end of

2009.9 There is also a noticeable gender differential wit h females suf fering

from higher unemployment r ates among each age and race group.10

Protection aga inst unemployment takes various forms i n South Africa. In

the rst plac e, partial and tempor ary income support is provided in the form

of social insurance via the Unemployment Insurance Fund (“UIF”). However,

a proper unemployment policy framework requ ires more than just partial and

temporary income replacement. In this resp ect, South Africa has mad e some

modest attempts to develop what the ILO11 refers to as both “employment-

enhancing measure s” (primari ly in the form of public works) a s well as

“employment services” (which includes the most recent Employment Services

Bill12 ai med at providing assist ance to the u nemployed in searching for new

employment). Nevertheless, the most glar ing gap in the assistance provided

to the unemployed in South Africa is the exclusion of the structurally- or the

long-term unemployed from any income replacement measu res. For example,

there is no social assistance g rant that part icularly targets persons who have

either exhausted their limited unemployment in surance benets, or those who

have never been formally employed and therefore never cont ributed to the

social insuranc e system.13 Structu rally unemployed youths and adults receive

limited or no suppor t from the existing social assistance fr amework.14

In this paper, we argue that the constitutional right to have access to

social securit y, as read with other existing rights, is an inadequate “umbrella

right” for purposes of covering the most r ecent policy developments which

attempt to address poverty by way of a combination of social security and

unemployment protection strategies. It is also suggested that the dispa rity

between current policy developments and the existing statutory scheme of

laws requires address, given that cur rent policy-making in th is area operates

in the absence of a proper legal framework and that a real possibility exists for

a constitutional challenge i n this regard.

In developing ou r argument, we introduce the concept of “unemployment

security” – one t hat is not common in the literature. The pri mary purpose for

8 Department of Social De velopment Creating Our Fut ure: Strategic Consi derations for a Compreh ensive

System of Soci al Security ( Discussion Paper) (2008) 7

9 See SAPA “Youth Unempl oyment is a ‘Ticking Time Bomb’: Mdladlan a” (27- 08-2010) The Tim es

Mdladlana > (accessed 23-03-2011)

10Statistic s South Africa “Q uarterly Lab our Force Survey, Qua rter 3, 2011” (2011) StatsOnline 2-5

www statss a govz a/Publication s/P0211/P02113rdQuarter2011 pdf> (acce ssed 01-11-2011)

11See I LO World So cial Secur ity Repor t 2010-2011: Providing Coverage in Times of Crisis and Beyond

(2010) 57

12Employment Ser vices Bill (draft) in GN 1112 in GG 33873 of 17-10-2010

13Although social gr ants cover those under the age of 18 and t hose over the age of 60 who are unable to

support themselves, as wel l as all disabl ed person s, adult s between the age of 19 and 59 who a re not

disabled are effectively not ent itled to any social assistance – even whe n they are unable to sup port

themselves

14Depart ment of Social Develo pment Creat ing Our Future 8 Also seeGovern ment of the RSA Decent

Work Countr y Programme 2010-2014 (2010) Inte rnational La bour Organiz ation 9

wcmsp5/g roups/ public/- --dgr eport s/---i ntegra tion/do cument s/gener icdocu ment/wc ms_145432 pd f>

(accessed 24- 03-2011)

776 STELL LR 2011 3

© Juta and Company (Pty) Ltd

using the term is to acknowledge t he state prior itisation on matt ers relating

to unemployment, while simultaneously li nking the discussion t o the well-

known t heme of social se curity. Used in this fashion, t he term is dened to

include both unemployment ins urance a nd unemployment assistance. It is

also inte nded to include both preventative and re-integrative compone nts of

unemployment protection – a concept wh ich may be viewed as being one

component of the broad notion of s ocial protection. Unemployment protection

would, for example, include state strateg ies to prevent employment loss as

well as attempts to integrate people into employment, s uch as public works

programmes. Unemployment secur ity is accordingly dened to be practically

synonymous with what is understood to be the unemployment protection-

specic aspe cts of social protection, i ncluding social secu rity strategies

focusing on the problem of unemployment (unemployment insu rance a nd

unemployment assistance), as well a s prevention and integ ration strat egies

directed at minimising unemployment. Skills development and t raining

activities are clearly linked to such strategies and could be combined with any

of the suggeste d sub-components of unemployment security.15 The proposed

denition also brings to the fore the possibility of a “right to work”, which

must be coupled with the developing notion of “decent work”.16

The term may be diag rammatically represented as follows:

15This aspect is dealt with in g reater de tail in A Govindjee, M Olivier & O Dupper “Activation in the

Context of the Unempl oyment Insura nce System in South Af rica” (2011) 22 Stell LR 205 205-227.

16In this p aper, the term “work” is used i n the same way th at the ILO has d efined the con cept, a s an

individua l responsibility and a social acti vity, frequently involving colla boration in a team and occupying

a centr al and d efining pl ace in p eople’s lives, de termining the sta bility and well-being of families and

communit ies and being a key to social integration The concept of “work” does not only refer to a paid job,

self-employme nt and running a business, but any form of economic activ ity that increases the abilit y of an

individua l and their family not ju st to survive but to develop As a re sult, it includes unpa id tasks related,

for example, to helping in the home, the range of activities in the infor mal economy and the care economy:

ILO Changing Patte rns in the World of Work: Report of the Director-Genera l (2006) v-vi as referred to in

ILO Skills Deve lopment through Commu nity Based Rehabilita tion (CBR): A Good Practice Guide (2008)

7 Also see ILO Re port of the Dir ector-General: R educing the Dece nt Work Deficit- A G lobal Challenge

(2001)5 The term “d ecent work” is conside red, below

UNEMPLOYMENT SECURITY 777

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This ar ticle is structure d in two main pa rts. The rst part provides a brief

overview of each of the components represented in the diagram above. In part

2, we discuss the two related terms of social secur ity and social protection, and

then t urn to a brief discussion of the cur rent unemployment i nsurance- and

unemployment assista nce systems in South Af rica (parts 3 and 4). In par ts 5

and 6 respectively, we examine the two sub-components of unemployment

protection, namely unem ployment prevention initiatives (includi ng the

training layoff scheme) and employment creation interventions (such as the

expanded public works programme and the wage subsidy for incentiv ising

the employment of the youth). This is followed by a brief explanation of the

concept of “decent work” i n par t 7. In the second part of the paper we turn to the

crux of the paper, namely a considerat ion of some constitutional per spectives

related to unemployment security matters. T he absence of direct statutor y or

constitutional provisions regardi ng the notion of unemployment security or

a right to work is highlighted. Three potential options for constitutional and/

or legislat ive refor m are considered, including an act ual amendment to the

Constitution of the Republic of South Africa, 1996 (“the Constit ution”) itself.

It is argued that such redress is in accordance with the notion of transformative

constitutionalism and could serve a s a pr incipled basis for the int roduction

of legislative and (further) policy developments aimed at achieving poverty

alleviation.

2 Comprehensive social security

Although there is no universally acceptable de nition of “social security”,

the concept h as tra ditionally bee n split into social assistance (non-contributor y)

and social insu rance (contributory) components.17 These components ar e

expected to combine so as to provide income protection and access to services

upon the occurrence of cer tain dened events.18 As indicated above, ILO

Convention 102 describes social secu rity a s guar anteeing a stable income

through med ical care, sickne ss benets, unemployment benets, old-age

benets, employment injur y benets, family benets, matern ity benets, and

invalid benets.19 So cial secur ity has been trumpete d as representing one

of the conditions for sustainable social and economic development, operating

as an economic, social and political stabiliz er, providing mechanisms to

alleviate and prevent poverty, reducing i ncome disparity to acceptable levels,

17Social insuran ce denote s contr ibutory- and ri sk-based sc hemes giv ing ri se to fixed benefit payments

aimed at income ma intenance Social assist ance refers to tax-base d benefit payments on a univers al or

targeted ba sis, aimed at mi nimum income -support (E St rydom “Introd uction to Social Se curity Law” i n

EML Strydom (ed) E ssential Social S ecurity Law (200 6) 1 6)

18Depart ment of Social Developmen t Creating Our Futu re 4

19ILO Convention 102

778 STELL LR 2011 3

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and e nhancing hu man capital and productivit y.20The development of

comprehensive social security systems in countries where only rudimenta ry

systems exist has been identi ed as being a key task to prepare global society

for future economic downt urns, as well as to achieve other objectives such as

the Millenium Development Goals, su stainable economic development and

fair globalization.21

Social security must also be distinguished from the broader conce pt of

“social prote ction”.22 This ter m has been used to describe a general system

of basic social suppor t which “is no longer linked to the regular employment

relationship, and which is founded on the conviction that society as a whole is

responsible for its weaker members”.23 The United Nations Social Prot ection

Floor I nitiative, for exa mple, is based on the pr inciple of progre ssive

universalism and seeks to ensure a base level of benets (or the so-called

“social protection oor”) for ever yone.24 In South Africa, it has been argued

that the term also encapsulates elements and rights related and ancillar y to

social security itself.25 As the Committee of Inquiry into a Comprehensive

System of Social Security for South Africa (the so-called “Taylor Committee”)

noted:

“Comprehensive social protection for South Africa seeks to provide the basic means for all people

living in the country to effectively participate and advance in social and economic life, and in turn

to contribute to social and economic development. Comprehensive social protection is broader than

the traditional concept of social security, and incorporates developmental strategies and programmes

designed to ensure, collectively, at least a minimum acceptable living standard for all citizens. It

embraces the traditional measures of social insurance, social assistance and social services, but

goes beyond that to focus on causality through an integrated policy-approach including many of the

developmental initiatives undertaken by the State.”26

The South African social security system itself (that is, even ignoring

broader so cial protection init iatives) is remark ably comprehen sive by a

middle-income developing country stand ard. While the system is la rgely

20See B Caracciolo “ Social Prot ection: An Instru ment for Poverty Reduc tion and Social Cohe sion” in S

Stocker (ed) European S ocial Watch Re port 2010 (2010)

for_povert y_reduct ion_and_so cial_cohesion ht ml> (accesse d 01-11-2011) The r ecent global economic

crisis has, for so me commentators , highlighted tha t investment in socia l security syste ms is an economic

need (Caracciolo “Social Security” in European Social Watch Repo rt 2010) The IL O found that the

employment ef fect of automat ic stabilisers , including s ocial transfe rs, were as i mportant a s some of the

stimulus pack ages introduced by countr ies as a response to the crisis Govern ments with social protect ion

systems in pla ce were found to be in a be tter position to co pe, as the impact on ho useholds was soften ed

ILO Protecting People, Prom oting Jobs: A Survey of Employment and Social Protection Policy Respon ses

to the Global Economic Cri sis Report to the G20 Leaders’ Summ it, Pittsburgh, 24 -09-2009 – 25-09-2009

(2009) 15 jobs pdf >

(accessed 22-10-2010)

21Caracciolo “ Social Securit y” in European So cial Watch Report 2010

22MP Olivier “T he Concept of Social Se curity” in M P Olivier, E Kalula & N Sm it (eds) Social Securi ty: A

Legal Analysis (20 03) 23 26

2326

24Caracciolo “Social Secu rity” i n European Social Watch Report 2010 O n the relat ionship bet ween this

initiative and the Inter national Social Secur ity Agency (ISSA) strategy to extend social secu rity coverage,

see ISSA Social Polic y Highlight18 (2011) 3

25Olivier “The Co ncept of Social Secur ity” in Social S ecurity: A Legal Anal ysis 26

26Committe e of Inqu iry into a Compreh ensive System of Social Security for South Africa Consolidated

Report of the Commit tee of Inquiry into a C omprehensive System of Social Securit y in South

Africa:Transfor ming the Pres ent – Protect ing the Futur e (20 02) 120

CountryPover tyPapers/Sout hAfrica/t aylor/report4 php > (accessed 01-11-2011)

UNEMPLOYMENT SECURITY 779

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formal employment-oriented (in par ticular as far as social insuranc e schemes

and ret irement provision are concerned), excludes many from participation,

and adopts a categorical and means-tested approach as far as social assistance

is concerned, numerous stud ies indicate that the system of social g rants have

contributed signicantly to reducing overall poverty and (income)27 inequality.

