Abstract

Keywords

Right to work; state obligations; decent work; discrimination; minimum wage; social assistance.

……………………………………………………….

1 Introduction

It is concerning to note that the unemployment rate in South Africa has reached 32.9 per cent in the first quarter of 2023, despite the implementation of progressive policies and legislation aimed at creating more job opportunities. 1

 Kim-Leigh Loedolf. LLB LLM (UWC). Associate Lecturer, Faculty of Law, University of the Western Cape, South Africa. Email: kloedolf@uwc.ac.za. https://orcid.org/0009-0009-8035-9243. I would like to express my gratitude to the PELJ reviewers for their valuable feedback on the manuscript, as well as to the editors of PELJ. I would like to extend a special thank you to Professor Kitty Malherbe and Professor Debbie Collier-Reed for their contributions. Lastly, I would like to thank Dr Windell Nortje for providing feedback on the first draft of the article.

1 Stats SA 2023 https://www.statssa.gov.za/?p=16312#:~:text=South%20Africa's %20unemployment%20rate%20in,the%20fourth%20quarter%20of%202022.

Article 23 of the Universal Declaration of Human Rights states that each person has the right to work, which includes the right to choose his or her employment and every person has the right to protection against unemployment. 2

2 Universal Declaration of Human Rights (1948) Art 23(1); Forere 2011 AHRLJ 596.

Any serious discussion regarding the ICESCR cannot be without reference to the United Nations Committee on Economic, Social and Cultural Rights (hereafter CESCR). The general comments of the CESCR create a jurisprudential structure for the rights articulated in the ICESCR. 3

3 Sarkin and Koenig 2011 Hum Rts Q 13.

The South African legal framework does not expressly provide for a right to work but since the government of South Africa has ratified the ICESCR, it becomes necessary to question the progress that it has made in fulfilling the

state's obligations in relation to the right to work and whether implementing the right to work will help to reduce unemployment in South Africa. 5

5 CESCR Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights: South Africa UN Doc E/C.12/ZAF/1 (2017) para 66.

2 International Covenant on Economic, Social and Cultural Rights: the right to work

Subject to the supremacy clause, 8

8 Section 2 of the Constitution of the Republic of South Africa, 1996 (the Constitution) states that "[t]his Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled".

and cultural rights", the government of South Africa has not ratified the Optional Protocol to the ICESCR. 12

12 The purpose of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (2008) (the Optional Protocol) is to create a complaints procedure to enforce the ICESCR at an international level and until the Optional Protocol is ratified, the ICESCR remains judicially unenforceable at an international level. OHCHR date unknown https://indicators.ohchr.org/; Chirwa and Chenwi "Protection of Economic, Social and Cultural Rights in Africa" 9; Chirwa and Chenwi "Direct Protection of Economic, Social and Cultural Rights in International Law" 34.

Interpreting the right to work is necessary as it acts as an enabler for many other rights. 14

14 Govindjee and Dupper 2011 Stell LR 792; Sarkin and Koenig 2011 Hum Rts Q 3.

The right to work is an individual right that belongs to each person and is at the same time a collective right. It encompasses all forms of work, whether independent work or dependent wage-paid work. The right to work should not be understood as an absolute and unconditional right to obtain employment. Article 6, paragraph 1, contains a definition of the right to work and paragraph 2 cites, by way of illustration and in a non-exhaustive manner, examples of obligations incumbent upon States parties. It includes the right of every human being to decide freely to accept or choose work. This implies not being forced in any way whatsoever to exercise or engage in employment and the right of access to a system of protection guaranteeing each worker access to employment. It also implies the right not to be unfairly deprived of employment. 17

17 CESCR General Comment No 18: The Right to Work UN Doc E/C.12/GC/18 (2006) para 6.

Importantly, the right to work does not imply "an absolute and unconditional right to obtain employment". 18

18 CESCR General Comment No 18: The Right to Work UN Doc E/C.12/GC/18 (2006) para 6.

The right to work as stated in Article 6 of the ICESCR is developed through and along with article 7 and 8 of the ICESCR. 24

24 Article 7 of the ICESCR: everyone has the right to the enjoyment of just and favourable working conditions. Art 8 of the ICESCR provides for the right to form and join a trade union. Gomes "The Right to Work" 231; CESCR General Comment No 18: The Right to Work UN Doc E/C.12/GC/18 (2006) para 8.

