![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
Abstract
The Covid-19 pandemic and the government’s response thereto has shifted socio-economic rights to the forefront of the nation’s attention. Social security measures formed the vanguard of measures to address the dire economic consequences of the lockdown and subsequent restrictions on breadwinners and their dependants. More than two years after the government’s temporary interventions, the discourse has morphed into a debate on the need and viability of more comprehensive and long-term measures. All the proposed measures – whether it be a national social security fund, national health insurance or even a basic income grant – point towards social security becoming ubiquitous in South Africa. However, very few LLB graduates have been exposed to the Social Security Law module as part of their law degree. This underscores the need for equipping LLB graduates with the fundamentals of this branch of law. This article makes three arguments. First, it argues for the inclusion of the Social Security Law module in the LLB curriculum of all law faculties in the country, preferably as a core module. Second, it posits that it is time, almost 30 years into the country’s democracy, to shift our attention towards an aggressive pursuit of socio-economic rights, and in doing so, there is a corresponding need to equip LLB graduates with the tools to play a meaningful role in the country’s transformation agenda. Finally, the article makes a case for the creation of an association of Social Security Law teachers to ensure, among others, the sharing of expertise and the provision of support and guidance to faculties and colleagues who wish to introduce Social Security Law as an LLB module.
Acknowledgements
Parts of this article are based on research conducted during a staff exchange funded by a university capacity development grant from the University of the Western Cape’s Deputy Vice Chancellor: Research and Innovation.
Disclosure statement
No conflict of interest was declared by the authors.
Notes
1 T Kondo ‘Providing for the unwanted in a time of crisis: The socio-economic rights of migrant workers in South Africa during the Covid-19 pandemic’ in J Mavedzenge (ed) Covid-19 Pandemic and Socio-Economic Rights in Selected East and Southern African Countries (2020) 11–12; S Liebenberg ‘Covid-19 and the critical importance of achieving socio-economic rights’ (20 March 2020) Daily Maverick.
2 Covid-19 Temporary Employee/Employer Relief Scheme (C19 TERS) Direction, March 2020, as amended (8.
April 2020; 5 May 2020; 25 May 2020;15 July 2021).
3 Currently regulated in terms of Regulations relating to Covid-19 social relief of distress (GNR2042 in Government Gazette (GG) 46271 of 22 April 2022), as amended.
4 An additional amount of R500 per month was paid to recipients of the child support grant from June to October 2020.
5 See ‘How loadshedding is tearing through South Africa’s economy’ (21 September 2022) BusinessTech.
6 Department of Social Development ‘Green Paper on comprehensive social security and retirement reform’ (2021) 53–55; WM Lishivha ‘Introducing the universal basic income grant in South Africa’ (9 December 2022) Mail&Guardian; ‘UN chimes in on basic income grant for South Africa’ (9 May 2023) BusinessTech.
7 Inter-departmental Task Team (IDTT) Comprehensive Social Security in South Africa (2012).
8 National Development Plan 2030: Our Future – Make it Work (2012) 342 identifies the proposed National Health Insurance as a social insurance measure.
9 The section provides that ‘Everyone has the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance’.
10 MP Olivier ‘The concept of social security’ in MP Olivier, N Smit & ER Kalula (eds) Social Security: A Legal Analysis (2003) 24–25.
11 See Articles 7 through to 64.
12 Parts II and VII respectively.
13 Recommendation concerning National Floors of Social Protection Adoption: Geneva, 101st ILC session (14 Jun 2012).
14 Art 9(2) of Rec 202 of 2012.
15 Ibid art 4, our emphasis.
16 Ibid art 9(1).
17 Ibid art 9.
18 GN 1108 in GG 18166 of 8 August 1997, 48.
19 National Development Plan 2030 (note 8 above) 357.
20 Ibid 357.
21 Ibid 362.
22 IDTT (note 7 above).
23 D Pieters Introduction into the Basic Principles of Social Security (1993) 2.
24 MB Ramose African Philosophy through Ubuntu (1999) 67.
25 See C Tshoose ‘The impact of HIV/AIDS regarding informal social security: Issues and perspectives from a South African context’ (2010) 13 Potchefstroom Electronic Law Journal 430–434.
