Civil society and the right to have access to social security in South Africa

Abstract

This article examines transformation in South Africa's social security system from a human rights and civil society perspective. Three claims are made: rights can be realised by civil society organisations, civil society organisations can transform social security, and the realisation of social security rights by civil society organisations can give us a means to address many of the problems identified with the involvement of NGOs in development. The basis of this assessment is a performative conception of rights, derived from the Grootboom legal judgment, which would allow civil society action to address the problems inherent in the social security system in South Africa. An analysis is thus made of this kind of public action and it is shown how it can be subsumed under the 1996 South African Constitution, and how the Constitution could transform civil society organisations' social action. Civil society action, it is proposed, could be valuable in further reforming the South African social security system, and in realising rights as autonomous social action.

1. Introduction

South Africa currently stands on the threshold of changes to its social security system. Social security reform is implied in the 1997 White Paper for Social Welfare (RSA, 1997), in the release of the report of the Committee of Inquiry into a Comprehensive System of Social Security for South Africa (the ‘Taylor committee’, RSA, 2002), and also in the recent announcement of the creation of a National Social Security Agency (RSA, 2004). These changes are magnified by concrete proposals on the table, the most important of which include a universal Basic Income Grant (Le Roux, 2002), supported by opposition political parties and civil society organisations, and proposals regarding the utilisation of informal and indirect social security mechanisms (Olivier et al., 2003).

In South Africa, everyone has the right to have access to ‘social security, including, if they are unable to support themselves and their dependants, appropriate social assistance’ (RSA, 1996: s27(1)(c)). In a post-apartheid South Africa, the right to access to social security should perhaps be seen as the most important socio-economic right, solely by virtue of its historical and actual association with poverty relief, economic and political ideology, and morality. Social security rights in South Africa, and the reform of the social security system, will implicate social, political, economic and legal aspects of transformation. The right to security has major implications not only for social transformation after apartheid but also for most aspects of economic and social policy, and is involved in many aspects of what we have come to term ‘development’. It is thus ‘development’, in the final analysis, that will have to give effect to this right.

Calls will be made, and have been made, for the involvement of civil society organisations in the reform of social security and social welfare, in South Africa and elsewhere (White, 2000; Gaffaney, 2000). The South African Government's 1997 White Paper for Social Welfare acknowledges a ‘rich institutional framework of welfare services delivered by non-governmental organisations’ (RSA, 1997, Ch 2, para 20; see also Patel, 1992). It announces ‘developmental social welfare’ and says that ‘Government cannot accept sole responsibility for redressing past imbalances and meeting basic physical, economic and psycho-social needs. The promotion of national social development is a collective responsibility and the cooperation of civil society will be promoted’ (RSA, 1997, Ch 2, para 30). This immediately suggests that civil society organisations are relevant to the right of access to social security.

2. Civil society and welfare reform

Governments face many difficulties in attempting social change in the world today (Strange, 1996; Hirst & Bader, 2001) and in the era of globalisation civil society cooperation could be one of the few avenues left open for the current government to achieve social goals. The same could be said for rights-based action. However, state–civil society cooperation has been critiqued thoroughly (Pearce, 2000), and the attempt to increase the involvement of civil society organisations in rights-based action, as in social security reform in South Africa, needs to be defended against the charge that it could be a retrogressive measure. It could lead to complacency on the part of the state and society about upholding the ideals human rights speak of. This objection is intertwined with and echoes the problems inherent in the debate about the role of civil society in development.

Why would we want civil society organisations to become duty-bearers of rights? The problems involved in civil society and development stem from the changing nature of the state in a globalising and neo-liberal context, and include the lack of a comprehensive critique by the members of civil society of globalisation and their role in it, the disunity of purpose and organisational forms in civil society, the unsatisfactory nature of members' relationships with each other and with governments and, lastly, uncertainty about the form their praxis should take (Pearce, 2000: 36). Rights, and the opportunity for civil society organisations to become duty-bearers of rights, could address each of these problems head-on. This is possible because the South African Constitution can respond progressively to the new historical role of the state – as less of a direct provider and more of a regulator and facilitator – by applying to the private sphere. It could supply a response to globalisation, in the form of standards for public action that the state, market or civil society has to conform to, and thus give some purpose to civil society organisations. It could also give direction and structure to the kinds of action civil society organisations take in the public sphere. This, I will argue, is possible when we follow an interpretation of rights that derives the meaning of rights from instances of their actual satisfaction. Rights need to be performed, and their content is discovered in performing them. Articulations by civil society organisations of the concept ‘social security’ thus constitute an alternative to a state-centred means of realising these rights and securing people's lives against poverty. This kind of alternative social action has the following benefits:

1. From a theoretical and discursive perspective, a non-Marxist and non-capitalist social theory could enable us to develop novel forms of social action. Much contemporary debate in South Africa is caught up in the State vs. Market dichotomy, and ignores the ‘legal, associational and public institutions of society’, with the consequence that we may miss, for the programme of ‘South African transformation’, the benefits of a ‘Common normative fabric linking rights, associations and publics together’ (Cohen & Arato, 1992: 2). Consequently, bringing civil society into the picture of welfare reform could be a real alternative to a commodification of social security or a bureaucratisation of it in the National Social Security Agency.

