Commission on gender equality
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report of the committee of inquiry into a comprehensive system of social security for south africa

10 JUNE 2003

Prepared by the Parliamentary Officer: Suraya Williams; Commissioner Manjoo;
HOD Legal: Mmathari Mashao; and Commissioner Nombulelo Siqwana-Ndulo;
with input from Commissioner Teboho Maitse.
the constitutional framework for social security in south africa
The Commission on Gender Equality (CGE) is an independent statutory body, established in terms of Section 187, chapter 9 of the Constitution of South Africa, Act 108 of 1996 (hereinafter referred to as the Constitution).

Our mandate is to promote respect for gender equality and the protection, development and attainment of gender equality. The powers and functions of the CGE are detailed in the Commission on Gender Equality Act 39 of 1996. In terms of Section 11(1), the CGE must inter-alia evaluate any law proposed by Parliament, affecting or likely to affect gender equality or the status of women, and make recommendations to Parliament with regards thereto.

The right to equality is entrenched in Section 9 of the Constitution, which prohibits unfair discrimination by the state, whether direct or indirect, against anyone on one or more grounds including gender, pregnancy, sex...

Section 7(2) of the Constitution compels the state to respect, protect, promote and fulfil the rights in the Bill of Rights.

Section 27 of the Constitution of South Africa compels the state to develop a comprehensive social security system, to achieve its constitutional imperative. The State should not be required to distribute money and resources to individuals, but should put in place a framework wherein individuals can realise their progressive constitutional socio-economic rights. The State is therefore obliged to reach out to the most vulnerable, namely women and children, as they are the ones who usually fall outside the social security safety net.

When addressing social security, the state is bound by international treaties and conventions which it has ratified, such as the Convention on the Elimination of all forms of Discrimination Against Women, (CEDAW) which identifies several forms of social security that must be provided to women without discrimination. No uniform
system can generally be applicable to all countries. A social security reform system needs to address the challenges that are unique to that particular country’s resources and social values. We recommend that social security be addressed comprehensively, and that government should take into account the gendered nature of poverty, as this report fails to address the pattern of poverty with reference to women.

We support the idea of the allocation of appropriate financial and other resources to legislation and policies, to ensure the realisation of the implementation thereof. The judicial and private maintenance system functions so poorly, that many women turn early to the state for the support of themselves and their children. The maintenance system, which is gendered bears particularly adversely on mothers, is in disarray. Systemic failures render the remedies in the Maintenance Act ineffective.

Since the inception of the CGE, we have found maintenance payments as one of the biggest stumbling blocks to women fully attaining equality. The large number of complaints received by the CGE’s Legal Department illustrated the difficulty experienced by women obtaining maintenance orders and then enforcing those orders. In fact, of all the complaints received, majority related to maintenance and the enforcement of maintenance orders.

Perturbed by the growing number of complaints, the CGE called a maintenance round-table meeting in November 2001. Representatives of the Department of Justice, NGO’s, and other stakeholders were invited to the meeting, the purpose of which was to share the concerns of the CGE with partners and discuss possible solutions. The outcome was this meeting was the formation of a Maintenance Task Team. The purpose of the Task Team is to raise funds for a campaign around improving the accessibility and administration of maintenance courts and to conduct further research countrywide in order to ascertain the magnitude of the problems around the enforcement of maintenance orders. The CGE believes that it is crucial to
address the problems experienced by women in enforcing maintenance orders because it involves a debate on a further remedy for women who have difficulty in enforcing maintenance orders.
In light of the aforesaid, the CGE has intervened as amicus in the Constitutional court case of Bannatyne v Bannatyne. This case raised core issues relating to the extent to which remedies available under the Maintenance Act 99 of 1998 is accessible and effective. Furthermore, these proceedings raised core issues relating to the exercise of judicial discretion and the extent to which the state’s duty to protect women impacts on such discretion.

