Dissertation

Civil Society and the Transformation of Social Security: Towards a Perspective Conception of the Right to Have Access to Social Security in South Africa

Malan, Christiaan Pieter Naudé

2007

Overview

Civil society organisations have and will be mentioned as partners, agents and autochthonous actors of social security. This has come about through advances in insurance products, through the kinds of social action engaged in by civil society organisations, and through the devolution of state power to citizens and civil society organisations. Rights to social security are decisively affected by the use of civil society organisations in the social policy field, and the implications of this use are investigated. This reality of the changing nature of social action needs to be brought to bear on human rights, if rights are to respond adequately to the concerns of injustice, inequality and poverty today. The thesis develops a framework within whichcivil society-based action could be made rights-based and justiciable, and which could guard against the retrogressive substitution of state action by civil society-based activity. Civil society-based action can be seen as upholding rights if it conforms to the fundamental requirements of human rights. These fundamental requirements derive from a performative conception of rights that sees the individual as subject of rights and as the fundamental actor of rights. This view of rights sees rights as dependent on the abilities and volition of all in society, and is presented as an alternative to a realist view of rights, as well as a view of rights as derived from basic human functionings. The intersection of this view of rights, the reality of non-state action for rights, and the legal discourse around socio-economic rights is the central problem that this thesis addresses. The legal discourse has only partially recognised this form of social action, and this thesis proposes a framework within which we may interpret and assess whether civil society action is indeed conducive to the realisation of rights. This framework includes democratic norms for conduct inside civil society organisations, for the interaction between civil society organisations and other actors, like the state and market, and also delineates the role of the court in this performative conception of rights. These interactions will shape the content, and nature of socio-economic rights, and here these insights are made applicable to the right to have access to social security in South Africa.The thesis discusses the suitability of South African civil society for this normative programme developed here. I analyse South African civil society, its historical role in transformation, in the current context, and its place in social and economic policy. There are ample opportunities for participation by civil society organisations in the further reform of the social security system. The realisation of novel ways to realise the right to have access to social security through civil society organisations for South Africans would depend on clarity on how civil society organisations could contribute to the enjoyment, realisation and performance of this right.The framework of accountability developed here has precedents and roots in law, civil society theory and in the discourse of social security. I analyse each, and I show how the social security discourse has incorporated civil society organisations in its historical development. Currently, it is a leading avenue for the further development of this discourse. However, this possibility – which intersects with the discourse of civil society – would depend on civil society being able to realise normative ends in its interaction with wider society. To gain clarity on this I analyse the civil society discourse, and critically point out problems that could stand in the way of this normative project. However, theorists of civil society have emphasised how this problem can be overcome; I draw on these writings to substantiate and legitimate the framework of accountability developed earlier. The realisation of this framework of accountability and action would enable civil society organisations to realise normative ends in society, and thus contribute to the realisation of rights. This vision of how rights could be realised is also discussed from a legal point of view, and I point out the features of the legal discourse that would support my thesis. The central objective of the thesis is to show that the South African constitution can support this reading of rights and the place of civil society action in its realisation.I engage in a construction of the South African Constitution in order to give greater support to my view of rights and what kind of social action we would want from civil society. In this reading, I emphasise the following: The need to respect the rights in the Bill of Rights points towards a view of rights dependent on the free volition of the subject of rights, and thus we may suppose that rights include an emphasis on autochthonous action. The free volition of the subject of rights, however, is dependent on the “rules of standing” and this creates a context of mutual accountability inside organisations towards its members, and a system of accountability of the organisation towards society in general. This supports my contention that the way to visualise civil society accountability for rights depends on a “social ecology” amongst the actors involved.The next part in this construction concerns the wording in the Constitution. The Constitution qualifies the socio-economic rights with the phrase “access to…” and I show that this does not imply a retrogressive or conservative view of rights. I show that it is consistent with a view of non-state actors as bearers of rights, and that it allows us to conceive of rights as performative. This in effect strengthens the ways society may be expected to realise rights. From here, three issues arise: what is the nature of socioeconomic rights? And, are civil society actors to be viewed as “organs of state” in the realisation of rights, and to what extent may we expect them to become subsidiary to the state in the realisation of rights? I point out that we need to re-think the doctrine of a core-content of rights if we see rights as performative. I conclude by clarifying to what extent we may see civil society organisations as such.

• Publisher: ProQuest Dissertations & Theses
• Subject: Accountability / Advocacy / Apartheid / Bill of Rights-US / Children & youth / Civil society / Democracy / Ecology / Economic growth / Growth models / History / Human rights / Law / Orphans / Poverty / Responsibilities / South African Studies
• ISBN: 9798744430252