Law, Democracy & Development - Volume 16, Issue 1, January 2012

What follows is the edited text of a speech delivered by Yunis Carrim at the launch of the Community Law Centre's Parliamentary Programme in Cape Town on 20 October 2010. It is reproduced here because of its relevance to the topic of LDD's Special Collection for 2011/2012, "Civil society participation in Parliamentary oversight", as well as the importance of the issues it addresses in the context of South Africa's evolving democratic practice.

This article is concerned with a particular category of informal workers, namely informal craft producers who access formal markets through intermediaries. Intermediaries - not-for-profit organisations as well as for-profit enterprises - source contracts, design products, negotiate contracts, train informal producers to make the products, purchase the raw materials and pay producers for products made. Most producers work on the intermediary's premises, are paid by the piece and are denied benefits and protection. An unreflective response invokes the suite of employment rights potentially triggered by the rebuttable presumptions contained in section 200A of the Labour Relations Act 66 of 1995 ("LRA"). Producers earning below the stipulated minimum are likely to be able to invoke at least one of the seven rebuttable presumptions that they are employees, which then trigger employee rights and benefits contained in the LRA, the Basic Conditions of Employment Act 75 of 1997 ("BCEA") and other employment laws.

---

But, as this article will argue, establishing and enforcing producers' rights as employees is likely to result in the "employers", namely the intermediaries, restructuring their relationship with producers to fall outside the purview of section 200A. Alternatively, intermediaries may close down if they cannot afford the cost of providing the benefits and protections prescribed by employment laws. And, given the structural impediments for the vast majority of producers to participate in formal markets without intermediaries, either strategy on the part of intermediaries would render producers' livelihoods more precarious.

Editorial note: What follows is the edited text of a speech delivered by Yunis Carrim at the launch of the Community Law Centre's Parliamentary Programme in Cape Town on 20 October 2010. It is reproduced here because of its relevance to the topic of LDD's Special Collection for 2011/2012, "Civil society participation in Parliamentary oversight", as well as the importance of the issues it addresses in the context of South Africa's evolving democratic practice.

The South African Constitution requires that the National Assembly and provincial legislatures function in an open and transparent manner. It is indeed a requirement that the National Assembly and provincial legislatures "must facilitate public involvement in the legislative and other processes". Not only is this invitation applicable to the full sittings of the National Assembly or the legislature, as the case may be, but the public is also invited to the engine room, namely the meetings of committees. The Constitution is clear that neither the public nor the media may be excluded from a committee meeting unless it is reasonable and justifiable to do so in an open and democratic society. Access to the National Assembly and legislatures is only controlled to the extent that basic security requirements need to be met. With such a standing and constitutionally guaranteed invitation to South Africans, the question must be asked to what extent this has been utilised to embody participatory democracy.

---

This paper explores the extent of public participation in the legislative, oversight and accountability mandates of Parliament. The legislative mandate refers to the making, introducing and amending of laws. The Constitution requires that the executive must account to Parliament for its actions, policies, expenditure etc. Corder et al explain it as follows: "Accountability can be said to require a person to explain and justify - against criteria of some kind - their decisions or actions. It also requires that the person goes on to make amends for any fault or error and takes steps to prevent its recurrence in the future." Oversight has a broader meaning than accountability and includes a wide range of activities and initiatives aimed at monitoring the executive. While accountability and oversight may differ in respect of scope and focus, it is also clear that the two are closely linked and mutually reinforcing. The last concept requiring clarification is "the public" within the sense of public participation. As will be shown below, the concept was used in an expansive manner and few restrictions were placed on the inclusion of individuals or organisations in the review undertaken. Some may argue that, for example, national human rights institutions, such as the South African Human Rights Commission (SAHRC), are state institutions and would thus not be part of "the public". On the other hand it can be argued that the SAHRC has a particular mandate to prevent and protect the public against excesses of the state and that this places it more closely aligned to the interests of the public than the state. In this paper the latter view was followed.

It is now generally accepted that the African Charter on Human and Peoples' Rights (African Charter or the Charter) is the overarching normative instrument in the African human rights system. In almost all discourse relating to human rights at the continental stage, the African Charter receives some mention or attention. Increasingly, the African Charter is also seeping into the national legal systems of the member states of the African Union (AU). In addition to direct application of the Charter by way of domestication (or incorporation) by some states, there are claims that Charter provisions have been duplicated in national bills of rights by other states.

---

Against the background that post-colonial African regimes were reluctant adopters of the African Charter, the entrenchment of the Charter within continental structures and national legal systems is already a huge achievement. It is an achievement that the agitators and drafters of the Charter may well not have envisaged.

South Africa's Children's Act 38 of 2005, which was under development over the period of 1997 to 2005 and which was finally fully promulgated on 1 April 2010, is consciously respectful of cultural rights. Throughout, sections of the Act affirm the need for respect for a child's cultural attachments, including requiring consideration of culture as a general indicator relating to the best interest of the child.

---

The South African Law Reform Commission (SALRC) which spear-headed the investigation into the review of the Child Care Act 74 of 1983, the then legislation providing for the welfare of children, identified "children growing up under customary law" as an explicit constituency to be addressed in the law reform process. A chapter on children growing up under customary law regimes is to be found in the 2001 Discussion Paper that was issued by the SALRC. From the outset, the Commission posed questions as to which dimensions of customary law and culture could be assimilated in the omnibus children's legislation that was forthcoming; which customary practices posed risks to children's rights or violated constitutional principles; as well as how best to deal with identified practices which could not be tolerated in protective rights based legislation.

The concept of gender is relevant in understanding how HIV/AIDS is spread. This is because of women's social and biological vulnerability to HIV infection. What is meant by gender has reference to roles which males and females respectively are expected to play within a particular society. There are commonly accepted expectations with regards to male and female behaviour, characteristics and roles within a particular society. These expectations also define how males and females are expected to interact with each other. These expectations and respective roles and characteristics are not cast in stone and have the potential to change and be re-invented over time as the social mores of the community change in order to reflect surrounding socio-economic and other circumstances. These roles are learned. Consequently altered roles related to gender can be adopted and learned by society in general. Since commonly accepted expectations with regards to male and female behaviour are of prime importance in the spread of HIV/AIDS, the relevance of this malleability and potential for the characteristics and expected gender roles to change over time lies in the fact that these potential changes can influence the spread of HIV/AIDS.

Regional integration is becoming a key feature of economic development and economic integration for developing countries in the global economy. Regional integration is important for countries with smaller economies to gain access to some of the benefits of more open policies: access to a larger market and hence opportunities for economies of scale, access to greater competition and hence opportunities for improving efficiency, and access to foreign capital and technology.