Extension of social security benefits to women in the informal economy: a case for maternity protection.

Abstract

This study addresses the central issue that only workers recognised as ‘employees’ by South Africa’s labour law framework qualify for social security benefits. It highlights that, as a result, self-employed and atypical workers have no access to maternity benefits in the form of paid maternity leave, resulting in financial hardship – particularly for those in informal employment. The study finds that this exclusion constitutes a violation of core constitutional rights to equality, dignity, life, health, social security, and those of children, and a failure on the part of the state to give effect to its legal obligations in terms of international law. It argues further that the state’s differential treatment of self-employed workers, and the resulting impact on their constitutional rights to equality and dignity, constitutes unfair discrimination, which would not be permitted in terms of the limitations clause. Equally, the study considers the policy advocacy strategies utilised by self-employed women in the informal economy, to mobilise and lobby for law reform to address the violation of their rights. It examines whether state institutions supporting democracy, such as the Commission for Gender Equality (CGE), can play a role in initiating law reform processes to leverage state accountability on its gender equality obligations and commitments. It concludes that current weaknesses within the National Gender Machinery (NGM) undermine this potential, and that the measures required for the CGE to take up and act on an individual complaint and escalate this to the national policy level, are unsustainable and indicate failed institutionalism. The study examines best practice in countries of similar socio-economic status to South Africa, finding that such countries have successfully extended maternity benefits to self-employed workers through affordable, administratively efficient mechanisms that give effect to key components of International Labour Organisation Maternity Convention 183. The study draws out practical design and implementation considerations that would need to be addressed by the state, to ensure that the most vulnerable category of self-employed workers – predominantly in the informal economy – would be able to access maternity benefits, making recommendations for the South African Law Reform Commission process currently underway.