Comprehensive Study Notes: Social Security Law (SSL2601)

Orientation to the Module

• Introduction to Module SSL2601:

  • Time Commitment: Students should allocate approximately $30$ minutes for the orientation learning unit.

  • Blended Learning: This is a blended module. Students must log on to the module site via myUnisa as per Tutorial Letter $101$.

  • Study Material: There is no prescribed textbook for this module; the Study Guide is the primary source.

• Module Structure: The guide comprises $7$ learning units:

  • Unit 0: Orientation.

  • Unit 1: Introduction to Social Security.

  • Unit 2: Constitutional and Rights-Based Framework.

  • Unit 3: Social Assistance.

  • Unit 4: Social Insurance.

  • Unit 5: Employment Injuries and Diseases.

  • Unit 6: Health Care.

  • Unit 7: Informal and Indirect Social Security.

• Module Purpose: To provide a general understanding of the South African social security system, covering social assistance, social insurance, informal/indirect social security, the Constitutional framework ($Section\,27$), international law influences, financing, and system weaknesses.

• Overall Outcomes: After completion, students must be able to evaluate information, recognize the role of legislation, apply theoretical frameworks to real-life situations, analyze problem situations, and provide responsible legal advice.

Introduction to Social Security

• Core Concepts and Objectives:

  • Safety Net: Social security provides protection against economic and social hardships caused by events like sickness, maternity, or death.

  • Primary Objective: Alleviation and prevention of poverty, ensuring a minimum standard of living below which no one should fall.

  • Functional Nature: Social security acts as an income replacement or adjustment system. It is curative (compensation), preventative, and remedial.

• Definitions and Frameworks:

  • International Labour Organisation (ILO): Defined as protection provided by society through public measures against economic/social distress (stoppage of earnings). The ILO Social Security (Minimum Standards) Convention $102$ of $1952$ lists nine risks: medical care, sickness, unemployment, old-age, employment injury, family, maternity, invalidity, and survivors' benefits.

  • White Paper for Social Welfare ($1997$): Defines it as public/private measures providing cash or in-kind benefits for income cessation or interruption and child maintenance. Domains include poverty prevention, alleviation, social compensation, and income distribution.

  • Terminology: "Social security" and "social assistance" are often confused with "social protection" (a broader concept denoting basic social support founded on societal responsibility).

• Components of Social Security:

  • Social Assistance: Non-contributory, tax-funded, means-tested cash/in-kind support for the indigent (e.g., social grants).

  • Social Insurance: Contributory schemes protecting income-earners against risks (e.g., unemployment, road accidents, occupational injuries).

  • Informal Social Security: Kinship-based, community support, and mutuality (e.g., burial societies, stokvels).

  • Indirect Social Security: Access to basic needs like water, housing, transport, and education.

• Historical Development:

  • Pre-Colonial: Based on kinship-based support where blood relatives and clans supported those who could not hunt/farm (children, disabled, elderly).

  • Colonial/Apartheid Era: Influenced by Western forms, characterized by racial discrimination. Black people were often excluded as they moved to cities for work, disrupting rural kinship systems. Fragmented departments served limited racial groups.

  • Post-$1994$: Recognized as an internationally recognized human right. Establishment of the Ministry of Social Development. The Taylor Committee was appointed to develop a comprehensive system.

• System Shortcomings:

  • Fragmentation: Over $25$ pieces of legislation govern the system with little synergy between schemes.

  • Exclusionary Nature: Categorical approach (only specific groups like elderly/disabled) and risk-based approach (too limited for developing country needs like HIV/AIDS or crop failure).

  • Inadequate Protection: Fixed on lost earnings rather than future earnings; lacks focus on prevention and integration.

• International Law Influence:

  • Constitutional Mandate: $Section\,39$ obliges courts to consider international law; $Section\,233$ requires legislation interpretation consistent with international law.

  • Ratified Instruments: African Charter on Human and People’s Rights ($9\,July\,1996$), UN Convention of the Rights of the Child ($16\,June\,1995$), ICESCR ($18\,January\,2015$).

  • ILO Standards: Conventions set a "minimum core content" (a floor below which conditions shouldn't fall).