As a recent report note d:

“Not only do the grants have a signicant impact on poverty [at the lower poverty line] but they also

make a signicant impact on inequality… [T]he Gini coefcient on ‘pre-grant’ income is 0.03 higher

than when calculated on either reported income or simulated income.”28

The positive attributes of social tra nsfers have been conr med by evidence

which suggests that social transfers are an effective tool to prevent and ght

poverty.29 The evidence suggest s, in particula r, that social security t ransfers

increase domestic demand and encourage growth by expanding domestic

markets. While the assimilation of more people into the labour market is at the

heart of South Africa’s poverty reduct ion strategy, there remains a need for

programmes that provide income support to the unemployed and people t hat

are unable to work. Social as sistance cash grants provide income support to

people whose livelihoods are most at risk.30 The number of gr ant recipients

has increase d signicantly during t he past fteen years, par tly because

social welfare was previously targeted mainly at white recipients.31 Gra nts

are generally well targeted a nd mostly reach the poorest of the poor.32 For

example, 62% of social grants go to the poorest 40% of households and 82% to

the poorest 60 %.33 Almost fourteen m illion South Africans (ne arly a quarter

of the population) benet from one grant or anot her (se e table below).34

The post-apartheid government has been very active in reforming and

expanding the system of social g rants. A key aspect of the post-apartheid

scal expe nditure patter ns has the refore been a widening and deepeni ng of

South Africa’s social security system.35 While spending on most big-item

budget items such as educat ion and health has re mained fairly constant in

real term s, consolidated expenditure on social assistance ha s increased from

R30.1 billion (3.2% of GDP) in 2000/01 to R101.4 billion (4.4% of GDP) in

27See part 4 below for a d iscussion of the diffe rence between in come and non-income i nequality

28M Leibbrandt, I Woola rd, A Finn & J Argent OECD So cial, Employment an d Migration Working Pape rs

No 101: Trend s in South Af rican In come Dis tribution and Pov erty si nce the Fall of Aparthei d (2010)

66 For confi rmation of these findi ngs see H Bho rat, C van der Westhui zen & T Jaco bs Income and

Non-Income Ine quality in Post-Apart heid South Africa: Wh at are the Drivers and Possibl e Pol icy

Interventions? Development Polic y Research Unit (DPRU) Worki ng Paper 09/138 (2009) 44-56

29Caracciolo “So cial Security ” in European Soci al Watch Report 2010.

30On the po sitive impact of social grant s on work-seeking behaviour and employment, se e Departme nt of

Social Development Crea ting Our Future 11; M Samson “Social Cash Transfers and Employ ment: A note

on Empir ical Linka ges in Develo ping Countr ies” in OE CD Promotin g Pro-Poor Growth: Employ ment

(2009) 179 179-186

31K Pa uw &L Mncube Expanding the S ocial Se curity Net in South Africa: Opportunit ies, Cha llenges

and Constraints DPRU Working Paper 07/127 (2007) 2

dpru/work ingpapers/ pdf_files/w p_07-127 pdf> (accessed 0 6-10-2011)

32Bhorat et al Inco me and Non-Income Ine quality in Post-Apa rtheid SA 44

33The P residency Towards a Fiftee n Year Re view(200 8) 19

DownloadFi leAction?id=89475> (accessed 06-10-2011)

34National Treasu ry Budget Revie w 2010 (2010) 103

35Bhorat et al Inco me and Non-Income Ine quality in Post-Apa rtheid SA 44

780 STELL LR 2011 3

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2008/09.36 I n 2010, just over 2.5 million people received the old age grant,

almost 9.5 million children beneted from t he child s upport grant, and 1.3

million people were in receipt of the disabil ity grant.37 As Seekings notes:

“In no other country in the South does social assistance cover such a wide range of circumstances,

reach so many of its citizens or cost so much in relation to GDP.”38

SOCIAL GR ANTS BENEFICIA RY NUMBERS BY TYPE: 2005/0 6 – 2009/1039

Type of

grant

2005/06 2006/07 2007/08 2008/09 2009/10 % growth

(average

annual)

Old age 2 144 117 2 195 018 2 218 993 2 343 9952 534 082 4.3%

War veterans 2 832 2 340 1 963 1 599 1 248-18,5%

Disability 1 319 536 1 422 808 1 413 263 1 371 7121 310 761 - 0.2%

Foster care 312 614 400 503 443 191 476 394 569 21516.2%

Care

dependency

94 263 98 631 101 836 107 065 119 307 6.1%

Child

support

7 044 901 7 863 841 8 195 524 8 765 3549 424 281 7.5%

Total 10 918 26311 983 14112 374 77013 066 11813 958 8946.3%

However, as a poverty reduct ion strategy, this method i s nearing the

boundaries of its ef fective u se, given scal constraints.40 Var ious pr oposals

to extend social assistance coverage in South Africa have failed to nd favour

within govern ment circles, especially wit hin the National Treasur y.41

Acknowledgement of the reality of resource const raint has result ed in

increasing policy-focus being placed upon contributory social securit y

arrangements , si nce these arrangements seek to draw from a reasonable

proportion of ind ividual or family income and do not place a direct stra in on

the availability of state resou rces.42

36Leibbrandt et a l Expanding the Soc ial Security Ne t in SA 52

37See National Trea sury Budget Rev iew2010 105

38J Seeki ngs “Employment Guara ntee or Mi nimum Inco me? Workfare and Welfare in Developing

Countrie s” (2006) 2 Internati onal Journal of Envi ronment, Workplace a nd Employment 44

39National Treasu ry Budget Revie w 2010 105

40S van der Berg, R Burger, R Burger, M Louw & D Yu Trends in Poverty and Inequality Sinc e the Political

Transition DPRU Work ing Paper 06/104 (2006) 28 za/files /forum/2006/p apers/

VanderbergTrends_ in_Poverty pdf > (acce ssed 06-10-2011) This is one of the genera l char acteristics

of non -contributor y socia l secur ity a rrangements, namely that their effect is lim ited by a s carcity of

resources (Departme nt of Social Developmen t Creating Our Fu ture 4) In count ries such as Co sta Rica,

the eviden ce has shown t hat even unive rsal social s ecurity sys tems can onl y help reduce i nequality a nd

poverty if product ion regimes provide the requir ed funding, the formal jobs and the dema nd for skills (JM

Franzoni & D Sanch ez-Ancochea “ The Product ive Bottlenec ks of Prog ressive Social Policies: Lesson s

from Costa R ica and Beyond” (2011) Feb Crop Poverty Brief 1 2)

41For example, t he Departme nt of Social Developm ent considered t he introduct ion of a condition al social

assistanc e grant for the long-te rm unemployed The proposed valu e of the g rant would have been l ow,

and would h ave bee n cond itional upon participation in labour activat ion pr ogrammes such as skills

development pr ogrammes a nd special employment p rojects (see O Dupper “Actualités Ju ridiques

Internat ionales: Afr ique du Sud” (200 9) Bulletin de D roit Comparé du Travail et de la Securité Sociale

335 337 The Taylor Commit tee suggested a simil ar intervention, a rguing that a flat- rate social assista nce

grant (the so- called “Basic In come Grant”) cou ld be introduced , coupled with act ive labour policies (see

Committe e of Inquiry in to a Comprehensive Syst em of Social Secur ity for SA Transforming th e Present

– Protecting th e Future 71)

42Depart ment of Social Development Creating Our Future 4 The proposed national reti rement and national

health insu rance systems a re examples of this mi ndset

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The realis ation of the nancial limitations of a society reliant upon social

grants has left a glaring gap i n South Africa’s social security system: the

exclusion of the st ructurally- or t he long-term unemployed from s ocial

security coverage. The re is no social assistance grant that par ticularly targets

persons who have either exhausted their limited unemployment insurance

benets, or those who have never been formally employed and thus never

contributed to the s ocial insurance system.43 Stru cturally unemployed youths

and ad ults receive lim ited or no support from the existing social assista nce

framework.44 I n addition, as will be illustrated, the existi ng unemployment

insurance fra mework is woefully insufcient for purposes of dealing with this

group of people.

3 Unemployment Insurance in South Africa45

The Unemployment Insurance Act 63 of 2001 (“UIA”)46and Unemployment

Insurance Contr ibutions Act 4 of 2002 (“UICA”)47 are applicable to al l

employers and employees except for t hose specically excluded. Unless

specically excluded, participat ion i n the unemployment insur ance scheme

is compulsory.48

The U IF recently a nnounced that it had re commended certai n legislative

changes to the Minister of Labour. Three of those changes relate to the

inclusion of some excluded categories, while the other two relate to the

benet replacement rate49 and the benet per iod50 res pectively. As far as

the inclusion of cur rently excluded categories a re concerned, t he Fund

recommended that public ser vants, legal migr ants and those in learnersh ips

43Although social gr ants cover those under the age of 18 and t hose over the age of 60 who are unable to

support themselves, as wel l as all disabl ed person s, adult s between the age of 19 and 59 who a re not

disabled are effectively not ent itled to any social assistance – even whe n they are unable to sup port

themselves

44Departme nt of So cial Developme nt Creating Our Future 8 Also se e Governm ent of t he RSA Decent

Work Count ry Progra mme 9 The main sour ce of incom e for this group of people is indirect, meaning

that they rely on the labou r incomes of other household memb ers, or through a proce ss known as “benefit

dilution”, rely on social grants rec eived by other household memb ers (in pa rticular the old-age p ension

and the child sup port grant) It has been p ointed out that relia nce on such private safet y nets can generate

disincenti ve ef fects that can prolong unemploy ment, including low labou r-market mobility and the

reduction of job- search activit ies (Klasen & Woolard (200 8) J African Economie s 17)

45The follow ing paragr aphs are in the m ain based on O Dup per, MP Ol ivier & A Govindjee “ Extending

Coverage of the Unemploy ment Insura nce-System in Sout h Africa” (2010) 21 Stell LR 438 438-462

