The following questions will provide clarity on some of the legal terms you will encounter throughout this WiseUp Newsletter.

Question:  Did the national state of disaster have an impact on a person's right to access to health care systems?

Answer: > Having access to health care services is a basic human right provided in section 27 of the Constitution. It further states that a person may not be refused to receive emergency medical treatment.

>     In recent reports it has been reported that both the public and private health care sectors are reaching full capacity. This makes it difficult for people to get access to health care.

>     However, one of the reasons behind the various measures put in place during the national state of disaster is to alleviate the stress on the health care system and to avoid the hospitals from reaching full capacity.

Question:  Does the delaying of reopening of schools infringe a child's human rights? 

Answer: > Section 29 of the Constitution provides everyone with the right to a basic education.

>     The Deputy Minister of Basic Education, Reginah Mhaule, said: “the department's decision to delay the reopening of schools (private schools included) was done to provide relief to the health system which is already struggling to cope with the current demands.”

>     Various measures were put in place during the national state of disaster to ensure that children are still receiving a basic education.

>     It should be remembered that human rights can be limited in certain instances if it is justifiable under section 36 of the Constitution.

Question:  What is the right to have access to social security?

Answer: > The right to have access to social security is recognised as a human right under section 27 of the Constitution and includes appropriate social assistance to persons who are unable to support themselves and their dependants.

>     Social security aims to ensure that all people have adequate economic and social protection during certain events, such as unemployment.

>     Examples of appropriate social assistance include old-age grants, child support grants and disability grants.

>     During the national state of disaster, the Temporary Employee/Employer Relief Scheme (“TERS”) can be seen as a form of social assistance. TERS is a special benefit created to provide emergency relief to employers so that they may continue to pay their employees during a temporary lay-off.

Question: Does the right to have access to social security apply to everyone?

Answer: > The Constitution grants this right to “everyone”, however, this is not an absolute right and is governed by legislation, such as the Social Assistance Act 13 of 2004.

>     This means that the legislation will have clear guidelines as to when a person will qualify for social assistance. As a general rule, those who are in need are more likely to claim and benefit from the social security protection provided in the Constitution.

>     It should also be taken into account that the Constitution only provides access to social security and not a right to automatically receive social security.

Question: Did the national state of disaster have an impact on a person's right to fair labour practices?

Answer: > During the national state of disaster, employers and employees were faced with logistical and economical challenges. For example, some employees were not able to work remotely during the initial hard lockdown or certain employers were not able to continue to pay salaries due to a loss of income.

>     However, certain provisions were put in place to assist employers with payments of salaries. This included the Temporary Employee/Employer Relief Scheme (“TERS”) in instances where employees were temporarily laid off or were subject to reduced working hours (which led to reduced salary).

>     Although these measures were put in place, employers were still bound by the relevant labour laws and section 23 of the Constitution, which provides everyone with the right to fair labour practices.

>     This meant that employers were still bound by the employment contracts entered into and that they were not allowed to unilaterally change the terms and conditions of those employment contracts (such as the salary or leave allocations) without following a fair procedure with the employee and getting his/her consent.

>     Employers were also still bound by the labour legislation in respect of leave, for example, 30 days' sick leave on full pay during a 36-month period.

>     If an employer wanted to dismiss an employee during the national state of disaster, they still had to show a valid reason for the dismissal and that the correct procedures were followed (such as a disciplinary hearing).

>     Alternatively, employers could have made use of the retrenchment procedures to dismiss employees as a result of operational requirements. However, the laws are clear that retrenchments must be used as a last resort.

Question: Where and how can basic human right infringements be reported?

Answer: > A person who feels his/her human rights have been infringed, can report it to the following bodies or organisations:

South African Human Rights Commission (“SAHRC”):

-      To lodge a complaint on an infringement on any human right, a person can  complete the online complaint form available at: https://www.sahrc.org.za/index.php/what-we-do/lodge-complaints

Independent Police Investigative Directorate (“IPID”):

-      Investigate only complaints relating to human rights infringements by the South African Police Service. For example complaints against a police official for torture or assault (section 12 of the Constitution states that no-one may be tortured in any way).

-      Complaints can be e-mailed to complaints@ipid.gov.za

Public Protector:

-      Complaints relating to human rights violations by a member of an organ of state should be addressed to the Public Protector.

-      It is important that all other available dispute resolution methods are exhausted before approaching the Public Protector.

-      Complaint forms and further information are available on their website at www.pprotect.org

Commission for Gender Equality:

-      Investigate complaints relating to discrimination based on gender.

-      Complaint forms and further information are available on their website at https://www.cge.org.za/

Did you know… The Constitution only provides access to social security and not a right to automatically receive social security.

How can LegalWise assist you? Should you require an explanation of your rights on these topics, please contact your nearest Branch.