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Civil society and the right to have access to social security in
South Africa1
Naudé Malan
Anthropology and Development Studies, RAU
cpnm@rau.ac.za
2004/19
Paper to be presented at 16:00 on Friday, 27 August 2004, in Anthropology and Development Studies Seminar Room (D-Ring 506)
1 The research reported on here would not have been possible without a Doctoral Scholarship from the NRF (ref. no. 15/1/2/6/02316), a fellowship from the Centre of African Studies, Cambridge University in 2003, the help of Marius Olivier under whom this research is being done and of course the support of my esteemed colleagues at the Dept. of Anthropology and Development Studies.
South Africa currently stands on the threshold of changes to its social security system. Social
security reform is implied in the 1997 White Paper for social welfare (RSA, 1997), the release of
the report of the Committee of Inquiry into a Comprehensive System of Social Security for South
Africa (the ‘Taylor committee’ RSA, 2002), but also the recent announcement of the creation of a
National Social Security Agency (RSA, 2003). These changes are magnified by concrete
proposals on the table, the most important of which include a universal Basic Income Grant (Le
Roux, 2002), supported by opposition political parties and civil society groupings, and proposals
regarding the utilization of informal and indirect social security mechanisms (Dekker, 2001).
In South Africa “Everyone has the right to have access to – social security, including, if they are
unable to support themselves and their dependants, appropriate social assistance” (RSA, 1996:s
27 (1)(c)). The right to social security in South Africa, and the reform of the social security
system will implicate social, political, economic, as well as legal aspects of transformation. In a
post-apartheid South Africa, it might be the right to access to social security that should be seen
as the most important socioeconomic right, solely by virtue of its historical and actual association
with poverty relief, economic and political ideology and morality. It holds major implications not
only for social transformation after apartheid, but also for most aspects of economic and social
policy. It refers to many aspects of what we have come to term “development”. It is thus
“development”, in the final analysis, which will have to give effect to this right.
I will argue that the nature and meaning of the constitution, and its provisions on social security,
allows multiple actors, including civil society organisations to participate in the transformation of
social security. This reading of a rights-based approach to reform articulates with social policy
developments that emphasize the need to move responsibility for social policy closer to its
beneficiaries. This approach is possible as the South African Bill of Rights can be applied in the
private sphere. We thus have an opportunity to explore not only how beneficiaries and civil
society organisations could participate in the transformation of social security in South Africa, but
also of how our understanding of human rights could change once actors other than the state are
involved in its discharge. This article will explore how such an actor-based model of change
would affect social security itself, and what human rights could mean once we accept a non-state
actor as duty-bearer of rights (see Chirwa, 2002). The legal opportunity created by the
constitution is strengthened by the fact that within the current social security system, limits to the
utility of social grants have been reached. We need to radical rethink what is an appropriate
social security measure in South Africa. This will inevitably implicate the abilities and potential
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of civil society-based actors. Civil society organisations could devise and implement novel
approaches to social security, but this does not sit comfortably with suggestions that stress the
greater use of social grants.
The budgetary and administrative capacity to deal with an increase in social grants is limited at
present in South Africa. The constitution would not necessarily identify social grants as central to
social security. It emphasises “appropriate social assistance” which is an open category and
could be inclusive of services, productivity as well as care giving and compensation. Civil
society organisations play an essential role in such mechanisms of social security. In this article
such kinds of social security measures are taken as actual manifestations of how to discharge
social security rights. I want to show how this kind of civil society-based action can be given
legal foundation based on the provisions in the constitution relating to subsidiarity, standing and
horizontality. I conclude by pointing out problems with this radical avenue for social policy
reform.
Social Security and the constitution
The transformation of South Africa to a post-apartheid state is characterised by a strong legal
focus. The ‘new’ South African Constitution (RSA, 1996) made the law itself, as opposed to
conventional social engineering, the vehicle and object of change. It is a benchmark and guide to
a just and progressive transition in a developing country. More importantly, social change is
mandated and driven by values that are ‘enshrined’ in the constitution. They have universal
appeal and imply a new method of legal interpretation. Karl Klare (1998) articulated this in a
seminal article as ‘transformative constitutionalism.’ Much of the horrors of apartheid were made
possible through a specific formalist interpretation of the law which shielded the legal fraternity
from its social responsibilities. The new laws and hermeneutics of interpretation that the
constitution inspired emphasised the necessity of legal and judicial commitment to address
poverty and promote social justice. ‘Development’ – as a term denoting poverty alleviation - thus
becomes relevant to the discharge of socioeconomic rights, and acquires a strong legal dimension.
One of the crucial issues in legal interpretation is the question of the legitimate role of the court in
policy making. This has roots in democratic theory and the doctrine of the separation of powers
and is a theme which underlies many judgements. The inclusion of extensive socioeconomic
rights in the Bill of Rights placed this issue prominently at the top of the agenda in South Africa.
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The Grootboom judgement gave some clarity on this controversial issue and resolved that the
court may oversee policy only in terms of its ‘reasonableness.’ This translates into the need for
the respective authority to “devise and implement within its available resources a comprehensive
and coordinated programme progressively to realise the right of access [to socioeconomic rights]”
(RSA, 2000:[99]). This does not amount to much interference in the administrative or executive
functions of the state by the legislative branch of the state. In other passages the court however,
uses reasonableness with reference to human dignity and the alleviation of “desperate need”
(ibid.,:[63, 83]), that seem to implicate human functioning with reasonableness. What is
reasonable cannot therefore be defined purely by a formalist interpretation of the law, but has to
be done vis-à-vis the circumstances in society and the values that underlie the constitution. This
gives legal interpretation of this important concept immediacy and contingency that allows
judgements about policy, based on how they would affect people.