2. Civil society organisations have the potential to increase the efficacy of the social grant system, in the sense of facilitating applications for grants, monitoring their effects, and adding value to the monetary benefits beneficiaries receive from these grants. However, thinking about what makes the social ‘secure’ has emphasised the social security functions of service delivery, social capital and associations and other aspects of social life such as access to transport, land, etc. (Olivier et al., 2003). Consequently, what could count as the social security system is considerably expanded, and refers to more than social grants and welfare services. New policy directions, including ‘developmental social welfare’ (RSA, 1997) and the funding, operation and monitoring of some civil society organisations (which are the responsibility of the Department of Social Development), could thus also be seen as part of the social security system. It is not clear how or whether these two aspects of South African social policy interrelate, and how they relate to rights. It is thus also possible that organisations that create entrepreneurial activity and synergies between grants and associations of beneficiaries, or their caregivers, as in the case of the Child Support Grant, need to be seen as part, and an enhancement, of the social security system. Because the South African system of social grants can be realistically afforded only by the state, we can usefully make a distinction here. Grants are payments designed to compensate for insecurity and risks, whilst the social security system as a whole ideally prevents misfortune and reintegrates the poor into society, and could also facilitate the participation of the poor in the economy. The distinction between the two becomes vague, as grants could also lead to preventative, reintegrative and productive activity, and services do have a security function. Rights, in the end, would need to factor all these into the calculation of their own efficacy, including the ‘subcontracting’ of state functions to civil society organisations.

3. Civil society organisations have the ability to develop autochthonous social programmes: people's own actions, which emerge out of their own experience of poverty and struggles to overcome it, are there to realise some form of social security and need to be recognised as relevant to the development of social security measures specific to the risks they face. New forms of protection could be the result. This is particularly important in South Africa considering that the majority of the unemployed, as well as many of the economically active, are not covered by any substantial social security measures. Unemployment in South Africa is a complex issue and response to it even more so. Do we need another grant, or do we need training and skills development programmes, or would the provision of subsidised or free services, land and housing be enough to enable the unemployed to live a life of ‘dignity, equality and freedom’? Can we answer this only with reference to state provision, or should we look at how people integrate these provisions into their own lives? Recognising the social action that civil society organisations could take vis-à-vis unemployment could strengthen the social security system, and it could further people's right to ‘have access to social security’, supply civil society organisations with a purpose, and invigorate the discourse of rights by accommodating non-state action.

Within this programme of reform it is also necessary to critically explore the inadequacies of South African civil society. Civil society is not a clear-cut ‘space’ between the family, state and market, but is dependent upon each, and contemporary civil society is highly differentiated. If civil society is the realm of action, deliberation and communication between family, state and market, we should be aware that the funding of organisations in civil society exposes them to necessary and complex links with the state and donors, and we should be aware of the reciprocal influences that are possible between all the elements of social theory. This means that the constitution of a critical public by people's own associative activity is not always possible (see Cohen & Arato, 1992). The invocation of ‘civil society’ in the policy context is thus an ambiguous programme for social change. Pearce (2000) is highly critical of civil society organisations, and it is their susceptibility to outside influences that could make them inappropriate for the programme advocated in this article. It is also a persistent problem in studies of civil society that the poor are not organised into entities that can represent their interests (Friedman, 2002), and that those that purport to represent their interests do not do so. However, since civil society is shaped by these influences, we could postulate that a change in context could improve the abilities and potential of civil society organisations. I am exploring whether a change in the responsibility structure of human rights could engender a type of civil society organisation that would be able to deliver rights. My conclusion is an attempt not only to delineate the type of organisation that would be relevant to realising rights, but also to structure its conduct, and the context of such conduct, so that it would conform to the standards inherent in rights.

All the above make it necessary to investigate civil society and social security reform in South Africa. This paper explores a number of issues to do with this actor-based model of change. It examines what human rights could mean once we accept a non-state actor as duty-bearer of rights (see Chirwa, 2002), and what the right to have access to social security in South Africa could mean for civil society organisations. It concentrates on the way an actor-based model of rights influences rights, and starts with the South African Constitutional Court's famous Grootboom judgment. This was one of the first cases ever to appear before a court of law in which the problematic nature of socio-economic rights came under discussion.

It is an assumption of this paper that rights are more than their legal codification, and that the nature of rights is to be found in how actors, including the state, can give effect to them in context. Rights are based on abstract concepts, but they can be realised only by taking action. This is done by different societies and actors at different times in different ways. The ways we realise rights gives them their content and not the actual words or things they speak of. This is what is meant by ‘performative rights’. Grootboom implicitly sanctions this way of looking at rights. This case laid the basis for much further deliberation on socio-economic rights and social policy and is consequently fundamental to a consideration of civil society in the South African social security system.

The paper then examines the opportunities the current social security system in South Africa could offer for the kind of social action contemplated in Grootboom, in the context of recent assessments of civil society in South Africa, and concludes with a framework that can give direction to this kind of social action for rights.

3. Social security and the constitution: Reading Grootboom

The transformation of South Africa to a post-apartheid state is characterised by a strong legal focus. The ‘new’ South African Constitution (RSA, 1996) made the law itself, as opposed to conventional social engineering, the vehicle and object of change. The Constitution is a benchmark and guide to a just and progressive social transition, mandated and driven by values that are ‘enshrined’ in it. In a seminal article, Karl Klare (1998) called this new way of seeing the law ‘transformative constitutionalism’, which, among other things, emphasises that the ideological and philosophical assumptions behind legal judgments need to be made explicit, by judges and analysts of judgments alike. Many of the horrors of apartheid were made possible through a specific formalist interpretation of the law which shielded the legal fraternity from their social responsibilities. ‘Transformative constitutionalism’ should thus at least be a safeguard against the abuse of law, but it is also made possible and inspired by the actual content and hermeneutics of interpretation of the Constitution that emphasise legal and judicial commitment to address poverty and promote social justice. A transformative constitutionalism is thus very interested in all the things we have come to term ‘development’, denoting poverty alleviation and social and economic policy. Ideology and political philosophy thus comes under the gaze of law, and we cannot any longer ignore their implications for the discharging of socio-economic rights.