26 Mahlangu v Minister of Labour 2021 (1) BCLR 1 (CC) para 52.
27 To quote Justice LTC Harms ‘Judging under a bill of rights: Ebsworth Memorial Lecture, 24 January 2007’ (2009) 12 Potchefstroom Electronic Law Journal 6: ‘Bills of rights are by their very nature drafted in general terms and cannot be too specific to have any permanent value. They have to cater for future generations. A bill of rights is […] a living organism. Ours, it has been said, is not only a formal document regulating public power but it also embodies an objective, normative value system. However, as a legal document it says some things and doesn’t say others’.
28 For example, the Employment Promotion and Protection against Unemployment Convention 1988 (No 168) and Recommendation 202.
29 Hence the calls for social security reforms to create a more comprehensive and cohesive social security system. See Committee of Inquiry into a Comprehensive System of Social Protection for South Africa Transforming the Present, Protecting the Future: Report of the Committee of Inquiry into a Comprehensive System of Social Security for South Africa (2002), as well as the other policy documents referred to above.
30 As most social security disputes are resolved in statutory tribunals that generally do not report their findings (which in any case do not create precedent), case law related to social security law is generally limited to issues related to the constitutionality of legislation or the interpretation or scope of application of relevant statutory provisions.
31 Supported by the National Research Foundation and spearheaded by Prof. Marius Olivier.
32 The module was introduced in the early to mid-2000s at every institution where it is offered. At the two universities where it is a core module, namely the University of Fort Hare and Walter Sisulu University, it was made a core module in 2007 and 2005 respectively (after the latter’s establishment in 2005).
33 The deans of the law faculties of the University of Johannesburg, Nelson Mandela University and Stellenbosch University.
34 These are the University of the Western Cape, the University of Johannesburg, the University of Fort Hare, Walter Sisulu University, University of Cape Town, the University of KwaZulu-Natal, the University of Zululand, the University of the Witwatersrand, the University of Pretoria, the University of the Free State, the University of Limpopo, the University of Venda, Rhodes University, Stellenbosch University, the University of South Africa, Nelson Mandela University and North-West University.
35 University of Cape Town Faculty of Law Handbook (2022) 71.
36 J Dugard, M du Plessis, T Maluwa & D Tladi Dugard’s International Law: A South African Perspective (2018) 462.
37 See E Rosevear, R Hirschl & C Jung ‘Justiciable and aspirational economic and social rights in national constitutions’ in KG Young (ed) The Future of Economic and Social Rights (2019) 37.
38 A Eide ‘Economic, social and cultural rights as human rights’ in A Eide, C Krause and A Rosas (eds) Economic, Social and Cultural Rights: A Textbook (1995) 24.
39 See S Davidson Human Rights (1993) 39–45; PS Jaswal & N Jaswal Human Rights and the Law (1996) 3.
40 See DD Basu Human Rights in Constitutional Law (1994) 82. Civil and political rights place an obligation on the state to refrain from infringement, while socio-economic and cultural rights demand protection and assistance from the state.
41 EW Vierdag ‘The legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights’ (1978) 9 Netherlands Journal of International Law 69, 103.
42 KM Januszewski & M Nowak ‘Poverty and political rights: An exercise of recovery from oblivion’ in MF Davis, M Kjaerum & A Lyons (eds) Research Handbook on Human Rights and Poverty (2021) 69–87.
43 Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC) para 23; Khosa v Minister of Social Development 2004 (6) BCLR 569 (CC) paras 40–45; Mahlangu (note 26 above) para 41.
44 Section 27(1)(c).
45 P Langa ‘Transformative constitutionalism’ (2006) 17 Stellenbosch Law Review 351; D Moseneke ‘The fourth Bram Fischer Memorial Lecture: Transformative adjudication’ (2002) 18 South African Journal on Human Rights 315.
