The development of social security in South Africa

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Exclusionary nature of the present formal social security system

Although statutory definitions may differ in their understanding of “employee”, the general principle is that major categories of workers, such as independent contractors (which include the self-employed and people working in the informal sector), are excluded.306 The effect of this is that a large category of the labour force, namely the unemployed, excluded employees, the self-employed, the informally employed and the atypically employed, is being excluded from the protection and benefits of the social insurance system in South Africa.

Categorical approach of the social assistance system

The social assistance system follows a categorical approach, that is, only certain categories of the indigent are targeted for purposes of social assistance protection, namely the elderly, children and the disabled. The levels of benefit provided by the various grants remain low, and this is a problem. For example, the child-care grant currently provides coverage for children only up until 14 years. The age limit, coupled with the low level of benefits, is insufficient to address the scale of child poverty in the country. In terms of the Constitution, children are defined as everyone under 21 years of age.327 Social assistance also suffers from its share of administrative problems. A number of cases, especially in the Eastern Cape, were brought to court in recent years where welfare benefits were unlawfully and unreasonably terminated.

Mashava v The President of the Republic of South Africa and others330

Mr Mashava applied for a disability grant in 2000 and only in 2002 received an arrear payment for four months, with approximately R5 460 still outstanding by then. He alleged that, had it not been for the assignment of the administration of parts of the Social Assistance Act (1992) to the Limpopo Provincial Government, his grant would have been approved and paid within a reasonable period. He would then have been able to rely on a consistent standard definition of disability and his grant would not have been subject to the budgeting administration of the Limpopo Government or to potential demands for the reallocation of social assistance monies for other purposes.

Minister of Health v Treatment Action Campaign and others380

The court in the Treatment Action Campaign (TAC) case also looked at “reasonableness” to determine the state’s responsibility to fulfil socio-economic rights. In the TAC case, the government’s AIDS programme came under attack. The programme was devised to deal with mother-to-child transmission of HIV/AIDS and it identified the anti-retroviral drug, Nevirapine, as its drug of choice for this purpose. The drug was, however, only made available at 18 state hospitals involved in a pilot project and not to all HIV-infected pregnant mothers. The main reason for the government’s refusal was its concern about the safety and efficacy of Nevirapine. Government wanted to develop and monitor its human and material resources nationwide for the delivery of a comprehensive package of testing, dispensing, counselling and follow-up services.

“reasonable legislative and other measures”

In the Grootboom case, the court found that a state programme (e.g. 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 reasonableness of the programme will be determined by its content, as well as by the way in which it is implemented. The programme will therefore have to be reasonable in terms of its introduction and execution

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“within available resources”

At the heart of all three Constitutional Court decisions on socio-economic rights lies proof of a lack of financial resources.401 The state attempted to prove in all three cases that it could not progressively realise the right in question because of a lack of available resources. 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.402 The court in effect agreed 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.

TABLE OF CONTENTS :

  • CHAPTER 1: GENERAL INTRODUCTION
    • 1 BACKGROUND
    • 2 OBJECTIVES
    • 3 METHODOLOGY AND OUTLINE
    • 3.1 Statement of the problem
    • 3.2 Approach
      • 3.2.1 The development of social security in South Africa
      • 3.2.2 The South African regulatory framework and the possible accommodation of informal social security within the formal South African social security regulatory framework
      • 3.2.3 The concept of informal social security
      • 3.2.4 The historical development of social security in Western Europe
      • 3.2.5 Mutual health insurance schemes as a model for bridging the divide between formal and informal social security
      • 3.2.6 A model for policy recommendations
    • 4 CONCLUSION
  • CHAPTER 2: THE DEVELOPMENT OF SOCIAL SECURITY IN SOUTH AFRICA
    • 1 EXECUTIVE SUMMARY
    • 2 INTRODUCTION
    • 3 HISTORICAL DEVELOPMENT OF SOCIAL SECURITY IN SOUTH AFRICA
    • 3.1 Early civilisation
    • 3.2 Early Colonialism
    • 3.3 The Gold and Diamond Rush
    • 3.4 Apartheid
    • 3.5 Democracy
      • 3.5.1 Reconstruction and Development Programme
      • 3.5.2 GEAR
      • 3.5.3 The Welfare White Paper
      • 3.5.4 The Taylor Report
    • 4 CONCLUSION
  • CHAPTER 3: THE SOUTH AFRICAN REGULATORY FRAMEWORK FOR SOCIAL SECURITY
    • 1 EXECUTIVE SUMMARY
    • 2 INTRODUCTION OUTLINE OF THE PRESENT FORMAL SOCIAL SECURITY STRUCTURE IN SOUTH AFRICA
    • 3.1 Social insurance
      • 3.1.1 Unemployment insurance
      • 3.1.2 Pensions
      • 3.1.3 Health care
      • 3.1.4 Occupational injuries and diseases
      • 3.1.5 Summary
    • 3.2 Social assistance
  • CHAPTER 4: THE CONCEPT OF INFORMAL SOCIAL SECURITY
    • 1 EXECUTIVE SUMMARY
    • 2 INTRODUCTION
    • 3 “TO CALL A SPADE A SPADE”
    • 3.1 General
    • 3.2 Problematic terminology
    • 3.3 Approach in this thesis
    • 4 DEFINING INFORMAL SOCIAL SECURITY
    • 4.1 General
    • 4.2 Defining informal social security within the context of social security
      • 4.2.1 Social security defined in terms of risks covered
      • 4.2.2 Social security defined within the formal employment framework
    • 4.3 Suggested broadening of definition of social security
      • 4.3.1 State involvement and non-state actors
      • 4.3.2 Defining risk in a non-restrictive manner
      • 4.3.3 Recipients of social security
      • 4.3.4 Suggested definition
      • 4.3.5 Social protection
    • 5 WHAT IS INFORMAL SOCIAL SECURITY?
  • CHAPTER 5: THE TRANSFORMATION FROM INFORMAL TO FORMAL: THE HISTORICAL DEVELOPMENT OF SOCIAL SECURITY IN WESTERN EUROPE
  • CHAPTER 6: THE POSSIBLE ACCOMMODATION OF INFORMAL SOCIAL SECURITY WITHIN THE FORMAL SOUTH AFRICAN SOCIAL SECURITY REGULATORY FRAMEWORK
  • CHAPTER 7: MUTUAL HEALTH INSURANCE AS A MODEL FOR BRIDGING THE DIVIDE BETWEEN FORMAL AND INFORMAL SOCIAL SECURITY
  • CHAPTER 8: A MODEL FOR POLICY RECOMMENDATIONS
    • BIBLIOGRAPHY

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INFORMAL SOCIAL SECURITY: A LEGAL ANALYSIS

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