It was submitted that the difficulty in enforcing maintenance orders and receiving maintenance payments operates as a barrier to women attaining substantive equality and enjoying the equal protection and benefit of the law.
The CGE further submitted that the discretion of the High Court on whether or not to commit a defaulter for contempt of a maintenance court order has to be exercised judicially taking into account all relevant circumstances including the provisions of the Constitution. In particular, the following provisions should be taken into account:
The right of women to equality in terms of section 9 of the Constitution;
The right of children under section 28(2) to have their best interests is paramount in every matter concerning a child. In this regard the CGE submitted that it is clearly in a child’s best interest to assist a custodial parent to obtain maintenance payments effectively and expeditiously.

Women and children form the largest portion of disadvantaged communities, especially in the rural areas. This is a consequence of the historical gender inequalities due to the patriarchal social construction that continue to relegate women to the lowest level of social structure, albeit the fact that women comprise more than half of the South African population.

The recommendation as contained in the Taylor report on Comprehensive Social Security Provisioning is one way of addressing the aforementioned problems. The majority poor women fall within the two sets of needs mentioned in chapter three of the report. That is those that: -
Are poor and needy as they are excluded from productive capacity and rewards in the formal sector and
Are informally employed.

The matter is exacerbated by the fact that as primary care givers of their families, such as children and the infirm due to illnesses such as HIV/AIDS and it is likely that women may remain in that position for a much longer time than initially expected. Therefore in addressing the recommendations of the Comprehensive Social Security Provisioning government should have regard for these crucial issues.

The recommendations of the Committee that entail the following measures are but some of the most sensible approaches that can be adapted to address the situation that women are in: -

Measures to address income poverty; that details that "Community Social Protection Package should comprise of at least one primary income transfer that ensures that all South Africans have some income to mitigate or eradicate destitution and starvation"

It has been mentioned over time that the few who qualify for the current South African Social security system are in many respects responsible to take care of the whole family where a grant is the sole source of income. Therefore the CSP will make a big difference to multitudes of the poorest of the poor in South Africa.

measures to address capability poverty. This has already been addressed in part as some of the residents of some major urban centres or municipalities "receive
basis lifeline of water and electricity" This needs to be extended to rural areas so that the poorest of the poor in these communities can also enjoy the benefits.
measures to address assets poverty including income generating assets like land. Traditional and customary practices still discriminate against women in as far as having access to land is concerned. Therefore when the measure as recommended is adopted it should incorporate the special needs and measures to benefit the women in rural areas or areas that are under the control of the traditional authorities.

The Taylor report mentions that the first three are core elements of the CSP and therefore should be given serious consideration by the government as they will address the basic needs of the most marginalized that is poor women.

measures to address social needs for those that are disabled and child support.

In all four measures that have been proposed by the Committee the poorest of women stand to benefit tremendously. In so doing the South African government will be honouring its commitment to the alleviation of poverty as a requisite of the CEDAW.

The majority of people who live with pensioners are dependent on them for their livelihood. Therefore a grant per family may not ease the poverty levels in South Africa. This system will address most of the inadequacies that are brought about by the systems in institutions meant for relieving and lessening levels of poverty.
The Taylor report supports BIG, but there are constraining factors.

Government must ensure that its social security policies and service delivery address the social, geographical and economic differences in our country, especially with regard to infrastructure and resources. Social security should take cognizance of the inequalities, and an attempt to ensure universal access, in light of these differences. Government should therefore contextualise mechanisms for the necessary effective implementation and administering of social assistance grants to women and children, as they form the largest portion of disadvantaged communities. Rural women are most affected by poverty and the asset that potentially is readily available to them is land. The reality however, is that the traditions and customs entrenched in the patriarchal society militate against them gaining easy access to this asset. Rural areas have over decades been excluded from the benefits of social grant. Government has a critical role to play in rebuilding poor communities and environments, as a basis for a democratic, integrated, prosperous and truly non-racial society."

A sustainable poverty alleviation system therefore needs to be implemented.

"Problems faced by women in communal areas include the following; most customary systems will not allocate residential sites to women, except under particular circumstances. For example:
Divorced women have to leave their homes.
They may be evicted from their homes and fields by male relatives after their husband’s death.
Women are seldom allowed to speak at tribal council meetings, or in customary courts. Yet important decisions that affect them and the community’s land base are made in council meetings.