46The Act provides for unemploymen t, sickness , adoption, maternit y and s urvivor b enefits in respect of

workers and thei r dependants

47This Act establishes the Unemploym ent Insura nce Fund (“ UIF”) Employer s and employee s contribut e

equally to th e UIF

48ET van Kerken & MP Olivier “ Unemployment Insur ance” in MP Olivier, E Kalu la & N Smit (eds) Social

Securit y: A Legal Analysis (2003) 415 435

49The current graduated rate of 38- 60% of previous income, although a rare example of th e impor tant

principle of solida rity in the South Af rican social secu rity system, is never theless not in complian ce with

ILO Convention 102, which prescribe s a minimu m income replacement rate of 45% The recommendation

by the U IF, reported ly accepted by the Min ister of La bour, that t he minimu m income re placement rate

be i ncreased from 38% of f inal mont hly sala ry to 45% would align South A frican with i nternational

precedent L En sor “Strong Finan ces may widen UIF Be neficiary Net” B usiness Day (13-09-2010)

50The Mini ster of Labour h as apparently also accepted the recommend ation from th e UIF that t he benefit

period be extended from the cur rent maximum benef it period of 238 days (about eight months) to 365 days

(twelve months) (Ensor Bu siness Day (13- 09-2010))

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be included under its umbrella.51 It has been repor ted that the Minister has

agreed to the inclusion of public servants, which would cost the state about

R3 billion annual ly.52

While the UIA has extended its s cope of coverage over time, much more

could be done to reduce exclusion and margi nalisation in the u nemployment

insurance syste m. The reality is that the UIF cur rently only covers about 10%

of Sout h Africa’s unemployed.53 This is due to th ree main reasons. In the

rst place, the current maximum be net period under the UI A is 238 days.54

Studies indicate that almost half (44%) of the unemployed with previous work

experience have been unemployed for more than a yea r, which means that they

would have exhausted thei r benets ha d they were ever eligible for them.55

Second, slightly more than half (55%) of t hose unemployed report that they

have never worked and have therefore not contr ibuted to the UIF.56 Finally,

the UIF continues to exclude ce rtain categor ies of workers from coverage,

most notably the atypically employed, particularly independent cont ractors,

so-called “depende nt contractors”, and t hose who are self-e mployed or

informally employed;public ser vants in t he national and provincial spheres

of govern ment; learner s; a nd certa in categories of migrant workers.57

Therefore, wh ile the UIF clearly has an important role to play in providing

replacement income to the short-term unemployed w ith work experience,

the vast majority of the u nemployed fall outside of this system. This lacuna

has resulted in attention being thrust upon the need for some form of non-

contributory u nemployment assistance i n South Africa.

4 Unemployment assistance in South Africa?

Social a ssistance to low-income households is the pri mary way in

which government tries to elim inate income poverty. The Creating Our

Future government discu ssion pap er launched by the Depar tment of So cial

Development highlights the gaps in the social assistance framework i n South

Africa with respect to structura lly unemployed “youth” (which it denes as

people aged 19 to 25 years of age) and structur ally unemployed “adults” (aged

51Ensor Busin ess Day (13-09-2010)

52Ensor Busine ss Day (13-09-2010) T he e xclusion of public servants has alw ays been based on the

assumption that the ri sk of unemployment for p ublic servants i s either low or non-ex istent This

assumption may be challenged, both leg ally and factually The job security afforded t o South A frican

public se rvants is not as adequate as it is assum ed to b e The r isk of u nemployment for private sector

workers is often not greate r than that of public servants in South Afr ica In addition, it is doubtful wheth er

the exclusion of public ser vants from the U IF is constitut ionally tenable: see, for exa mple, Olivier & Van

Kerken “Unemploy ment Insuranc e” in Social Secu rity: A Legal Analysis 438- 440

53M Leibbra ndt, I Woolard, H McEwen & C Koe p Employment and Inequalit y Outcomes in South Afr ica

Southern Africa Labour and Developmen t Research Unit & School of Economics, University of Cape

Town (2010) 36 (accessed 23- 03-2010)

54S 13(3) of the U IA provides that unemploym ent insura nce benefits accrue at a rate of o ne day’s benefit

for every co mpleted six days of employment as a contributor subject to a ma ximum accr ual of 238 days

benefit

55Leibbrandt e t al Employment and In equality Outco mes in South Afric a 36

5636

57Dupper et al (2010) Stell LR 448-459

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26 to 59).58 The document acknowledges the shor t-term, inadequate benets

currently provided by the UIF and proposes a “conti nuation benet” (at a value

of 50% of a minimum wage still to be deter mined) for a maximum three year

period for people who ex haust their unemployment insurance entitlements

without having been able to nd suit able employment.59 I mportantly, it is

proposed that re cipients of the continu ation benet would need to participate

in labour activation programmes where these have been implemented, possibly

including skills development programme s, special employment projects with

or w ithout a skills development component and participation in sur veys to

evaluate the causes of continued u nemployment.

A conditional social assistance grant, at a value equivalent to one f th of the

proposed continuation benet, is proposed for unemployed “adults” who have

never been in formal employment a nd, consequently, have never qualied

for unemployment ins urance.60 These proposals ap pear to be ba sed, in

part, on the proven p ositive correlation between receipt of a social grant

and a person’s atte mpts to nd employment.61 As such , the Department of

Social Development suggests that reforming the social assistance system in

this matter would prevent households w ith unemployed bre adwinners f rom

falling into extreme poverty, while simultaneously assisting their re-entry

into formal employment (both because of the conditionalities at tached to the

proposed benets, and because of the apparent relationship between receipt of

social assistance and t he search for employment).

The Creating O ur Futu re docu ment also promotes the idea of a

conditional social assistance grant to unemployed youth, at a value of 30%

of the unemployment i nsurance conti nuation benet. Conditions for such a

grant would include assessments by a labou r and skills advise r, su ccessful

participation in skills-acqu isition prog rammes, part icipation i n employment

structu red to e nhance skills development, a nd participation i n surveys

to evaluate the continuation of u nemployment.62Failure to participate

meaningfu lly in the pr ogramme, or to achieve set sk ills acquisition goals,

would be met with punishment in the form of a reduced gr ant payment for set

periods.

It has been argued that the low value of such continuation benets or grants

will act as a deter rent agai nst the problem of grant dependency and t hat

implementing such proposals between now and 2015 would eradicate poverty

experienced by over one th ird of the population of the country.63 It must be

noted, however, that the feasibility of introducing such a costly form of social

58Depart ment of Social Development Creati ng Our Future 21 T he document specif ically indicates that th e

proposals con tained therei n do not represent gover nment’s final posit ion on any matter

59Depart ment of Social Develop ment Creating O ur Future 19-20 The proposals make two suggestions in

this rega rd: either a c onditional cont inuation benef it of up to t hree years to be funde d from the e xisting

UIF sur plus; or, alternati vely, an unlimited , reduced-value cond itional continua tion benefit to be f unded

out of general reven ue

60Departm ent of Social Development Cre ating Our Future 18

61Depart ment of Social Developm ent Creating Our Future 12; Samso n “Social Cash Tran sfers and

Employment” i n Promoting Pro-Po or Growth 179, 180-185

62Depart ment of Social Development Cr eating Our Futur e 20

6317-18

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assistance at this stage of South Africa’s development is questionable and does

not appear to have found signicant support at National Treasury level. There

is also no available informat ion to indicate that the UI F plans to implement

such proposals (using the cu rrent sur plus of the Fund, for example) in the

foreseeable future.

5 Unemployment Prevention Strategies

Despite numerous amend ments, the current UIA still reects its origins

as an Act designed to deal with cyclical unemployment i n the 1940s.64 In

essence, the UIA retains the Fund as one designed to cater for the li mited

requirements of a histor ically privileged workforce not seriously threatened

by unemployment.65 Although it is questionable whether a fund base d upon

employer and employee contributions should be expected (or, indeed, was

ever intended) to address large-scale problems related to unemployment,

the UI A has rightly bee n criticised for its failure to appropr iately contribute

to preventing and combati ng unemployment as well as for its inability to

reintegrate tho se who have become unemployed in the labour market.66

The coupli ng of reintegration measures with compensation (as comp ared to

compensation i n isolation) would enhance the prospect of lasting change for

the prese ntly unemployed. However, there is little i nnovative attempt in the

UIA to link entitlement to unemployment benets with reintegration into

the labour market. For example, in contrast with t he previous legislation,67

benets are no longer available in the event of partial unemployment68 and

temporary sus pension of work. Although it is required69 of an applicant

for benet s to r egister as a work-seeker with a labour centre,70 and despite

the fa ct that t he refusal, without just reason on the part of an e mployee, to

undergo tr aining and vocational couns elling for employment under a ny

approved scheme is visited with disentitlement to unemployment benets,71

there is no fu rther evidence of support for labour market integration in the

UIA. These limitations are compounded by institut ional cha llenges, human

rights d ifculties, and general problems of implementation. The cumulative

effect of these factors complicates the ability of the UIF to act as a catalyst for

employment activation. Most signicantly, the UIA contai ns little in terms of

64P Benjamin Labo ur Market Regulat ion: Internatio nal and South Afric an Perspectives (20 05) 39

65 Committe e of Inquiry int o a Comprehensive Syst em of Social Secur ity for SA Transforming the Present

– Protecting th e Future ch v

66See, for example, Olivier & Van Kerken “Unemploy ment Insurance ” in Social Securit y: A Legal Analysis

458

67Unemployment In surance Act 30 of 1966

68For exam ple, unli ke the previous Act a nd except for t he position of domestic wo rkers, t he UIA does

not contai n a provision that a contri butor employed b y two employer s simultaneo usly, who lost

one employ ment and continues in t he other, does not lose h is or her entitle ment in respect of the lost

employment simply because h e or she reta ined th e other employment (s 35(11) of t he Unemploy ment

Insuran ce Act 30 of 1966)

69S 16(1)(c) of the UIA

70Established u nder the Skills D evelopment Act 97 of 1998

71S 16(2)(b) of the UIA

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a st atutory fr amework for comprehensive unemployment policy-mak ing, in

particular i n the area of preventing and combating unemployment.72

However, despite the fact that South Africa does not have a single, national

employment policy, a numbe r of initiatives have be en undertaken to prevent

unemployment a nd generate em ployment oppor tunities, the latter pr imarily

by means of public works program mes. Both of these broad policy directions

will now receive brief attention.

While t he idea of bri nging people who have become unemployed back to

work through act ive measures (so-cal led “labour activation measures”) is far

from new (at least i n developed economies), t heir application i n developing

middle-income or low-income countries may b e problematic for a number

of reasons, i ncluding institutional and capacity constraints, as well as the

lack of job opportu nities into which the unemployed may be “activated”.73

Nevertheless, there is sign icant support within governme nt for making

participation in act ive lab our market policies a precondition for the receipt

or the continuation of benets – whet her social insurance or social assista nce

benets.74

For example, the recent Employment Services Bill contains a number

of ambitious and va ried goals all aimed at promoti ng active labour market

policies. These include reducing unemployment , improvi ng ac cess t o

the labour market for all work-seekers, providing opportunities for work

experience, im proving the employment prospect s of people with disabilities,

assisting the unemployed, facilitating access by workers to training, improving

workplace productivity, and promot ing job security.75 These objectives are to

be achieved by providi ng “comprehensive and integrated public employment

services”, co-ordinating the act ivities of public sector agencies engaged in

the provision of employment serv ices, encouragi ng partnerships between the

public and private sector s of the economy to provide e mployment se rvices,

providing a regulator y framework for the operation of private employment

agencies, and promoting a constructive relat ionship between these agencies

and the public employment serv ice.76 The draft provisions relat ing to private

employment agencies reects an evident attempt to alig n Sout h Africa’s

international obligations in t erms of the ILO Unemployment Convention77

to endeavours to co-ordinate at a national sca le the operations of public and

private employment agencies where they exist.