Grootboom in fact increases the scope and agency available to governments to realise human
rights. The role of the state is conceptualised here not only in terms of a negative obligation to
“desist from preventing the right of access to housing [or other socioeconomic rights]” [34], but it
has relevance to the actions of non state actors. It stated that “A right of access to adequate
housing also suggests that it is not only the state who is responsible for the provision of houses,
but other agents within our society, including individuals themselves, must be enabled by
legislative and other measures to provide housing” (RSA, 2000:[35]). This follows the founding
provisions of the Universal Declaration of Human rights which says “[e]very individual and
every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and
education to promote respect for these rights and freedoms and by progressive measures, national
and international, to secure their universal and effective recognition and observance.” (UN, 1948:
Preamble). This opens up a meta-ideological space within which government can re-evaluate and
utilise different forms of agency, and by implication ideologies and strategies of development for
the discharge of human rights. The state does not have exclusive responsibility for its delivery.
We have to abandon the notion that socioeconomic rights can only be discharged through
socialist or welfare-state type programmes, or failing that, through market mechanisms. In this
way the court neatly sidestepped interference in policy making and indirectly sanctioned the
involvement and relevance of the actions of civil society organisations and the market in the
satisfaction of human rights. This not only means that many agents can do so, but it also affirms
that the actions of agents other than the state could be seen as violations of rights. The
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recognition of non-state actors is not novel from a social policy perspective, but is revolutionary
for the discourse of human rights.
This reading might explain the judgement in Grootboom that “there was no obligation upon the
state to provide shelter to those of the respondents who were children” as they are being “cared
for by their parents” (RSA, 2000:[79]). By saying children’s rights are dependant upon the
ability of parents to realise them, acknowledges that rights are a product of complex interplays of
entitlements in society, the outcome of which is relevant to human rights. The reason why
parents in the first instance, and not the state, are responsible is because rights are satisfied best
by them. The nature of rights is not to be found in its violation, but rather in its actual
satisfaction. Rights are to be realised in society in general, and the state has an obligation to
“foster conditions to enable citizens to gain access to [socioeconomic rights]” (ibid, [93]). Rights
and their realisation are to be measured across society and the structures, institutions and
practices that impinge on or allow people’s access to rights. The state, besides satisfying rights
directly, also has the duty to regulate and facilitate markets, civil society, its own administration
and society in general so that rights are realised. This affects the structure of responsibility
around rights, and points out the interdependence of rights among each other and with society in
general.
Grootboom is about housing but is surprisingly vocal on the right of access to social security. It
mentions, “If under section 27 the state has in place programmes to provide adequate social
assistance to those who are otherwise unable to support themselves and their dependants, that
would be relevant to the state’s obligations in respect of other socio-economic rights” (ibid.,:
[36]; see also [78]). This suggests minimal government responsibility for socio-economic rights
rests in social security provision. Related to this it also states that “Issues of development and
social welfare are raised in respect of those who cannot afford to provide themselves with
housing” (ibid,:[36]). Social assistance could constitute a minimum social policy measure, but a
house, on the other hand, if it is rented out would also be relevant to social security rights. Social
security reform will have implications for all the other rights, and although politically and
economically a remote possibility, social security could thus substitute for measures such as the
housing programme. The same could be said of ‘development,’ social and economic policy and
the ability of everyone in society to participate herein, as it is ‘development’ that supplies many
of the entitlements and capabilities we need to live a life of dignity, equality and freedom.
Nevertheless, if social security payments are to substitute for a governmental housing
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programme, a strong private market in housing ought to be there to enable people to gain access
to this right. It is clear that the general functioning of society is implicated in this view rights,
and a particular role for the state vis-à-vis a well functioning and equitable market, healthy
environment and just social context.
Grootboom thus implies that the content of socioeconomic rights is not fixed. Government of the
day has to interpret the text according to patterns of development in society. Governmental
policy is one of many ‘reasonable’ interpretations of the text. The constitution as text and
template for social action formally allows and figuratively invites social actors to launch an
interpretation thereof when they engage in action that realises one of the (socioeconomic) rights
enshrined in it. The justiciability of social security rights in South Africa cannot be found only
within an interventionist welfare state or in pure laissez-faire economic policy (see Cassiem &
Streak, 2001). Care-giving cannot be seen as a market function. These rights in a certain sense
are positive rights dependant upon the actions of non-state actors: that of the subject of rights
itself. Social security rights are transformed to include entitlement rights, like a social grant, as
well as rights to livelihood, and a right to inclusion and participation in society and the market.
Grootboom draws upon a conception of social theory that acknowledges the complexity of social
action and entitlement. Intermediate actors and contexts structure the actions of individuals so
they as the subject of rights are empowered to realise these rights. Consequently, responsibility
for the realisation of rights is neither fully that of the individual nor exclusively that of the state.
When rights are satisfied through the market, through voluntary associative activity, or through
non-profit organisations, or through the environment, it is the interaction and relationships
between different actors and institutions in civil society that realises these rights. This is the de-
facto situation on the ground, and to place legal reality so close to social reality is a great advance
in social and legal activism.
This is compatible with a view of dependency that recognises that dependency places immediate
responsibilities upon those who are close to us, and would point out the complex socially
embedded nature of dependency. Dependencies are relieved by those close to us, and now we
can recognise, acknowledge and also compensate those who provide care. In legal and political
theory this interpretation draws upon a critique of rights that unmasked the bias rights theory has
for property rights and conceptualizes rights as more to do with relationships than with legal
sanction (Nedelsky 1990; 1993; Kittay 1999:28). Methodologically it is the writing of
ethnography that could illuminate best how rights are discovered and realised.
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Besides the important but orthodox avenue of inquiry into the actions of the state, i.e. the current
system and its strengths and weaknesses, it seems that we should be more adept at enabling social
actors in general, market or civil society-based, (in interaction with the environment) to give
effect to rights. Civil society organisations can discharge of the right to have access to social
security by either creating space within which the market could operate, or as direct provider. I
discuss this after we take a look at how the involvement of civil society in social welfare has been
conceptualized in official discourse. This will give us clues to what extent current policy is
compatible with this interpretation of rights. I argue that the greater involvement of civil society
is implied in the nature of poverty as well as the difficulties of social security reform in South
Africa.