Customary courts, which are made up of men, often favour husbands over wives in domestic disputes. These disputes often impact on women’s access to land and housing.
In many traditional rural areas it is difficult for women to make their voices heard in community meetings. In some areas women must provide free labour and various forms of tribute or levies to traditional leaders".

It is true that the plight of women in rural areas who are currently deprived of access to socio-economic opportunities should be addressed separately, because they comprise the poorest of the poor. The means test should not be a consideration at all as it may be cumbersome and be subject to abuse at the expense of the most in need.

CHAPTER 6: employment and unemployment
This section of the submission focuses briefly on the issue of maternity benefits, which falls under the category of unemployment insurance (referred to in Chapter 6 of the report). Unemployment insurance is a contributory social insurance scheme based on formal sector employment and financed by joint contributions of employers and employees. The scheme provides for limited benefits during periods of short term unemployment.

The Taylor report recognizes the following in respect of maternity benefits: that not all workers have protection through social insurance due both to legislative omission as well as a shift away from formal to informal employment, that the majority of unemployment insurance claimants are poorly paid when they are in employment and hence replacement income levels are correspondingly low, that the problem of benefit exhaustion requires that there must be a de-linking of unemployment benefits from maternity benefits, that the unemployment problem in South Africa is more structural than cyclical and hence unemployment insurance benefits is not a solution in addressing the problem of unemployment.

On page 72 of the report it is proposed that the income replacement rate in respect of maternity benefits should be raised. It is also proposed that there must be an investigation into the possibility of introducing maternity type benefits for those in casual, seasoned or insecure employment.

The CGE has previously lobbied for the de-linking of maternity benefits from unemployment benefits to address the problem facing pregnant women who deplete/reduce their unemployment benefits during maternity leave. The Unemployment Insurance Act 63 of 2001 attempts to address this problem, albeit, not entirely successfully. The Act currently includes maternity benefits under unemployment benefits but ameliorates the problem of benefit exhaustion. Maternity benefits are not regarded as distinct but are seen as a benefit that a woman is entitled to during a time of unemployment. Hence, pregnant women are treated in the same way as ill or unemployed men and the consequence is that the benefit is placed at a level that is below the normal salary amount. The impact is that the costs of reproduction are borne by women alone and there is no recognition that both the state and society have a role to play in the reproductive labour activity of women. The result is that women have to engage in maternity related activities at the cost of their normal salaries. This provision of the Act fails to recognize that fact that women have a right to maternity benefits as a self standing right unconnected with employment credits or illness benefits.

The CGE has also successfully lobbied for the inclusion of domestic workers into the unemployment insurance scheme. The issue of implementation of this section of the Act is a source of concern and will require monitoring.

The CGE is currently conducting research with regard to the issue of quantum of maternity benefits i.e. Part E of the Unemployment Insurance Act. An opinion seeking a constitutional basis for challenging the quantum of maternity benefits has been obtained, and this will form part of a submission to the Labour Portfolio Committee in due course. Section 12(3)(b) of the Act states that the scale of benefits may vary between a maximum rate of 60% of remuneration for lower income contributors and a lower rate for higher income contributors. This section attempts to ensure that the sliding scale maternity benefits entitlement, benefits lower income contributors BUT it fails to recognize and to protect the economic as well as the reproductive contributions of women. It also fails to recognize that during maternity leave, the income of women workers must be maintained at a level, which is sufficient to ensure that women can maintain themselves and their children in a proper condition of health and a suitable standard of living. The opinion indicates that the quantum as prescribed under the Act is inadequate especially in respect of low income earners.

South Africa is a signatory to CEDAW and also the ILO Conventions and as such certain obligations arise. The ILO Maternity Protection Convention No. 191 of 2000 conceptualizes a growing need to provide protection for pregnancy. The Convention also stresses the importance of increasing cash benefits to the full amount of the applicant woman’s previous earnings. The de-linking of maternity benefits from unemployment benefits is also addressed here. Article 11 of CEDAW obliges South Africa to ensure that women are not discriminated against on the grounds of inter alia, pregnancy, gender, and sex. The right to equality is entrenched in the South African Constitution with s9 (3) prohibiting unfair discrimination by the state, whether direct or indirect, against anyone on one or more grounds including gender, pregnancy, and sex. Section 27 (1) (c) of the Constitution gives everyone the right to have access to social security. Under s7 (2) the state is also obliged to respect, protect, promote and fulfil the rights in the Bill of Rights.

