The endemic problem of unemployment poses a serious challenge to the realisation of South Africa’s constitutional goals and values. Section 27 of the Constitution provides that everyone has the right to access social assistance (which, in essence, amounts to a social grant) if they cannot support themselves or their dependants. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
The most glaring gap in the assistance provided to the unemployed in South Africa is the exclusion of the long-term unemployed from any income-replacement measures. There is, in fact, no social security grant that targets those who have exhausted their (limited) unemployment insurance benefits. Similarly, there is no social grant for people of working age who have never been formally employed and thus never contributed to the unemployment insurance system.
Can unemployed people between the ages of 18 (when they can no longer rely on the child support grant) and 60 (when they becomes eligible for the old-age grant) who are not disabled (which would make them eligible for the disability grant) challenge the state’s failure to provide them with a social grant?
The state appears to acknowledge that the poverty reduction strategy of progressively providing social grants to more and more people may be reaching fiscal limits. As a result, the policy focus is on job creation. But there is a disparity between policy developments and the existing constitutional and statutory scheme of laws. Policy interventions to reduce unemployment tend to operate largely in the absence of a proper legal framework.
For example, there is no designated right to work in the Bill of Rights. No legislation deals specifically with employment creation initiatives and, perhaps as a result, few court cases have considered this issue. The inherent limitations of the social assistance system arguably add impetus to the need for statutory intervention.
Without a right to work, there is a real possibility of a successful constitutional challenge to the current situation (based on the limited section 27 right to social assistance), given that the Unemployment Insurance Fund covers only about 10% of South Africa’s unemployed at present.
Despite the absence of a right to work, there are indirect or “softer” ways to give constitutional recognition to the concept. One option is using the existing constitutional text and its values to identify so-called “unenumerated” rights in appropriate and limited circumstances. An expanded interpretation of existing constitutional rights — in particular social security, fair labour practices, dignity and life — could address a challenge on rights not in the Bill of Rights. Given the indirect nature of these approaches, both would involve judicial activism.
We prefer a more direct approach and propose the insertion in the Constitution of a limited, qualified right to unemployment security, including the right of access to employment opportunities and work.
The term “unemployment security” is used to acknowledge the state policy prioritisation of unemployment. It is defined to include existing and future unemployment insurance provision, as well as any future introduction of unemployment assistance in the form of a new social grant. The term also includes both preventative and reintegrative components of unemployment protection, such as strategies to prevent employment loss, public-works programmes and an enforceable right to work.
This would allow the state to limit an unemployed person’s right to social assistance – the root of a potential constitutional challenge — on the basis that the state is striving, within its available resources, to progressively take reasonable legislative and other measures to create employment opportunities. In the absence of such an explicit right, the state may find it very difficult to use its attempts to create more jobs as a justification for its failure to pay social grants to the entire uncovered adult population.
Constitutionalising such a right would embody transformative constitutionalism. It should not be left to the judiciary to chart transformation through activist judgments, recognition of new, unlisted rights or an expansive reading of existing rights. Constitutions can and must be amended to remain relevant to the most pressing challenges of the day.
The Constitution should be the starting point in the quest for meaningful social change. A new constitutional right would result in a principled basis for the introduction of legislative and policy measures aimed at defusing the time bomb of long-term unemployment and endemic poverty. It would help to ensure accountability in state attempts to reduce unemployment and give unemployed people a stronger legal basis for challenging any unreasonable state conduct. It would also send a clear message that the state is serious about tackling unemployment.
This is an edited version of a paper presented at a recent colloquium on law and poverty at Stellenbosch University. Avinash Govindjee is an associate professor at the Nelson Mandela Metropolitan University and an attorney of the high court. Ockert Dupper is a professor of law at Stellenbosch University