scholarly journals The Compliance of the South African Social Security System with the International Covenant on Economic, Social and Cultural Rights

Obiter ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 850-870
Author(s):  
Yvette Basson
Keyword(s):  
South Africa ◽  
Social Security ◽  
South African ◽  
Social Security System ◽  
Security System ◽  
The South ◽  
Cultural Rights ◽  
The Right

The ratification of the International Covenant on Economic, Social and Cultural Rights by South Africa has resulted in the provisions thereof becoming binding on the South African legislature. The right to social security is entrenched in the ICESCR, which provides for the elements of a social security system that must be complied with by states. This article sets out what is required of states in terms of the right to social security in the ICESCR by way of crystallising the elements of a social security system. Thereafter, the South Africa social security system is compared to these elements to determine whether there is compliance with the right to social security in the ICESCR.

scholarly journals Developing an Efficient and Effective Social Security Adjudication Framework in South Africa

2015 ◽  
Vol 1 (1) ◽  
pp. 59-89
Author(s):  
Mathias Nyenti
Keyword(s):  
South Africa ◽  
Social Security ◽  
South African ◽  
Social Security System ◽  
Security System ◽  
Policy Framework ◽  
Access To Justice ◽  
Recent Reform ◽  
Guidelines And Standards ◽  
The Right

South Africa is currently developing an overarching policy framework for effi-cient and effective resolution of social security disputes as part of reforms towards the establishment of a comprehensive social security system. In the development of the policy, international and regional guidelines and standards on access to justice were instrumental as they are benchmarks on the scope and content of the right of access to courts for social security claimants and the State’s obligations in this regard. This article outlines some international guidelines and standards relevant to the realisation of access to justice for social security claimants; and their role in recent reform initiatives that have been undertaken to promote access to justice in the South African social security system.

scholarly journals ACCESS TO SOCIAL SECURITY FOR NON-CITIZENS: AN INTERNATIONAL, SOUTH AFRICAN AND EUROPEAN VIEW

2011 ◽  
Author(s):  
Taryn Lee Vos
Keyword(s):  
South Africa ◽  
Social Security ◽  
South African ◽  
Political Stability ◽  
Constitutional Court ◽  
The South ◽  
Foreign Nationals ◽  
European Approach ◽  
The Republic ◽  
The Right

South Africa has become a magnet to a larger group of foreign migrants than the global average. This is due to the fact that it is a front-runner, economically speaking, in Sub-Sahara Africa with a reputation of political stability. The South African Constitution is the supreme law of the Republic, to which all other law is subject. South Africa’s constitutional framework, coupled with immigration legislation and policies, aim to promote the rights enshrined in the Bill of Rights for all individuals living within the borders of the Republic. While certain rights are expressly reserved for citizens only and are largely of a civil or political nature, the remaining rights are those that ‘everyone’, including foreign nationals, may enjoy. Non-citizens within the borders of the Republic receive, inter alia, the protection of South Africa’s basic constitutional values; in particular the right to equality, human dignity and freedom. Socio-economic rights, subject to the limitations clause in section 36 of the Constitution, are also made available to everyone. This includes both citizens and foreign nationals. These rights can be found in section 25, 26, 27, 28 and 29 of the Constitution and relate to issues of access to land, housing, health care, food, social security and education. The focus of this paper will be the right of access to social security for non-citizens, particularly migrants, in South Africa. Who falls within the scope of the term ‘everyone’ as found in section 27 of the Constitution? The international perspective on the issue of social exclusion of non-citizens from accessing social security benefits is briefly dealt with, followed by a discussion of the South African perspective on the matter. The approach of the South African Constitutional Court in respect of the protection of the rights of noncitizens will then be discussed. The European approach to the matter, including the approach of European courts, will then be examined. The concluding paragraphs entail an evaluation of the improvements that can be made to the South African social security system as inspired by the European approach.