3 State obligations created by the right to work

The ICESCR aims to "protect human dignity by establishing both negative and positive obligations for States". 27

27 UN Transitional Justice 7; Government of the Republic of South Africa v Grootboom 2000 11 BCLR 1169 (CC) para 27.

(2) to progressively realise economic, social and cultural rights; (3) to the maximum of their available resources; (4) which is the individual duty of each state party and a collective duty achieved through international assistance and cooperation. 29

29 ICESCR Art 2(1); Chirwa and Chenwi "Direct Protection of Economic, Social and Cultural Rights in International Law" 48.

The ICESCR also creates general obligations that state parties are to "ensure the progressive realisation of the exercise of the right to work". 32

32 CESCR General Comment No 18: The Right to Work UN Doc E/C.12/GC/18 (2006) para 19.

To take appropriate steps, state parties must take measures (legislative, administrative, social and other remedies such as judicial remedies) within a reasonably short period after the ratification of the ICESCR to realise

social, economic and cultural rights, steps must be deliberate, concrete and targeted. 36

36 Chirwa and Chenwi "Direct Protection of Economic, Social and Cultural Rights in International Law" 49.

South Africa's courts have developed useful jurisprudence on the justiciability of economic, social and cultural rights. 37

37 Ssenyonjo 2017 NILR 278.

Progressive realisation of economic, social and cultural rights, allows state parties to give effect to rights over time and has qualitative (existing services are to be improved) and quantitative (access is provided for more people) elements. 39

39 Chirwa and Chenwi "Direct Protection of Economic, Social and Cultural Rights in International Law" 51-52.

State parties are to use their available resources, including financial; human; technological; infrastructural resources and resources from international cooperation and assistance. 40

40 Chirwa and Chenwi "Direct Protection of Economic, Social and Cultural Rights in International Law" 53.

3.1 Minimum core obligations of the right to work: non-discrimination and equal protection

The core obligation in the context of the right to work "encompasses the obligation to ensure non-discrimination and equal protection of employment". 42

42 CESCR General Comment No 18: The Right to Work UN Doc E/C.12/GC/18 (2006) para 31.

notion of minimum core obligations on state parties and has opted instead for reasonableness as the constitutional yardstick for assessing measures taken to give effect to economic, social and cultural rights. 44

44 Vonk and Olivier 2019 EJSS 236.

3.2 Specific obligations: respect, protect and fulfil the right to work

State parties are required to refrain from directly or indirectly interfering with the enjoyment of the right to work. 47

47 CESCR General Comment No 18: The Right to Work UN Doc E/C.12/GC/18 (2006) para 22.

The obligation to protect the right to work obliges states to put measures in place that prevent third parties from interfering with workers from enjoying the right to work. 50

50 CESCR General Comment No 18: The Right to Work UN Doc E/C.12/GC/18 (2006) para 22; Gomes "The Right to Work" 231.

also required to "prohibit forced or compulsory labour by non-State actors". 51

51 CESCR General Comment No 18: The Right to Work UN Doc E/C.12/GC/18 (2006) para 25.

In terms of the obligation to fulfil the right to work, state parties are to provide, facilitate and promote the right to work, which implies that state parties are obliged to adopt legislative, budgetary, judicial and other measures that ensure the full realisation of the right to work. 52

52 CESCR General Comment No 18: The Right to Work UN Doc E/C.12/GC/18 (2006) para 22; Gomes "The Right to Work" 231.

3.3 Decent work

Work in the context of the ICESCR must be decent work. 55

55 CESCR General Comment No 18: The Right to Work UN Doc E/C.12/GC/18 (2006) para 7.

3.4 Right to gain a living by work and social support where work is not available

The ICESCR further stipulates that the right to work includes "the right of everyone to the opportunity to gain his living by work …". 57

57 ICESCR Art 6(1).

4 Assessing South Africa's legal framework against the state obligations of the right to work

4.1 Minimum core: non-discrimination

The core obligation in the context of the right to work "encompasses the obligation to ensure non-discrimination and equal protection of employment". 59

59 CESCR General Comment No 18: The Right to Work UN Doc E/C.12/GC/18 (2006) para 31.

State parties are required to introduce legislation in a manner which does not result in discrimination. 61

61 Mahlangu v Minister of Labour 2021 2 SA 54 (CC) para 44.

The Promotion of Equality and Prevention of Unfair Discrimination Act, 63

63 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

prohibited ground upon which a claim of unfair discrimination may be based. 65

65 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 s 34(1)(a); Mubangizi 2021 IJDL 146.