Social security rights and civil society in South Africa
The South African Government’s 1997 White Paper for Social Welfare acknowledges that:
“South Africa has a fairly developed social security system and a rich institutional framework of
welfare services delivered by non-governmental organisations…These organisations have
expertise, infrastructure and other resources which could play a significant role in reconstruction
and development.” (RSA, 1997:Ch.1 [20]; see also Patel, 1992). Civil society has a long history
in both Welfare reform and politics in South Africa. Consequently the White Paper says that
“Welfare policies and programmes will be developed and promoted in partnership with
organisations in civil society, the private sector and government departments.” (RSA, 1997: Ch.2
[17]). For our purposes it is important to note that “In view of fiscal constraints, low economic
growth rates, rising population growth rates and the need to reconstruct social life in South
Africa, the Government cannot accept sole responsibility for redressing past imbalances and
meeting basic physical, economic and psycho-social needs. The promotion of national social
development is a collective responsibility and the co-operation of civil society will be promoted”
(Ibid.: Ch.2 [30]). This immediately suggests that civil society is already discharging the right of
access to social security.
The Report by the Committee of Inquiry into a Comprehensive Social Security System signalled
a shift away from civil society in welfare reform. It focused on a comprehensive system of social
security which would also includes services and many of the poverty relief measures of the state
(RSA, 2002:41). The report mentions that tailor-made schemes need to be fashioned to cater for
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certain groups, but warns that these kinds of measures have in the past achieved limited delivery
outcomes (ibid.,: 46). It is thus without surprise that the National Social Security Agency Act
(RSA, 2004) was passed that almost completely fails to mention civil society or welfare services.
Curiously the only social security measure mentioned was monetary compensation. This Act
states that “The objects of the Agency are to – act, eventually, as the sole agent that will ensure
the efficient and effective management, administration and payment of social assistance; serve as
an agent for the prospective administration and payment of social security; and render services
relating to such payment” (RSA 2003:Ch. 2, s3). It seems that the Act, and possibly the Social
Assistance act as well, interprets social assistance, and possibly social security itself, as
concerned exclusively with payment (see Ch 2 s 4(5) and the Memorandum attached to the initial
Bill). It centralises social security in a National Agency, possibly going against schedule 4 of the
Constitution that identifies social welfare as a national and provincial competency, in effect
undermining local differentiation and control of the social security system. The scope for civil
society organisations active in reform of the social security system is difficult to discern, except
perhaps that their object of activism is now much clearer. However, it is still possible that such
an agency could implement a programme to deliver services and thus incorporate civil society
organisations in social security reform.
These shifts away from civil society in social welfare policy might not be in the state’s long-term
interest. It brings with it added burdens of administration and responsibility that are already
difficult to bear. It would be unfortunate if the government embarks on such a narrow
interpretation of social security rights and it might reproduce the problems of the welfare state.
This will limit the definition or core-content of the right so that only compensation is stressed and
services are identified only with the administration of payment. Identifying social security only
with payment might be retrogressive and will be difficult to sustain and possibly unallowable in
the light of the need to progressively realise these rights over time. Measures qualitatively
different than compensation will eventually have to be introduced, which is already the case as
many welfare services are being delivered. Civil society organisations are important if we want
to deliver appropriate and specialised services. From the perspective of economic theory, it
would be difficult to allocate such exclusive responsibility for socioeconomic rights in the
government, as economic entitlement depends upon free economic interaction in society. If we
conceptualise social security as inclusive of preventative and productive measures, services that
could enhance economic participation become important. It is not clear whether the financially
difficult path of compensation for actions or needs not realised could substitute for this.
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The Department of Social Development, as well as other government departments and donors, are
already funding civil society organisations in their efforts at poverty relief. As this is relevant to
the right to have access to social security, we have to examine the conditions under which these
organisations operate. This is to ascertain the adequacy of such support, as well as the scope
there is in these organisations to transform the present welfare system. By emphasising civil
society organisations in such a rights-based endeavour immediately brings two problems to light.
One has to do with the political and legal framework such devolution of state responsibility and
human rights accountability implies. The second follows from the first: what are the implications
for duty and responsibility that such a corporatism imply? These can be resolved by the
recognition of the public nature of such activity and the form of compensation that it necessitates.
Civil society organisations occupy a structurally inferior position in South African society. This
is borne out by research that Swilling and Russell undertook to establish the degree to which this
sector and its funding reach the ‘poorest of the poor’. Non-profit organisations play a significant
and important role in poverty relief and social services in the country. They found that 53% of
non-profit organisations (NPOs) in South Africa were “Informal/voluntary”, 3% were
“Stokvels/burial societies” and another 1% were “co-operative” organisations (Swilling &
Russell, 2002:21). At least 56% of non-profits are ‘less than formal,’ perhaps indicating the
greater prevalence of non-profits among the poor. However, most of government funding accrues
to well established formal non-profits, but this did not make up the bulk of their funding. Non-
profits in South Africa were responsible for 58% of their own funding themselves, and 34% of
this was self-generated (ibid.). Even more significantly, these authors point out that volunteer
work exceeded the contributions made by the private sector (ibid.,:37). This places important
normative questions in front of business and government regarding the degree to which they are
committed to a healthy civil society and social development.
Disturbingly, Swilling and Russell point out that many health and social service organisations are
“concentrated in the middle-income categories and were established before 1994. They catered
more for the white sector of society, and possibly still do.” (ibid.,:36). The questions to ask
clearly are: whose labour is driving this crucial element in social policy?; And, in this vein, what
does the existence of a poor, large and functioning informal and voluntary component in this
sector signify? The poor are driving much of their own social and welfare work but support for
them does not match that which the better off, and less deserving, get. The ability and need to
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become involved in an NPO in this field is quite pervasive as there might not be any other way to
achieve social security than through self-organisation.