72Olivier & Van Kerken “Une mployment Insur ance” in Social Se curity: A Legal Analy sis 418

73For a more detailed d iscussion, see Govi ndjee et al (2011) Stell LR 205-227

74See Depar tment of Social Developm ent Creating Our Fut ure 19:

“Conditiona l social tr ansfers can link gr ant recipients to a ra nge of related government programmes

and initi atives which for m part of the common de velopmental packa ge These can include: 1

Participat ion in prima ry a nd seco ndary education; 2 Skills development targeted at the yout h; 3

Skills development t argeted a t the long-term u nemployed; 4 Preventive healthcare program mes; 5

Job placement prog rammes; and 6 Spe cial employment prog rammes ”

For a more detailed d iscussion, see Govi ndjee et al (2011) Stell LR 205-227

75Cl 2(1) of the Employment Ser vices Bill

76Cl 2(2)

77ILO Unemployment C onvention 2 (1919) (“ILO Unemployment Convention”) Rat ification took plac e on

20-02-1924

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There are also a variety of measures in place that a re aimed at preventing

people from becoming u nemployed in the r st place, including strong

protection against d ismissal. One of the most innovative policies has been

the so-called “training-layoff scheme”, introduced during the aftermath of

the 2008 international economic crisis. The scheme aims at avoiding the

retrenchment of workers whose employers would ord inarily have retrenched

them and instead allows workers to temporari ly suspend their normal work to

take par t in train ing programmes. D uring the per iod of training, the worker

agrees to forego his or her normal wage in return for a training allowance. The

training allowance is set at 50% of t he worker’s salar y subject of an overall

cap of the UIF t hreshold. The amount is guara nteed for a thr ee month period

with the possibility of an additional three month extension. A National Jobs

Fund was established in 2009 w ith an initial alloc ation of R2.4 billion to help

nance the Training L ayoff Scheme.78

6 Policies aimed specically at creating work

In recent years, various m acro-economic policies of the government have

been developed to foster job-rich growth and t o address persist ent high levels

of unemployment, poverty and unequal grow th. For example, the Accelerated

Shared Growth Initiative for South Africa (“AsgiSA”) se eks to create an

environment of, and opportunities for, an inclusive ec onomy through the

promotion of more labou r absorbing economic activities. In addition, the

government’s Indust rial Policy Framework and the second Industrial Policy

Action Plan (“IPAP2”) are aimed at facilitating economic diver sication

beyond the current reliance on tradit ional commodities and non-tr adable

services towards a more la bour absorbing industrialisation path.79

The evaluation of these long-term employment gener ating st rategic

policies falls beyond the scope of this paper. However, it is clear that there

is an urgent need for intervention s that alleviat e the cur rent unemployment

situation. According to the ILO, these inter ventions should include income

support to the unemployed and underemployed (working poor) in the form

of cash transfers, as well a s certain forms of basic employment guarantees

in t he form of public works or similar prog rammes.80 While the possibility

of cash transfers w ill receive separate and more detailed analysis later in this

paper, two programmes aimed at ensu ring basic employment guarantees

merit attention here. These are the labour-intensive public works programme

(also k nown as the “Expanded Public Works Programme” or “EPWP ”) as

well as an employment-guarant ee programme along the lines of India’s much

78See, in general, L Ra mutloa “A Guide to the Training Layoff Scheme” (20 09) Department: Labo ur 1 1-11

scheme> (access ed 08-09-2011)

79See RSA Decent Work Countr y Progra mme 12 The Progr amme was launched by the Government of

the R epublic of South Africa, the Internatio nal Labou r Orga nization, Representa tive Employer s’ and

Workers’ Organisa tions and the Commu nity Constit uency on 29-09-2010

80The ILO cons iders both incom e support and e mployment guara ntees to be amon g the foundation s of the

social protec tion floor ILO World So cial Security Re port 2010/2011 63

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touted National Rur al Employment Guarantee Scheme (“N REGS”) (called

the “Community Work Progra mme” or “CWP”).

The EPWP was lau nched i n 2004 and aims to create productive em ployment

opportun ities by increasing the labou r intensity of all government programmes.

The design of the EPWP seems to have been informe d by proposals set out in

the World Bank’s 2001 World DevelopmentReport.81 However, it has been

pointed out that the World Bank proposals were meant to address problems of

cyclical unemployment, not pr oblems of struct ural and chronic unemployment

as is the case in South Af rica.82

In ter ms of the progr amme, all governme nt bodies and state cor porations

are required to endeavour to increase t he use of unskilled labour. Through

the use of public expend iture, temporary, (generally) unskilled employment

is created for the jobless. This tem porary employment is coupled with on t he

job skills development and traini ng. The intention is that this w ill provide the

participants leaving the programme with a b etter chance of nding regular

employment.83 The size of the EPW P has grown considerably since its

inception, and the intention is to increa se the scale of the project to provide

the f ull-time equivalent of more than 400 000 jobs a year over the medium

term.84 While the ability of the EPWP to have a positive impact on t he

unemployment gures have bee n questioned,85 there is general agreement

that the EPWP has t he potential to make a signicant contr ibution to poverty

alleviation through t he provision of short-term income su pport.86

The CWP was initiated in 2007 by the Second Economy Strategy Project

– an initiative of the Presidency. T he design phase of the CWP was i nitially

implemented without direct control of govern ment, na mely with donor funding

and strategic oversight from a Stee ring Committee comprising represent atives

of the Presidency and the Department for Social Development, a nd later also

from National Treasu ry, the Depa rtment of Cooperative Governa nce and the

Departme nt of Public Works.87 T he CWP offers two days of work per week ,

81World Bank World Development Repor t (200 0/2001) See also Seek ings Employment Guar antee or

Minimum Incom e? 15

82Seekings Emp loyment Guarant ee or Minimum Income? 15

83Leibbrandt et a l Employment and Ine quality Outcom es in South Africa 36

8437

85For example, Seekin gs points to the fact that mos t of the job opportunit ies are typically of shor t duration,

and the traini ng component suffers from gen eral deliver y problems typical of all gove rnment t raining

programm es (Seekings E mployment Gu arantee or Mini mum Income? 15) I n addition, while the EPW P

provided 14 million “work op portunitie s” between 2004/05 and 2008 /09, it has been pointed out that

the number of f ull-time person years of work created is about o ne qua rter of t he numb er of “work

opportu nities” repor ted as a res ult of the short- terms natu re of these opp ortunitie s See Leibbran dt et al

Employment an d Inequality Out comes in South Afr ica 36

86Leibbrandt et al Employment and Inequali ty Outcomes in South Africa 37 According to the latest available

figures , the EPWP created 643 116 work oppor tunities in the 2010-2011 financial year (Government

Communica tion and Inform ation Syst em “EPWP a C atalyst for Decent Work O pportunit ies” (23-0 6-

2011) BuaNew s <htt p://www buanews gov za/news /11/11062311351001> (accessed 06 -10-2011))For a

more detaile d evaluation of the ben efits and drawba cks of the EPWP, see Cooper “ Women and the Right

to Work” in Women’s Social and Eco nomic Rights 257-262

87K Ph ilip E mployment Guarantee s: Innova tion a t the Interfac e bet ween S ocial and Ec onomic Policy

(2010) 7 paper prepared for the conference The G lobal Econom ic Crisis and So uth Africa:L essons in

Long-Run Econom ic Growth and Development, Johan nesburg, October 2010

ac za/research_units/dpru/DPRU_Conference_2010/Conference_Papers/Philip%20Employment%20

Guarante es%20DPRU%20TIPS pdf > (accessed 25- 03-2011)

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and p rovides 10 0 days of work per person spread throughout the year. The

programme targets unemployed and underemployed people and is a rea–based,

meaning that it is implemented in a dene d local area or site. A site operating

at full capacity offers work opport unities to 1 00 0 people.88 While the CW P

is still small in compa rison to the Indian NREGS that it is meant to replicate,

it has nevertheless grow n in less than two years from 1 500 par ticipants in

April 2009 to almost 83 000 pa rticipants by March 2011, which demonst rates

its potential to grow to signicant scale, and to mobilise the local partnersh ips

and capacities requi red to do so.89 In addition, with a labour-intensity of 65%

at site level, it is highly cost effect ive. The a im is to establish a presence for

CWP in every municipality by 2014, which could provide as many as 237 000

work opportun ities.90

7 Decent work creation

Given the scal const raints which hamp er the possibility of expanding

social assistance coverage in South Af rica, coupled with other concerns

pertain ing to the creation of a welfare -dependent society, it has b een argued

that the stat e should place renewed emphasis on the i mplementation of

complementary policy measures s uch as the strengthen ing of labour m arket

policies and improving the education system. This would make it easier for

labour ma rket entrants to secure employment which in tur n “would make it

easier to wean the South African society off the social secur ity sy stem that

we so desperately dep end on”. 91 On a political level too, the govern ment has

recognised that a ddressing all the challenges facing the cou ntry, including

growing the economy and reducing t he high rates of pover ty, inequalit y and

unemployment, as well a s improving the livelihoods of all South Africans,

requires a “developmental state” with the capacity to actively intervene to

achieve these goals.92

The creation of dece nt work op portunities serves the dual objective of acting

as a complementar y policy measure to the well-established socia l security

system, as well as being a driving force behind t he attempt to actually cr eate

a tr ue developmental state in South A frica.93 The conc ept of “decent work”

is based on the underst anding that work is

“not only a source of income but more importantly a source of dignity, family stability, peace in

community, and economic growth that expands opportunities for productive jobs and employment.