One of the crucial issues in legal interpretation is the question of the legitimate role of the court in policy making. This has roots in democratic theory and the doctrine of the separation of powers and is a theme that underlies many judgments. The inclusion of extensive socio-economic rights in the Bill of Rights placed this issue prominently at the top of the agenda in South Africa, as it immediately implicated economic ideology and the question of state intervention in the private sphere. The task of a judiciary separate from the executive and legislative branches of the state was not only to balance power but also to keep the state out of the private sphere. Abuse of power was thus seen as state interference in the private (economic) sphere. This converged with the idea that state interference in the private economic sphere distorts the workings of the market, thus the state could be compelled to enforce civil and political rights, but not socio-economic rights. Transformation in South Africa will have to address discrimination in the private sphere, and economic marginalisation will need some kind of economic intervention. This problem was solved in Europe by the institutionalisation of income replacement as a form of social security and a way to realise equality. In South Africa this is also evident in the system of social grants, albeit if we ignore the way it excludes many of the unemployed. It is obvious that the separation of powers could hide the role that state negative obligation, i.e. an obligation not to meddle unduly in the private sphere, plays in maintaining a certain social order. In South Africa, state transfers to private households, if they were to stop, could perpetuate the poverty engendered by apartheid. Within the doctrine of negative obligation the state ought to be kept out of the economy and private sphere, but inexplicably it sanctioned social security expenditure, which is nothing but interference in both. This explains how the law and the liberal state become complicit in the emergence, development and eventual global consolidation of free-market capitalism – they engender the social stability that allows capitalism. A deep critique is thus possible: the maintenance over time of a private sphere can be achieved only through positive acts to keep it private. These could include the actions of the security establishment such as the police and military, but also actions such as social security provision, by virtue of the social stability that it engenders. This problem lies at the heart of the question of the justiciability of socio-economic rights, i.e. whether they can be enforced by the court.

The doctrines of the separation of powers and state negative obligation would hold that socio-economic rights can only be enforced through politics and not through law or rights. Administrative or executive acts of the state are necessary to administer these rights if they cannot be realised by the subject himself or herself, which brings us back to the critique that these acts will distort the market and decrease production. However, it is common sense that socio-economic change could be brought about, even directed, by many kinds and forms of agency (hence the emergence of ‘development’, see Rist, 1996). In the South African case, it has been asserted quite forcefully by the court that these rights are in fact justiciable. The debate on the separation of powers has thus shifted, not to whether these rights are enforceable by the court, but to whether enforcing them constitutes a transgression, by the court, of its democratic deficit. The Grootboom judgment resolved this controversial issue by ruling that the court may oversee government policy on the discharging of socio-economic rights only in terms of the ‘reasonableness’ of the policy. This translates into the need for the respective authority to ‘devise and implement within its available resources a comprehensive and coordinated programme progressively to realise the right of access [to socio-economic rights]’ (RSA, 2000: para. 99). This does not amount to much interference in the administrative or executive functions of the state by the judiciary. In other passages of the judgment, however, the court uses the term ‘reasonableness’ with reference to human dignity and the alleviation of ‘desperate need’ (RSA, 2000: para. 63, para. 83) – which seems to ascribe reasonableness to basic human needs and functions. What is reasonable cannot therefore be defined purely by a formalist interpretation of the law but has to be defined vis-à-vis the circumstances in society and the values that underlie the Constitution: the law has become a real instrument for alleviating poverty. This gives a legal interpretation of this important concept an immediacy and contingency that allow judgments about policy based on how they would affect people. A limited analysis, based on a ‘transformative constitutionalist’ perspective of the Grootboom judgment, will be made below, in order to probe the significance of this judgment for civil society in the transformation of the social security system.

3.1. State and social agency

Grootboom increases the scope and agency available to governments to realise human rights by interpreting social agency as something more than governmental economic intervention. The realisation of rights is conceptualised in this judgement not exclusively in terms of a negative obligation on the state to ‘desist from preventing the right of access to housing [or other socio-economic rights]’ (RSA, 2000: para. 34), but as something that has relevance to the actions of non-state actors. It is stated that ‘A right of access to adequate housing also suggests that it is not only the state who is responsible for the provision of houses, but other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing’ (RSA, 2000: para. 35). This opens up a meta-ideological space within which the government can re-evaluate and use various ideologies and strategies of development for the discharging of human rights. It allows us to see rights as a product of the complex interplay of entitlements in society, of which the discharging of state largesse is only one. Socio-economic rights cannot be discharged only through socialist or welfare state type programmes or, failing these, through market mechanisms. The state cannot, in the final analysis, accept exclusive responsibility for the delivery of rights in society. In this way the court neatly sidestepped interference in policy making and indirectly sanctioned the involvement and relevance of the actions of civil society organisations and the market in the realisation of human rights. This not only means that many agents can administer them, but conversely it also affirms that the actions of agents other than the state could be seen as violations of rights. The recognition of non-state actors has always been part of the human rights discourse. This follows the founding provisions of the Universal Declaration of Human Rights which says that ‘[e]very individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance’ (UN, 1948: Preamble).

3.2. Responsibility and rights

This reading of what rights mean problematises the notion that the state has an immediate obligation to discharge socio-economic rights. It might explain the judgment in Grootboom that ‘there was no obligation upon the state to provide shelter to those of the respondents who were children’ as they are being ‘cared for by their parents’ (RSA, 2000: para. 79). Saying that children's rights are dependent upon the ability of parents to realise them acknowledges that the outcome of complex interplays of entitlements in society is relevant to human rights. The reason why parents are responsible in the first instance, and not the state, is that rights are satisfied best by them. The nature of rights is not to be found in their violation but rather in their promotion, as many commentaries on rights correctly emphasise. Rights are to be realised in society in general, and the state has an obligation to ‘foster conditions to enable citizens to gain access to [socio-economic rights]’ (RSA, 2000: para. 93). Rights and their realisation are to be measured across society and across the structures, institutions and practices that infringe or promote people's access to rights. The state, besides fulfilling rights directly, also has the duty to regulate and facilitate markets, civil society, its own administration and society in general so that rights are realised. This affects the structure of responsibility for rights, and emphasises the way rights are dependent on society in general.