46 S Liebenberg Socio-Economic Rights: Adjudication under a Transformative Constitution (2010) 9.
47 D Bilchitz ‘Is the right to food really necessary?’ in S Fukuda-Parr & V Taylor (eds) Food Security in South Africa: Human Rights and Entitlement Perspectives (2015) 53.
48 K Moyo ‘Water as a human right under international human rights law: Implications for the privatisation of water services’ (2013) unpublished LLD thesis, Stellenbosch University. See also L Rodina ‘Human right to water in Khayelitsha, South Africa: Lessons from a “lived experiences” perspective’ (2016) 72 Geoforum 58–66.
49 LA Williams ‘The right to housing in South Africa: An evolving jurisprudence’ (2014) 45 Columbia Human Rights Law Review 816–845; S Oldfield & S Greyling ‘Waiting for the state: A politics of housing in South Africa’ (2015) 47 Environment and Planning 1100–1112; and TCJ Mbiada ‘The Public Protector as a mechanism of political accountability: The extent of its contribution to the realisation of the right to access adequate housing in South Africa’ (2017) 20 Potchefstroom Electronic Journal 1–34.
50 J Dugard The Right to Sanitation in South Africa (2016).
51 K Malherbe ‘Retirement reform in South Africa: The influence of international social security standards and human rights instruments’ (2013) 29 International Journal of Comparative Labour Law and Industrial Relations 105–128; K Malherbe ‘Assessing the protection of older persons: Access to social services in South Africa during the Covid-19 pandemic’ (2021) 35 Speculum Juris 118–133; K Malherbe ‘The end of the road for retirement? Exploring alternative frameworks for realising older persons’ social security rights in South Africa’ in M Olivier, N Smit & E Kalula (eds) Liber Amicorum Manfred Weiss (2021) 215–232.
52 S Ncube & N Mbele ‘An appraisal of South Africa’s maternity protection framework through the lens of the ILO normative standards on social protection’ in S Van Eck, P Bhamu & C Chungu (eds) Celebrating the ILO 100 Years on: Reflections on Labour Law from a Southern African Perspective (2020).
53 The President addressed the nation on 16 July 2021, and described the events of the previous week as ‘nothing less than a deliberate, coordinated, and well-planned attack on our democracy […] intended to cripple the economy, cause social instability and severely weaken – or even dislodge – the democratic state’. See ‘President Cyril Ramaphosa: Update on security situation in the country’.
54 The Presidency, South Africa Report of the Expert Panel into the July 2021 Civil Unrest (November 2021).
55 D Hemson & K Owusu-Ampomah ‘A better life for all? Service delivery and poverty alleviation’ in J Daniel, R Southall & J Lutchman (eds) State of the Nation: South Africa 2004–2005 (2004) 512–513.
56 See, for example, OA Akinboade, MO Mokwena & EC Kinfack ‘Protesting for improved public service delivery in South Africa’s Sedibeng District’ (2014) 119 Social Indicators Research 1–23; J Mamokhere ‘An exploration of reasons behind service delivery protests in South Africa: A case of Bolobedu South at the Greater Tzaneen Municipality’ (2019) presented at the 4th annual international conference on public administration and development alternatives 3–5 July 2019, Johannesburg, South Africa 373 − 379.
57 P Alexander ‘Rebellion of the poor: South Africa’s service delivery protests – a preliminary analysis’ (2010) 37 Review of African Political Economy 25, 37.
58 ‘Black Sash turns to Ramaphosa after water cannon blasts grant queue’ (16 January 2021) TimesLive & GroundUp.
59 ‘Bleak Christmas for social grant beneficiaries’ (24 December 2022) Weekend Argus.
60 Black Sash Trust v Minister of Social Development 2017 (5) BCLR 543 (CC) para 1.
61 Ibid para 8.
62 Scalabrini Centre of Cape Town v Minister of Social Development 2021 (1) SA 553 (GP).
63 Ibid para 42.2.
64 Khosa (note 43 above).
65 Ibid para 80.
66 See, for instance, the Green Paper’s reference to universal income in the form of a basic income grant (note 6 above) and the National Health Insurance Bill of 2019.
