Extension of social security benefits to women in the informal economy: a case for maternity protection.
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Date
2021
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Abstract
This study addresses the central issue that only workers recognised as ‘employees’ by South
Africa’s labour law framework qualify for social security benefits. It highlights that, as a result,
self-employed and atypical workers have no access to maternity benefits in the form of paid
maternity leave, resulting in financial hardship – particularly for those in informal employment.
The study finds that this exclusion constitutes a violation of core constitutional rights to
equality, dignity, life, health, social security, and those of children, and a failure on the part of
the state to give effect to its legal obligations in terms of international law. It argues further that
the state’s differential treatment of self-employed workers, and the resulting impact on their
constitutional rights to equality and dignity, constitutes unfair discrimination, which would not
be permitted in terms of the limitations clause.
Equally, the study considers the policy advocacy strategies utilised by self-employed women
in the informal economy, to mobilise and lobby for law reform to address the violation of their
rights. It examines whether state institutions supporting democracy, such as the Commission
for Gender Equality (CGE), can play a role in initiating law reform processes to leverage state
accountability on its gender equality obligations and commitments. It concludes that current
weaknesses within the National Gender Machinery (NGM) undermine this potential, and that
the measures required for the CGE to take up and act on an individual complaint and escalate
this to the national policy level, are unsustainable and indicate failed institutionalism.
The study examines best practice in countries of similar socio-economic status to South Africa,
finding that such countries have successfully extended maternity benefits to self-employed
workers through affordable, administratively efficient mechanisms that give effect to key
components of International Labour Organisation Maternity Convention 183. The study draws
out practical design and implementation considerations that would need to be addressed by the
state, to ensure that the most vulnerable category of self-employed workers – predominantly in
the informal economy – would be able to access maternity benefits, making recommendations
for the South African Law Reform Commission process currently underway.
Description
Doctoral Degree. University of KwaZulu-Natal, Durban.