The country owes a great ‘social debt’ to associations that fulfil these public functions. If the
corporatism of welfare organisations towards the state is relevant to social security rights, their
autonomous functioning should also be. The above reading of the constitution implies a new
regime of funding that would allocate greater importance to compensating appropriate civil
society organisations for actions undertaken. This significant structural change to the context in
which the poor struggle to meet their own welfare needs could lead to a greater proliferation of
organisations of the poor in the communities where they reside. To reach the poor, we need a
structure of funding that follows, rather than leads, the initiatives taken by people themselves at
the grassroots level. The poor and their organisations are clearly disadvantaged by the current
corporatist funding regime, if they are not reproduced by it, and a way has to be found to give
them some kind of control over these processes. This is the first hurdle to overcome in
incorporating civil society in social security transformation. It would also give greater clarity to
more formal NGOs on the relationship they should have with rights and the state.
Governments face many difficulties in attempting social change in the world today (Strange,
1996) and should take much more seriously the benefits of co-operation with civil society.
Within the current climate of globalization, changes to the social security system could be one of
the few avenues left open for the current government to effect redistribution (also of human
capital) directly. The continued and affirmative use of civil society organisations in social
security reform in South Africa, and the reinterpretation of what the right to have access to social
security could mean, will accelerate the transformation of South African society.
When we take a look at the current welfare system, it is evident that the limit of a grant-based
poverty alleviation strategy has been reached. Currently the social assistance part of the South
African social security system comprises a State Old Age Pension (SOAP), a Child Support grant,
a Foster Child grant, a Grant in Aid and a Care dependency grant, a Disability Grant, free Health
Care for mothers and children up to seven years old, public health care, a Military Pension and
grants related to the armed struggle during apartheid, and disaster and nutrition relief. A National
social insurance arm of the system exists in the form of the Unemployment Insurance Fund,
provision for compensation for occupational injury and diseases, a Road Accident Fund and legal
aid. An extensive R90 billion strong private occupational insurance, provident fund, and pension
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industry exists, compared to a R58.4 billion publicly funded system (RSA 2002:131). The
system as a whole, and particularly the social assistance arm, however, exhibits features that can
only be described as exclusionary and it marginalizes certain sections of vulnerable groups
(Olivier, 2000). The Disability grant for example, distinguishes between disabilities acquired
before and after birth. The unemployment insurance fund, due to its contributory nature, caters
for only 5% of the unemployed (RSA, 2002:31). It discriminates between different workers, and
only in April 2003 did it attempt to cover the most vulnerable and least paid categories, domestic
servants and farm workers.
Those who need it the most, the persistently unemployed, are excluded, and their social security
needs makes specific demands upon the system: the need for economic integration. The
government is vulnerable to constitutional challenge as “60% of the poor are not getting any
social security transfers at all” (ibid.,:35). On the other hand, the SOAP, a non-contributory form
of social assistance, has been described as one of the Third World’s exemplary poverty reduction
mechanisms, redistributing from the rich to poor, being gender sensitive, invigorating the rural
economy and contributing to household cohesiveness (Nattrass & Seekings, 2001; Case &
Deaton, 1998; van der Berg, 1998). Nevertheless, the grant is paid out to a majority (92%)
elderly who live in households where there is “at least one person under 20 years of age for each
person of pensionable age” (Møller & Devey, 1995:3,7 after analysis of 1993 data). These
households are made up of 30% 2 generation families, and 61% 3-4 generation extended families.
Pensioners are under immense pressure to utilise these grants for social reproduction. In addition
to this, there are widespread problems with implementation (i.e. payment, registration,
underspending, corruption etc.). Reliance on informal measures or the family to realise social
security objectives is thus fraught with difficulty (see also RSA 2002:58-59). A family-based
grant would need greater budgetary allocation, which is difficult as most of this already goes
towards the SOAP.
The SOAP concisely represents the difficulties of social security transformation in South Africa.
It takes up almost 56% of the budget for social grants (RSA, 2002:60). This means that social
security reform will inevitably implicate, and be influenced by the possibility of change to the
SOAP. However, considering that at present it is the most effective poverty alleviation strategy
in South Africa it would be political suicide to attempt to change it. The centrality of the SOAP
in the social security (assistance) system negates against greater expenditure on, or modification
of the system of social grants. The system reflects the legacy of the industrial paradigm: it covers
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old and young ages, health and accidents, unemployment and disasters. The working population
is covered by insurance measures. Coupled with the current patterns of unemployment, the nature
of the UIF, and the distribution of wealth, it leaves the bulk of the population uncovered. Those
better off resort to private measures, and this leaves a nice sting in the tail of social security in
South Africa: those for which the very idea of social security could mean the most are denied its
benefits. Without clear budgetary and political direction ‘transformation’ of the system would be
impossible. Attempting to change reliance on the SOAP, by the introduction of another grant and
a decrease in the value of the SOAP, would (in the short terms at least) lead to social instability
and even greater household fluidity, to say nothing of administrative difficulties. As SOAP does
many of the things a social grant ought to, one could ask to leave well enough alone, which
means social security reform will have to look elsewhere, outside the notion of a social grant, for
models of change. Services like care-giving and the enhancement of livelihoods, self-reliance
and production are necessary. It follows that response to risk could not be premised on the 9
classic risks that the ILO (ILO, 1984) suggested. Response would have to include productive,
compensatory and preventative measures and relief (see Olivier & Janse van Rensburg, 2001).
That this is necessary is also borne out by the fact that it is the economically active categories in
the population that do not have access to social security, and considering the need for financial
sustainability of the social security system, the only way this access can be realised is to increase
their economic integration. Civil society organisations are able to deliver these services. They
can make them appropriate for specific groups and they can spontaneously and autonomously
respond to need.