facilitate the employment of foreign nationals in the South African economy, where their contribution is needed in a manner— (i) that gives effect to the right to fair labour practices contemplated in section 23 of the Constitution; (ii) that does not impact adversely on existing labour standards or the rights and expectations of South African workers; and (iii) that promotes the training of South African citizens and permanent residents. 69

69 Employment Services Act 4 of 2014 s 2(1)(h).

The minister of Labour may make additional regulations to facilitate and regulate the employment of foreign nationals. While section 8(2) of the Employment Services Act is not peremptory, as inferred by the wording of the section which states that the minister may make certain regulations to regulate the employment of foreign nationals. Section 8(2)(a) may still serve as a deterrent to a skilled foreign national who may consider working in South Africa, while it also has the impact of discouraging employers from employing foreign nationals. It is not clear how employers are to satisfy themselves that "there are no other persons in the Republic with suitable skills to fill a vacancy, before recruiting a foreign national". 70

70 Employment Services Act 4 of 2014 s 8(2)(a) states that "The Minister may, after consulting the Board, make regulations to facilitate the employment of foreign nationals, which regulations may include the following measures: The employers must satisfy themselves that there are no other persons in the Republic with suitable skills to fill a vacancy, before recruiting a foreign national"; Mubangizi 2021 IJDL 148.

4.2 Specific state obligations

4.2.1 Specific state obligation to respect the right to work: freedom from slavery and freedom to choose

The Constitution entrenches the right not to be subjected to slavery, servitude or forced labour, thus guaranteeing the obligation to respect through section 13 of the Constitution. 72

72 Constitution s 13.

Section 22 contains two interpretive elements, the first element is the choice, and the second element is the practising of the trade, occupation or profession. 75

75 South African Diamond Producers Organisation v Minister of Minerals and Energy 2017 10 BCLR 1303 (CC) para 65; Currie and De Waal Bill of Rights Handbook 463.

Limitations of section 22 of the Constitution are not to be tolerated lightly. 78

78 Minister of Health v New Clicks South Africa (Pty) Ltd 2006 2 SA 311 (CC) para 657.

impediments may only be imposed when it is justified in the broader public interest. 80

80 The case concerned is a leave to appeal against an order dismissing certain aspects of a licensing scheme which prevents medical practitioners from dispensing medicines unless the medical practitioner has been issued with a licence to dispense medicines. The powers of the director-general to prescribe conditions for the issuance of licences, link the dispensing of medicine to certain premises and factors to be considered in an application for a dispensing licence were challenged. Affordable Medicines Trust v Minister of Health 2006 3 SA 247 (CC) paras 1, 60.

In terms of the specific obligation to protect the right to work, states are to ensure that everyone has the right to equal access to work and training. The Employment Equity Act 83

83 Employment Equity Act 55 of 1998.

The Employment Equity Act was drafted with the purpose of giving effect to the equality clause in the Constitution. 88

88 Du Toit and Sirkhotte "Human Rights in the Evolution of South African Labour Law" 175.

While the aim of the Employment Equity Act is to promote fair treatment and equal opportunity in employment through affirmative action and eliminating

unfair discrimination, notwithstanding the Act's purpose, it causes a direct interference of the right to work for persons who are not regarded as designated groups. 90

90 Designated groups for the application of the Act means "black people, women and people with disabilities". Employment Equity Act 55 of 1998 ss 1 and 13(1).

4.2.2 Specific state obligation to fulfil the right to work

The ICESCR was adopted in 1966. South Africa's current Constitution was finally adopted in 1996. While the Constitution is liberal in its provision of socio-economic rights, the right to work has not been included. Was the exclusion of the right to work intentional? While this question falls outside of the scope of this article, it is certainly a point of interest supported by the fact that similar states, such as Botswana have deliberately excluded socio-economic rights with the intention of avoiding the creation of a rights framework that places more demands on the resources of the state. 91

91 The Attorney General v Dickson Tapela; The Attorney General v Gift Brendan Mwale (Court of Appeal) (unreported) case numbers CACGB-096-14 and CACGB-076-15 of 26 August 2015 para 73.

In order to meet the specific obligation of fulfilling the right to work. States are required to generate employment opportunities and improve their existing employment opportunities and working conditions. 92

92 International Commission of Jurists 2018 https://www.icj.org/wp-content/uploads/2018/08/SouthAfrica-ICJSubmissionCESCR-Advocacy-Non-legal-submission-2018-ENG.pdf 7.

