The South African Constitution does not guarantee the right to work. But South Africa recently ratified the International Convention on Economic, Social and Cultural Rights, which places a duty on signatories to recognise the right to work.
This has created a legal vacuum, according to Professor Avinash Govindjee from the Nelson Mandela Metropolitan University in Port Elizabeth. Govindjee made the point during a talk delivered at the 28th Annual Labour Law Conference in Sandton on Thursday.
He said that former president Nelson Mandela had signed the convention in 1994, but South Africa only ratified it earlier this year. The convention exposes what could be seen as legislative vacuums, especially on issues of tackling unemployment. The convention not only asks states to recognise the right to work, but also places a duty on them to take “appropriate legislative steps” in recognising this right.
Our Constitution does not recognise this right, but South African jurisprudence places a duty on the state to progressively realise other rights that are guaranteed by the Constitution. The Social Assistance Act also gives effect to Section 27 of the Constitution, which places a duty on the state to provide appropriate social assistance to those who cannot support themselves.
Govindjee said he believed a constitutional amendment might be needed. He said measures to tackle unemployment currently undertaken by government were policy schemes, not legislative action.
The convention talks about using “maximum resources” to address social questions. Our law does not use the term.
It also talks about “minimum core obligations” that states must meet. However, the Constitutional Court “is at pains to reject the idea”, he said. This is because, in reviewing government action, the courts are limited to a reasonableness review, while law makers must review policy.
“I think we have a legislative vacuum, and that is unemployment.”
He said that the labour law conference had for two days discussed the rights of workers, “but we continue to ignore the signifianct group of persons who can’t obtain a job”. He said job creation was handled by Parliament in a “piecemeal” fashion. But the convention now places a duty on South Africa to adopt a legislative approach to it.
“Perhaps that stems from an absence of constitutional direction. Maybe Parliament takes its cue from that absence.” He said that either the legislature needs to tackle unemployment, “or the courts must”.
“Obviously the Constitutional Court can’t drive a discussion on the right to work. Law makers must do that.”