• Financing and Administration:

  • Financing: Social assistance is non-contributory (tax revenue). Social insurance is contributory (premiums shared by employer/employee). The Road Accident Fund is financed by a fuel levy ($Central\,Energy\,Fund\,Act\,38\,of\,1977$).

Constitutional and Rights-Based Framework

• Supremacy of the Constitution:

  • $Section\,2$: The Constitution is the supreme law; law or conduct inconsistent with it is invalid.

  • Aims: To heal past divisions, establish social justice, and improve quality of life.

• $Section\,27$ - Right of Access to Social Security:

  • Subsection (1): Everyone has the right of access to health care, food, water, and social security (including appropriate social assistance for those unable to support themselves).

  • Subsection (2): Internal limitation; the state must take reasonable legislative/other measures, within available resources, for progressive realisation.

  • Scope of "Everyone": Interpreted in Khosa v Minister of Social Development to include non-citizens with permanent residence.

  • "Access to" vs "Right to": Signifies an opportunity to apply for benefits, not an automatic handout; the state creates an enabling environment.

• State Obligations ($Section\,7(2)$): The state must respect, protect, promote, and fulfil rights. This includes positive assistance (vertical application) and protection from third-party infringement (horizontal application).

• Equality and Discrimination ($Section\,9$):

  • Listed Grounds: Race, gender, sex, pregnancy, marital status, ethnic/social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth.

  • Differentiation vs Discrimination: Differentiation (treating groups differently based on seniority/edu) becomes discrimination when based on unacceptable/listed grounds.

  • Direct vs Indirect Discrimination: Direct involves treating people differently based on a protected trait. Indirect uses a neutral practice that disproportionately affects a group.

  • Harsken v Lane NO & others: Set guidelines for determining fairness (complainant's position, nature of the power, impairment of dignity).

• Limitations of Rights:

  • Internal Limitation: Specific to rights (e.g., "within available resources" in $Section\,27(2)$).

  • External (General) Limitation ($Section\,36$): Must be in terms of law of general application, reasonable, and justifiable in a democratic society.

• Enforcement:

  • $Section\,38$: Allows individuals, groups, or associations to approach courts for relief (declarations of rights, mandamuses).

  • $Section\,33$: Right to just administrative action (lawful, reasonable, and procedurally fair).

Social Assistance

• Overview: State-provided basic minimum protection; non-contributory and categorical. Regulated by the Social Assistance Act $13$ of $2004$.

• Specific Social Grants:

  • Child Support Grant: For primary caregivers ($16$+ years old) of children up to $18$. Not conditional on biological parenthood; requires a means test.

  • Care Dependency Grant: For children up to $18$ requiring permanent home care due to severe disability. Not available if child is in a state-funded institution ($6$+ months).

  • Foster-Child Grant: For children under $18$ placed in foster care via court order; only child's means are tested.

  • Old-Age Grant: For persons $60$+ years old. Pivotal for poverty alleviation; often supports entire "missing-generation" households (due to AIDS).

  • Disability Grant: For persons $18$+ years old, unfit for employment due to physical/mental disability. Disability can be permanent ($12$+ months) or temporary ($6$-$12$ months).

  • War Veteran’s Grant: For persons $60$+ or disabled who served in the Great War, WWII, or Korea.

  • Grant-in-Aid: For those receiving old-age, disability, or war veteran's grants who need regular attendance by another person.

• Administration through SASSA: Established under the SASSA Act $9$ of $2004$ to improve efficiency and reduce corruption. Applications take about $3$ months; payments are backdated. Aggrieved applicants can appeal to the Minister of Social Development within $90$ days.

• Social Relief of Distress: Temporary material assistance (usually $3$ consecutive months) for individuals or communities in crisis (e.g., floods, death of breadwinner, awaiting grant payment).

  • Funds via Fund-Raising Act $107\,of\,1978$: Disaster Relief, SADF Fund, Refugee Relief, State President’s Fund (terrorism), Social Relief (violence).

• State-Inflicted Hardship: Special Pensions Act $69$ of $1996$ provides non-contributory pensions for those who served the public interest in the liberation struggle and were unable to provide for pensions. Factual, legal, and future dependants are eligible.

