SSL2601-STUDY-UNIT-2-Constitutional-and-rights-based-framework - STUDY UNIT 2 Constitutional and Rights Based Frame Work How do you describe the

SSL2601-STUDY-UNIT-2-Constitutional-and-rights-based-framework

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Unformatted text preview: STUDY UNIT 2: Constitutional and Rights -­‐ Based Frame Work How do you describe the constitutional provisions on the right of access to social security? In terms of section 27, the Constitution gives everyone the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. In other words, the Constitution views social security as an umbrella concept that covers – amongst other things – social assistance which may come in the form of social grants and social insurance, which takes the form of insurance schemes such as private retirement schemes and unemployment insurance fund. The Constitution is the supreme law of the country. Any law or conduct inconsistent with it is invalid and the obligations imposed by it must be fulfilled. In addition, the state must respect, protect, promote and fulfil the rights in the Bill of Rights. One of the aims of the Constitution is to heal the divisions of the past and to establish a society based on democratic values, social justice and fundamental human rights. The Constitution is the supreme law of the country. Any law or conduct inconsistent with it is invalid and the obligations imposed by it must be fulfilled. In addition, the state must respect, protect, promote and fulfil the rights in the Bill of Rights. One of the aims of the Constitution is to heal the divisions of the past and to establish a society based on democratic values, social justice and fundamental human rights. In the Government of the Republic of South Africa and others v Grootboom and others, the court relied heavily on the right to human dignity as a core value underlying all other human rights. This value of human dignity has also been embodied as a fundamental right. In any discussion of the social security regulatory framework it is imperative to consider the underlying foundation of the framework which, in this case, would be the constitutional imperative to guarantee everyone access to social security as a fundamental right. What are the obligations arising from the constitution? The Bill of Rights is especially entrenched in the Constitution and it binds the executive, the judiciary and all organs of state, as well as natural or juristic persons, provided certain conditions have been met (s 8 of the Constitution). In terms of general constitutional law, an organ of state acts as a functionary of the state. [PLEASE NOTE: It is clear from a reading of section 8 of the Constitution that the Bill of Rights is intended to apply to all branches of the state, namely the legislature, the executive, the judiciary and all organs of state. The Bill of Rights has vertical operation by virtue of the fact that it is primarily directed at protecting the fundamental human rights and freedoms of the individual against infringement by the state. This point, however, raises the important question of whether the Bill of Rights also operates horizontally in the sense that it also 1 grants protection against infringements of fundamental rights by private third parties. The answer to this question is twofold. Firstly, section 8(2) of the Bill of Rights specifically states that the Bill of Rights binds both natural and juristic persons to the extent that the rights are applicable and taking into account the nature of the rights and the nature of any duty imposed by the rights. Secondly, the horizontal application of the Bill of Rights may also be effected through legislation. Some provisions of the Bill of Rights instruct the state to enact legislation to give effect to the rights entrenched in the Constitution. In terms of section 7(2) of the Constitution, the state has a duty to promote and fulfil everyone’s rights. This duty gives the beneficiaries the right to require positive assistance or a benefit or service from the state. The duties to protect, promote, and fulfil in section 7 of the Constitution place a positive duty on the state and it is argued that these duties also require positive action from the courts. Section 27(2) of the Constitution obliges the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to have access to social security. The obligation includes the adoption of enabling strategies to assist people to gain access to the rights through their own endeavours and initiatives, as well as more direct forms of assistance to groups in particularly disadvantageous or vulnerable circumstances. Discuss the scope of everyone’s right to have access to Social Security in terms of sections 27 of the Constitution 1 -­‐ General Section 27 of the Constitution grants everyone the right to have access to social security. On the other hand, section 27(2) provides an internal limitation to the rights granted in section 27. 2 -­‐ Section 27 gives “everyone” the right to have access to social security One of the challenges this country was facing with regard to the provision of social security to everyone was the exclusion of non-­‐nationals. Before the Khosa decision, non-­‐nationals – other than in exceptional cases – were generally excluded from the South African social security system. [Please note: The exclusionary nature of South Africa’s social assistance system came under the scrutiny of the Constitutional Court in Khosa and others v The Minister of Social Development and others; Mahlaule and others v The Minister of Social Development and others. The applicants in these two cases were Mozambican citizens who had acquired permanent residence status in South Africa. All of the applicants, save for the second applicant in the Khosa case (who came to SA to work until his retirement in May 1992), had fled Mozambique in the 1980s as a result of the outbreak of civil war and had sought refuge in South Africa. 