Minister Mmamaloko Kubayi: Virtual Constitutional Review Roundtable

Programme Director
Professor Thuli Madonsela, director of the Centre for Social Justice, Stellenbosch University
Justice Albie Sachs, Retired Judge of the constitutional court
Mr Thenbelihle Seyesi, Reseacher at the Centre for Social Justice Stellenbosch University
Ms Alex Mashele, V20 Sustainability stream co-lead
Ms Maricia Froneman, Head of Access to Justice, Thuli Madonsela Foundation 
Distinguished guests
Ladies and gentlemen

Good evening

Thank you for inviting this evening to participate in this very important discussion about the very foundation of our democracy. Thank you Sis Thuli for this opportunity to make this input. The 1996 constitution is a living document in whose foundation we have built a democratic South Africa in which we have been working hard to transform South Africa into a non-racial, non-sexist and prosperous country.

After more than thirty years into our democracy, we continue to stand firm in this commitment to build a culture of human rights, and to reverse the centuries of gross violations of human rights, inequality and the indignity suffered by the majority of the population.

It is in occasions such this one that gives us an opportunity to take stock of how far we have progressed in our democratic project and find ways of deepening it in our society.

Our constitution enjoins us to collectively strive towards the attainment of social justice that provides everyone with equal economic, political and social rights, and opportunities. Our efforts are aimed at ensuring that there is a just distribution of wealth, opportunities, and privileges within our society.

To this end, we have, through our Constitution and legislative measures, taken the approach of social justice as a core value and principle, by placing an emphasis on securing the basic needs of all.

Most notable has been the signing into law measures that seek to ensure equitable access to land, clean water, education, and medical care.

The Department of Justice and constitutional Development has in the past years led initiatives to promote the importance and value of the Constitution, Constitutional Democracy and the Bill of Rights.  

These include various activities in the form of dialogues or discussions focused on reviewing how far the nation has progressed in achieving the ideals of the Constitution, and to provide impetus to increase and deepen constitutionalism, respect for human rights and the rule of law, especially amongst the most vulnerable and marginalized.

During the past two years, the Department led the programme on the celebration and commemoration of the 25th anniversary of the Constitution. This included several activities across the country, as well as the commemoration of key milestone dates to reignite the common vision for unity in diversity, while strengthening the culture of respect for human rights and the rule of law in South Africa.

Some of these activities included provincial dialogues that focused on locally contextual topics which culminated into the National Conference on the Constitution: Reflections on the Constitution and the Road Ahead, hosted under the theme: “Rule of law, accountability, social and economic justice”, held on 22-24 March 2023.

One of the key recommendations from this conference was the need for continued implementation of constitutional education programmes and engagements that would advance constitutional development.

This recommendation was taken further in the year following the Conference as we hosted various dialogues and held engagements with communities on issues of equality.

We also have programmes in the department to enhance the capabilities of community-based paralegals, improve the provision of legal advice and other essential services to the community, promote awareness of constitutional rights in specific communities and promoting constitutional rights education campaigns. The ultimate goal is to empower marginalised and vulnerable groups in rural areas.

Our Constitution has set out the framework for our human rights realisation discourse and the Constitutional Court has been a pillar that has interpreted the core minimum of these provisions, as set out by the Bill of Rights.

The Constitutional Court had an opportunity to interpret sections 26 and 27 of the Constitution in Treatment Action Campaign (TAC),  Grootboom,  Soobramoney  and Mazibuko cases in a manner that was expected to give proper guidance to the constitutional interpretation of socio-economic rights in South Africa and what relief would be appropriate in the circumstances of the cases in question.

In the Grootboom case, the Constitutional Court had to decide whether government has an obligation to take reasonable legislative and other measures within its available resources in order to provide access to adequate housing.

The Constitutional Court held that the provision of socio-economic rights by the State is subject to the principle of progressive realization of these rights and the availability of resources

It is clear that the Constitutional Court adopted the reasonableness test to determine the nature of government’s statutory obligation entailed by the socio-economic rights and by implication the content of these rights.

In the Grootboom case, the Court rejected the notion of a minimum core in favour of an approach that seeks to judge each socio-economic right on merit.

Gender equality, women’s empowerment and the elimination of all forms of discrimination against women are all constitutional imperatives. The Bill of Rights ensures the foundation for a non-racist, non-sexist and human rights-based society in which equality in terms of gender, sexual orientation, class, and social security, among others, are primary considerations.