scholarly journals SOME COMMENTS ON WATER RIGHTS IN SOUTH AFRICA

2017 ◽  
Vol 8 (1) ◽  
pp. 1
Author(s):  
N Gabru
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Fresh Water ◽  
Human Life ◽  
Bill Of Rights ◽  
The South ◽  
Economic Rights ◽  
Basic Part ◽  
The Right

Human life, as with all animal and plant life on the planet, is dependant upon fresh water. Water is not only needed to grow food, generate power and run industries, but it is also needed as a basic part of human life. Human dependency upon water is evident through history, which illustrates that human settlements have been closely linked to the availability and supply of fresh water. Access to the limited water resources in South Africa has been historically dominated by those with access to land and economic power, as a result of which the majority of South Africans have struggled to secure the right to water. Apartheid era legislation governing water did not discriminate directly on the grounds of race, but the racial imbalance in ownership of land resulted in the disproportionate denial to black people of the right to water. Beyond racial categorisations, the rural and poor urban populations were traditionally especially vulnerable in terms of the access to the right.  The enactment of the Constitution of the Republic of South Africa 1996, brought the South African legal system into a new era, by including a bill of fundamental human rights (Bill of Rights). The Bill of Rights makes provision for limited socio-economic rights. Besides making provision for these human rights, the Constitution also makes provision for the establishment of state institutions supporting constitutional democracy.  The Constitution has been in operation since May 1996. At this stage, it is important to take stock and measure the success of the implementation of these socio-economic rights. This assessment is important in more ways than one, especially in the light of the fact that many lawyers argued strongly against 1/2the inclusion of the second and third generation of human rights in a Bill of Rights. The argument was that these rights are not enforceable in a court of law and that they would create unnecessary expectations of food, shelter, health, water and the like; and that a clear distinction should be made between first generation and other rights, as well as the relationship of these rights to one another. It should be noted that there are many lawyers and non-lawyers who maintained that in order to confront poverty, brought about by the legacy of apartheid, the socio-economic rights should be included in a Bill of Rights. The inclusion of section 27 of the 1996 Constitution has granted each South African the right to have access to sufficient food and water and has resulted in the rare opportunity for South Africa to reform its water laws completely. It has resulted in the enactment of the Water Services Act 108 of 1997 and the National Water Act 36 of 1998.In this paper the difference between first and second generation rights will be discussed. The justiciability of socio-economic rights also warrants an explanation before the constitutional implications related to water are briefly examined. Then the right to water in international and comparative law will be discussed, followed by a consideration of the South African approach to water and finally, a few concluding remarks will be made.

South Africa’s Foreign Policy and the BRICS Formation: Reflections on the Quest for the ‘Right’ Economic-diplomatic Strategy

2017 ◽  
Vol 9 (1) ◽  
pp. 39-61
Author(s):  
Theo Neethling
Keyword(s):  
Economic Growth ◽  
South Africa ◽  
Foreign Policy ◽  
South African ◽  
Special Importance ◽  
South African Government ◽  
The South ◽  
African Government ◽  
Economic Diplomacy ◽  
The Right

South Africa’s foreign policy has recently been gravitating away from an appeal to Western powers towards the establishment of new friendships in the Global South, especially with Asia and Latin America. Moreover, the favouring of the Brazil, Russia, India, China and South Africa (BRICS) partnership and a rising tone of anti-Western sentiments have increasingly been evidenced in South Africa’s contemporary foreign policy, which are of major significance to the nature and direction of its economic-diplomatic strategy. Three broad perspectives or main arguments from this article are of special importance: First, most members of BRICS are troubled by slower economic growth, which should be of concern to South Africa’s current foreign policy stand. Second, anti-Western ideological concerns and related presumptions on the part of the South African government that the BRICS formation could potentially assume a counter-hegemonic character vis-à-vis the West are questionable and dubious. Third, South Africa stands to benefit from many networks and opportunities provided by BRICS membership. At the same time, because of its low economic growth, high levels of poverty and lack of employment opportunities, South Africa cannot afford to follow an approach of narrow interest concerning the BRICS formation and to constrain itself in its economic diplomacy. This article argues that the South African government will therefore have to consider the opportunities offered by a more nuanced and pragmatic foreign policy designed on multiple identities.