The unemployment rate in South Africa is remarkably high. 95

95 Strauss et al Rapid Country Assessment: South Africa 26.

Employment Services Act 97

97 Employment Services Act 4 of 2014.

4.2.3 Decent work

Work, in the context of Articles 6, 7 and 8 of the ICESCR must: be decent work, respect fundamental human rights and enable workers to earn a living which is enough to support themselves and their dependents. 101

101 Gomes "The Right to Work" 233.

Section 23 of the Constitution makes it clear that everyone in South Africa has the right to fair labour practices, 107

107 Constitution s 23.

defined precisely. 109

109 National Entitled Workers Union v Commission for Conciliation Mediation and Arbitration (JR 685/02) [2003] ZALC 177 (6 October 2003).

An interpretation of the word everyone as used in section 23(1) of the Constitution applies to employees and employers. 111

111 Mbatha v University of Zululand 2014 2 BCLR 123 (CC) para 57; Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration 2009 1 SA 390 (CC) para 34.

According to the CESCR, while the Constitution is progressive concerning economic, social and cultural rights, the Constitution has not fully incorporated the right to work as per the ICESCR. 114

114 CESCR Concluding Observations on the Initial Report of South Africa E/C.12/ZAF/CO/1 (2018) para 4.

Moreover, work, as understood within the context of the right to work, must be decent work. 118

118 CESCR General Comment No 18: The Right to Work UN Doc E/C.12/GC/18 (2006) para 7.

component of the right to human dignity". 120

120 South African Informal Traders Forum v City of Johannesburg: South African National Traders Retail Association v City of Johannesburg 2014 4 SA 371 (CC) para 31.

While human dignity is guaranteed in the Constitution, its attainment is limited due to the high unemployment rate; 123

123 The unemployment rate in SA is 35.3 per cent. Stats SA 2022 http://www.statssa.gov.za/publications/P0211/Media%20release%20QLFS%20Q4%202021.pdf.

4.2.4 Right to gain a living by working: minimum v living wage

The ICESCR further stipulates that the right to work includes "the right of everyone to the opportunity to gain his living by work". 130

130 ICESCR Art 6(1).

chance to have a decent living for themselves and their dependents. 131

131 ICESCR Art 7.

While it is early to speculate what the CESCR may find in terms of the new minimum wage in South Africa, already the regulations to the National Minimum Wage Act still do not apply the minimum wage across all sectors, most notably, domestic workers and public works programme workers are only entitled to a minimum wage which is the same as the national minimum wage since this year. Generally, employees in South Africa may not work more than 45 hours per week. 137

137 Basic Conditions of Employment Act 75 of 1997 s 9(1)(a).

According to Sarkin and Koenig, to fully recognise the right to work, there must be rights to safety at work. 139

139 Sarkin and Koenig 2011 Hum Rts Q 19.

4.2.5 Social support for unemployment

Social assistance programmes in South Africa provide for those who are not expected to work, still do not cover those who are unemployed, save for those who are eligible for negligeable grants, further, those who are transitioning between work, the self-employed and those employed

informally are not covered by social assistance programmes in South Africa. 141

141 ILO 2018 https://www.ilo.org/wcmsp5/groups/public/---ed_mas/---program/ documents/genericdocument/wcms_674579.pdf 14.

While South Africa has social security protection, it is not aligned well with the dynamics of the labour market, most notably, social insurance schemes still operate on a voluntary basis, excluding many workers. 142

ILO 2018 https://www.ilo.org/wcmsp5/groups/public/---ed_mas/---program/ documents/genericdocument/wcms_674579.pdf 14.

Qualifying employees are able to claim unemployment and other benefits in terms of the Unemployment Insurance Act, 146

146 Unemployment Insurance Act 63 of 2001 s 3.

In accordance with the recommendations of the CESCR, 150

150 CESCR Information Received from South Africa on Follow-Up to the Concluding Observations on Its Initial Report UN Doc E/C.12/ZAF/FCO/1 (2021) para 7.

In the wake of the Covid-19 pandemic, it is important for the compliance criteria of the ICESCR to be revived. 152

152 Desierto 2020 https://www.ejiltalk.org/calibrating-human-rights-and-necessity-in- a-global-public-health-emergency-revive-the-un-ohchrs-icescr-compliance-criteria/.

persons are considered to be severely affected by the Covid-19 pandemic, South Africa should therefore adopt targeted measures to mitigate against the impact of the pandemic on vulnerable groups. 153

153 CESCR Statement on the Coronavirus Disease (COVID-19) Pandemic and Economic, Social and Cultural Rights UN Doc E/C.12/2020/1 (2020) paras 5 and 15.