The goal is not just the creation of jobs, but the creation of jobs of acceptable quality.”94

88K Mo tlanthe Address by Deputy Preside nt Motl anthe (22-03-2011) a public address in the National

Council of Provinces, 22-03-2011

84&tid=30466 > (accessed 06-10-2011)

89Philip Employ ment Guarantee s 8

90Motlanthe Address by De puty Presiden t Motlanthe

91Bhorat et al Inco me and Non-Income In equalityin Post-Ap artheid SA 56

92O Edigheji “Constr ucting a Democratic Develo pmental State in South Afr ica: Potentials and Challen ges”

in O Edigheji (ed) Con structing a Dem ocratic Develo pmental State in So uth Africa (2010) 1 1

93On the decent wor k deficit, see ILO Red ucing the Decent Work Def icit 7-12

94RSA Decen t Work Count ry Progr amme 5; IL O Skills-D evelopment through C BR 7 For fu rther

informat ion in this regard , see ILO Decent Work Agen da org/global/about-the-ilo/dece nt-

work-agenda/l ang--en/ind ex htm> (accessed 06 -10-2011)

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The decent work ideal has been encapsulated in the objectives of promoting

fundament al principles and r ights at work, promoting employment and

income opportunities, expanding and improving social protection coverage

and promoting social dialogue and tripartism. Decent work offers a way

of combining employment, r ights, social protection and so cial dialogue

in developmental strategies.95The Sout h Africa Decent Work Countr y

Programme represent s the culmi nation of a consultative process between

the ILO, the South African government, business and l abour (through the

mechanism of the National Economic Development and Labou r Counci l)

in order to inter nalise and ope rationalise key inte rnational principles which

facilitate decent work en hancement in this countr y.96 T he priorities and

strategic focus of the South Africa Decent Work Country Programme intersect

with the ILO strategic objectives and key outcome areas as outlined in the

ILO Strat egic Policy Framework (2010-2015)97 a nd the ILO Prog ramme and

Budget for the 2010-2011 Biennium.98

In 2005, the United Nations Millenium Development Goals Summit agreed

on the i nclusion of a sp ecic target for decent work, namely to “achieve full

and productive employment and decent work for a ll”.99 One of the key

elements of the d evelopment agenda of t he government in South A frica is to

eradicate poverty and unemployment throug h the promotion of decent work

and employment.100

Despite the South African economy enjoying relatively strong economic

growth during the rst decade of the twenty rst century, the economy has

seemingly b een unable to create s ufcient employment opportu nities.101

In order to attempt to address this a nomaly, the past few years has seen a

95ILO Reducing th e Decent Work Defici t 11

96RSA Decent Work Cou ntry Program me 4

97ILO St rategic Poli cy Framewo rk 2010-2015 (Thre e Hundred and Fou rth Sess of the Governing Body,

March 2009) 5-25

98ILO Programme and Budget for the Biennium 2010-2011 (2009) The priorities of the Decent Work Countr y

Program me also respond to other g lobal and regional commit ments t o which South Africa is a part,

notably: the ILO De cent Work Agenda for Africa: 2007-2015 (Eleventh Af rican Regional Meet ing, Addis

Ababa, Apr il 2007)

(accesed 06-10-2011); African Un ion Ouagadougou D eclaration and Pla n of Action on Employm ent and

Poverty Alleviation (African Union Extr aordinary Summit on Unemploymen t and Pover ty Allev iation

in Af rica, O uagadougou, Burkin a Faso, 0 8-09-2004- 09-09-2004)

EMPLOYMENT/decla ration%20on%20employ ment%20and%20 poverty%20al levaition pdf > (accessed

06-10-2011), and the SADC Regional Ind icative Strategic D evelopment Plan (2008)

index/b rowse/page/104> (accessed 06 -10-2011)

99Para 47 of UN GA 2005 World Summit Outcome R es 60/1 U N GAOR (2005) UN Do c A/60/L 1 This

commitme nt was with di rect reference to the fir st Millenium Development Goal of eradicatin g extreme

poverty and hu nger Recon firmed in pa ra 70 of UN GA Kee ping the Promise: United t o Achieve the

Millenium D evelopment G oals Res 65/1 U N GAOR (2010) UN Doc A/60/PV 9

mdg/summ it2010/pdf/outcome_doc umentN1051260 pdf> (accesse d 19-10-2010)

The ILO Decl aration on Socia l Justice for a Fair G lobalisation in cluded a framework for the

implementat ion of the four pilla rs of decent work at internationa l, regional and n ational levels (IL O ILO

Declaratio n on Social Justice for a Fair Globali sation (2008) 5 -7

dgo/download /dg_announ ce_en pdf> (acc essed 22-10-2010))

100RSA Decen t Work Country Prog ramme 5

101Governme nt of the Republic of South Afr ica The New Growth Path: The Fr amework (2010) 3 The ILO’s

implementat ion of its “decent work for all” programme has been criticised for its overwhelming focus

on “decency ”, as opposed to a focu s on “work for all” (see Cooper “Women and the R ight to Work” in

Women’s Social and Economi c Rights 251)

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heightened policy focus on the creation of decent work through a new growt h

path in South Africa.102 It is now clear that t he creation of decent work is

practically at the centre of current econom ic and social policy ambition.103

The number and quality of jobs created is presently entrenched as the r st

indicator of success of the so-c alled “ New G rowth Path”, which se eks to direct

limited state resource s and capacity at activities that maxim ise the creation of

decent work opport unities.104 This advancement in the number of quality job

opportun ities is a key component of the pre sent conceptualisation of South

Africa as a developmental stat e.105

In support of th is, the 2011 Budget Spee ch reected an expansion of social

protection initiatives as well as a strong enhancement of employment creation

strategies.106 I n particular, a R 9 billion jobs fund was set aside over the next

three years to co-nance in novative public- and private -sector employment

projects, with R73 bil lion ear marked over the same period for c ontinued

support of the expanded public works programme.107Manufact uring

investment oppor tunities with a focus on job- creation potential received tax

breaks of R20 billion and a targeted com mitment to youth e mployment was

backed by a R5 billion wage subsidy allocation.108

The re cent proposed amendments to South A frica’s existing labour

legislation, as well as the proposed intr oduction of new employment-centred

law and the reconsideration of broad-ba sed black economic empowerment

provisions is a consequence of this renewed focus, across all spheres of

government, on job creation.109

Such developments raise a number of difcu lt issues. For example, there is

arguably a trade-off required in order to balance attempts to create work for

everyone who seeks it aga inst the concept of “decent work” provision.110 The

capacity of the UIF to adequately a ddress the mala ise of the st ructurally or

long-term unemployed is a serious concern, as is t he sust ainability of increased

social grants provision, d espite their positive attributes. The efcacy of

unemployment prevention strategies and policies aimed specically at creating

work raise further questions. T he next part of t his contribution attempts to

102See, for e xample, RSA New G rowth Path 1; JG Zum a State of the Nation Address by His Excelle ncy JG

Zuma, President o f the Rep ublic of South Afri ca, 03-06 -2009 1 a public ad dress at the Joint Sitting of

Parliament at Pa rliament, Cape Town

103RSA New Growt h Path 1; P Ghordan 2011 Budget Speech (2011) 41

104RSA New Growt h Path 6 At an inter national level, for example, the United Nations Chief E xecutive

Board launch ed the “Global Jobs Pac t” in 2009, aimed a t focusing decision -makers’ attent ion on

employment measures and decent work as the foundation for long-term economic recovery The key

component of the Global Jobs Pac t is employment p romotion coupled w ith social prot ection (see United

Nations Departm ent of Economic and Social A ffairs The G lobal So cial Cr isis: Repo rt on the World

Social Situ ation 2011 (2011) UN Doc ST/ESA/334 7-9)

105RSA New Growt h Path 28

106Ghordan 2011 Budget S peech 3

10716-17

10817 In total, an amou nt of R1469 bi llion was reserve d for social protect ion-related matte rs

109E Patel Comments in the State of the Nati on Address Debate, Nation al Assembly, by Minister of Economic

Developmen t Ebr ahim Pa tel (15-02 -2011) a public add ress to t he Nat ional Assembly in Parliament,

Cape Town, 15-02-2011

d=28906> (accesse d 08-09-2011)

110Cooper “Wome n and the Right to Work” in Wome n’s Social and Economic Rights 256-257

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contextualise the se matters against the backdrop of the Con stitution, in order

to lay the foundation for the concluding arg uments advanced.

8 The absence of a constitutional or legislative provision

regarding unemployment security or a right to work

The Constit ution was adopted so as to est ablish a society ba sed on

democratic va lues, social ju stice and fund amental human r ights.111 The

Preamble sp ecically refers to the rationale of improving the quality of life

of all citizens and the liberation of the potential of each person. In addition

to important constitutional values such as human dignity, t he achievement

of equality, non-ra cialism and non-sexism, the founding provisions of the

Constitution include the a dvancement of human rights and f reedoms as a

constitutional value.112 T he Constitution is characterised by a broad-ranging

Bill of Rights, which includes socio-economic and environmental rig hts.

The state must respect, pr otect, promote and full the rights in the Bill of

Rights.113

It is somewhat sur prising, given the large-scale problem of unemployment

and the state prioritisation of employment creation activities, that the

Constitution does not contain a provision perta ining to “non-social secur ity”

aspects of unemployment security (as dened above).114 There is also no

designated right to work contai ned in the Bill of Rights.115

The right of acce ss to social security and appropriate social assistance

contained in section 27 of the Const itution may not, strictly speaking, be

read in such a manner so as to automatica lly incor porate all components

of the broader notion of social protection.116 The te rm “social security” is

normally understood in a relatively nar row sense. The social insurance and

social assistance components of social security are, simi larly, lim ited by

the manner in which they are general ly conceptualised and u nderstood in

practice. Employment cre ation initiatives would, for example, be excluded

from the ambit of section 27. Employment protection interventions such as the

training layoff scheme would als o not be covered. The limited social i nsurance

benets available in cases of unemployment would be included, as would any

111Preamble to t he Constitution

112S 1

113S 7(2)

114For an example of intensive investment by the Depart ment of Labour (involv ing R35 billion f rom the

UIF and R27 billion from the Comp ensation Fund), via the Public Investm ent C orporation, in the

creation and sust ainability of jobs, see Govern ment Comm unication and Infor mation Syste m “Labour

Dept Ploug hs Billions into Job Creat ion” (08-07-2011) BuaNews

news/11/11070809351001> (ac cessed 06-10-2011)

115A Govindjee “Assist ing the Unemployed in the Abse nce of a Legal Framework: The Next Front ier for the

Eastern Cape Benc h?” (2011) 25 Speculum Juris 86 105 Als o see Cooper “Women and the Right to Work”

in Women’s Social and Econo mic Rights 246

116On the need for soc ial securit y systems t o move towards integrated forms of socia l protection, see ILO

“Social Secur ity and the Rule of Law” in General Sur vey concerning So cial Security Ins truments in light

of the 2008 Decl aration on Social J ustice for a Fair Global ization Report I II (Part 1B) (2011) 11 22 T he

idea th at social security should serve as a mean s, among others, for promoti ng employmen t and m ust

be co -ordinated with other mean s of e mployment a nd social policies serving the goal of employ ment

protection ( but is not synonym ous with unemploy ment security) is a lso clear from a con sideration of the

ILO Employment P romotion and Prote ction against Unem ployment Convention 168 (1988)

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“continuation benet ” or other form of u nemployment assist ance introduced

in future for g roups of unemployed people.117

Similarly, the constitutional provisions pe rtaining to freedom of choice

and prac tice of trade, occupat ion and profession, and t he right to fair

labour practices have neither been interpreted in a manner to suggest that

unemployment protection activities are encompa ssed, nor i n order t o claim

that there exists a cons titutional right to work.