The Human Right to Water in South Africa and the Mazibuko Decisions

2011 ◽  
Vol 51 (3-4) ◽  
pp. 521-540 ◽  
Author(s):  
Tracy Humby ◽  
Maryse Grandbois
Keyword(s):  
South Africa ◽  
South African ◽  
Constitutional Court ◽  
The South ◽  
Human Right ◽  
Lower Courts ◽  
Access To Water ◽  
South African Constitution ◽  
The Right ◽  
Right Of Access

The right of access to sufficient water in the South African Constitution has for long been regarded as progressive in a global context where the human right to water is still a subject of contention. In its recent decision handed down in the Mazibuko matter, the South African Constitutional Court interpreted the right of access to sufficient water for the first time and clarified the nature of the State’s obligations which flow from this right. It also commented upon the role of the courts in adjudicating the human right to water. This article describes the passage of the Mazibuko matter and the manner in which the lower courts interpreted the right of access to “sufficient water” as well as outlining the Constitutional Court’s decision in the context of access to water services provision in South Africa.

scholarly journals The "Double-edged Sword" of Institutional Power: COSATU, Neo-liberalisation and the Right to Strike

2019 ◽  
Vol 10 (2) ◽  
Author(s):  
Carin Runciman
Keyword(s):  
South Africa ◽  
South African ◽  
Trade Unions ◽  
Analytical Framework ◽  
The South ◽  
Labour Relations ◽  
Institutional Power ◽  
Power Resources ◽  
Legal Provisions ◽  
The Right

On 1 January 2019 amendments to the Labour Relations Act came into force that significantly altered and curtailed the right to protected strike action in South Africa. Internationally, the right to strike has been eroded in recent years with many countries adopting legal provisions that violate the International Labour Organization’s principles. Comparatively, the rights of South African workers to go on protected strikes remain better than many other places in the world, a reflection of the militant history of the South African labour movement. But the erosion of these rights, with the active support of the Congress of South African Trade Unions, should be a cause for concern for activists and labour scholars in South Africa and beyond. This article develops the Power Resources Approach to consider how union institutional power has entrenched neo-liberalism in South Africa. Grounding the analysis of institutional power within the analytical framework of corporatism allows this article to develop an analysis of institutional power that is attentive to class forces. This provides an avenue for understanding the “double-edged sword” of institutional power in the South African context in order to comprehend when and under what circumstances trade unions advance and defend the interests of the working class and when they defend those of capital.  KEY WORDS: labour; neo-liberalism; institutional power; corporatism; South Africa

scholarly journals DISPUTE RESOLUTION IN THE SOUTH AFRICAN SOCIAL SECURITY SYSTEM: THE NEED FOR MORE APPROPRIATE APPROACHES

Obiter ◽  
2021 ◽  
Vol 33 (1) ◽  
Author(s):  
MAT Nyenti
Keyword(s):  
South Africa ◽  
Social Security ◽  
Dispute Resolution ◽  
South African ◽  
Access To Justice ◽  
Successful Implementation ◽  
Legal Assistance ◽  
The Right ◽  
Resolution Processes ◽  
Social Security Beneficiaries

The right to social security in South Africa is adjudicated and enforced mainly by means of litigation. This article examines litigation as a mechanism for the resolution of social security disputes in South Africa and its impact on both the right to have access to court and to social security. It argues that court-based adjudication may not be the most appropriate means of adjudicating social security claims. This is particularly as South Africa is a country where social security beneficiaries have limited knowledge of the laws and procedures, coupled with a lack of publicly-provided legal assistance/representation for social security cases. Dispute resolution mainly through the courts may contribute to the limitation of their right to seek redress and by implication, their right to have access to social security. Finally, the article proposes the investigation of more appropriate dispute-resolution processes. This is due to the failure of court-based adjudication to ensure access to justice (and to social security); constitutional requirements arising from the protection of the rights of access to justice and to social security; the Constitution’s focus on protecting persons who are particularly vulnerable and desperate; the availability of other (more appropriate) dispute-resolution mechanisms; and the relatively successful implementation of these mechanisms in the resolution of social security disputes in comparative jurisdictions. 

