Has SA decided to ignore the rights of the unemployed?

Eustace Davie is a director of the Free Market Foundation and author of Unchain the child. Eustace Davie is a director of the Free Market Foundation and author of Unchain the child.

What is it that allows the majority in Parliament to adopt a resolution that is unconstitutional and causes mass unemployment, without the matter being challenged vigorously in Parliament, and ultimately in court?

Could it be that the Parliamentary opposition and the average South African voter regards the minimum wage to be legally and morally just? If so, they are missing important truths about setting a price for wages above the wage and the consequences of its application.

The truth about the minimum wage is that whilst its adoption sets a minimum below which no employer may hire an employee, the process is positive for those who are hired at a wage equal to or above the minimum wage.

However, the result has harsh consequences for people who cannot find jobs at the minimum wage or above. They become unemployable. Some economists who were consulted about the effects of the minimum wage on low wage workers maintained that setting a minimum wage would not cause unemployment. Others even went as far as suggesting that unemployment would decline. They were wrong on both counts.

Surely, you might say, the South African Constitution and the rule of law would not allow as many as 7.9 million young people to be forcibly blocked from working because they could not find anyone to employ them at a wage equal to or above the minimum wage of R25.42 per hour. The minimum wage applies to everyone, including domestic and farm workers.

Despite the havoc it is causing, the minimum wage remains in place.

A search for other areas in the world where minimum wage laws apply revealed American Samoa, where the major industry is tuna fishing and canning. When the minimum wage was instituted in the US, it also applied to American Samoa. As a result, a substantial number of people in the fishing industry were retrenched, causing a serious decline in production. As a result, the minimum wage was hurriedly withdrawn. South Africa’s harsh treatment of young people remains in place and plays a role in securing South Africa’s position as having the highest unemployment rate in the world, according to the ILO. The four countries with the highest unemployment rates are: South Africa 29,8%, Djibouti 27.9%, West Bank & Gaza 25.7%, Eswatini 24.4% and Republic of Congo 21.8%.

The treatment to which the unemployed have been subjected is in many instances in conflict with the South African Constitution. This should not be allowed to persist. The following are some issues that demand attention: 

  1. Democratic values of human dignity and freedom

Section 7(1) “enshrines the right of all people of our country and affirms the democratic values of human dignity and freedom”. Unemployment causes people to lose their dignity and has a negative effect on their lives that is a great burden to them. Denying them the right to bargain freely with a prospective employer takes away the right to end the indignity of unemployment. It also takes away the freedom of the individual.

  • Protecting, promoting, and fulfilling the rights in the Bill of Rights

Section 7(2) says the state must protect, promote, and fulfil the rights in the Bill of Rights”. This means that citizens can use its power to end unemployment by taking away the laws and regulations that get in the way of the right to work.

  • The right to equality

Section 9(2) says the state must promote the achievement of equality and must take measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination.

  • The state is not allowed to discriminate!  

Section 9(3) says that the state may not unfairly discriminate directly or indirectly against anyone. The labour laws, including the minimum wage, discriminate against the unemployed by unfairly protecting the employed from competition from the unemployed.

  • Everyone has the right to have their dignity respected and protected!  

Section 10 says that everyone has inherent dignity and the right to have their dignity respected and protected. True respect for the dignity of the unemployed includes their right to freely enter into contracts of employment on terms and conditions that are mutually agreed and accepted.

  • Everyone has the right to life!  

Section 11 says that everyone has the right to life. Unemployed persons may starve to death and have their health affected in other ways because they are being denied the right to work by the laws and regulations agreed to by Parliament to protect the job security of the employed.

  • Right to freedom and security 

Section 12(1) says a law that results in unemployment causes unemployed people to be “treated or punished in a cruel, inhuman or degrading way”.  It infringes the provisions of section 12(1)(e). Such a law also takes away the individual’s “right to bodily and psychological integrity”. The most important assets that individuals have are their own bodies. Laws and regulations that stop people from using their hands, muscles, and brain power to earn an income to support themselves and their families cancels their section 12(2)(b) right “to security in and control over their body”.