There is also no legislat ion which deals dir ectly with employment creation

initiatives.118 Furthermore, there are very few cases119 which h ave considered

the right to work in a South African context, or the legalities of work in ter ms

of public works programmes. Leaving aside the pos sibility of a constitutional

amendment givi ng effect to a right to work, the speediest method of gaining

more formal recognition for its att empts to create jobs would be for government

to introduce legislation reg ulating its own employment creation ac tivities.

Section 39(3) of the C onstitution states t hat the Bill of R ights does not deny

the existence of a right or freedom that is recognised or conferred by common

law, customary law or legislation, to the extent t hat it is c onsistent with the

Bill. This would arguably ser ve as constitutional support for such law.

Passing legislation that form ally regulates the state’s efforts to create

employment (in particular through its public works programmes) and prevents

unemployment would arguably have contributed to greater accountability

on the par t of those involved in such initiatives. Furthermore, the passing

of legislation would involve the jud iciary by ma king it notiona lly easier for

unreasonable state conduct pertaining to employment cre ation initiatives to

be challenged in court on a basis similar to the manner in which unrea sonable

policies pertaining to other socio- economic right s have been exposed and

reformulated.120 Policy-making in the area of job creation exists and operates

largely in t he absence of direct cons titutional, legislative and ca se law

guidance.121

There would appear to be little reason in principle for refraining from

constitutionalisi ng, or at the very least pa ssing legislation relat ing to,

unemployment security, i ncluding a progr essively realisable right to work,

117S 27(1)(c) of the Const itution states that “[e]veryone has the right to have a ccess to so cial s ecurity

including, if they are u nable to suppor t themselves a nd their depe ndants, approp riate social a ssistance”

Further more, s 27(2) provid es t hat “ [t]he stat e mus t ta ke re asonable legislative and other measu res,

within it s available reso urces, to a chieve the prog ressive realisat ion of the rig ht to have acce ss to social

security”

118On the absence of a formally leg islated right to work, i n general, s ee Cooper “ Women and the Right to

Work” in Women’s Soci al and Economi c Rights 245 It is arguable th at various piec es of legislation and

proposed legislation, such as the Sk ills Developm ent Act and the Employment Services Bill, str ive to

encourage em ployment creation i ndirectly

119See Cit y of Johan nesburg v R and Propert ies (Pty) Lt d 2006 JOL 16852 ( W) para 6 4; Swartbooi v ACV

Civils CCMA 01-04-2004 ca se no E CPE 3157/03 za/search php?cou rt=0&sty p

e=caselaw&que ry=ACV+Civils&sfun c=0> (acc essed 12- 06-2007); Lewis v GATA/Coast Care CCMA

29-04-2003 c ase no WE9080/02

=gata&sfu nc=0 > (accessed 12- 06-2007)

120See Cooper “Wome n and the Right to Work” in Wome n’s Social and Economic Rights 272

121Govindjee A ssisting the Unempl oyed in the Absence of a Le gal Framework 3

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in South Africa.122 One concer n could be that a constitutional focus on

unemployment security and work would per mit individua ls to utilise their

freedom to contract in order to choose work at a standard below legislated

basic conditions of employment or somehow otherwise undermi ne legislation

prescribing such basic working conditions.123 To the extent that it is necessary

to do so, careful const itutional and legislative crafting should easily be able

to circumvent t his concer n.124 Another pe rceived concern may be that the

advancements made with respect to realisation of the right to have acce ss

to social secur ity will be lost by virt ue of a constit utional focus on work.

This argume nt may b e rebutted by considering established principles of

interpretat ion of socio-economic rights. For example, it is by now well-known

that the removal of existing access to rights, or the adoption of a retrogressive

measure regardi ng a particular right, would not easily be justied.125

The right to work is, in addition, established i n international and regional

instru ments such as the Universal Declaration of Human Rights (1948),126 the

International Covenant on Economic, Social and Cultural Rights (1966),127

the European Social Charter (1961) and Revised Socia l Char ter (1996),128

122Regarding the fear t hat a right to work in t he Constitut ion would promote untoward int erference by the

judiciary in the rea lm of the exec utive and legisl ature, or c ould result i n rigidities in the labou r market,

see Cooper “Women a nd the Right to Work” in Women’s Social a nd Economic Rights 274-275

123See S Lieb enberg Toward a Right to Work in SA? (2006) unpublished paper present ed at the AIDC

Conference on t he Right to Work, 12-06-200 6 (copy on file with the aut hors)

124S 36 of the Con stitution, wh ich provides that all rights may b e limited by a l aw of general appli cation to

the extent t hat this is re asonable and jus tifiable in a n open and demo cratic society, sho uld, in any event ,

serve t o “limit” a right to work i n such a way that only the idea of “dece nt work” wou ld be prom oted

It is also important t o note that t here appear s to be no ju stification fo r suggesting that inter national law

sanctions a r eduction i n labou r stand ards pr otection as a mechanism for ad vancing t he right to work

(Liebenberg Toward a R ight to Work 3)

125See, general ly, Jaftha v Schoeman, Van Rooyen v Stoltz 20 05 2 SA 140 (CC); Government of the Republic

of South Af rica v Groot boom2001 1 SA 46 (CC); Minister of Hea lth v Treatment Ac tion Campaign (No

1)2002 5 SA 703 (CC) See also Liebenb erg Toward a Right to Work 3-4 However, it might be true that

the introdu ction of a new right relati ng to the fight agai nst unemployment w ill be read togethe r with s 27

in such a manne r so as to more easily justi fy the limitat ion of the s 27 right or the failu re to progressively

continue to re alise that right

126Art 23(1) of the Universal Decla ration of Huma n Right (1948) UN D oc A/810 provides t hat “[e]veryone

has t he right to work, to f ree choice of employme nt, to just and favourable conditions of work and to

protection f rom unemployment ”

127Art 6 of the Intern ational Covenant of Econom ic, Soci al and Cultu ral R ights (1966) UN Doc 14531

provides that

“(1) T he States Part ies to the prese nt Covenant recogn ise the right to wor k, which includes t he right

of everyone to the opport unity to gain his living by work which he freel y chooses or accepts, and

will take ap propriate steps t o safeguard thi s right

(2) The steps to be t aken by a Stat e Party to the present Cove nant to achieve the full re alisation of

this right shall in clude technical and vocatio nal guidance and tra ining program mes, policies and

technique s to achieve steady econom ic, social and cultur al development and full a nd productive

employment under con ditions safeguard ing fundament al political and economic free doms to the

individual ”

128See Council of Europe, Europea n Social Charte r (1961) art 1 an d Council of E urope, Re vised Soc ial

Charter (1996) a rt 1 which states:

“With a vie w to ensur ing the effect ive exercise of t he right to wor k, the Contr acting Par ties

undertake:

(1) To accept as one of their primary aims an d responsibi lities the achievement and maint enance

of as high an d stable a level of employment as pos sible with a view to the attainm ent of f ull

employment;

(2) To protect effectively the right of the worker to ea rn his li ving in an occupation f reely entere d

upon;

(3) To establish a nd maintain f ree employment ser vices for all workers;

794 STELL LR 2011 3

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the Additional Protocol to the American Convention on Human an Peoples’

Rights in t he Area of E conomic, Social and Cultural Rights (1988),129 the

African Char ter on Human and Peoples’ Rights (1981),130 as well as in various

ILO standards. Ther e is also foreign precedent for the constitutional inclusion

of some form of this right, as is evident from consideration of the law in Spain,

Finland and France.131

In su m, there should be little disagreement about the mer its of including

a right t o work, in one form or another, in the Constitution. Recognising

a right to work would have the positive consequence of placing the values

associated with work on an equal footi ng with other human rights contained

in the Constitut ion, thereby elevating this aspect of life above other social

interests.132 Interest ingly, there also appea rs to be a positive e mpirical

relationship between government effort and the actual const itutionalisation

of econom ic r ights which a policy-maker st rives to achieve.133 There ex ists

at least some ev idence to demonstrate th at constitutionalisation is a ssociated

with increased govern ment effort and higher economic right s fullment.134

Put differently, countries that display high effort in fullling the human needs

associated with econom ic rights also on average have the strongest economic

rights provisions in their c onstitutions.135

At least two further options may be considered in order to achieve this end.

Firstly, there would appear to be some opportunity for the courts to util ise the

existing constitut ional text and framework of constitutional values in order to

identify “unenumerated” rig hts in appropriate and limited circu mstances.136

The judges of the Constitutional Cour t in Ferreira v Lev in NO137 all seemed

(4) To provide or prom ote appropriate voc ational guidan ce, training a nd rehabilitatio n”

129See ar t 6 of the Additional P rotocol to t he American Convention on Human and Peoples’ Right s in the

Area of Econom ic, Social and Cultu ral Rights (1988), which stat es:

“The State s Parties also u ndertake to implement and str engthen progr ams that help to e nsure suitable

family care , so that women may enjoy a real op portunit y to exercise the right t o work ”

130See art 15 of the African Char ter on Human and Peoples’ Rights (1981) OAU Doc CAB/LEG/67/3 rev 5,21

I L M 58, which sta tes:

“Every in dividual sha ll have the right to wo rk under e quitable and satisfactory conditions, and shall

receive equal p ay for equal work ”

131Cooper “ Women and the Right to Work” in Wome n’s Social and Economic Rights 272-273

132G Mundlak “The Right to Work: Linking Huma n Rights and Employment Policy” (2007) 146 International

Labour Review 189 208; I Ahmed “Decent Work and Human Develo pment” (2003) 142 Interna tional

Labour Review 263 265 On the philoso phical underpinn ings of the right to work, in particula r the

relationship b etween this rig ht and the attai nment of social just ice, see Cooper “Women an d the Right to

Work” in Women’s Social and Econ omic Rights 249

133L Minkler “Ec onomic Rights and the Policyma ker’s De cision Problem” (2007) 5 Economic Rights

Working Paper Ser ies Human Right s Institute, Uni versity of Connect icut 1 3

1343 Th is is ap parently b ecause the constit utionalisation of econom ic rights results in the reduction of a

policymake r’s likelihood of makin g a “decision error”

13526 It must be noted t hat there are a numb er of caveats to the conclusions reache d by Minkler

136R Kr uger & A Govindjee “The Recog nition of U nenumerated Rights i n South A frica” fort hcoming i n

(2011) 20 SAPL On the recent, negat ive, view of th e South Afr ican governme nt of interve ntions of this

sort, see the Keynote Add ress by Preside nt JG Zuma (3rd Acces s to Justice Con ference, Pret oria, 8 July

2011) 5 10708 _ajc_zuma-s peech pdf>

(accessed 06 -10-2011) It is int eresting to note that Br itish court s of appeal h ave on occasion in the past

recognise d a person’s right to work based on an interp retation of English comm on law and with emphasis

on the relationship between work and livelihood: see, for example, t he judgment s of Lor d Dennin g in

Nagle v Feilden [1966] 1 All ER 689; Edwards v Socie ty of Graphical a nd Allied Trades [1970] 3 All ER

689

137Ferreira v Lev in NO 1996 1 SA 984 (CC)

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to agr ee, for example, th at the Constitut ion of the Republic of Sout h Africa

Act 200 of 1993 (“the Interim Constitution”) prot ected both enumerated and

unenumerated f reedom rights.138 There is nothing to sugge st that the position

has changed when it comes to the n al Constitution.

