A legislative approach to tackling unemployment

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.”

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever. But it comes at a cost. Advertisers are cancelling campaigns, and our live events have come to an abrupt halt. Our income has been slashed.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years. We’ve survived thanks to the support of our readers, we will need you to help us get through this.

To help us ensure another 35 future years of fiercely independent journalism, please subscribe.

Sarah Evans
Sarah Evans

Sarah Evans interned at the Diamond Fields Advertiser in Kimberley for three years before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane). She went on to work as a Mail & Guardian news reporter with areas of interest including crime, law, governance and the nexus between business and politics. 


Gauteng responds to grave concern

The news of Gauteng’s grave site preparations raised alarm about the expected number of Covid-19-related deaths in the province

Nigeria’s anti-corruption boss arrested for corruption

Ibrahim Magu’s arrest by the secret police was a surprise — but also not surprising

Eskom refers employees suspected of contracts graft for criminal investigations

The struggling power utility has updated Parliament on investigations into contracts where more than R4-billion was lost in overpayments

press releases

Loading latest Press Releases…

The best local and international journalism

handpicked and in your inbox every weekday