3.3. Rights, social security and development

Grootboom is about housing but is surprisingly vocal on the right of access to social security. It states: ‘If under section 27 the state has in place programmes to provide adequate social assistance to those who are otherwise unable to support themselves and their dependants, that would be relevant to the state's obligations in respect of other socio-economic rights’ (RSA, 2000: para. 36, see also para. 78). This suggests that minimal government responsibility for socio-economic rights rests in social security provision. Related to this it also states that ‘Issues of development and social welfare are raised in respect of those who cannot afford to provide themselves with housing’ (RSA, 2000: para. 36). Social assistance could constitute a minimum social policy measure, but a house, on the other hand, if it is rented out, would also be relevant to social security rights. Social security reform will have implications for all the other rights and, although politically and economically a remote possibility, social security could thus substitute for measures such as the housing programme. The same could be said of ‘development’ – social and economic policy and the ability of everyone in society to participate therein – as it is ‘development’ that supplies many of the entitlements and capabilities we need to live a life of dignity, equality and freedom. Consequently, responsibility for the realisation of rights is neither fully that of the individual nor exclusively that of the state. Nevertheless, if social security payments are to substitute for a governmental housing programme, a strong private market in housing ought to be there to enable people to gain access to this right. It is clear that implicated in this view are the general functioning of society and a particular role for the state vis-à-vis a well functioning and equitable market, healthy environment and just social context. Social security rights are transformed to include entitlement rights, such as a social grant, as well as rights to livelihood and a right to inclusion and participation in society and the market. These rights are in a certain sense positive ones dependent upon the actions of non-state actors, and upon the subject of rights itself. It is people's ability to function in this system that has a primary bearing on rights and, consequently, the only model we can have of rights, even if we want to codify it into a legal standard, is that based on examples of its realisation.

This is compatible with a view of dependency that recognises that dependency places immediate responsibilities upon those who are close to us, and that points out the complex socially embedded nature of dependency. Care giving, for instance, cannot be seen as a market or state function. Dependencies are cared for by those close to us, and now we can recognise, acknowledge and also compensate those who provide this care. In legal and political theory this interpretation draws upon a critique of rights that has unmasked the bias rights theory has for property rights and conceptualises rights as more to do with relationships than with legal sanction (Nedelsky, 1990; 1993; Kittay, 1999: 28). Methodologically it is the writing of ethnography that can best illuminate the way rights are discovered and realised.

Besides the important but orthodox avenue of inquiry into the actions of the state, i.e. its final residual responsibility and the current social security system and its strengths and weaknesses, it seems that we should be more adept at enabling social actors in general, market or civil society-based (in interaction with the environment), to give ‘access’ to social security. Civil society organisations can do this either by creating space within which the market and state can operate, or as direct provider. To strengthen this objective, this paper illustrates the way the South African social security system is ready to accommodate this kind of social action, and then looks at the way civil society participation in social welfare has been conceptualised in official discourse, intertwined with an examination of how civil society organisations themselves have in actual fact interpreted the concept ‘social security’. This helps understand the extent to which current policy is compatible with this interpretation of rights.

4. Social security rights and civil society in South Africa

4.1. The South African social security system and the need for change

When we look at the current welfare system, it becomes evident that the limit of a grant-based poverty alleviation strategy has been reached. Currently the social assistance part of the South African social security system comprises a State Old Age Pension (SOAP), a Child Support grant, a Foster Child grant, a Grant in Aid and a Care Dependency grant, a Disability grant, free health care for mothers with children up to seven years old, public health care, a Military Pension and grants related to the armed struggle during apartheid, and disaster and nutrition relief. A national social insurance arm of the system exists in the form of the Unemployment Insurance Fund (UIF), provision for compensation for occupational injury and diseases, a Road Accident Fund and legal aid. An extensive R90 billion strong private occupational insurance, provident fund, and pension industry exists, compared to a R58.4 billion publicly funded system (RSA, 2002: 131). The system as a whole, and particularly the social assistance arm, however, exhibits features that can only be described as exclusionary, and it marginalises certain sections of vulnerable groups (Olivier et al., 2003). For example, the Disability grant distinguishes between disabilities acquired before and after birth, and the Unemployment Insurance Fund, owing to its contributory nature, caters for only 5 per cent of the unemployed (RSA, 2002: 31). It discriminates between various kinds of workers, and only in April 2003 did it attempt to cover the most vulnerable and lowest paid categories, namely domestic servants and farm workers.

The system reflects the legacy of the industrial paradigm: it covers old and young, health and accidents, some unemployment, and disasters. The working population is covered by insurance measures. Coupled with the current patterns of unemployment, the nature of the UIF, and the distribution of wealth, it leaves the bulk of the population unprotected. The better off resort to private measures, and this leaves a nice sting in the tail of social security in South Africa: those for whom the very idea of social security could mean the most are denied its benefits. Those who need it the most, the persistently unemployed, are excluded, and their social security needs make specific demands upon the system: the need for economic integration. The government is vulnerable to constitutional challenge as ‘60% of the poor are not getting any social security transfers at all’ (RSA, 2002: 35). On the other hand, the SOAP, a non-contributory form of social assistance, has been described as one of the Third World's exemplary poverty reduction mechanisms, redistributing from the rich to poor, being gender sensitive, invigorating the rural economy and contributing to household cohesiveness (Case & Deaton, 1998; van der Berg, 1998; Nattrass & Seekings, 2001). Nevertheless, the grant is paid out to a majority (92 per cent) of the elderly who live in households where there is ‘at least one person under 20 years of age for each person of pensionable age’ (Møller & Devey, 1995: 3, 7, after analysis of 1993 data). These households are made up of 30 per cent two-generation families, and 61 per cent three- to four-generation extended families. Pensioners are under great pressure to use these grants for social reproduction. In addition to this there are widespread problems with implementation (i.e. payment, registration, underspending, corruption, etc.). Reliance on informal measures for the family to realise social security objectives is thus fraught with difficulty (see also RSA, 2002: 58–9). A family-based grant would need greater budgetary allocation, which is difficult as most of the budget already goes towards the SOAP.

