The constitutional impact of social security in South Africa in the context of enforcement by the courts

M.Phil.Past apartheid policies promoted separate development and inevitably affected the economic and social growth of the majority of the South African population. Furthermore, the massive inequalities in income, unemployment, education, health, housing, roads, water and sanitation and the status created by these policies also affected social cohesion, undermined efficiency and economic growth and contributed to a higher level of social unrest and crime, which in turn undermined democracy and development. Two years into the democratic dispensation, the government felt obliged to constrain the pursuit of its ambitious programme and to adhere to the imperatives of a stabilization programme, which restricted the degree to which government proactively pursued a social reform agenda and developmental strategy. A number of reasons are offered for the fundamental shift in policy from the pre-1994 developmental state-led agenda to the post- 1996 market-based approach to both social and economic policy. Even today, the legacy of apartheid is still visible as it was during the height of the apartheid era, and this is reflected in the mushrooming of informal settlements and the illegal occupation of some land demarcated for other purposes. Even now the concepts of providing social security and the obligation of South African government to provide for social security are still new. The issue of social security has developed rapidly since the latter part of the 20 th century. In most democratic states, the obligation to provide social security is entrenched in their constitutions. Before it was entrenched it was up to the individual and the family to provide adequate protection for their families, but today things have changed. The problem with the current South African social security system is that it does not cover rural and urban poor, non-citizen migrant workers and the informally employed. The informally employed and the urban and rural poor do not enjoy any social security protection, unless they are able to meet the most stringent qualifying conditions for any of the social grants. Non-citizen migrant workers also fall largely outside the social security framework that exists in South Africa. Due to the lack of definition, presently there is no uniform definition of social security and this has resulted in various international definitions being used. On the other hand, in an attempt to address the disparity, the South African White Paper for Social Welfare defines social protection as "policies that ensure adequate economic and social protection during unemployment, ill health, maternity, child rearing, widowhood, disability and old age". Social security is one of the means by which people circumvent destitution: it provides for their basic needs when their income stream has ceased, has been disrupted or has not developed sufficiently. The concept of social security has been defined as the "body of arrangements shaping the solidarity with people facing (the threat of) a lack of earnings (i.e. income from paid labour) or particular costs"'. Moreover, it embraces the sphere of complete protection against human damage, an adequate standard of living and social safety net against destitution through preventative measures. In light of the above challenges, it is important that we should have a comprehensive integrated social security structure. This is so because the traditional approach or the Western-oriented approach is used in South Africa and as a result it does not cover the characteristics of the African context efficiently. This includes, among other things, the formal sector-based orientation of the traditional social security model and the risks to which many Africans are exposed. It is of great importance for South Africa to develop its own definition of social security for historical reasons and the country's unique social and economic characteristics. The general objective of this dissertation is to look at possible amendments to the present system in order to provide for a more comprehensive scope of coverage of the present social security. It is also important for South African purposes, and/or in accordance with latest developments internationally, to adopt a wider social protection approach rather than rely on a more limited social notion. Therefore, this dissertation will develop a global analysis of the position of non-citizen migrants in South Africa social security law and its impact on employment relations and labour law in South African. This will provide the basis for developing a future strategy for extending higher levels of protection to non-migrant workers who are entering the country and to meet international social security obligations by introducing changes to national legislation. This will also include possible scenarios for improving the position of many people in South Africa. The dissertation will also cover the issue of how our courts have dealt with these violations. The other aim of the study is to analyze the position of the rural and urban poor and the informally employed from a comparative and empirical point of view. This will offer indigents the prospect of a future strategy for extended levels of protection by the creation of specific mechanisms and by introducing changes in national legislation. Finally, the lack of a coherent approach in South Africa social security is clearly discernible and needs to be researched properly and rectified. The present system suggests an archaic and rigid distinction between social insurance and social assistance. In light with the above challenges, it is important that we should have a comprehensive integrated social security structure. This is so because the traditional approach, or the Western-oriented approach, is used in South Africa and as a result it does not cover the characteristics of the African context efficiently