SSL2601 - Social Security Law STUDY UNIT 2 Constitutional and rights based framework.

SSL2601 - Social Security Law STUDY UNIT 2 Constitutional and rights based framework. STUDY UNIT 2: Constitutional and Rights -- Based Frame Work How do you describe the constitutional provisions on the right of access to social security? In terms of section 27, the Constitution gives everyone the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. In other words, the Constitution views social security as an umbrella concept that covers – amongst other things – social assistance which may come in the form of social grants and social insurance, which takes the form of insurance schemes such as private retirement schemes and unemployment insurance fund. The Constitution is the supreme law of the country. Any law or conduct inconsistent with it is invalid and the obligations imposed by it must be fulfilled. In addition, the state must respect, protect, promote and fulfil the rights in the Bill of Rights. One of the aims of the Constitution is to heal the divisions of the past and to establish a society based on democratic values, social justice and fundamental human rights. The Constitution is the supreme law of the country. Any law or conduct inconsistent with it is invalid and the obligations imposed by it must be fulfilled. In addition, the state must respect, protect, promote and fulfil the rights in the Bill of Rights. One of the aims of the Constitution is to heal the divisions of the past and to establish a society based on democratic values, social justice and fundamental human rights. In the Government of the Republic of South Africa and others v Grootboom and others, the court relied heavily on the right to human dignity as a core value underlying all other human rights. This value of human dignity has also been embodied as a fundamental right. In any discussion of the social security regulatory framework it is imperative to consider the underlying foundation of the framework which, in this case, would be the constitutional imperative to guarantee everyone access to social security as a fundamental right. What are the obligations arising from the constitution? The Bill of Rights is especially entrenched in the Constitution and it binds the executive, the judiciary and all organs of state, as well as natural or juristic persons, provided certain conditions have been met (s 8 of the Constitution). In terms of general constitutional law, an organ of state acts as a functionary of the state. [PLEASE NOTE: It is clear from a reading of section 8 of the Constitution that the Bill of Rights is intended to apply to all branches of the state, namely the legislature, the executive, the judiciary and all organs of state. The Bill of Rights has vertical operation by virtue of the fact that it is primarily directed at protecting the fundamental human rights and freedoms of the individual against infringement by the state. This point, however, raises the important question of whether the Bill of Rights also operates horizontally in the sense that it also This study source was downloaded by from CourseH on :36:59 GMT -06:00 2 grants protection against infringements of fundamental rights by private third parties. The answer to this question is twofold. Firstly, section 8(2) of the Bill of Rights specifically states that the Bill of Rights binds both natural and juristic persons to the extent that the rights are applicable and taking into account the nature of the rights and the nature of any duty imposed by the rights. Secondly, the horizontal application of the Bill of Rights may also be effected through legislation. Some provisions of the Bill of Rights instruct the state to enact legislation to give effect to the rights entrenched in the Constitution. In terms of section 7(2) of the Constitution, the state has a duty to promote and fulfil everyone’s rights. This duty gives the beneficiaries the right to require positive assistance or a benefit or service from the state. The duties to protect, promote, and fulfil in section 7 of the Constitution place a positive duty on the state and it is argued that these duties also require positive action from the courts. Section 27(2) of the Constitution obliges the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to have access to social security. The obligation includes the adoption of enabling strategies to assist people to gain access to the rights through their own endeavours and initiatives, as well as more direct forms of assistance to groups in particularly disadvantageous or vulnerable circumstances.