scholarly journals Raamwerkwetgewing ter Verwesenliking van die Reg op Toegang tot Voldoende Voedsel

2017 ◽  
Vol 15 (5) ◽  
pp. 228
Author(s):  
Anél Terblanche ◽  
Gerrit Pienaar
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Food Security ◽  
South African ◽  
The South ◽  
The Republic ◽  
The Right ◽  
Human Rights Based Approach ◽  
Right Of Access ◽  
Sufficient Food

Various South African government reports list food security as a development priority. Despite this prioritisation and despite the fact that South Africa is currently food self-sufficient, ongoing food shortages remain a daily reality for approximately 35 percent of the South African population. The government's commitment to food security to date of writing this contribution manifests in related policies, strategies, programmes and sectoral legislation with the focus on food production, distribution, safety and assistance. A paradigm shift in the international food security debate was encouraged during 2009, namely to base food security initiatives on the right to sufficient food. During a 2011 visit to South Africa, the Special Rapporteur for the Right to Food of the United Nations, accordingly confirmed that a human rights-based approach to food security is necessary in the South African legal and policy framework in order to address the huge disparities in terms of food security (especially concerning geography, gender and race). A human rights-based approach to food security will add dimensions of dignity, transparency, accountability, participation and empowerment to food security initiatives. The achievement of food security is further seen as the realisation of existing rights, notably the right of access to sufficient food. The right of access to sufficient food, as entrenched in section 27(1)(b) of the Constitution of the Republic of South Africa, 1996 will accordingly play a central role within a human rights-based approach to food security. Section 27(2) of the Constitution of the Republic of South Africa, 1996 qualifies section 27(1)(b) by requiring the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of the section 27(1) rights. The South African government's commitment to food security, as already mentioned, currently manifests in related policies, strategies and programmes, which initiatives will qualify as other measures as referred to in section 27(2) mentioned above. This contribution, however, aims to elucidate the constitutional duty to take reasonable legislative measures as required by section 27(2) within the wider context of food security. This contribution is more specifically confined to the ways in which a human rights-based approach to food security can be accommodated in a proposed framework law as a national legislative measures. Several underlying and foundational themes are addressed in this contribution, amongst others: (a) the relationship between food security and the right of access to sufficient food; (b) food security as a developmental goal; and (c) the increasing trend to apply a human rights-based approach to development initiatives in general, but also to food security.

Social Security and Social Development in South Africa

2021 ◽  
pp. 868-888
Author(s):  
Leila Patel
Keyword(s):  
South Africa ◽  
Social Security ◽  
Social Development ◽  
South African ◽  
Social Protection ◽  
Inclusive Development ◽  
Welfare Regime ◽  
The South ◽  
Poverty And Inequality ◽  
The Social

Abstract: South Africa has made significant strides in growing its social security and social development system to reduce poverty and inequality since the advent of democracy in 1994. The country’s rights-based and redistributive social protection system builds on earlier social policies and was substantively refashioned to address the country’s colonial and apartheid legacy. This chapter documents the South African case with reference to the following themes: first, it sets out the social and economic challenges facing the country in relation to poverty and inequality. Second, it demonstrates the conceptual and policy significance of the South African case in relation to the rise of social protection policies to promote inclusive development in countries in the Global South. The South African welfare regime is the third theme. It focuses on the evolution of social security and social development, discusses the features of the approach, the nature and scope of social protection policies and their impacts. Finally, the chapter concludes by considering the policy issues and future trajectory of social protection in South Africa.

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