PRESS RELEASE: SAHRC refuses to protect the constitutional rights of the unemployed

Xolile Mpini (CEO) , Vuyo Mrubata, Phumeza Vicane and Ernest Selani.

Mon Nov 08 2021 22:00:00 GMT+0000 (Coordinated Universal Time)

We repeat our request to the SAHRC to investigate our complaint that the rights of what is now 11.9 million unemployed people. The rights of our people are being violated by a supposed democratic parliament and government that inflicts misery on the unemployed and their natural employers, small businesses, and households.

SAHRC refuses to protect the constitutional rights of the unemployed

Right to choose your trade, occupation, or profession freely

Section 22 of the Bill of Rights says that “Every citizen has the right to choose their trade, occupation or profession freely.” The freedom of a worker to choose a trade, occupation and profession is cancelled by minimum wage measures. Limiting the choices of workers by forcing employers to pay a minimum wage is against the freedom promised in the Bill of Rights and is therefore unconstitutional.

Right to fair labour practices

Section 23(1) says that South Africans have the “right to fair labour practices”. Preventing someone from selling their labour by making conditions of employment too costly for employers to afford is an unfair labour practice and is therefore unconstitutional.

Limiting the Rights in the Bill of Rights

That the law makers in Parliament have trampled on the sections of the Bill of Rights that are described in this document tell us that the Bill of Rights is not being given the respect that we would expect from members of Parliament. It also tells us that the SAHRC is not doing its job, which is to make sure that the Bill of Rights is respected by everyone. Parliament adopting unconstitutional labour laws that have caused mass unemployment, and the SAHRC for not forcing Parliament to stick to the rules, have done a great disservice to our country’s unemployed women, men, and their families, who have suffered so badly because their constitutional rights have been disrespected.

The Langeberg Unemployed Forum calls on Parliament to bring the laws and regulations into line with the Bill of Rights and on the SAHRC to make sure that the Members of Parliament read Section 36 of the Bill of Rights, which says: “The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.”

Does the SAHRC have the right to ignore the infringement of the of the rights of the unemployed as contained in the Bill of Rights?
The defence to all the infringements referred to above would have to be grounded on section 36 which reads:
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account all relevant factors, including –
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.

(1) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
The infringements inflicted by the labour laws are not reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking account of -:
(a) the nature of the right – there are certainly few rights that are more important than the right to work.
(b) the importance of the purpose of the limitation – the limitations only or primarily serve to protect the haves: those who are employed, and they do not protect the unemployed.
(c) the nature and extent of the limitation – the labour laws severely impact on the ability of the unemployed to find work.
(d) the relation between the limitation and its purpose – the limitation could not possibly be intended to limit the rights of the unemployed.
(f) less restrictive means to achieve the purpose - there are less restrictive means to achieve the purpose other than to limit the rights of the unemployed.
Despite the above illustration, the South African Human Rights Commission had no appetite to investigate and make findings. Instead, they referred us to Parliament, the same parliament whom we complain about for introducing laws that restrict the rights of the unemployed for the benefit of those who already have jobs.

Will the Human Rights Commission investigate our complaint?

We repeat our request to the SAHRC to investigate our complaint that the rights of what is now 11.9 million unemployed people. The rights of our people are being violated by a supposed democratic parliament and government that inflicts misery on the unemployed and their natural employers, small businesses, and households. Is there really no one in government, in the Human Rights Commission, or in the other political parties that understand the terrible harm that is being done by the harsh labour laws and the minimum wages that are totally responsible for the millions of unemployed South Africans who suffer the highest unemployment rate in the world. Does nobody care?

Langeberg Unemployed Forum Executive Committee Members:
Xolile Mpini (CEO), Vuyo Mrubata, Phumeza Vicane and Ernest Selani.