In light of the abovementioned rights and obligations, the opinion concludes that the prescribed quantum of maternity benefits is susceptible to a potential constitutional challenge, especially in respect of low income pregnant women. The Unemployment Insurance Act fails to provide adequate social assistance to such women and also fails to respect, protect, promote and fulfil the right to equality as entrenched in the Constitution. The basis for a case of unfair discrimination on the grounds of pregnancy, gender and sex is apparent when it is required for women to make extensive financial sacrifices on accessing maternity benefits.

The CGE is aware that the notion of protective legislation for women is a contested and controversial one, both at a national and an international level. Nevertheless, we do believe that it is necessary, despite the problem of competing concerns in respect of the protection of women and the protection of equality between the sexes. The concept of formal equality requires that all people must be treated the same but the concept of substantive equality recognizes the fact that some groups need to be treated differently in order to achieve true equality. Hence, the issue of a complete de-linking of maternity benefits from unemployment benefits and also a review of quantum of maternity benefits is crucial to achieve substantive equality—as mandated by the Constitution.

chapter 9: retirement and insurance: state old age pension
Currently, the age qualification for state old age pension is 60 years for women, and 65 years for men. In addition to age, to qualify for this pension, is a means test. A single person, who has a net income of less than R13 324.00 per annum, or
R1 110.00 per month, qualifies. Married persons combined income of less than R24 884 per annum, or R 2074 per month, qualifies. The maximum pension amount is R700.00 per month. This clearly indicates that there is no equal enjoyment with regard to this pension. The means test used for the current old age pension can be seen as unfairly discriminating against married women on the grounds of marital status, as the primary victims of this system are women, and the primary beneficiaries are men. The patterns of financial security with regard to retirement benefits are highly skewed in terms of gender and sex. Women therefore forfeit part or the whole of their state pension, because of the husband’s income. A means test should be done on the person as an individual, because there is no mechanism to ensure that the spouse of the income earner has access to the income. There is concern with regard to spouses in an abusive relationship. The forfeiture of the state pension between spouses, because of the means test, could perpetuate financial dependency on the abusive spouse, and compel people to remain in abusive relationships. This can be seen as direct unfair discrimination with regard to marital status, and indirectly unfairly discriminating on the basis of gender, which is in breech of the S9(3) of the Constitution.

There have been some debates and concerns about the age differential in the age at which women and men access state benefits. The Legal Department has received three complaints from men who alleged that they were discriminated against on the basis of gender in terms of the provisions of the Aged Persons Amendment Act 100 of 1998 before 2003. A few weeks ago, a complaint was referred to the CGE by Constitutional court where a man was complaining about the same matter.

The CGE previously referred complaints on similar matters to the National Department of Social Development, whose response was that the: -

The Taylor Committee that has been set up to inquire and report on comprehensive Social Security system has a mandate to attend to the matter. When inquiries were made to the Committee the information that was received was that they need input. The report that all of us have, does not have any recommendation on the issue instead it says the matter is constitutional.
A letter was later received from the Department that advised the CGE of a High court matter. In the same letter the CGE was informed that it was likely to have the matter resolved out of court. Furthermore that the Department is in the process of attending to the drafting of the Social Assistance Bill which is comprehensive and will have huge cost implications for the country. The Head of Legal department, in the Department of Social Development, indicated that she would let the CGE know when time is ready for comments and submissions to be made. Unfortunately on May 30th CGE was informed that the High court action against the Minister has been withdrawn. The CGE will therefore await the Legal department of Social Development’s information on the Bill so that contributions can be made to the law making process in this regard.

The current aged difference in the state pension age was introduced in light of the following reasons, which is aimed at achieving substantive equality: -
Due the nature of jobs that women had, especially in the informal sector
The other responsibility of raising children and taking care of the family’s needs
women retired earlier than men
women could not also save or invest money for retirement like most men did when they were gainfully employed. This is because most of the women’s professions were not paying equally well in comparative to men’s professions. Also most women could not qualify for these professions due to the inherent socialization and institutionalization of the gender discrimination.