5 Conclusion

As the South African courts has rejected the minimum core obligation, there is no minimum floor for the protection of social, economic and cultural rights. It is clear that while South Africa's legal framework supports the principle of non-discrimination for its citizens, it most certainly does not provide for equal protection of the right to work for all within its territory. Most notably, foreign nationals are excluded from the equal protection of the right to work and may be prevented from working in terms of the Employment Services Act. While jurisprudence embraces fair discrimination, the Promotion of Equality and Prevention of Unfair Discrimination Act does not prohibit unfair discrimination on the grounds of nationality and this implies that the Act does not provide a remedy for those who may be discriminated against unfairly on the grounds of nationality. Section 22 of the Constitution is only extended to citizens, the implication is that foreign nationals do not have equal opportunities with citizens with respect to employment opportunities.

The obligation to respect, protect and fulfil the right to work in South Africa has only been partially satisfied, firstly in the sense that South African law does not provide for the right to work. 154

154 Theron 2013 https://www.upf.edu/documents/3298481/3410076/2013-LLRN Conf_Theron.pdf/84f9e81a-17f6-47a7-9de6-173c02c28fe2 2.

The minimum wage in South Africa is a far cry from what is considered a liveable or decent living wage. Many in South Africa still suffer from severe

poverty and live far below the bread line as a result of insufficient jobs. The government of South Africa must immediately create more jobs or commit to providing income for those who are able to work but cannot due to the unavailability of suitable employment. In the absence of work, social assistance should be adequate to alleviate severe poverty. Sadly, South Africa's social assistance framework is wholly insufficient to provide a decent liveable income. The hesitancy of the South African government to provide decent liveable wages may be rooted in its desire to avoid becoming a total welfare state where its people become totally dependent upon it, but herein lies the irony, if more jobs are created, people will be able to secure a decent living wage for themselves and require less social assistance. The more comprehensive right to work as submitted in this article is as follows: The right to work is defined as the right of all persons in a state to gain an opportunity to work for a decent standard of living; which he or she freely chose or accepted; it is applicable without discrimination of any kind; and in the absence of work opportunities, states should provide social assistance on par or with decent living standards. 158

158 ICESCR Art 6(1).

Bibliography

Literature

Bellace and Ter Haar "Perspectives on Labour and Human Rights"

Bellace JR and Ter Haar B "Perspectives on Labour and Human Rights" in Bellace JR and Ter Haar B (eds) Research Handbook on Labour, Business and Human Rights Law (Edward Elgar Cheltenham 2019) ch 1

CDE South Africa's NEETs Crisis

Centre for Development and Enterprise South Africa's NEETs Crisis: Why We are Failing to Connect Young People to Work (CDE Johannesburg 2021)

Chirwa and Chenwi "Direct Protection of Economic, Social and Cultural Rights in International Law"

Chirwa DM and Chenwi L "Direct Protection of Economic, Social and Cultural Rights in International Law" in Chirwa DM and Chenwi L (eds) The Protection of Economic, Social and Cultural Rights in Africa: International,

Regional and National Perspectives (Cambridge University Press New York 2016) 33-71

Chirwa and Chenwi "Protection of Economic, Social and Cultural Rights in Africa"

Chirwa DM and Chenwi L "The Protection of Economic, Social and Cultural Rights in Africa" in Chirwa DM and Chenwi L (eds) The Protection of Economic, Social and Cultural Rights in Africa: International, Regional and National Perspectives (Cambridge University Press New York 2016) 3-30

Cohen and Moodley 2012 PELJ

Cohen T and Moodley L "Achieving 'Decent Work' in South Africa?" 2012 PELJ 320-344

Currie and De Waal Bill of Rights Handbook

Currie I and De Waal J The Bill of Rights Handbook 6th ed (Juta Cape Town 2013)

Du Toit and Sirkhotte "Human Rights in the Evolution of South African Labour Law"

Du Toit D and Sirkhotte M "Human Rights in the Evolution of South African Labour Law" in Bellace JR and Ter Haar B (eds) Research Handbook on Labour, Business and Human Rights Law (Edward Elgar Cheltenham 2019) ch 10

