A CRITICAL EVALUATION OF WHETHER BENEFITS PROVIDED FOR IN COIDA FALL WITHIN THE AMBIT OF THE CONSTITUTIONAL RIGHT TO ACCESS SOCIAL SECURITY PROTECTED IN SECTION 27(1)(c) OF THE CONSTITUTION

Abstract

The right to access social security is a constitutionally entrenched right. Section 27(1)(c) of the Constitution provides that everyone has the right to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. Apart from the concept of social security being inclusive of social assistance, neither the term “social security” nor the term “social assistance” is defined. Conventionally, social security has been regarded as a broad term comprising two primary pillars, namely social insurance and social assistance. Social insurance takes the form of earnings-based insurance schemes, which provide protection against risks such as unemployment and employment injuries. On the other hand, social assistance is synonymous with social grants, which are non-contributory and are provided by the State to categories of society that are in need. Notwithstanding this conventional understanding of social security, the recent Constitutional Court decision in Mahlangu v Minister of Labour found it necessary to engage with the question of whether compensation payable in terms of the Compensational for Occupational Injuries and Diseases Act (COIDA) fell within the ambit of the constitutional right to access social security. The majority and minority judgments differed in this respect. The majority found that COIDA benefits constituted a form of social security, but that they fell within the ambit of social assistance. The minority contrarily held that such benefits were not encompassed within the constitutional right to access social security. As both the majority and minority deviated from the conventional understanding of the definition of social security, the focus of this article is to evaluate the ambit of the constitutional right to social security, specifically whether it encompasses benefits payable in terms of COIDA. The conclusion reached is that COIDA benefits are encompassed within the constitutional right to access social security, as it constitutes a form of social insurance. Therefore, as highlighted in this article, the legal principles articulated by both the majority and minority were flawed.