South African civil society organisations had their zenith in apartheid’s death. The heart of the
struggle lay in a liberation movement that stretched from a network of grassroots CIVIC
organisations, to a highly organised urban UDF and international network. Since the ascendancy
of the ANC to power, civil society had to be again identified with an autonomous realm outside
the state. This also implies that we need to re-evaluate the relevance of resistance for South
African civil society. This important concept needs to be linked with poverty, as it is the violence
of poverty that is the greatest current source of oppression in South Africa. Less than formal civil
society organisations are the embodiment of this resistance, albeit resistance against an
impersonal and dispersed oppression. Hein Marais identifies ‘almost formal’ organization and
association with the possibility of progressive change as “they … constitute the netherworld of a
post-apartheid South Africa that re-divides society into insiders and outsiders. They in turn will
help shape the template on which the state acts and the realities in which people live. They
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constitute neither a potential panacea nor the mere ‘collateral damage’ of a foreshortened voyage
to a better life for all. They will feature prominently in any alternative to the prognosis [of
limited change].” (2001:308). The relevance of this for social security reform concerns whether
these organisations could participate in a social compact that would define the terms of
redistribution in South Africa. This need not be similar to that which ushered in the Welfare state
in Western Europe, and I will argue instead that a unique South African constitutional solution to
the problem poverty and insecurity is possible
Steven Friedman confirms that a formal social compact in South Africa is difficult as social
identities have become increasingly informal in South Africa (2002:32). Social security is
perhaps not the primary issue for organised labour in South Africa since the welfare-state social
compact is already completed in South Africa: many of the benefits of redistribution already
accrue to the “core working class” of unionised workers (Seekings & Nattrass 2002:4). ‘Less
than formal’ organisations cannot participate in this arrangement. The limits to grants as well as
a workers compact have been reached, but a ‘new coalition’ will inevitably crystallize around the
social security system. Less than formal civil society organisations hold the ontological key to
creating new social protection measures, not only by virtue of their identity that is other than that
of the worker, but also because their response to insecurity is a unique prognosis of how to deal
with risk and poverty. It is those without work, without livelihood and only with the possibility
of association that make up the ontological subjects, possible agents and morally deserving
recipients of social security. Their actions are discharging the right to social security, albeit in
embryonic form. Because they bear the brunt of the inequities of apartheid and current
adjustment to the global economy, and exclusion from mainstream forms of social organization –
the state, a labour market-capital compromise, as well as formal and funded welfare organisations
- should social security rights become a product of their struggles.
The phenomenon ‘civil society’ is a construct that is ‘made’ discursively, that is practically and
ideologically, within the horizon formed by subjective rights and choice of political philosophy
(see Cohen & Arato, 1992). Thus, we need to be aware that the precise contours of advantages
and disadvantages we could ascribe to civil society is not only constantly in flux, but changes to
rights or political philosophy (or funding) could radically alter the possibilities latent in the term.
My objective is thus a little clearer: how would a change in the responsibility structure around
socioeconomic rights alter the potential of civil society? To make the Bill of Right and the rights
enshrined therein the focus of a new form of social compromise we will alter the structural
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abilities of civil society so that we might be able to expect competent progressive and equitable
actions from them. Changing the terms of funding will foster this, and immediately enable civil
society to constructively engage in poverty relief. Many have studied the problems within civil
society organizations in depth to understand their inabilities (see Mitlin, (ed.) 2001; Aina, (ed.)
1990). The beauty is that the constitution underlies the actions of non-state actors in South
Africa. This would not only restructure the social security machinery, but could also represent an
avenue of legal activism, affording the poor with a constitutional measure through which their
livelihoods can be protected. Response to risk is a discovery of social security rights.
Civil society-based social security
Measures other than social grants will give effect to the comments made above. This approach to
welfare reform has its strongest support in Paul Hirst and Veit Bader’s notions of “Associative
Democracy” (Hirst, 1994; Hirst & Bader, 2001). Its essence is that “as many social activities as
possible should be devolved to self-governing voluntary associations” (ibid.,:1), and that it is the
state that is the problem, not welfare. Hirst suggests that associations have to be formed to
deliver services to their members, and as many state functions as can be carried out by
associations can be devolved. Associations have to compete for members to achieve democratic
ideals and efficiency. Because members have a right to exit, as well as voice, accountability to
them is enhanced. Voice within such organisations may compel the organisation to serve the
interests of its members. The possibility of exit should, theoretically at least, safeguard against
this (see Hogget & Thompson 1998). This vision of ‘welfare entrepreneurs’ and associations are
possible because as opportunities for service delivery open up, associations would form or
compete for it. It needs a central state to oversee and fund such activity, and to create the
necessary incentives. It entails not only devolution of power and action, but a restructuring of
how the state works.
Civil society discourse allows an interesting perspective on the ‘space’ where economic activity
takes place. Economic development is conceptualized as making it possible for them to ‘get out’
of the informal sector and enter the formal labour market or economy. What one misses in this
perspective is the fact that the ‘creation’ of markets for less-than formal commodities, services
and land by these people is a response to insecurity and poverty. They are not poor, but rather
active in (very imperfect and small) markets that supply their needs, however dysfunctional or
informal these look like from the outside. Consequently, on their own isolated from the formal
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market people start trading, buying, building and selling in order to make a living. The capital
vested in the informal sector needs to be recognized through legal and administrative measures in
this approach to economic security (see de Soto, 2001). This is one way to ensure participation
and access to the economy, but would also create an economy where we previously only saw
chaos. The historical forces that allowed us to recognize capital needs to be recreated to
transform informal capital to an economic asset.
A formal definition of social security is in stark contrast to the interrelatedness of the programmes
that people themselves have termed “social security.” Krishnamurty, discussing the Society for
Promotion of Area Resources Centres (SPARC), which promotes multi-purpose centres,
expresses it as follows: “Credit, however, is not the main plank of their work but is seen as one of
the means towards the empowerment of the people they are working with. The savings and credit
scheme has to be seen in the perspective of what SPARC sees as ‘social security’ and within the
larger framework of SPARC’s understanding of ‘development’” (in Van Ginneken 1998:98).
Van Ginneken (1998) has documented important examples of this phenomenon. In South Africa
the Senzokuhle CBO network in Eshowe, KwaZulu-Natal sees their work as encompassing
nutrition and food security, primary health care, business development and social mobilisation.
They have engaged in tourism development, orphan care, vegetable gardening, commercial
ventures and the establishment of community centres, among others. These examples bring up a
number of important issues, and they all have some relation to development.