The SOAP concisely represents the difficulties of social security transformation in South Africa. It takes up almost 56 per cent of the budget for social grants (RSA, 2002: 60). This means that social security reform will inevitably implicate, and be influenced by, the possibility of change to the SOAP. However, considering that at present it is the most effective poverty alleviation strategy in South Africa, it to some extent precludes greater expenditure on, or modification of, the system of social grants, making it difficult to know how to cover the persistently unemployed or to integrate them into the greater economy. Without clear budgetary and political direction ‘transformation’ of the system would be impossible. Attempting to change reliance on the SOAP, by introducing another grant and decreasing the value of the SOAP, would (in the short term at least) lead to social instability and even greater household fluidity, to say nothing of administrative difficulties. As the SOAP does many of the things a social grant ought to, one could suggest leaving well enough alone, which means social security reform will have to look elsewhere, outside the notion of a social grant, for models of change. Services such as care giving and those that enhance livelihoods, self-reliance and production are necessary. It follows that response to risk in the peculiar situation South Africa finds itself in could not only be premised on the nine classic risks that the International Labour Organisation (ILO) suggested, namely sickness, maternity, employment injury, unemployment, invalidity, old age, death, medical care and child care (see Olivier et al., 2003: 569) but could also have to include productive, compensatory, reintegrative and preventative measures and relief (Olivier et al., 2003: 23–47). That this is necessary is also borne out by the fact that it is the economically active categories in the population that do not have access to social security and, considering the need for financial sustainability of the social security system, the only way this access can be realised is to increase economic integration as a form of social security. Civil society organisations are able to deliver these services. They can make them appropriate for specific groups and they can spontaneously and autonomously respond to need.

4.2. Civil society and welfare reform

South African social security policy has not responded to these concerns. Besides the 1997 White Paper, which was very favourable to civil society organisations, we have seen shifts in welfare policy that show it is moving closer to an industrial/compensatory paradigm. The Report by the Committee of Inquiry into a Comprehensive Social Security System focused on a comprehensive system of social security that would also include services and many of the poverty relief measures of the state (RSA, 2002: 41). The report mentions that tailor-made schemes need to be fashioned to cater for certain groups, but warns that these kinds of measures have in the past achieved limited delivery outcomes (RSA, 2002: 46). It is thus surprising that the National Social Security Agency Act (RSA, 2004) only mentions monetary compensation and completely fails to mention civil society or welfare services. It states that the objects of the Agency are to ‘act, eventually, as the sole agent that will ensure the efficient and effective management, administration and payment of social assistance; serve as an agent for the prospective administration and payment of social security; and render services relating to such payment’ (RSA, 2004: Ch 2, s3). It seems that this Act, and possibly the Social Assistance Act as well, interprets social assistance, and social security itself, as concerned exclusively with payment (see RSA, 2004: Ch 2, s4(5) and the Memorandum attached to the initial Bill). The Act centralises social security in a National Agency, possibly going against schedule 4 of the Constitution identifying social welfare as a national and provincial ‘concurrent’ competency, which in effect undermines local differentiation and control of the social security system. It is fortunate, however, that the Constitution includes rights of access to ‘appropriate social assistance’, which could include the services, productivity, care giving and compensation that could be delivered through civil society organisations. Nevertheless, the scope for civil society organisations active in reforming the social security system is difficult to discern in the National Social Security Agency Act, except perhaps that their object of activism is now much clearer. However, it is still possible that such an agency could implement a programme to deliver services and thus incorporate civil society organisations into social security reform. Because the concept ‘social security’ is difficult to define (Olivier et al., 2003: 569), and because it is difficult to draw a line between monetary compensation and benefits in kind and specialised services, a multiplicity of agency is required to realise it. This seems to be what is required, considering the nature of South African poverty and unemployment.

These shifts away from civil society in social welfare policy might not be in the state's long-term interest. They add to a burden of administration and responsibility that is already difficult to carry. It will be unfortunate if the government embarks on such a narrow interpretation of social security rights, as it might reproduce the problems of the welfare state. This would limit the definition or core content of the right so that only compensation would be stressed and services would be identified only with the administration of payment. Identifying social security only with payment might be retrogressive and would be difficult to sustain and possibly unallowable as the state must ‘[a]chieve the progressive realisation’ (RSA, 1996: s27(2)) of these rights. Measures qualitatively different from compensation will eventually have to be introduced, which is already the case, as many welfare services are being delivered. Civil society organisations are important if we want to deliver appropriate and specialised services. From the perspective of economic theory, it would be difficult to allocate such exclusive responsibility for socio-economic rights to the government, because economic entitlement depends on free economic interaction in society. If we conceptualise social security as inclusive of preventative and productive measures, services that could enhance economic participation become important. It is not clear whether the financially difficult path of compensation for actions or needs not realised could substitute for this.

