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Committee reports of the Taylor Committee into a social security system for South Africa.

Committee Report No 3: Constitutional framework of Social Security in South Africa: regulation, protection, enforcement and adjudication
[Download complete document - 247Kb ~ 1 min (71 pages)]


Table of contents

A. The Protection of the Right to Access to Social Security - 144Kb ~ 1 min (37 pages)
3.1. Introduction
3.2. Status and impact of the Constitution
3.3. Aims of and values underpinning the Constitution
3.4. A Human Rights-based Approach
3.5. Some Constitutional decisions in the area of Social Security
3.6. Guiding Constitutional principles when redesigning the South African Social Security System
3.7. The role and approach of the Human Rights Commission
  3.7.1. Role of the HRC
  3.7.2. Approach of the HRC
  3.7.3. An enhanced role for the HRC
3.8. What is meant by Social Security from a Constitutional perspective?
  3.8.1. Overall framework
  3.8.2. Specific considerations
  3.8.3. Implications for implementation
3.9. The Constitutional duty to respect, protect, promote and fulfil rights relating to Social Security
3.10. Limiting Social Security Rights
  3.10.1. Introduction
  3.10.2. External limitations
  3.10.3. Internal limitations
3.11. Interpreting Social Security Rights
3.12. Role of the courts as enforcement mechanism
3.13. Administrative Justice: The need for a uniform Social Security Adjudication System
  3.13.1. Administrative justice
  3.13.2. The need for a uniform Social Security Adjudication System
3.14. Co-operative Government and Public Service Conduct
3.15. Non-Citizens
3.16. The impact of the Equality Provision
3.17. The impact of the right to property
3.18. The impact of the right to privacy
 
B. Constitutional competencies (powers) and duties: The constitutionally foreseen role of national, provincial and local spheres of government (legislative and executive) and of private providers in relation to social security - 47Kb < 1min (9 pages)
3.1. Spheres of competencies and the relationship between the spheres
3.2. National, Provincial and Local Government competence
3.3. The application of the Bill of Rights to the State and to Social Security Laws
3.4. Private Institutions, NGOs, CBOs and Public Institutions and Social Security delivery
  3.4.1. Constitutional principles in relation to the allocation of (public) funds to public and private bodies (NGOs, CBOs and other institutions, whether acting as expressly mandated or implicit agents of delivery or not for government)
  3.4.2. Horizontal application of the Bill of Rights
 
C. Conclusions and recommendations - 105Kb ~ 1 min (25 pages)
I. General Considerations
II. National, Provincial and Local Government competence
  REFERENCES
  ENDNOTES
 
 
A. The Protection of the Right to Access to Social Security

3.1 Introduction


Fundamental reform of South Africa’s social security system aims to redress past injustices, particularly our legacy of poverty and inequality. This approach is in accordance with the provisions of the Constitution of the Republic of South Africa 108 of 19961. For the first time in South Africa’s history, the Constitution compels the state to ensure the “progressive realisation” of social security. Section 27 of the Constitution clearly and unambiguously commits the state to develop a comprehensive social security system. It affirms the universal right to social security, including appropriate social assistance2 for those unable to support themselves and their dependants, mandating the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights3.

The Constitutional Court has acknowledged on several occasions that socio-economic rights are in fact justifiable.4 The critical question is how these rights can be adjudicated. The Constitution imposed obligations on all spheres of the state to realise the right to social security, and the Constitutional Court has affirmed that many aspects of the socio-economic rights included in our Bill of Rights are justifiable.

The chapter is divided into three parts. The first part deals with the protection of the right to access to social security and covers the following issues:
  • The status and impact of the Constitution
  • Aims and values underpinning the Constitution
  • A human rights-based approach
  • Some constitutional decisions in the area of social security
  • Guiding principles when redesigning the South African social security system: a constitutional perspective
  • An enhanced role for the Human Rights Commission (HRC)
  • What is meant by social security from a constitutional perspective
  • The constitutional duty to respect, protect, promote and fulfil rights relating to social security
  • Limiting social security rights
  • Interpreting social security rights
  • The role of the courts as enforcement mechanism
  • Co-operative government and public service conduct
  • Administrative justice and the need for a uniform social security adjudication system
  • Non-citizens
  • The impact of the equality provision
  • The impact of the right to property
  • The impact of the right to privacy.
The second part focuses on constitutional competencies (powers) and duties, and covers the following:
  • Spheres of competencies and the relationship between the spheres
  • National, provincial and local government competence
  • The application of the Bill of Rights to the state and to social security laws
  • Private institutions, NGOs, CBOs and public institutions and social security delivery

Footnotes:

  1. Hereafter referred to as the Constitution.
  2. Section 27(1)(b).
  3. Section 27(2).
  4. Certification of the Constitution of the Republic of South Africa, 1996 1996 4 SA 744 (CC) par 76-77; The Government of the Republic of South Africa and Others v Grootboom and Others 2000 11 BCLR 1169 (CC) par 20.

[Table of contents]



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