Recognition of this multiplicity of what makes the social secure could be valuable to the South
African debate on the reform of the social security system. The 1997 White Paper coined the
term ‘developmental’ social security, whilst the Taylor report’s emphasis on comprehensive
protection (2002:40) point in this direction. This implies that, among others, the interrelatedness
of social and economic programmes ensures social security. It has long been recognised that
social security services could be organised in the community, of which many examples exist in
Africa (Kaseke, 2002) chief of which is the burial society. The way community-based
organisations respond to risk, however, suggests that we cannot neatly group say, burial societies
under social security whilst excluding small business development. Many of the new possibilities
we have to consider work with a philosophy of welfare that has as hallmark the active
participation of the community in welfare reform (White, 2000; Gaffaney, 2000). Production and
mobilisation are related, as is assistance and development. Once again association is the
important first step that has to be taken (Rowbotham and Mitter, 1994:11). If we want to or have
15
to allow civil society a role in the transformation of social security, we have to take seriously the
great innovations organisations have made in interpreting the concept. The most important is to
establish whether the actions taken are appropriate and in the public interest. Secondly, this
response must be indicative of the interests of the members of the association. Appropriate
response to risk manifests itself in multiple ways that cannot neatly be divided into the public and
private spheres. Consequently, we need to discuss how this interpretation of rights re-evaluates
themes like funding, dependency, responsibility, representation and the division between the
public and private.
Funding, sustainability and dependency
What does this multiplicity of response say about the sustainability of civil society-based social
security programmes? Not only is it a clear indication of how to respond to risk, it is also the
only way, in the absence of funding, that a civil society organisation can sustain itself. If a civil
society organisation cannot sustain itself, it cannot represent the interests of its members.
Multiple responses to risk are thus a political statement about dependency as well as an
organisational strategy. This has clear implications for funding. We have to consider funding
groups that engage in the discharge of human rights for its own sake (see HRCA n.d.). We have
to reassess the responsibilities of both civil society and the state in such a situation. It is clear that
responsibility becomes problematic without the necessary formalities like registration and
reputation. Formality would be conducive to the monitoring and evaluation of such responsibility
but this might not be conducive to the ways the poor organise. If we want to bring this under the
ambit of human rights, we would have to look at funding as a means to enable organisations to
become responsible, and not formality as requirement of funding. In the long run the capacity of
such organisations will increase, but in the short run the possibility of such support could lead to
an opportunistic proliferation of organisations. This is thus not a call for a laissez-faire approach
to funding, and the terms of such funding have to be modelled on the nature of an adequate and
appropriate response to risk. Human rights will give us a substantial reason to fund organisations
and an independent reason to demand control over them. This could give direction and reason to
the need to engage with charitable organisations.
16
The public and the private
The current funding regime in South Africa has translated into nothing less than a structurally
incapable civil society. The actions civil society organisations take do not readily translate into
substantive social change, nor is it recognised as autonomous action. Whatever they do is always
dependant on another form of agency to complete: Why is it that NGOs can only employ
‘naming and shaming’ tactics in their work? Should we not recognise their ability to take action?
Why is their actions always ultimately directed at getting the state to take action, or in
participating in the programmes and projects of the state? Why is funding structured so that the
burden of justification to solicit this funding falls on organisations themselves? This is so
because money easily gets lost, but more fundamentally because donors, and governments, are in
many respects not required to give out this funding. The present liberal discourse that dominates
political philosophy and human rights does not readily recognise public action within civil society
and defines social or public action as part of the state. The rise of the welfare state was the
highest expression of this. Self-reliant avenues of change through organisations and associations
in civil society, specifically those of organisations that are closest to the poor, are highly
constrained. On the other hand, the burden of social reproduction that these organisations bear is
difficult to reconcile with an exclusive emphasis on the state for social policy or human rights
realisation. It should be clear that action in civil society has a public character, and that the state
does not have a monopoly on public action. This is consistent with the idea that rights could be
violated by private actors and that the nature of rights depends upon the actual ways we follow to
realise them. Could we establish the terms under which we can evaluate whether an organisation
truly has a public outward focus (see Young, 1994)? The abilities of rights and law could address
this problem. The true domain of the public sphere is thus defined by rights, and in South Africa
it would be very possible to define as public all those actions that have relevance to rights. The
legal implications of this view will be concluded with.
Conclusion: The constitution and the justiciability of social movement
The primary question for legal analysis is that of the justiciability of the measures described
above. A philosophical discussion of this will have to wait save for the point that the constitution
can be readily interpreted to subsume such activity. Civil society organisations and associations
are already active in securing, to some extent, the livelihoods of many of the poor in South
Africa. These are the actions that need constitutional protection in South Africa and needs to be
17
inscribed under the right to have access to social security. The content of social security rights
have to be defined by actors who actually ‘give’ security (see Rajagopal 2003). How can these
kinds of action be subsumed by the legal order and made into causes of action? Two possibilities
lie before us, one reformatory and the other radical.
This firstly implies that the court has to become a forum where a form of deliberative democracy
about rights can take place. Law, and the content of rights will be made from below, and law thus
becomes an ally in the struggles of the poor. Law would then establish and protect communities
(see Warren 2001:24; Cover 1983). We cannot afford, in this point in time, to have law that is
not connected to social reality. A neutral and purportedly objective law will hide its own bias, a
bias in favour of those with greater access to law and will inevitably reflect agendas that cannot in
any sense be neutral. Law has to be transformative, and part of this transformation is to generate
new ideas and theories of how rights can be realised. Inevitably we will have to see the economy
as a means to discharge rights, although it always will have the tendency to exclusion. We must
realise that those who are marginalised need to be mobilised to participate in the economy,
instead of constructing a state that undermines capital accumulation.
A weak approach to recognising and validating the actions taken by private parties in the
satisfaction of rights, would be to recognise the subsidiarity of civil society organisations that do
so. “Subsidiarity” is a very old term that is gaining currency in debates in the European Union
where there are real concerns about the effects of centralisation on national identity (Delors et. al.