Today we still have a lot of women who could not manage to save for their retirement. Therefore the reason why they had to qualify for pension earlier than men has not been eliminated. Raising the age of pension to 65 will only do more harm to women who were not professionals. The option could be that all persons qualify at 60 and that a means test be used to eliminate all those that have other ways for their livelihood, by age 60.

International experience
In the course of investigating the three complaints, the CGE conducted a search on what was happening in other countries pertaining to qualification age for State Old Age Pension. The findings were as follows:
In Canada, all persons qualify at age 65 provided they pass a means test. In other words, if they have other sources of income, they do not qualify. However, by age 70, everyone qualifies regardless of needs and means.
In the United Kingdom, the position is the same as in South Africa. By 6th April 2020, the pensionable age will be 65 for both men and women in the UK.

In our response to the queries received, we take the position that this is an issue that needs thorough research because of the issues referred to above.


South Africa Policy for Older Persons
Older persons (as all citizens, but perhaps more so) need to be protected from poverty, have their health needs adequately provided for, and provided with security among other things.

The CGE supports the measures proposed in the Bill for the protection, welfare and empowerment of Older Persons.
The existing forms of social assistance – Old Age Grants, Disability Grants, Foster Care Grants and Child Support Grants that older persons also benefit from could be enhanced by including measures that will also strengthen the roles and contribution of older persons to society. Such measures could increase their share of income distribution and enhance the quality of their lives. The South African Policy For Older Persons – Eleventh Draft gives guidelines and highlights some of the areas that have the potential to achieve this.

Chapter 3 of the Policy paper expounds on the "Integrated community- based care and support services." Further, the need to "take seriously every aspect of development in its broadest sense, including the impact of and opportunities presented by the growing population of older persons". Implies that adequate provision should be made for the care and maintenance of older persons. It also implies that space should be created for older persons to play a more meaningful role in the life of the society.

The Policy paper makes reference to Section 9.3 of the Constitution which indicates that "the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."
This section of the constitution clearly makes it incumbent on us to create more space for older person’s participation in the active life of our society.

While some older persons are frail and inactive, and need appropriate care, the assumption must not be made that there are not many healthy and active older persons that would like to play a meaningful role and fully engage in activities of their societies.

With the projections that the old age population is increasing rapidly and the population structure changing, it would be more beneficial to the society to carve out a more significant role for older persons in a number of areas.
One critical area would be in the institutionalisation of the role of older persons in the socialisation of the children and youth. Already many older persons carry the burden of raising children whose parents have either died or are migrant labour. They carry this burden, however, without the much needed institutional and financial support.

Benefits of this approach to this role could include:
Advantage of accumulated wisdom and experience to share with the youth in a structured environment.
Restoration of the dignity and respect of older persons by youth.
A boost of the Moral Regeneration Movement as youth gains from guidance of the older persons and imbibe good values.

Another area is economic production. Older persons, even those without formal education, have skills and wisdom gained through a lifetime of practise and experience. These can be harnessed for the benefit of both the state and the older persons themselves.

The Policy Paper highlights the importance of learning opportunities for older persons in both formal and informal environments. Such opportunities would enhance the proposed roles of older persons in the social life.

Another area of concern is Consumer Protection extended to older persons. Advantage is taken of them in a variety of areas of their lives. These include access to basic essential commodities in rural areas where it is not uncommon for storeowners who also handled the payouts to change prices of essential commodities on payout days to deduct the most from pensioners.
Research is needed in this and other areas to stop the exploitation of older persons.

Another area of concern for the CGE is that not always is a Gender Lens applied to the Policy document and Bill. This approach would help highlight some areas of need for special provisioning for the older persons.
Some of these are:
Protection of older women from abuse associated with accusations of witchcraft.
Educational requirements and emphasis on areas of excellence of older women and men based on their societal roles.
It is noteworthy that the Policy document does not list the Commission on Gender Equality Act No. 39 of 1996 as current relevant legislation and documentation in a long list (eleventh draft 1.6)
The lack of a gender lens is a common characteristic in the analyses of the Taylor report as well.