Social Insurance

• Principles: Achieving a reasonable level of income maintenance through insurance principles. Compulsory participation; surplus funds are invested.

• Unemployment Protection:

  • Statutes: Unemployment Insurance Act $63$ of $2001$ (UIA) and Contributions Act $4$ of $2002$ (UICA).

  • Exclusions: Independent contractors, public servants (spheres of national/provincial), and those working less than $24$ hours a month.

  • Benefits: Contributors earn $1$ day of benefit for every $6$ days worked (max $238$ days in a $4$-year period). Includes illness, maternity, adoption, and survivor benefits.

• Maternity Protection:

  • UIA: Max period of $17$ or $32$ weeks. Total payout cannot exceed normal monthly salary.

  • BCEA: Entitles employees to at least $4$ consecutive months leave. Parental leave is $10$ days.

• Illness Benefits: Paid if illness lasts more than $14$ days and after exhausting sick leave under BCEA ($Basic\,Conditions\,of\,Employment\,Act$).

• Retirement Provision:

  • Pension Fund: Up to $1/3$ lump sum payout; balance as monthly pension.

  • Provident Fund: Up to $100\%$ lump sum payout.

  • Defined-Benefit vs Defined-Contribution: DB is calculated by tenure and final salary; DC depends on contributions and interest.

  • Section $37C$ (Pension Funds Act): Death benefits do NOT form part of the deceased's estate. Trustees have discretion to distribute based on age, relationship, and dependency level, prioritizing dependants (legal, factual, or future) over nominees.

• Road Accident Fund (RAF): Compulsory indemnity insurance for road users. Compensates for loss/damage wrongfully caused by motor vehicle driving (death or bodily injury).

Employment Injuries and Diseases

• COIDA (Compensation for Occupational Injuries and Diseases Act $130\,of\,1993$):

  • Concept: No-fault compensation system. Employers pay annual premiums to the fund. Replaces common law delictual claims ($Section\,35$).

  • Exclusions: Domestic workers in private households, permanent SADF members, SAPS while in defense of the Republic.

  • Definitions: Accidents must arise "out of and in the course of employment." Dependants include civil/customary spouses, same-sex partners (Langemaat case), and children under $18$.

• ODIMWA (Occupational Diseases in Mines and Works Act $73\,of\,1973$):

  • Compensatable Diseases: Compensates for occupational lung diseases (silicosis, tuberculosis) in miners.

  • Lump Sum Payouts: Based on impairment level; low fence for compensation is $35\%$ lung function loss.

  • Mankayi v AngloGold Ashanti Ltd: Constitutional Court ruled that ODIMWA beneficiaries are NOT barred from common law claims against employers (unlike COIDA beneficiaries) because the scope and benefits of the two acts differ.

Health Care

• Constitutional Right: $Section\,27(1)(a)$ guarantees access to health care and reproductive health; $Section\,27(3)$ guarantees emergency medical treatment.

• Dual System:

  • Public Sector: Funded by tax revenue; available as social assistance for low-income/indigent persons. Plagued by resource lack.

  • Private Sector: Medical aid schemes (social insurance) regulated by the Medical Schemes Act $131\,of\,1998$. Indicated for formal sector employees.

• National Health Insurance (NHI):

  • Purpose: To unify health services, reduce inequalities, and provide universal coverage.

  • Finance: Compulsory scheme via levies/taxes. Will not abolish private schemes but will require them to satisfy specific requirements.

Informal and Indirect Social Security

• Informal Social Security:

  • Kinship-Based: Based on Ubuntu and reciprocity within families/clans.

  • Neighbourhood-Based: Mutuality through stokvels, burial societies, and revolving credit associations.

  • Shortcomings: Vulnerable to urbanisation and epidemics (HIV/AIDS); poor financial management/corruption risks.

• Indirect Social Security (Social Safety Net Services):

  • Land: Restitution (compensating forced removals), Redistribution (willing seller, willing buyer), and Tenure Reform ($Section\,25$ protections).

  • Housing: $Section\,26$ right to access; protections against illegal eviction (PIE Act).

  • Water: Free basic water for poor households.

  • EPWP (Expanded Public Works Programme): Bridging the gap for unskilled workers through temporary work and training.