1991; Rodger, 2000). Subsidiarity, which implies the devolution of power to its lowest effective
level for the task at hand, hides a complex struggle about self-determination, and a very strong
version would inevitably point to secession. However, it is important to note that it could secure
the self-reliant functioning of communities and their associations, and as such it relieves the state
of much of its burdens. It is an important regulative concept in the decentralisation of state
actions, and an instrument for the delivery of social policy. It is also an avenue the state could
take to pre-empt a strong claim to compensation for preventative relief given. It would contain
not only the possibility of secession, but would allow the state to create a self-reliant avenue that
communities and organisations could follow in satisfying their own rights. When a civil society
organisation undertakes actions that satisfy the rights in question they become subsidiary to the
state.
18
When rights are violated by the state’s inaction it encourages organisations to step into this void.
This is unlike subsidiarity and is, paradoxically, the strongest path of transformation. To inscribe
this into human rights law can be done by launching a petition to the court for compensation for
preventative relief from the state for rights satisfied (see Liebenberg 2001). There is a strong
tradition of judicial activism the court can follow to give substance to such a claim. Civil society
thus, retrospectively, had prerogative to decide policy. It could change the power relations
between the state and civil society radically and a new relationship between them can be
established. Rights will moderate the relationship and structure it around its normative
considerations.
These paths of transformation would give content to the idea of a regulative and facilitative state.
It does not imply a disappearing state, nor does it imply the abandonment of social action in
favour of market led development. Governments could either compensate associations for the
satisfaction of rights or ‘foster’ the conditions under which sustainable regimes of funding are
established. The fact is that insecurity and poverty are on the increase. Governments are unable,
unwilling and inappropriate in many cases to satisfy positive and/or socioeconomic rights,
specifically the right to social security. Within this context it is very important, in the name of
human security, to enable capable actors to satisfy these rights (within a certain normative
framework). This would make society in general, associations and organisations and individuals
not only bearers but also duty-bearers of rights. The possibility of social transformation that
underlies this interpretation of rights will never be realised if this is not affirmed and made into a
realistic cause of action.
How could the South African state be compelled to facilitate the functioning of organisations that
adequately fulfil the requirements spelt out above? The point of departure would be an analysis
of the Nonprofit Organisation Act and other legislation that regulate the freedom of association of
citizens. The end point would be an analysis of how the constitution, read with the idea that
socioeconomic, and particularly social security rights are rights to livelihood and to care that also
facilitates voice and production of the poor in society. This latter necessity points to the need for
participation in the definition of the content of the right and accompanying social policy. The
possibility of compensation for preventative relief and the question of the subsidiarity of civil
society organisations points, among many things, to the tenuousness of the social contract. The
social contract disposes the state to act in the name of the people. But what happens if the state is
absent, unable or inappropriate to fulfil this mandate? Whether the social contract is ‘violated’ is
19
an abstract question but subsidiary organisations are a remedy for this situation. It means that
provisions have to be made for organisations to fulfil public functions with the possibility of
effective compensation for responsibility. The social contract is exposed as a myth in this
reading, as it is the exercise and constitution of power that creates the necessary trade-offs
between authority and the acquiescence of individuals that makes society possible. Rights are
thus the eminent example of how power is created, as they give us public goods and this
legitimises the state’s monopoly over power. Only now it does not discriminate between the state
and civil society, either can exercise it. This is the ultimate way to inscribe civil society into
human rights.
It is in the public interest that those who suffer under injustice are given the opportunity for
justice. Being poor, whether it is because of apartheid, or because of economic marginalisation,
would qualify for such redress. It is thus a constitutional duty to find ways to include such people
into society. By forming associations and becoming involved in welfare is tantamount to
fulfilling a public function. Thus, a case can be made that the constitution applies to such
organisations (see RSA 1996:s8 2), and that these organisations are an “organ of state” that is
“exercising a public power or performing a public function in terms of any legislation” (ibid.:
S239 b ii). What is important is that the basis for a claim to be an organ of state rests on fulfilling
a public function or discharging a right, which in turn, is made possible by the generous rules of
standing that S 38 of the Bill of Rights elaborates on. Civil society organisations discharging
rights are empowered to act in the public interest, are empowered to fulfil public functions and
are burdened by the ethic underlying the constitution. They have to safeguard rights just as the
state has to.
Justiciability, I would like to submit, appropriately refers to whether the court would be able to
compel civil society associations to uphold a public character (its subsidiarity to the state). The
court should thus oversee whether the association giving effect to the right (which in some way
would relate to the content of the right) does so in terms of the values of the constitution (which
would relate to the democratic content of the work done and the eligibility of members and/or
clients for the services rendered). This notion of justiciability would also incorporate the
possibility of compensation for preventative relief in the sense that the court has a duty to oversee
the continued and progressive functioning of these associations that perform a public character.
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The foregoing will not be realised immediately and it has a certain ‘futuristic’ ring to it. What is
clear however is that much of the conflict and struggle that is implied will become concentrated
in the courts, specifically the Constitutional court, particularly when rights are at stake. The law
will be democratised through its highest institution.
References: Aina, Tade Akin (ed.) 1990 Environment and Urbanisation Special edition 2(1).
Case, A & Deaton, A 1998 “Large Cash Transfers to the Elderly in South Africa” in The Economic
Journal, 108: 1330 –1361.
de Soto, Hernando 2001 “The Mystery of Capital” in Finance and Development 38(1):1-9.
Cassiem, Shaamela & Streak, Judith 2001 Budgeting for child socio-economic rights Government
obligations and the child’s right to social security and education Cape Town: IDASA.
Chirwa, Danwood M 2002 Obligations of non-state actors in relation to economic, social and cultural
rights under the South African Constitution Socio-Economic Rights Project, Cape Town: COMMUNITY
LAW CENTRE University of the Western Cape.
Cohen, Jean & Arato, Andrew 1992 [1985] Civil society and political theory Cambridge, Ma.: MIT Press.
Cover, Robert M 1983 “Foreword: Nomos and Narrative” Harvard Law Review 97(4):4ff.
Dekker, Adriette 2001 “Social Security for those who Work Informally, and Informal (Community- and
Family-Based) Solutions to Social Protection” in Olivier, MP et al. The Extension of Social Security
Protection in South Africa A Legal Inquiry Claremont: Siber Ink cc.