The Department of Social Development and other government departments and donors are already funding civil society organisations in their efforts at poverty relief. As this is relevant to the right to have access to social security, we have to examine the conditions under which these organisations operate in discharging government programmes, as well as the kinds of programmes we may expect such organisations to devise themselves. This approach to welfare reform has strong support in Paul Hirst's notion of ‘Associative Democracy’ (Hirst, 1994). Its essence is that ‘as many social activities as possible should be devolved to self-governing voluntary associations’ (Hirst & Bader, 2001: 1). Hirst suggests that associations have to be formed to deliver services to their members, and as many state functions as can be carried out by associations can be devolved. Associations have to achieve democratic ideals and efficiency to compete for members. Because members have a right to exit, as well as voice, accountability to them is enhanced. Voice and exit within such organisations may compel the organisation to serve the interests of its members (see Hogget & Thompson, 1998). This vision of ‘welfare entrepreneurs’ and associations is possible because, as opportunities within the state for service delivery open up, associations would form to compete for contracts to deliver these services. It needs a central state to oversee and fund such activity, and to create the necessary incentives. Associative democracy entails not only devolution of power and action, but a restructuring of how the state works.

The perspective on social security adopted in this article lends itself to the recognition of self-reliant activity, and this includes the informal sector. It is not only that social security needs to be extended to include the informal sector, but that civil society and associative life might form the basis for the recognition and further structuring of informal markets and entrepreneurial activity. The capital vested in the informal sector needs to be recognised through legal and administrative means (de Soto, 2001). It is clear that social insurance mechanisms devised by people's own associations could be the means not only to formalise such informal activity but also to make it economically more viable. Social security, if it points to the need to become economically productive, could secure such economic functioning (Sinha, 2002). This might be the key to integrating South Africa's unemployed into the social security and economic systems.

A formal definition of social security is in stark contrast to the interrelatedness of the programmes that people themselves have termed ‘social security’. Krishnamurty, discussing the Society for Promotion of Area Resources Centres (SPARC), which promotes multi-purpose centres, expresses it as follows: ‘Credit, however, is not the main plank of their work but is seen as one of the means towards the empowerment of the people they are working with. The savings and credit scheme has to be seen in the perspective of what SPARC sees as “social security” and within the larger framework of SPARC's understanding of “development”’ (in Van Ginneken, 1998: 98). Other examples have also stressed this interdependence of programmes, but, surprisingly, have concluded that it is the link between credit and insurance that could be most important in enabling the poor to gain access to the means of production (Guha-Khasnobis & Ahua, 2004). In South Africa the Senzokuhle CBO network in Eshowe, KwaZulu-Natal, sees its work as encompassing nutrition and food security, primary health care, business development and social mobilisation. It has engaged in tourism development, orphan care, agriculture, commercial ventures and the establishment of community centres, among other things. These examples of people's own responses to insecurity and poverty transcend the industrial paradigm under which social security has functioned, and are discoveries of what social security could mean for the times we live in. This follows the conception of rights that we have seen articulated in Grootboom and this kind of activity is the chief resource we can draw upon if we want to transform social security through civil society.

Recognition of this multiplicity of what contributes to social security could be valuable to the South African debate on the reform of the social security system. The 1997 White Paper coined the term ‘developmental social security’, while the Taylor Report's emphasis on comprehensive protection (RSA, 2002: 40) also points in this direction. Comprehensive protection implies that the interrelatedness of social, political, environmental and economic contexts ensures social security. It has long been recognised that social security services could be organised in the community, of which many examples exist in Africa (Kaseke, 2002), chief of which is the burial society. The way organisations respond to risk suggests that we cannot neatly group, say, burial societies under social security, while excluding small business development. Production and mobilisation are related, as are assistance and development. Once again, association is the important first step that has to be taken (Rowbotham & Mitter, 1994: 11). If we want to or have to allow civil society a role in the transformation of social security, we have to take seriously the need for the mobilisation and political representation of the poor in fora that will decide these issues.

It might be necessary to speculate about the kinds of measures and changes civil society could bring to the social security system. Most of these, for pragmatic reasons, will affect the present social assistance system, but association could also be the fulcrum of insurance-based measures, as well as more hybrid kinds of measures that blend the political and the economic in subtle ways. The social grants could become the administrative basis for social insurance schemes that protect specific categories of people, hopefully integrating most of the categories in order to spread risk. These grants, particularly the child grants, could also form the basis for further intervention in areas such as childhood education. The administration of nutrition relief could also be subcontracted to civil society organisations, as has been done already. The most interesting examples would be care giving and social insurance mechanisms. Care giving is already ubiquitous in South African townships and could be coupled with state compensation and social insurance measures and the creation of mutual funds and micro-credit. Social insurance, credit and savings, for those who work informally and/or atypically, could protect fledgling entrepreneurship and integrate mobilisation, advocacy, production and care giving. Important examples which we may follow originate mostly from the Indian subcontinent's Self-Employed Women's Association (Sinha, 2002).

4.3. Civil society and welfare in South Africa

Civil society organisations occupy a position in South African society which may in surprising ways be conducive to the suggestions made. These follow from the 1997 White Paper's changes to the funding of non-profit organisations. Swilling and Russell undertook to establish the degree to which this sector and its funding reach the ‘poorest of the poor’, and to what extent they are involved in relief and social services. This is relevant if we want to know whether civil society organisations can multiply the benefits of the assistance system, and if they can initiate novel means of social insurance. Nevertheless, non-profit organisations play a significant and important role in poverty relief and social services in the country. They found that 53 per cent of non-profit organisations (NPOs) in South Africa were ‘informal/voluntary’, 3 per cent were ‘stokvels/burial societies’ and another 1 per cent were ‘cooperative’ organisations (Swilling & Russell, 2002: 21). Almost 56 per cent of NPOs were ‘less than formal’, perhaps indicating the greater prevalence of these organisations among the poor. Targeting assistance through them might be very efficient. However, although most of government funding accrues to well-established formal NPOs, this did not make up the bulk of their funding. NPOs in South Africa were themselves responsible for 58 per cent of their own funding, and 34 per cent of this was self-generated (Swilling & Russell, 2002). Even more significantly, these authors point out that volunteer work exceeded the contributions made by the private sector (Swilling & Russell, 2002: 37). This points to the savings government could make if it took civil society and social security reform seriously. One of the problems inherent in civil society is its dependence on aid, but these findings suggest it might be possible to realise self-reliant kinds of social insurance measures, similar to what we have seen in South Asia. On the other hand, as rights are involved, the question of compensation to civil society organisations has to be addressed. Care giving, for instance, would have to be compensated for, but now we can see that it can be integrated with more economically productive activity.