Our research shows that a gap currently exists in the State’s social protection system, in that self-employed workers, particularly those in the informal economy, are excluded from receiving maternity and parental benefits when the mother enters confinement.

This situation exacerbates the socioeconomic problems of poverty and inequality between women and men in South Africa because it prevents women’s full economic participation, and impacts on their reproductive choices.

Our research also investigated shortcomings in the current maternity and parental protection mechanisms, how this gap should be addressed, and by whom, in order to give effect to South Africa’s obligations in terms of section 27 the Constitution, and applicable regional and international gender equality conventions.

The above-mentioned section of the Constitution, among others, details the right of everyone to equal protection under the law and the States’ obligation not to unfairly discriminate directly or indirectly against anyone on any of the grounds including sex, gender, pregnancy, or employment status.

When read together with the directives of section 39 of the Constitution (interpretation of the Bill of Rights) and the Constitutional Court decision in the Grootboom case, among others, these provisions allow for, if not compel, the extension and implementation by government of a robust maternity and parental benefit scheme in South Africa to workers in the informal economy.

A case is made on the basis of the analysis of Constitutional provisions, supplemented by relevant case law, that by failing to extend maternity benefits and protections to all categories of workers, the State is indirectly permitting unfair discrimination through its employment legislation, against specific categories of workers.

In its final report, the SALRC recommended, among others, that the existing Unemployment Insurance Fund (UIF) system be extended by the Department of Employment and Labour to self-employed workers, so as to make provision for the extension of maternity and parental benefits outlined in the Unemployment Insurance Act, 2001 and the Basic Conditions of Employment Act, 1997 to all workers.

This will bring self-employed workers into a social security system as envisaged in section 27(2) of the Constitution.

Implementation of the proposed maternity and parental benefits contribution scheme for self-employed workers will promote fulfilment of the State’s obligation in terms of the international instruments that are binding upon the RSA.

These instruments include the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), International Covenant on Economic, Social and Cultural Rights (ICESCR),  Sustainable Development Goals Vision 2030, and Recommendation Concerning the Transition from the Informal to Formal Economy (No.204).

Another gap that exists is that women continue to struggle to access maintenance due to inefficiencies in the system and a lack of adequate resources and capacity. The national office of the DOJ & CD remains inundated with complaints from members of the public emanating from the courts nationally. There are logistical difficulties in the maintenance courts that result in the system not functioning effectively.

The crux of the problem is that the maintenance recovery system, which is created in the Maintenance Act, 1998 is stifled by budgetary constraints; inefficiencies in the court system; shortage of adequately trained and capacitated maintenance officers and maintenance investigators; as well as a lacuna in the legislative framework which adversely affects the fulfilment of the State’s obligations in terms of sections 9;  28(1)(b) and (2) of the Constitution and article 27 of the United Nations Convention on the Rights of the Child in a fair and equitable manner.

Section 28(1)(b) of the Constitution provides every child has the right to family care or parental care, or to appropriate alternative care when removed from the family environment. Section 28(2) of the Constitution provides that in all matters involving children, the best interests of the child are paramount.

Article 27 of the Convention on the Rights of the Child requires State Parties to recognise the right of every child to a standard of living which is adequate for the child’s physical, mental, spiritual, moral and social development and to take all appropriate measures in order to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility over the child.

In its final report, the SALRC recommended, among others, that the maintenance recovery system should be streamlined so as to eliminate the difficulties which place undue pressure on the courts to operate efficiently.

The Act in its present form does little to eliminate the marginalisation of children who are not receiving sufficient support from their parents, guardians and care givers.  Although the Act makes provision for interim applications in section 10(6), there is a need to make specific provision for applications in the interests of one side only under certain circumstances.

This may be essential in instances where a delay may jeopardise the well-being of the maintenance recipient, similar to the situation in which the domestic violence court may make interim awards for emergency monetary relief in terms of the Domestic Violence Act, 1998.

I believe that the matters that have been raised by our research of great importance in our effort to continue the expansion of enjoyment of social justice in our country. I hope that your deliberations this evening will delve deeper into these issues and other constitutional gaps so that the outcomes can be filtered into the constitution review process that is currently underway.

I wish well in your deliberations and I am looking forward to the outcomes.

I thank you.

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