Forere 2011 AHRLJ

Forere M "The Relationship between the Right of Access to Education and Work, and Sub-regional Economic Integration in Africa" 2011 AHRLJ 588-607

Gomes "The Right to Work"

Gomes VB "The Right to Work and Rights at Work" in Dugard J et al (eds) Research Handbook on Economic, Social and Cultural Rights as Human Rights (Edward Elgar Cheltenham 2020) ch 12

Govindjee Social Protection and Vulnerable Workers

Govindjee A Social Protection and Vulnerable Workers in South Africa in Westerveld M and Olivier M (eds) Social Security Outside the Realm of the Employment Contract: Informal Work and Employee-like Workers (Edward Elgar Cheltenham 2019)

Govindjee and Dupper 2011 Stell LR

Govindjee A and Dupper O "Constitutional Perspectives on Unemployment Security and a Right to Work in South Africa" 2011 Stell LR 775-803

Govindjee and Van Der Walt Labour Law in Context

Govindjee A and Van Der Walt A (eds) Labour Law in Context 2nd ed (Pearson Cape Town 2017)

Ikawa "The ICESCR and the Optional Protocol"

Ikawa D "The International Covenant on Economic, Social and Cultural Rights and the Optional Protocol" in Dugard J et al (eds) Research Handbook on Economic, Social and Cultural Rights as Human Rights (Edward Elgar Cheltenham 2020) ch 2

Kalitanyi and Visser 2010 SAJEMS

Kalitanyi V and Visser K "African Immigrants in South Africa: Job Takers or Job Creators?" 2010 SAJEMS 376-390

Kavuro 2015 LDD

Kavuro C "Refugees and Asylum Seekers: Barriers to Accessing South Africa's Labour Market" 2015 LDD 232-260

Majiedt 2022 LDD

Majiedt S "'Dreams and Aspirations Deferred?' The Constitutional Court's Approach to the Fulfilment of Socio-Economic Rights in the Constitution" 2022 LDD 1-31

Mantouvalou The Right to Work

Mantouvalou V (ed) The Right to Work: Legal and Philosophical Perspectives (Hart Oxford 2015)

Morsink Universal Declaration of Human Rights

Morsink J The Universal Declaration of Human Rights: Origins, Drafting, and Intent (University of Pennsylvania Press Philadelphia 1999)

Mubangizi 2021 IJDL

Mubangizi JC "Xenophobia in the Labour Market: A South African Legal and Human Rights Perspective" 2021 IJDL 139-156

Ngandwe 2013 PELJ

Ngandwe PJ "The Paradox of Migration and the Interests of the Atomistic Nation-States: The Southern African Perspective" 2013 PELJ 427-449

PWESCR ICESCR Handbook

Programme on Women's Economic, Social and Cultural Rights International Covenant on Economic, Social and Cultural Rights: A Handbook (PWESCR New Delhi 2015)

Sarkin and Koenig 2011 Hum Rts Q

Sarkin J and Koenig M "Developing the Right to Work: Intersecting and Dialoguing Human Rights and Economic Policy" 2011 Hum Rts Q 1-42

Scheinin "Indirect Protection of Economic, Social and Cultural Rights in International Law"

Scheinin M "Indirect Protection of Economic, Social and Cultural Rights in International Law" in Chirwa DM and Chenwi L (eds) The Protection of

Economic, Social and Cultural Rights in Africa: International, Regional and National Perspectives (Cambridge University Press New York 2016) 72-88

Ssenyonjo 2017 NILR

Ssenyonjo M "The Influence of the International Covenant on Economic, Social and Cultural Rights in Africa" 2017 NILR 259-289

Strauss et al Rapid Country Assessment: South Africa

Strauss I et al Rapid Country Assessment: South Africa: The Impacts from a COVID-19 Shock to South Africa's Economy and Labour Market (ILO Geneva 2020)

Theron 2014 ILJ

Theron J "Decent Work and the Crisis of Labour Law in South Africa" 2014 ILJ 1829-1850

Theron "What is Decent about 'Decent Work'?"