67 National Development Plan (note 8 above) 383.
68 Council on Higher Education The State of the Provision of the Bachelor of Laws (LLB) Qualification in South Africa Report (2018) 4.
69 Ibid.
70 Ibid 18.
71 P du Plessis ‘Decolonisation of education in South Africa: Challenges to decolonise the university curriculum’ (2021) 35 South African Journal of Higher Education 56.
72 G Godsell & R Chikane ‘The roots of the revolution’ in S Booysen (ed) Fees Must Fall: Student revolt, decolonisation and governance in South Africa (2018) 68; K Ramaru ‘Black feminist reflections on the Rhodes must fall movement at UCT’ in R Chantiluke, B Kwoba & A Nkopo (eds) Rhodes Must Fall: The Struggle to Decolonise the Racist Heart Empire (2018); and A Nkopo ‘Of. Air. Running. Out’ in Chantiluke et al (eds) Rhodes Must Fall: The Struggle to Decolonise the Racist Heart Empire (2018) 159.
73 Preamble to the Standard for Bachelor of Laws (LLB), CHE National Review Manual: Bachelor of Laws (LLB) (2015) 28.
74 CHE Higher Education Quality Committee (HEQC) Draft Report on the National Review of Bachelor of Law (LLB) Programmes 2016-2017 (2017) 29.
75 The CHE HEQC highlighted the social security law module at the University of the Western Cape as one of the modules that address the issue of responsiveness to social justice in its Draft Report (ibid) 131.
76 Note 43 above.
77 Soobramoney v Minister of Health 1998 (1) SA 765 (CC).
78 Note 43 above.
79 Note 60 above.
80 Note 26 above.
81 Ibid para 63.
82 Note 60 above para 1. Similarly, in Grootboom (note 43 above para 6), Yacoob J simply observed that ‘the cause of the acute housing shortage lies in apartheid’.
83 Higher Education Qualifications Sub-Framework: Qualification Standard for the Bachelor of Laws (2015) Preamble para 1; CHE HEQC (note 74 above) 64.
84 Karl Klare defines ‘transformative constitutionalism’ under the South African Constitution as ‘a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law. K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South African Journal on Human Rights 146, 150. P Langa ‘Transformative constitutionalism’ (2006) 17 Stellenbosch Law Review 351, 357.
85 CHE HEQC (note 74 above) 31.
86 CHE (note 73 above) 30.
87 EML Strydom Essential Social Security Law 2 ed (2006). A Juta Pocket Companion by E Kalula, M Olivier & LG Mpedi (ed) Understanding Social Security law was published in 2009.
88 This is common cause, however. See also L Wolff The Art of Law Teaching (2020).
89 Committee of Inquiry into a Comprehensive System of Social Protection for South Africa Transforming the Present – Protecting the Future: Report (2002).
90 Department of Private Law hosts Property Law Teachers’ colloquium <https://www.ufs.ac.za/law/private-law-home/unlisted-pages/news-and-events/28th-annual-property-law-teachers-colloquium-49>.
91 T Jumo ‘UKZN academics present papers at property law teachers colloquium’ <https://ukzn.ac.za/news/ukzn-academics-present-papers-at-property-law-teachers-colloquium/>.
93 <https://blogs.sun.ac.za/law/files/2022/12/SU_Law_Faculty_Newsletter14a_12_22_final.pdf>. The South African Society for Labour Law also regularly hosts a number of events including webinars and the annual Labour Law Conference <https://saslaw.org.za/welcome/>.
94 M Olivier ‘Social security teaching and research’ (2000).
Additional information
Notes on contributors
Kitty Malherbe
Professor Kitty Malherbe, associate professor, department of mercantile and labour law, University of the Western Cape
Swikani Ncube
Dr. Swikani Ncube, senior lecturer and head of department of practical business law, University of Johannesburg