The ability and need to associate might represent the only way to spread and respond to risk, or poverty, over time. These responses are not always conducive to the concerns raised here. However, this spontaneity could be a resource, as the home-based care movement has shown. It is, however, also clear that to respond to this spontaneity by large disbursements of aid is counterproductive. The corporatism of welfare organisations towards the state is as important as their autonomous functioning. Both are relevant to social security rights. This needs to be clarified and a proper framework for this reading of human rights needs to be constructed. This author's reading of human rights implies that not all responsibility can be devolved, and that the state always has a residual responsibility, hence the focus on compensation. But this is not the whole picture, because self-reliant action implies responsibility as well. Such a new regime of funding would allocate great importance to compensating, facilitating and regulating appropriate civil society organisations for public action. It should allow them to straddle economics, politics and welfare in a flexible manner and thus, paradoxically, escape the need for compensation. When this insight is applied to civil society, social security rights will have to be identified with solvent and unique insurance mechanisms that can structure the relationships between the subject of rights, the state, civil society and the market in a meaningful way.

5. Conclusion: A framework for realising social security rights through civil society

The involvement of non-state actors in the discharge of rights can be adequately illustrated in both a horizontal (how they relate to other actors in society) and a vertical (how they relate to the state) perspective, as such organisations interact both with other private persons and with the state (and replace it to a very limited extent). The vertical dimension to such a discourse of rights emerges because the state is responsible for a conducive legislative and social climate so that ‘other agents’ can promote rights. The other kind of action under the vertical dimension is where a function of the state is performed, usually under contract, by a civil society organisation. The horizontal dimension, which is closely aligned to the vertical dimension, applies not only to the case where a civil society organisation explicitly and independently strives to realise rights, or implicitly or indirectly realises a right, but also to the organisation's conduct towards other organisations and persons in society, and members and/or beneficiaries of its programmes.

The content of social security rights has to be defined, or discovered, by actors who actually ‘give’ security (see Rajagopal, 2003). How can these kinds of action be subsumed by the legal order and made into causes of action? When rights are violated by the state's inaction it encourages organisations to step into this void. Civil society action can be inscribed into human rights law by launching a petition to the court for compensation for preventative relief from the state for rights satisfied (see Liebenberg, 2001). There is a strong tradition of judicial activism the court can follow to give substance to such a claim. It could change the power relations between the state and civil society radically, as organisations will then have some influence over the state. A new relationship between them can be established, based on upholding rights rather than the interests of each. This almost overlooked legal possibility is, however, the door through which a programme of change could be brought in. Could this transform the nature of civil society organisations that engage in poverty relief? If we are unsure about their abilities and commitment to the poor, would compelling and compensating them to uphold the ‘right to have access to social security’ not alter them in ways that further the right? The NPO act has structured civil society organisations to a great extent, and the possibility of compensation will give rise to an organising principle for civil society organisations. Because we are basing this on rights, its implications are very great. This conclusion is a limited exploration of this possibility.

5.1. The vertical dimension

The actions taken by civil society organisations in upholding rights makes them, as social actors, subsidiary to the state. ‘Subsidiarity’ is a very old term that is gaining currency in debates in the European Union where there are real concerns about the effects of centralisation on national identity (Delors et al., 1991; Rodger, 2000). Subsidiarity implies the devolution of power to its lowest effective level for the task at hand. It is important to note that this can provide a legal and administrative framework for the self-reliant functioning of communities and their associations. It is an important regulative concept in the decentralisation of state actions, and an instrument for delivering social policy that would create a self-reliant avenue which communities and organisations could follow to promote their own rights. It is also an avenue the state could take to pre-empt a strong claim to compensation for preventative relief given. This is what is at stake when services are subcontracted: are they performed to a sufficient standard to warrant subsidiarity? The converse also holds true: is the claim for compensation sufficiently reasonable that the court would award it? This also implies that the regime of funding and support for such subcontracted service delivery needs to conform to the same requirements the court would hold reasonable for awarding a claim for compensation, and to have standards similar to those the state demands of organisations that deliver services on its behalf.

This subsidiarity has as its base the requirement that such action is of a public nature, and it needs to be argued that this entitles civil society organisations to compensation, or a regime of adequate funding and support. This is strengthened by s239(b)(ii) of the Constitution which states that an ‘organ of state’ is one that is ‘exercising a public power or performing a public function in terms of any legislation’ (RSA, 1996; see also Ellmann, 2001). Civil society organisations discharging rights are empowered to act in the public interest and fulfil public functions, and constrained by the ethics underlying the Constitution. They have to safeguard rights just as the state has to. This would be the basis of a new conception of civil society praxis for rights that fills the historical void created by a facilitative and regulative state.

