Constitutional perspectives on unemployment security and a right to work in South Africa

Govindjee, Avinash ; Dupper, Ockert (2011-09)

CITATION: Govindjee, A. & Dupper, O. 2011. Constitutional perspectives on unemployment security and a right to work in South Africa. Stellenbosch Law Review = Stellenbosch Regstydskrif 22(3):775-803.

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The endemic problem of unemployment poses a serious challenge to the realisation of South Africa's constitutional goals and values. One of the most glaring gaps in the assistance provided to the unemployed in South Africa is the exclusion of the long-term unemployed from any income-replacement measures. While the state's focus, when it comes to people of working age, is on job creation (rather than extending the range of social grant recipients), policy interventions to reduce unemployment tend to operate largely in the absence of a proper legal framework. For example, there is no designated right to work in the Bill of Rights. No legislation deals specifically with employment creation initiatives and few court cases have considered this issue. Without a right to work, there is a real possibility of a successful constitutional challenge to the current situation. Although this article acknowledges indirect ways to give constitutional recognition to such a right, a more direct approach is favoured in the form of the insertion in the Constitution of a limited, qualified right to unemployment security, including the right of access to employment opportunities and work. This would allow the state to limit an unemployed person's right to social assistance - the root of a potential constitutional challenge - on the basis that the state is striving, within its available resources, to progressively take reasonable legislative and other measures to create employment opportunities. In the absence of such an explicit right, the state may find it very difficult to use its attempts to create more jobs as a justification for its failure to pay social grants to the entire uncovered adult population. Significantly, constitutionalising such a right would embody transformative constitutionalism. It is argued that the Constitution should be the starting point in the quest for meaningful social change. A new constitutional right would result in a principled basis for the introduction of legislative and policy measures aimed at defusing the time bomb of long-term unemployment and endemic poverty.

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