Theron J "What is Decent about 'Decent Work'? An Argument for the Right to Work in South Africa" in Busby N, Brodie D and Zahn R (eds) The Future Regulation of Work: New Concepts, New Paradigms (Palgrave Macmillian London 2016) 167-192

UN Economic, Social and Cultural Rights of Migrants

United Nations The Economic, Social and Cultural Rights of Migrants in an Irregular Situation (UN New York 2014)

UN Transitional Justice

United Nations Transitional Justice and Economic, Social and Cultural Rights (UN New York 2014)

Vonk and Olivier 2019 EJSS

Vonk G and Olivier M "The Fundamental Right of Social Assistance: A Global, a Regional (Europe and Africa) and a National Perspective (Germany, the Netherlands and South Africa)" 2019 EJSS 219-240

Case law

Affordable Medicines Trust v Minister of Health 2006 3 SA 247 (CC)

Chirwa v Transnet Limited 2008 4 SA 367 (CC)

Chundrakumar v MEC for Transport, Kwazulu-Natal (1671/10) [2012] ZAKZPHC 15 (22 March 2012)

Denel Informatics Staff Association v Denel Informatics (Pty) Ltd (J1330/97) [1998] ZALC 38 (24 June 1998)

Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration 2009 1 SA 390 (CC)

Government of the Republic of South Africa v Grootboom 2000 11 BCLR 1169 (CC)

Kylie v Commission for Conciliation Mediation and Arbitration 2010 7 BLLR 705 (LAC)

Kylie v Commission for Conciliation Mediation and Arbitration 2008 9 BLLR 870 (LC)

Mahlangu v Minister of Labour 2021 2 SA 54 (CC)

Majola v Cricket South Africa 2013 12 BLLR 1236 (LC)

Mbatha v University of Zululand 2014 2 BCLR 123 (CC)

Minister of Health v Treatment Action Campaign (No 2) 2002 5 SA 721 (CC)

Minister of Health v New Clicks South Africa (Pty) Ltd 2006 2 SA 311 (CC)

National Entitled Workers Union v Commission for Conciliation Mediation and Arbitration (JR 685/02) [2003] ZALC 177 (6 October 2003)

National Union of Metalworkers of South Africa obo Its Members in the Employ of the Respondent v Transnet SOC Ltd 2019 2 BLLR 172 (LC)

Rafoneke v Minister of Justice and Correctional Services (Makombe Intervening) 2022 6 SA 27 (CC)

South African Diamond Producers Organisation v Minister of Minerals and Energy 2017 10 BCLR 1303 (CC)

South African Informal Traders Forum v City of Johannesburg: South African National Traders Retail Association v City of Johannesburg 2014 4 SA 371 (CC)

South African National Defence Union v Minister of Defence 2007 8 BCLR 863 (CC)

The Attorney General v Dickson Tapela; The Attorney General v Gift Brendan Mwale (Court of Appeal) (unreported) case numbers CACGB-096-14 and CACGB-076-15 of 26 August 2015

Legislation

Basic Conditions of Employment Act 75 of 1997

Compensation for Occupational Injuries and Diseases Act 130 of 1993

Constitution of the Republic of South Africa, 108 of 1996

Employment Equity Act 55 of 1998

Employment Services Act 4 of 2014

Labour Relations Act 66 of 1995

National Minimum Wage Act 9 of 2018

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Skills Development Act 97 of 1998

Unemployment Insurance Act 63 of 2001

Unemployment Insurance Amendment Act 10 of 2016

Government publications

Gen N 640 in GG 41975 of 12 October 2018

GN 76 in GG 44136 of 8 February 2021

International instruments

CESCR Concluding Observations on the Initial Report of South Africa E/C.12/ZAF/CO/1 (2018)

CESCR Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights: South Africa UN Doc E/C.12/ZAF/1 (2017)

CESCR General Comment No 18: The Right to Work UN Doc E/C.12/GC/18 (2006)

CESCR General Comment No 3: The Nature of States Parties' Obligations (Art 2, Para 1, of the Covenant) UN Doc E/1991/23 (1990)

CESCR Information Received from South Africa on Follow-Up to the Concluding Observations on Its Initial Report UN Doc E/C.12/ZAF/FCO/1 (2021)

CESCR Statement on the Coronavirus Disease (COVID-19) Pandemic and Economic, Social and Cultural Rights UN Doc E/C.12/2020/1 (2020)

International Covenant of Economic, Social and Cultural Rights (1966)

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (2008)

Universal Declaration of Human Rights (1948)

Internet source

Desierto 2020 https://www.ejiltalk.org/calibrating-human-rights-and-necessity-in-a-global-public-health-emergency-revive-the-un-ohchrs-icescr-compliance-criteria/