Secondly, it is also open for judges (perhaps reluctant to take the seemingly

drastic step of recog nising an unenumerat ed right) to utilise a n expanded

interpretat ion of existing, enumerated constitutional rig hts in order to address

a challenge relating to a right not expr essly included in the Bill of Rights.139

The right of everyone to have their dignit y resp ected and prot ected140 is

probably most c onducive to such an exercise.141 In Minister of Home Affairs

v Watchenuka142 the Supreme Cou rt of Appeal accepted that

“[t]he freedom to engage in productive work – even where that is not required in order to survive – is

indeed an important component of human dignity ... for mankind is pre-eminently a social species

with an instinct for meaningful association. Self-esteem and the sense of self-worth – the fullment of

what it is to be human – is most often bound by with being accepted as socially useful.”

There is also a small body of juris prudence that argues that the right to li fe

in the South African Constitution may have to be construed in such a way that

it includes socio- economic entitlements not contai ned in the Constitut ion or,

at least, enhances those socio-economic rights guaranteed by the Constitution.

As Pieterse argues:143

“To be deprived of clothing, sanitation, employment or means to secure a livelihood can seriously

encroach upon the quality of human life and may even threaten survival. The constitutional right to

life must at least ensure access to these basic survival requirements if it is to have any signicance for

a large percentage of the population.”144

In S v Makwanyane145 it was suggested that the right to life, coupled with

the right to dignity, may impose a positive d uty on the state to create conditions

which enable people to enjoy these rights as something more than a guar antee

of mere physical existence.146 In City of Johannesburg,147 the court linked

the absence of adequate housing for the respondents, as well as their potential

138Paras 184, 212

139Kruger & G ovindjee (2011) SAPL

140S 10 of the Consti tution

141For ex ample, the Constit utional Court’s pu rposive interpreta tion of the right to dignit y in Dawood v

Minister of Home Affairs 200 0 3 SA 936 (CC) paras 36-38 enabled it to give recognitio n to the importance

of family life

142Minister of Home Affairs v Watchenuka2004 4 SA 326 (SCA) pa ra 27 See also Affor dable Medici nes

Trust v Minister of Heal th 2006 3 SA 247 (CC) para 59; Reference Re Pub lic Service Employe e Relations

Act (Alta.) [1987] 1 SCR 313 (SCC); Malik and Mahmud v Bank of Credit and Commerce Inte rnational SA

(in liquidatio n) [1998] AC 20 para 37; Johnson v Unisys Ltd [20 01] UKHL 13 [2001] IRLR 279 (HL) para

35

143M Pieterse “A Differe nt Shade of Red: Socio-Econom ic Dimensions of the Right to Life i n South Africa”

(1999) 15 SAJHR 373 384

144Pieter se (1999) SAJHR 384 (emphasis added) See also, in general, City of Johannesbur g v R and Properties

(Pty) Ltd 2006 JOL 16852 (W)

1451995 3 SA 391 (CC)

146Para 25 Also note the minor ity judgmen t of Arbour J in Go sselin v Qu ebec (Attorne y General) [20 02]

4 SCR 429 holding that a minimum level of welfare is so closely con nected to i ssues relating to a

person’s basic health and se curity, and possibly even su rvival, that such a rig ht to minimum welfar e must

encompass th ese issues

1472006 JOL 16852 (W)

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eviction, to the effect that this depravation would have on their employment

prospects, their l ivelihood, their dig nity and their life:

“An individual has as much right to work as the individual has to live, to be free and to own

property. To work means to eat and consequently to live. This constitutes an encompassing view of

humanity.”148

International law and foreign law in the form of section 21 of t he Constit ution

of India 1949 provides sup port for rea ding the right to work into either the

right to dignity or t he right to life, although at least one cou rt in southern

Africa has al ready rejected this notion expressly.149

9 The right to unemployment security and transformative

constitutionalism

The imp etus behind a rguing for constit utional or stat utory recognition of

unemployment security and the right to work is en hanced by the i nherent

limitations of the South Af rican so cial assista nce system. A vast number

of unemployed people a re completely uncovered by the UIF, for reasons

discussed above, and a re not entitled, in terms of the provisions of the Social

Assistance Act 13 of 2004, to any form of social assistance. There is a

potential constitut ional challenge to the current situ ation, details of which are

summari sed below.

The Constitution provides th at everyone who is unable to support themselves

and their de pendants has the right t o have access to social assistance, the

state having the dut y to take progressive steps, within its available resources,

to achieve progressive real isation of the right. The denit ion of “social

assistance” contained in the Social Assistance Act is currently restricted to

social grants, including the social relief of distress grant.150 This suggest s

that all other “state assistance” geared towards the unemployed in South

Africa bar ring the provision of unemployment insurance (which would count

as part of the “social insurance” component of social secu rity), cannot, by

denition, amount to “social a ssistance” or “social secur ity”. Public works

programmes which appear to be enjoying some success in terms of creating

work opportun ities would, for example, not be considered to b e “social

assistance”.151 Unemployment prevention initiatives, such as t he training

layoff scheme, would simila rly be excluded by denition. However, should

the proposals mooted for the youth and adult unemployed in the Creating Our

Future document152 be implemented, the position might be different. The

148Para 64

149Baitsok oli v Maseru City Council 2005 3 Al l SA 79 (L esCA)paras 17, 20, 2 3-24 See A Govindjee

“Lessons for South A frican Social Assis tance Law from India: Par t 2 – Is There More to the Right to Life

in South Afr ica?” (2006) 27 Obiter 33; Olga Tellis v Bombay Munic ipal Corporation [1987] LRC (Const)

351 368

150The main social grants provide d for are the Child Support Gra nt, t he Olde r Perso ns G rant and t he

Disability G rant

151Social assista nce, as presently defined in South Africa , exists as a safety-net in the event of unemployment

To argue t hat there is a grea ter attemp t to creat e employment or provide a dditional work opportu nities

cannot, the refore, absolve the stat e from its curre nt duty in terms of s 27

152Depart ment of Social Development C reating Our Futu re

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difculty with the curre nt situation is that the obligation on the state to take

progressive measures to provide social security, including social assistance, to

unemployed adults who are unable to support themselves and their dependants,

is largely being ignored.153 The consequence of this is that the state may be

challenged for failing to take steps, within its available resources, to respec t,

protect, promote a nd ful l a right cont ained in the Bill of Rights, despite

clearly prioritising em ployment creation at a policy level. The dif culty with

implementing the Depart ment of Social Development’s propos als to deal with

this lacuna relates primarily to concern regarding the nancial viabilit y of the

suggested options.

Put differently, it is feasible that a group of unemployed youths, having

attempted t o unsuccessfully obtain sust ained work viaa public works

programme and being unable t o support themselves and their dependants

(currently not being entitled to any UIF “continuation bene t” or social

grant), could approach the cour t in order to challenge the constitution ality

of t he state social assist ance system. Such a challenge cou ld be based, for

example, on the obligation of the state to take reasonable measure s, within its

available resources, to achieve the progressive realisation of the right to social

assistance for “everyone” – not just for children, older person s and disabled

persons. A defence to the effect that the state is taking progressive policy steps

to create employment for the affect ed group would seemingly be i neffective,

given the present wording of section 27 of the Constit ution.

It may well be the case that such a matter has on ly not come before the

courts to d ate due to the state’s ability to progressively incre ase the scope

of the Child Support Grant over the past few years, as well as the recent age

equalisation of the Older Persons Grant. Should the state fail to expand the

scope of social assist ance f urther (for example, by refusing to pay social

assistance progre ssively to able-bodied person bet ween the ages of 19 and 59

years of age due to inadequate r esources), the situation may be dif ferent.

Inserti ng a li mited right to unemployment security, includi ng work, i nto

the Const itution w ill allow the st ate the possibility of justiably lim iting a n

unemployed per son’s right to social assistance on the basis that the state is

striving, withi n its available resources, to progres sively take reason able

legislative and other measu res in order to create employment opportunities

for that person. Such a right could be cr afted, and limited, as follows:

“Everyone has the right to have access to unemployment security, including the right to work. The

state must take reasonable legislative and other measures, within its available resources, to achieve

the progressive realisation of this right.”

It may be argued that it should be left to the judiciary to cha rt the course of

transformation and to secure a greater level of social ju stice for the people of

South Africa.154 For the unemployed person currently ineligible for any form

of social security, this could involve the recognition of an unenumerated right

or an expanded reading of an existing constitutional right, as discussed above.

153The mooted ex tension of coverage of the UI F system may provide a t emporary repr ieve in this regard

154See D Mose neke “Transforma tive Adjudication” (20 02) 18 SAJHR 314 318-319; F Michelma n “A

Constitut ional Conversation w ith Professor Fran k Michelman” (1995) 11 SAJHR 477 479

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There would appear, however, to be an even better argument in favour of

direct constitutional transformati onin order to address the current anomaly of

policy focus on unemployment in the absence of a cohere nt legal framework.

In fact, the Constitution does not provide a specic method to achieve its

transformative goals and the envisaged transformat ion could be ach ieved in

various ways. While a process of transparent jud icial deci sion-making may

play a great role i n transform ing society, t he courts should not be the sole

bearers of the duty to t ransform society.155

As Moseneke has noted, the Constitution promised a new beginni ng and

represented a collective quest for renewal, com mitting itself to improving the

quality of life of all citizens, and to freeing the potential of each person.156

Moseneke sees embedded in the “inner recesses of our transformative project”

the meticulous observance of fu ndamental human rights as well as “the quest

to ameliorate mater ial deprivation and, so to speak, t o bring the goal of a

better l ife for all within reach”.157 Albert yn and Goldblatt h ave suggested as

follows:

“We understand transformation to require a complete reconstruction of the state and society, including

redistribution of power and resources along egalitarian lines. The challenge of achieving equality

within this transformation project involves the eradication of systemic forms of domination and

material disadvantages based on race, gender, class and other grounds of inequality. It also entails the

development of opportunities which allow people to realise their full human potential within positive

social relationships.”158

This clearly cannot be a challenge to be met only by the judiciary and, in fact,

there is some opposition t o the idea of transformativeadjudication because

of its perceived invitation to judges to accomplish political objectives.159

The state is intimately involved in the protection of socio-economic rights

and the advancement of the goal of a transformed , socially just society. I n

fact, it is generally acknowledged that the state carries the primary duty to

protect socio-economic r ights by regulating such rights through legislation

and adm inistrative conduct.160 It is suggested that ther e may not always be a

justiable basis for li miting this primary duty to matters short of constitutional

amendment.