2 The applicants (including children who were then below the age of 7 and would have qualified for a child support grant) were destitute and would have qualified for social assistance under the Social Assistance Act 59 of 1992 were it not for the fact that they were not South African citizens. The Court, in both cases, had to deal with a constitutional challenge to, among others, sections 3(c); 4(b)(ii) of the Social Assistance Act of 1992 and 4B(b)(ii) which was to be introduced into the Social Assistance Act of 1992 by the Welfare Laws Amendment Act of 1997. The sections detailed wide-­‐ranging qualifying requirements for social assistance grants – but then seemed to run counter to their own intentions by including South African citizenship as one of the eligibility criteria for accessing almost all social assistance benefits in this country. The applicants argued that their exclusion from social assistance was inconsistent with the state’s obligations under section 27(1)(c) of the Constitution of the Republic of South Africa, 1996 to provide “everyone” with the right of access to social security. They argued too that their exclusion also limited their right to equality, infringed their right to life and was unfair in terms of section 9 of the Constitution (which guarantees everyone the right to equality) and unjustifiable in terms of section 36 (the general limitation clause) of the Constitution. The Court found the said provisions of the Social Assistance Act of 1992 to be unconstitutional and further emphasised the fact that permanent residents are a vulnerable group which needed special constitutional protection. The Court further found that the term “everyone”, as used in section 27, also includes non-­‐citizens and permanent residents, unlike , for example, in the case of the right of access to land where the Constitution specifically restricts access of that right to “citizens”. The fundamental right to equality enshrined in section 9 of the Bill of Rights underpins the right of everyone to have access to social security. Therefore, constitutionally, there was no basis to exclude non-­‐nationals from the enjoyment of the right to social security, even though a distinction may be drawn between the treatment of legal and illegal immigrants. 3 -­‐ The section provides for the right “to have access to” and not the right to” This was interpreted in Grootboom in relation to housing in section 26(2) as follows: “The difference between the right of access to adequate housing and the right to adequate housing is significant. It recognises that housing entails more than bricks and mortar. It requires available land, appropriate services such as the provision of water and the removal of sewage and the financing of all of these, including the building of the house itself. A right of access to adequate housing also suggests that it is not only the state which is responsible for the provision of houses, but that other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing.” It can be deduced from what the court said that, with regard to the right “to have access to” social security, “access to” means more than a pure right. This may suggest that the state will also have to make sure, by way of legislative and other measures, that everyone has access to social security protection. An example of this would be the state having to create the necessary infrastructure in rural areas for the elderly and the poor in general to enable them to collect their social assistance grants. 3 4. Section 27(1) (c) gives everyone the right to have access to social security and, if they are unable to support themselves and their dependants, the right to social assistance This subsection has been interpreted to include both social insurance and social assistance. However, a question may be asked, for example as to whether the right also extends to those who are unable to support themselves due to an inability to find employment, very low wages or insufficient access to productive assets. Social assistance is intended to make sure that everyone has sufficient income or in-­‐kind benefits to meet basic subsistence needs and also to make sure that all have human dignity. The level of benefits envisaged should ensure that no one falls below a poverty line in the South African context. 5. The state must take legislative and other measures, within its available resources, to achieve the progressive realisation of each of the rights in section 27 -­‐ 1 “Reasonable legislative and other measures” o In Grootboom, the court found that a state programme (for example the housing plan in Grootboom) must establish a coherent plan directed towards the progressive realisation of the right within available means. The programme must be capable of facilitating the realisation of the right, but the exact packaging and content of the measures to be adopted are a matter for the legislature and the executive. The only requirement is that the measures they adopt should be reasonable. The measures can consist of legislation, or other measures such as policies and programmes. The nationwide housing programme in Grootboom focused on a medium – and long-­‐term objectives, but was not sufficiently flexible to cater for immediate and short-­‐term requirements -­‐ “Within available resources” The question that can be asked in this regard is whether this right, the realisation of which depends on state financial resources, is unlimited? In other words, can the full realisation of socioeconomic rights, including the right to have access to social security, be partial or restricted by limited financial resources? The answer to this question is “yes”, except in the case of children’s rights, the reason being that no state has access to unlimited financial resources. Both sections 26 (the right of access to adequate housing) and 27 of the Bill of Rights for example contain internal limitations on the extent of these rights. The implication hereof is that the state is compelled to fulfil these rights only within its available resources in order to achieve the progressive realisation of each of these rights (s 27(2) of the Constitution). Two important points therefore need to be made as regards the right to social security. Firstly, the realisation of social security rights is dependent on positive action on the part of the state, either by implementing programmes, by allocating part of the budget, or by passing legislation aimed at the progressive realisation of these rights. Secondly, although the state has the obligation to realise social security rights, the realisation of these rights may be limited by the availability of state financial resources. o [Please note: In Soobramoney, the Constitutional Court held that the allocation of funds was a political issue. The court was reluctant to dictate to the state how health care should be provided. The court, in effect, agreed 4 that financial constraints and the rights and interests of other users of the state's health care services limited Mr Soobramoney’s right of access to health care services. Discuss the right to equality and the right of access to social security in South Africa In terms of section 9(1) of the Constitution, everyone is equal before the law and has the