Could we establish the terms under which we can evaluate whether an organisation truly has a public outward focus (see Young, 1994)? This is where the vertical dimension of rights has its limits, and where the horizontality of rights becomes necessary to complete a programme of social transformation. The true domain of the public sphere should be defined by rights. The justiciability of these performative rights appropriately refers to whether the court would be able to compel civil society associations to uphold a public character. The court should thus oversee whether the association giving effect to the right (which in some way would relate to the content of the right) does so in terms of the values of the Constitution (which would relate to the democratic content of the work done and the eligibility of members and/or clients for the services rendered). This notion of justiciability would also incorporate the idea that the ‘legislative and other measures’ (RSA, 1996: s27(2)) the state has to implement to realise rights include an interest in the continued and progressive functioning of organisations acting in the public interest. It is a question of affirming a certain organisational form among civil society organisations; a form that is both rights-based and that gives effect to rights. Other civil society organisations that have idiosyncratic interests are not part of this conception of justiciability, and their existence is founded only and perhaps exclusively on the right to associate. They cannot be duty-bearers of rights, and cannot claim compensation, as they do not exist in the public interest.

5.2. The horizontal dimension

If we couch the satisfaction of rights by organisations subsidiary to the state in a notion of the public, not only can we restrain the degree to which a central state can evade its responsibilities but also give the ensemble of organisations that is civil society a unity of purpose and praxis. Civil society organisations that explicitly strive to realise rights would form an ecology between them (Warren, 2001) that would give meaning and direction to their praxis, and establish accountability to each other, not incompatible with legal language. This would give a comprehensive ideology to civil society organisations to justify their engagement in a programme of social change, address to a large extent the state-centred bias in civil society praxis, and give civil society organisations an independent reason to exist. They will become the means people can employ to gain access to rights and, in the case of social security rights, become the means to gain entry into the economy.

The South African Constitution can be applied to such praxis owing to the provisions for the horizontal application of the Bill of Rights. The fact that the ‘Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right’ (RSA, 1996: s8(2)), means that private actors are bound to uphold the Constitution in their conduct towards each other. This does not mean that people cannot demand substantive goods from such organisations (as s8(4) would suggest – the first thing to be accountable to), but implies that the court will have a direct interest in the internal affairs of an organisation that performs these public functions. These functions will have to be delivered either to members or beneficiaries, or both, and consequently we need to delineate the differences between members and beneficiaries.

This difference is important, as an organisation that serves members only, for instance when a social insurance mechanism is implemented, will need to differentiate how it treats members and the general public. If such an organisation cannot exercise control over members, or has to open up its programmes to ‘everyone’ (as the Constitution demands), the solvency of such a social insurance scheme might be in jeopardy. Rights have to be limited to members only, as s36 would allow. This would allow an organisation to preserve a focus on the poor or the unemployed, for example, and in doing so the organisation ought to justify its discretion in the running of the scheme. This need to make the scheme internally accountable could be achieved by instituting proper democratic procedures in the administration of the organisation. People involved can ask, besides that their right is upheld, that the organisation treat them, vis-à-vis other members, with equality and dignity. On the other hand, if the organisation is focused on public relief, there has to be a different but similar mechanism to keep it accountable.

This need for outside accountability can be strengthened by complementing rights to voice and exit within an organisation with the rules of standing that the Constitution elaborates on in s38. Beneficiaries and interested persons have the right to approach the court if a civil society organisation acts in conflict with the Constitution by treating them, or others, unfairly, particularly if it has accepted that it fulfil a public function. When a civil society organisation acts in the public interest by discharging rights, it invokes a complex set of requirements that the organisations will have to adhere to, and these will form the basis of its claim to subsidiarity or to compensation for relief given. This new regime of accountability will make decisive inroads into the established distinction between the public and the private, according to the tenets of subsidiarity. This also includes granting civil society organisations a say in the praxis of other organisations, as both now have to subscribe to the standards inherent in rights, and gives potential beneficiaries and/or members a voice over organisations in the name of rights.

The fact that a substantive good or service needs to be delivered should be seen in the context of civil society organisations' own multiple responses to risk. The fact that many organisations have to engage in profit-making activity as well as ‘welfare’, such as care giving, is as much a political statement about dependency as an organisational strategy. In the case of economic integration, we cannot follow a strong non-profit model in funding, but we need to see funding as a means to enable organisations to become responsible and able. In the long run this funding regime could increase the capacity of such organisations, but in the short run the possibility of such support could lead to an opportunistic proliferation of organisations. This is thus not a call for a laissez-faire approach to funding, and the terms of such funding must be modelled on the nature of an adequate and appropriate response to risk. Human rights will give us a substantial reason to fund organisations and an independent reason to demand control over them. This author's suggested solution to the choice of funding regime is to look at the organisational form articulations of ‘civil society’ take today. This concerns the ubiquitous ‘NGO’.

What we need to realise is that the poor could become organised into entities that further their interests, both in the welfare and the corporate economy. The fact that such organisations, if they exist at all, have to choose between the two might explain the dearth of prolific organisations of the poor. Pearce has observed that the problems of civil society are such that ‘the survival of the very idea of “NGO” and the NGO sector … can no longer be assumed’ (2000: 37). To overcome this ‘It is suggested that the long term sustainability of the NGO, as a financially autonomous institution of civil society, lies in its reinvention as a corporation of the poor’ (Sobhan, 2004: 15). The concept of social security rights as inclusive of compensatory and productive activities, within the realm of civil society, points to the need to have organisations that are productive and accountable to the poor. This is what a rights-based conception of civil society should be built upon. If this is how social security rights can be realised, it is high time we inscribed it into the discourse of rights.

The research reported on here would not have been possible without a Doctoral Scholarship from the NRF, a fellowship from the Centre of African Studies, Cambridge University, in 2003, the help of Marius Olivier, under whose supervision this research is being done, and Ran Greenstein, Carina van Rooyen and my colleagues at the Department of Anthropology and Development Studies, University of Johannesburg.