Delors, Jacques, et al. 1991 Subsidiarity: The Challenge of Change Proceedings of the Jacques Delors
Colloquium on Subsidiarity – Guiding principle for future EU policy responsibility? 21-22 March 1991
Maastricht: European Institute of Public Administration.
Friedman, Steven 2002 “Equity in the Age of Informality: labour markets and redistributive politics in
South Africa” in Transformation Critical Perspectives on Southern Africa 50:31-55.
Gaffaney, Timothy J 2000 Freedom for the Poor Welfare and the foundations of Democratic Citizenship
Boulder: Westview press.
Kittay, Eva Feder 1999 Love’s Labor Essays on Women, Equality and Dependency New York & London:
Routledge.
HRCA Human Rights Council of Australia n.d. Symposium papers –A Human Rights approach to
Development available at http://www.hrca.org.au/symposium.htm .
Hogget P & Thompson S 1998 “The delivery of welfare: the associationist vision” in Carter J (ed.)
Postmodernity and the fragmentation of welfare London: Routledge.
ILO (International Labour Organisation) 1984 An introduction to social security Geneva: ILO.
Kaseke, Edwin (ed.) 2002 Journal of Social Development in Africa Special Issue: Social Security 17(2).
Klare, Karl E 1998 “Legal culture and transformative constitutionalism” in South African Journal on
Human Rights 14:146-188.
21
Kittay, Eva Feder 1999 Love’s Labor Essays on Women, Equality and Dependency New York & London:
Routledge.
Le Roux, Pieter 2002 “Financing a Universal Income Grant in South Africa” in Social dynamics 28(2):98-
121.
Liebenberg, Sandra 2001 “The Protection of Economic and Social Rights in Domestic Legal Systems” in
Eide, Asbjørn, Krause, Catarina & Rosas, Allan (eds.) Economic, Social and Cultural Rights A Textbook
(2nd ed.) The Hague: Kluwer International Publishers, pp. 55-85.
Marais, Hein 2001 South Africa Limits to Change The political Economy of Transition Cape Town: UCT
Press.
Mitlin, Diana (ed.) 2001 Environment & Urbanization (special edition) 13(2).
Nattrass, Nicoli & Seekings, Jeremy 2001 “Democracy and distribution in highly unequal economies: the
case of South Africa” in Journal of Modern African Studies 39(3):471-498.
Nedelsky, Jennifer 1990 “Law, Boundaries and the Bounded Self” in Representations 30 (Spring
1990):162-189.
Nedelsky, Jennifer 1993 “Reconceiving Rights as Relationship” in Review of Constitutional Studies 1(1):1-
26.
Møller, Valerie & Devey, R 1995 “Black South African Families with Older Members: Opportunities and
Constraints” in South African Journal of Gerontology 4(2): 3-10.
Patel, Leila 1992 Restructuring social welfare: options for South Africa Johannesburg: Ravan Press.
Rajagopal, Balakrishnan 2003 International law from below Development, Social movements and third
world resistance Cambridge: CUP.
Rodger, John J 2000 From a Welfare state to a Welfare society. London: Macmillan.
Rowbotham, Sheila & Mitter, Swasti (eds.) 1994 Dignity and Daily Bread New forms of economic
organising among poor women in the third world and the first London: Routledge.
RSA 1996 Constitution of the Republic of South Africa Act 108 of 1996 Cape Town: Constitutional
Assembly.
RSA 1997 White paper for Social Welfare Principles, guidelines, recommendations, proposed policies and
programmes for developmental social welfare in South Africa Notice 1108 of 1997 Pretoria: Department of
Welfare.
RSA 2000 Government of the Republic of South Africa and others v Grootboom and others 2000 (11)
Butterworths Constitutional Law Reports BCLR 1169 (CC).
RSA 2002 Transforming the present, protecting the future: Report of the Committee of inquiry into a
comprehensive system of social security for South Africa (Viviene Taylor ed.) Pretoria: Government
Printer.
RSA 2004 South African Social Security Agency Act no. 9 of 2004 Cape Town: Ministry of Social
Development.
22
Seekings, Jeremy & Nattrass, Nicoli 2002 “Class, Distribution and Redistribution in Post-Apartheid South
Africa” in Transformation 50:1-30.
Strange, Susan 1996 The Retreat of the State The diffusion of power in the world economy Cambridge:
Cambridge University Press.
Swilling, Mark & Russell, Bev 2002 The size and scope of the non-profit sector in South Africa
Johannesburg: Graduate School of Public and Development Management, WITS & Durban: Centre for
Civil Society, UN.
Olivier, Marius P (ed.) 2000 Social Security Law in South Africa: a Comparative Perspective. Final report,
CICLA, Johannesburg: Rand Afrikaans University.
Olivier, Marius P & Jansen van Rensburg, Linda 2001 “Perspectives on the concept of social security” in
Olivier, Marius P et al. (eds.) The Extension of Social Security protection in South Africa A Legal Inquiry
Claremont: Siberink CC, pp. 22-28.
Hirst P 1994 Associative Democracy New Forms of Economic and Social Governance Oxford: Polity press.
Hirst, Paul & Bader, Veit (eds.) 2001 Associative Democracy: The Real Third Way London: Frank Cass.
UN (United Nations General Assembly) 1948 Universal Declaration of Human Rights New York: United
Nations General Assembly resolution 217A (III) of 10 December 1948, available
www.un.org/Overview/rights.html
Van der Berg, Servaas 1998 “Ageing, public finance and social security in South Africa” in South African
Journal of Gerontology 7(1):3-9.
Van Ginneken (ed.) 1998 Social Security for all Indians Delhi: Oxford University Press.
Warren, Mark E 2001 Democracy and Association Princeton: Princeton University Press.
White, Julie Anne 2000 Democracy, Justice and the Welfare State Reconstructing Public Care University
Park: Pennsylvania State University Press.
Young, Iris Marion 1994 “Civil Society and social change” in Theoria 83/84, pp. 73-94.
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