right to equal protection and benefit of the law. Section 9(2) of the Constitution actively promotes the achievement of equality for those who have been disadvantaged as a result of past discriminatory practices. Section 9(5) provides that once discrimination on one of the specified grounds is established then it is deemed to be unfair. [Please note: The court has provided some guidelines on what constitutes unfair discrimination in Harksen v Lane NO & Others 1998 (1) (SA) 300 (CC). The impact on the complainant is the determining factor regarding unfairness. The court held that the following factors must be taken into account in making this determination: the position of the complainant in society and whether the complainant was a victim of past patterns of discrimination; the nature of the provision or power and the purpose sought to be achieved by it. An important consideration would be whether the primary purpose was to achieve a worthy and important societal goal and whether an attendant consequence of that was an infringement of the applicant's rights; and the extent to which the rights of the complainant had been impaired and whether there had been an impairment of his or her fundamental dignity. Define and discuss Discrimination and differentiation Differentiation takes place when people of the same group or category are not treated the same, for example giving benefits to some but not to others, or paying employees occupying similar positions differently. Employees may be subject to differentiation for reasons including experience, seniority or educational qualifications. Differentiation can become discrimination o n l y if it is based on an unacceptable ground. For example, no one should be subjected to differentiation on the basis of any of the grounds listed in section 9(3) of the Constitution and in section 6(1) of the Employment Equity Act (EEA) which adds family responsibility, political opinion and HIV status to the grounds listed under the aforementioned section 9(3). The list in section 6(1) of the EEA is, however, not exhaustive. It is therefore possible to allege unfair discrimination on a ground not listed in the section as long as the person alleging discrimination can identify the unlisted ground and convince the court that it meets the test – for example, whether the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. 5 [Please note: In Harksen v Lane NO & Others 1998 (1) (SA) 300 (CC), the Constitutional Court has held that the provision in the Interim Constitution (s 8(2)) envisaged two categories of differentiation. The first is differentiation on one of the specified grounds and the second is differentiation on grounds that are analogous to the specified grounds. In the Hoffmann v South African Airways case, the Constitutional Court had to consider whether differentiation based on HIV status constituted unfair discrimination in terms of section 9(3) of the Constitution. HIV status is not included in section 9(3), so the court first had to decide whether making distinctions between HIV positive people and others constituted discrimination or not. In an eloquent judgment by Justice Ngcobo, the court affirmed that differentiation on the basis of HIV status did constitute discrimination. In the process, the Court also endorsed the conventional wisdom about the nature of HIV, how it is transmitted and how it can be contained. When dealing with the question of whether the discrimination was unfair, the court was confronted with arguments about commercial concerns. SAA argued that it had to exclude HIV-­‐positive people from becoming cabin attendants because its passengers would not want to be served by such persons. Ngcobo rejected this argument stating "prejudice can never justify unfair discrimination". What is Direct and indirect discrimination? -­‐ -­‐ Direct discrimination refers to situations in which some people are treated differently from others on the basis of their race, sex, religion, sexual orientation or other protected trait. Indirect discrimination, on the other hand, occurs when an employer uses an employment practice that is neutral on the face of it, but that disproportionately affects members of disadvantaged groups in circumstances where this is not justifiable. The notion of equal treatment underpins direct discrimination provisions and is based on the familiar principle that “likes should be treated alike”. Indirect discrimination, on the other hand, recognises that equal treatment might produce unequal results if the relevant subjects are socially unequal to begin with – for example, where an employer applies a policy that appears to be equally neutral to all employees but that has a disproportionate effect on a certain group of employees. Discuss the right to social security for migrant workers… In the light of the fact that several rights in the Constitution are conferred upon citizens alone, and whereas the constitutional right of access to social security is conferred without any distinction between citizens and non-­‐citizens, one can only conclude that the framers of the Constitution intended that foreigners residing or working in the country should also enjoy access to this right. Despite this, the Social Assistance Act of 1992 granted social security benefits only to citizens, excluding even permanent residents from its application, in apparent conflict with section 27(1) of the Constitution. 6 [Please note: The Court in Soobramoney v Minister of Health, KwaZulu-­‐Natal, ((1998) 1 SA 765 (CC)) accentuated the commitment expressed in the preamble of the Constitution to “improve the quality of life of all citizens”. This may be an indication that citizens will be favoured above non-­‐citizens in the progressive implementation of socio-­‐economic rights, despite the fact that those rights in principle belong to everyone. It must be remembered, however, that a limitation on any right in the Bill of Rights must comply with the criteria set out in section 36 of the Constitution. As indicated above, even if the right of access to social security is interpreted in such a way that aliens are precluded from claiming benefits, there is another constitutional provision which could assist aliens, namely the right to equality which is entrenched in section 9 of the Constitution. In terms of section 9(1) everyone is equal before the law and has the right to equal protection and benefit of the law. Subsections (3) and (4) of section 9 further provide that neither the state nor any individual may discriminate against any person...
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