With the dawn of democracy, the South African social security system was in dire need of change. The right of access to social security was for the first time entrenched as a fundamental right in the 1995 Constitution. Since then, many changes have been effected to the present formal social security system, but these were mostly ad hoc and lacked a comprehensive approach. The past history of the country led to the exclusion of the majority of the population from formal social security protection. The excluded and marginalised had to rely on informal social security measures to provide social protection. This resulted in a system of co-existence between formal and informal social security. Although informal social security is increasingly recognised as part of the social security landscape, the role and importance of informal social security have largely been ignored in all reforms to improve the protective scope of the present social security system. The thesis aims to change this. Informal social security has been denied a rightful place in the South African social security landscape. The thesis recommends a model as to how the divide between formal and informal social security can be bridged. This model will, it is hoped, serve as a baseline for stimulating debate and generating new innovative ideas as to how to improve the present social security system in South Africa. / Jurisprudence / LLD

Developing an adjudicative institutional framework for effective social security provisioning in South Africa entails the establishment of a system that gives effect to the rights (of access) to social security and to justice. These rights are protected in the Constitution and in various international law instruments. In the Constitution, the Bill of Rights guarantees everyone the right to have access to social security, including appropriate social assistance for persons who are unable to support themselves and their dependants. It further requires the State to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to access to social security. Since a dispute resolution (adjudication) framework is an integral part of any comprehensive social security system, it is included in the constitutional obligation of the State. The establishment of a social security adjudication system is an intersection of the right of access to social security and the right of access to justice. The Constitution states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. In addition, other rights protected in the Constitution have a bearing on the realisation of the rights of access to social security and to justice. There is a close correlation between all the rights in the Bill of Rights, as they are interrelated, interdependent and mutually supporting. They must all be read together in the setting of the Constitution as a whole and their interconnectedness must be taken into account in interpreting rights; and in determining whether the State has met its obligations in terms of any one of them. These rights, which include the right to equality (section 9), the right to human dignity (section 10) and the right to just administrative action (section 33) must thus be considered in establishing a social security adjudication system. Also to be considered are other constitutional prerequisites for the establishment of a social security adjudication system, such as the limitation and enforcement of rights (sections 36 and 38 respectively); principles relating to courts and the administration of justice (Chapter 8) and basic values and principles governing public administration (Chapter 10). In establishing a social security adjudication system in South Africa, international law standards and developments in comparative systems must also be taken into account. The Constitution adopts an international law- and comparative law-friendly approach. It states that when interpreting fundamental rights, international law must be considered while foreign law may be considered (section 39). This thesis aims to develop an adjudicative and institutional framework for effective social security provisioning in South Africa that realises the rights of access to social security and to justice in the South African social security system. This is achieved by exploring the concept of access to justice, and its application in the social security adjudication system. The current social security adjudication system is evaluated against the concept of access to justice applicable in international and regional law instruments, comparable South African (non-social security) systems and comparative international jurisdictions. Principles and standards on the establishment of a social security adjudication system are distilled; and a reformed system for South Africa is proposed. / Mercantile Law / LL.D.

With the dawn of democracy, the South African social security system was in dire need of change. The right of access to social security was for the first time entrenched as a fundamental right in the 1995 Constitution. Since then, many changes have been effected to the present formal social security system, but these were mostly ad hoc and lacked a comprehensive approach. The past history of the country led to the exclusion of the majority of the population from formal social security protection. The excluded and marginalised had to rely on informal social security measures to provide social protection. This resulted in a system of co-existence between formal and informal social security. Although informal social security is increasingly recognised as part of the social security landscape, the role and importance of informal social security have largely been ignored in all reforms to improve the protective scope of the present social security system. The thesis aims to change this. Informal social security has been denied a rightful place in the South African social security landscape. The thesis recommends a model as to how the divide between formal and informal social security can be bridged. This model will, it is hoped, serve as a baseline for stimulating debate and generating new innovative ideas as to how to improve the present social security system in South Africa. / Jurisprudence / LLD

Developing an adjudicative institutional framework for effective social security provisioning in South Africa entails the establishment of a system that gives effect to the rights (of access) to social security and to justice. These rights are protected in the Constitution and in various international law instruments. In the Constitution, the Bill of Rights guarantees everyone the right to have access to social security, including appropriate social assistance for persons who are unable to support themselves and their dependants. It further requires the State to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to access to social security. Since a dispute resolution (adjudication) framework is an integral part of any comprehensive social security system, it is included in the constitutional obligation of the State. The establishment of a social security adjudication system is an intersection of the right of access to social security and the right of access to justice. The Constitution states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. In addition, other rights protected in the Constitution have a bearing on the realisation of the rights of access to social security and to justice. There is a close correlation between all the rights in the Bill of Rights, as they are interrelated, interdependent and mutually supporting. They must all be read together in the setting of the Constitution as a whole and their interconnectedness must be taken into account in interpreting rights; and in determining whether the State has met its obligations in terms of any one of them. These rights, which include the right to equality (section 9), the right to human dignity (section 10) and the right to just administrative action (section 33) must thus be considered in establishing a social security adjudication system. Also to be considered are other constitutional prerequisites for the establishment of a social security adjudication system, such as the limitation and enforcement of rights (sections 36 and 38 respectively); principles relating to courts and the administration of justice (Chapter 8) and basic values and principles governing public administration (Chapter 10). In establishing a social security adjudication system in South Africa, international law standards and developments in comparative systems must also be taken into account. The Constitution adopts an international law- and comparative law-friendly approach. It states that when interpreting fundamental rights, international law must be considered while foreign law may be considered (section 39). This thesis aims to develop an adjudicative and institutional framework for effective social security provisioning in South Africa that realises the rights of access to social security and to justice in the South African social security system. This is achieved by exploring the concept of access to justice, and its application in the social security adjudication system. The current social security adjudication system is evaluated against the concept of access to justice applicable in international and regional law instruments, comparable South African (non-social security) systems and comparative international jurisdictions. Principles and standards on the establishment of a social security adjudication system are distilled; and a reformed system for South Africa is proposed. / Mercantile Law / LL.D.

The South African Constitution in section 27(1)(c) obligates the state to develop a comprehensive social security system. It affirms the universal right to access to social security, including appropriate social assistance for those unable to support themselves and their dependants. It orders the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. The underlying normative commitment of social security is the improvement of the quality of life of the population by promoting economic or material equality. Social security ensures that all citizens have a stake in society and that each individual has an incentive to contribute to the development of the commonwealth. It plays a crucial role in the lives of communities and families viewed in the context of social transfers which provide broader development objectives and tackles income poverty transfers. The objectives of this study are threefold. Firstly, it examines the extension of social assistance coverage to the indigents in South Africa. Secondly, it looks at the legal mechanisms employed by courts and government in order to improve the social security rights of the poor in South Africa. Thirdly, the research investigates the possible reform and trends in India and Brazil with the aim of improving South Africa’s system of social security. For the avoidance of doubt, the law evaluated in this work is at 15 September 2015. / Jurisprudence / LL. D.