***Please do not copy, quote or cite without author’s permission***

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

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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.

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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.

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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.

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