Desierto D 2020 Calibrating Human Rights and Necessity in a Global Public Health Emergency: Revive the UN OHCHR's ICESCR Compliance Criteria https://www.ejiltalk.org/calibrating-human-rights-and-necessity-in-a-global-public-health-emergency-revive-the-un-ohchrs-icescr-compliance-criteria/ accessed 19 July 2021

ILO 2018 https://www.ilo.org/wcmsp5/groups/public/---ed_mas/---program/documents/genericdocument/wcms_674579.pdf

International Labour Organisation 2018 Decent Work Country Programme 2018–2023 https://www.ilo.org/wcmsp5/groups/public/---ed_mas/---program/documents/genericdocument/wcms_674579.pdf accessed 26 July 2021

International Commission of Jurists 2018 https://www.icj.org/wp-content/uploads/2018/08/SouthAfrica-ICJSubmissionCESCR-Advocacy-Non-legal-submission-2018-ENG.pdf

International Commission of Jurists 2018 Submission to the Committee on Economic, Social and Cultural Rights in Advance of the Examination of South Africa's Initial Periodic Report under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights: Switzerland, 64th Session of the UN Committee on Economic, Social and Cultural Rights https://www.icj.org/wp-content/uploads/2018/08/South Africa-ICJSubmissionCESCR-Advocacy-Non-legal-submission-2018-ENG. pdf accessed 12 December 2021

OHCHR date unknown https://indicators.ohchr.org/

Office of the United Nations High Commissioner for Human Rights date unknown Status of Ratification Interactive Dashboard https://indicators.ohchr.org/ accessed 8 July 2021

PMG 2013 https://pmg.org.za/committee-meeting/15931/

Parliamentary Monitoring Group 2013 Decent Work; Cooperatives: Department of Labour Involvement in their Support https://pmg.org.za/committee-meeting/15931/ accessed 10 October 2019

Rogan and Skinner 2019 https://www.news.uct.ac.za/article/-2019-09-12-in-defence-of-sas-informal-economy

Rogan M and Skinner C 2019 In Defence of SA's Informal Economy https://www.news.uct.ac.za/article/-2019-09-12-in-defence-of-sas-informal-economy accessed 20 March 2020

SAHRC 2021 https://tbinternet.ohchr.org/Treaties/CESCR/Shared%20 Documents/ZAF/INT_CESCR_NGS_ZAF_46640_E.pdf

South African Human Rights Commission 2021 National Human Rights Institution Parallel Report to South Africa's Reponses to the Concluding

Observations and Recommendations Follow-Up Procedure Issued by the Committee on Economic, Social and Cultural Rights https://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/ZAF/INT_CESCR_NGS_ZAF_46640_E.pdf accessed 19 April 2022

Stats SA 2022 http://www.statssa.gov.za/publications/P0211/Media%20 release%20QLFS%20Q4%202021.pdf

Statistics South Africa 2022 Quarterly Labour Force Survey (QLFS) – Q4:2021 http://www.statssa.gov.za/publications/P0211/Media%20release%20QLFS%20Q4%202021.pdf accessed 28 April 2022

Stats SA 2023 https://www.statssa.gov.za/?p=16312#:~:text=South%20 Africa's%20unemployment%20rate%20in,the%20fourth%20quarter%20of%202022

Statistics South Africa 2023 Beyond Unemployment – Time-Related Underemployment in the SA Labour Market https://www.statssa.gov.za/?p=16312#:~:text=South%20Africa's%20unemployment%20rate%20in,the%20fourth%20quarter%20of%202022 accessed 12 November 2023

Studies in Poverty and Inequality Institute 2021 http://spii.org.za/wp-content/uploads/2022/01/2021-Decent-Standard-of-Living-Colloquium-Report.pdf

Studies in Poverty and Inequality Institute 2021 Decent Standard of Living Colloquium Report 2021 http://spii.org.za/wp-content/uploads/2022/01/ 2021-Decent-Standard-of-Living-Colloquium-Report.pdf accessed 26 April 2022

Theron 2013 https://www.upf.edu/documents/3298481/3410076/2013-LLRNConf_Theron.pdf/84f9e81a-17f6-47a7-9de6-173c02c28fe2

Theron J 2013 Decent Work and the Crisis of Labour Law in South Africa https://www.upf.edu/documents/3298481/3410076/2013-LLRNConf_Theron.pdf/84f9e81a-17f6-47a7-9de6-173c02c28fe2 accessed 11 November 2021

List of Abbreviations