The Constitut ion (incorporating the Bill of Rights) was draf ted only a few

years ago and its provisions are, in comparison to those of older constitutions,

comprehensive. But this comprehensiveness does not imply t hat t he provisions

of the Constitut ion expressly cater for every eventu ality.161 Constitutions and

Bills of Rights are necessar ily products of their time and context. In order for

these documents to continue to address i mportant societal issues, it h as been

155See, in general , S Liebenberg Socio-Econ omic Rights: Adjudication un der a Transformative Const itution

(2010)

156D Moseneke “Transform ative Adjudication in SA – Taking Stock” in G Glover & PC Osode (eds) Law and

Transformativ e Justice in Post-Apa rtheid South Afr ica (2010) 21 23

15724

158C Alber tyn & B Goldbl att “Facing the Challenge of Tran sformation: Dif ficulties i n the Development of

an Indigenou s Jurisprude nce of Equality” (1998) 14 SAJHR 248248-249

159Moseneke (2002) SAJ HR 315

160Moseneke “ Transformative Adjud ication” in Law and Transfo rmative Justic e 31

161Kruge r & Govindjee (2011) SAPL

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argued that constitutions need to reserve room for their own development

through the addition of new right s and through new interpretations being

given to “old” rights.162 According to De Vill iers, there are various reasons

which explain why this is necessa ry.163 Firstly, societal circumsta nces change

and the interpret ation given to bills of rights must keep track of the nee ds

and requirements of society. Secondly, the legal obligation of the state to take

certain active steps to realise and respect fundament al individual rights is

facilitated by a “living Constitution” which evolves so as to keep pac e with

changes in society. Thirdly, human r ights philosophy acknowledges that

fundament al rights have to a dapt as more insight into human natu re and the

organisation of government is gai ned.164

The wording of section 74 of the Constitution implies that the drafters

understood the need for caref ul amendment to any part of the constitutional

text.165 Section 74 specically provides the criteria a nd requirements for

constitutional amendment.166 It is a rguable that c onstitutional amendment

is sometimes desirable in orde r to accommodate the developing need s and

requirements of a society. It is submitted that the constitutional goal to “heal

the divisions of the past and guide us t o a b etter fut ure”, wh ich according

to Langa is the core idea of transformative constitutionalism, can also be

achieved through rene ment of the Constitution.167

That the Constitution has already been amended several times supports this

submission, although some of the amendments have related merely to technical

matters. The Constitution presc ribes the attai nment of strict m ajorities prior

to ame ndment of sections 1 and 74 (75% of the National A ssembly and the

supporting vote of at leas t six provinces) as well as for the amendment of

chapter 2, including the Bill of R ights (two th irds of the members of the

National Assembly and the suppor ting vote of at least six provinces).168

Given that employment-related mat ters have become a primar y policy focus,

introducing a new constitutional right giving re cognition to this reality may

be the best method of ensuring that current unemployment secur ity initiatives

are continued and impr oved in a sustainable fashion.

10 Concluding remarks

The problems still expe rienced by t he majority of people living in South

Africa a re well k nown and undeniable. T hese problems i nclude g ross

inequality and abject poverty, coupled w ith an unacc eptably hig h rate of

unemployment and issues regarding ba sic service delivery. A complex a nd

interrelated range of factors have contributed to creating this harsh real ity

162B de Villiers The Prote ction of Social and Economic Rights: Inter national Perspect ives Occasional Paper

9 Centre for Huma n Rights, Universi ty of Pretoria (1996) 3

1634

1644

165On the u nlikely exist ence of the basic s tructure doctrine ex isting in Sout h Africa, se e A Govindjee & R

Kruger “A Question of Interpre tation: A C omparative St udy of ‘Unenu merated’ Rig hts Recogn ition in

India and Sout h Africa” forthc oming in (2011) Journal of the ILS Law Co llege

166Govindje e & Kruger (2011) Journal of the ILS La w College

167P Langa “Tra nsformative Const itutionalism” (200 6) 17 Stell LR 351 352

168Subs 74(1) and 74(2) of the Constitu tion

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and the country remains on the back foot regarding the constitutional promise

of a society unde rpinned by the values of hu man dignity, the achievement of

equality, and the advancement of huma n rights and freedoms.

There is general consensus that the constitutional promise of u pliftment

will remain u nfullled as long as the living condit ions which currently

torment mil lions of residents in the count ry prevail.169 It has repeat edly been

mentioned that a life which is perpetually stuck in circumsta nces of squalor is

an affront to huma n dignity.170 On an inte rnational level, agencies such as the

ILO and the World Health Organisation have also realised that unemployment

and povert y are global crise s, and have increasi ngly focused on the creation

of a basic “social oor”, comprising both social tra nsfers and the provision of

essential service s, as a possible solution.

This approach resonates with the eme rging South African experience.

South Africa has, during the course of the last two decades or so, endeavoured

to utilise its available resources i n a manner which progressively establishes

a c omprehensive system of social security. This system is, to some extent,

targeted towards t hose inhabitants who a re the most vul nerable, and,

importantly, is underpinned by a constitutiona l right which grants everyone the

right to have access to social security, including appropriate social assista nce

for those people unable to support themselves and thei r dependants. As

Justice Mokgoro noted in Khosa v Minister of Social Develop ment; Mahlaule

v Minister of Social Developme nt:171

“The right of access to social security, including social assistance for those unable to support

themselves and their dependants is entrenched because as a society we value human beings and want

to ensure that people are afforded their basic needs. A society must seek to ensure that the basic

necessities of life are accessible to all if it is to be a society in which human dignity, freedom and

equality are foundational.”172

The Constitutional Court has yet to engage substantively with the scope and

content of the right to social security and assistance entrenched in section 27(1)

(c).173 W hile the positive attributes of social transfers have been con rmed by

evidence which suggests that social t ransfers are an ef fective tool t o prevent

and ght poverty, it has been arg ued that as a poverty reduction strat egy, this

method is nearing the li mits of its effectiveness, given scal const raints. This

realisation of the nancial l imitations of a society reliant upon social grants

has left a glaring gap in South Africa’s social secur ity system: the exclusion of

the struct urally- or the long-term unemployed from social securit y coverage.

169See Soobram oney v Minister of Health, KZN 1998 1 SA 765 (CC) paras 8-9; M Pieterse “Comi ng to Terms

with Judicial En forcement of Socio-E conomic Rights” (200 4) 20 SAJHR 383385

170See, for exa mple, K K allmann “Towards a BIG Pa radigm Sh ift: A Rights Based Approach to

Poverty A lleviation” (u ndated) Eco nomic Policy Research Institu te 1/wwwepri org za/

KarenKa llmannFul lPaper pdf> (acces sed 20-06-2010) See also Soobramon ey v Minister of Health, KZN

1998 1 SA 765 (CC) para 8

1712004 6 SA 505 (CC)

172Para 52

173S Lieb enberg “T he Judicial Enforcemen t of Social Secur ity Right s in Sou th Africa : Enhanci ng

Accountabil ity for the Basic Rights of the Poo r” in EH Riedel (ed) Social Securit y as a Human Right

(2006) 69 74

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This contr ibution addresses thi s particular gap from a constitutional

perspective. Not ing the termi nological disti nction between “social security”

and the broader not ion of “social protection”, the idea of “unemployment

security” has been concept ualised in order for inadequacies i n the current

system to be better identied and addressed . For example, the UIF has proven

to be an insufcient tool to add ress the plight of people who nd themselves

in a situ ation of long-term, structural unemployment. Proposals regarding

the int roduction of some for m of unemployment continu ation grant or

unemployment assista nce scheme may stall due to the large co sts associated

with the idea. It is also clear that not all of the compone nts of unemployment

security are directly covered by the section 27 constitutional right to have

access to social security (or any other constitutional right), despite government

having unambiguously promoted unemployment protec tion inter ventions (such

as unemployment prevention and employment creat ion schemes) in terms of

recent policy pronou ncements. There is also no legislation in place which

regulates matters such as employment creation or prot ection intervent ions,

or the notion of decent work, directly. T his results i n policy innovations on

such matters failing to be grounded in a proper legal framework. This, in turn,

contributes to a range of resulting dif culties due to the disparity b etween

current policy developments and the statutory scheme of laws. There is also

the real potential for a s uccessful constit utional challenge (on the pa rt of a

group of unemployed people in South Africa) again st the current situation.

It is argued that there are a number of pot ential advantages t o legislating

such matters, not least because this will result in unemployment security

interventions enjoying the same legal stat us (and level of accountability) as

other exist ing attempts to progressively realise matters of a socio-economic

nature. This wil l, for exam ple, also limit the potential of government (or a

new government) being able to back-track from t he progress made to date

in this regard. Going even fu rther, it is suggested that there are few grounds

for failing to constit utionalise a new right relating specically and d irectly to

unemployment secu rity and work. The Committee for Economic Social and

Cultural Rights has emphasised both the social and ec onomic dimensions of

the right to work. Work is viewed as a “good’ activity in itself – a nd not merely

as somethi ng which might just as well be s ubstituted for by i ncome support

in the form of a social grant.174 In fact, it is precisely because of the inability

of the social s ecurity system to p rovide for any for m of “unemployment

assistance” that the claim for a right to have access to work deserves heightened

consideration. Such a r ight could be read into the Constitution as an example of

a self-standing unenumerate d right, alternatively some form of the right could

be read i nto the Constitution via an expanded inter pretation of, for example,

the r ights to d ignity, life, fai r labour pr actices, equality, or access to social

security. It is suggested that dire ctly constitutionalising such a right would be

the ultimate expression of the notion of transformat ive constitutiona lism and

should result in a principled basis for the introduction of legislative and policy

174Mundlak (20 07) ILR 364

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developments aimed at achieving poverty alleviation through minimi sing

unemployment insecur ity.

SUMMARY

The endemic problem of u nemployment poses a serious challenge to the realisation of South

Africa’s const itutional goa ls and value s. One of the most g laring gaps in the assistance p rovided to

the unemployed in South Afric a is the e xclusion of the long-term unemployed from a ny income -

replacement meassures. While the state’s foc us, when it comes t o people of working a ge, is on job

creation (rather t han extend ing the range of social grant rec ipients), policy intervention s to r educe

unemployment t end to operate largely i n the absence of a proper lega l framework. For example, t here

is no designate d right to work in the Bill of Rig hts. No legislation deals sp ecically with employ ment

creation initiatives and few cour t cases have c onsidered this issu e. Without a rig ht to work, t here

is a real possibility of a successful constitution al challenge to the cur rent situa tion. Altho ugh this

article acknowledges i ndirect way s to give constitution al recognit ion to su ch a rig ht, a more direct

approach is favoured in the for m of the insertion in the Constitution of a li mited, qual ied right to

unemployment security, including the right of acces s to e mployment oppor tunities and work. This

would allow the state to limit an unemployed per son’s right to social assist ance – the root of a potential

constitut ional chal lenge – on the basi s that the state is str iving, w ithin its availa ble resou rces, to

progressively take reasonable legislative and ot her measures to create e mployment opport unities. In

the absen ce of such a n explicit rig ht, the st ate may nd it very difcult to use its at tempts to create

more jobs as a justica tion for its failure to pay social g rants to the entire un covered adult populatio n.

Signicantly, constitution alising suc h a r ight would embody tr ansformative constitutiona lism. It is

argued th at the Constitutio n should be the star ting point in the qu est for meaningf ul social change. A

new constitut ional right would result in a principled ba sis for the introduction of legislative and pol icy

measures ai med at defusing the t ime bomb of long-term une mployment and endemic pove rty.

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