Failure to respect constitutional rights causes mass unemployment

South Africa’s unemployed people are subjected to the appalling indignity of being denied the right to negotiate freely with potential employers who, in turn, are prevented by the labour laws from employing them on mutually agreeable terms. The denial of the rights of the unemployed is unconstitutional and should be remedied without delay. Exempting the unemployed from those provisions of the laws that keep them unemployed would restore their constitutional rights and would do so without threatening the job security of those who already have jobs.

Mass unemployment does not happen by accident. There is a fundamental cause. If employment contracts were freely negotiated between the parties on a willing buyer willing seller basis there would be little or no unemployment. Mass unemployment can only occur when there are powerful blocking agents that prevent unemployed people from negotiating with employers for jobs on conditions of employment and at wages acceptable to them.

That there are 9.4 million unemployed South Africans, 6.0 million of whom are 34 years old or younger, attests to the fact that the laws and regulations adopted by Parliament have led to this calamitous situation. Instituting a National Minimum Wage (NMW) will be creating an even more severe barrier to entry into the job market that will cause even more people to stay unemployed or become unemployed.

The situation defies logic. No reasonable person could find it possible to believe that the government of a country would deliberately be so uncaring and cruel.

There are provisions in the Constitution that are intended to protect vulnerable people, such as the unemployed, from having their rights abrogated in this manner. Parliament is expected to ensure that the rights of all are protected in the legislation they enact. Does the Human Rights Commission, which has the task to “monitor and assess the observance of human rights in the Republic”, not have an obligation to intervene on behalf of the unemployed?

While those who advocate job security laws and minimum wage provisions may mean well, these measures represent the “blocking agents” that prevent millions of unfortunate South Africans from working.

The following Bill of Rights sections of the Constitution should, if properly respected, prevent mass unemployment:

Section 10 - Everyone has inherent dignity and the right to have their dignity respected and protected: The booklet on Human Rights issued by the Department of Justice says on the question of dignity: “Everyone has an inherent (inborn) dignity and the right to have his or her dignity respected and protected. No person should be perceived or treated merely as instruments or objects of the will of others. Every person is entitled to equal concern and to equal respect. This right is related to our constitutional purpose of establishing a society in which all human beings will be given equal dignity and respect.”

The harm done by the impugning of the dignity of the unemployed person was tragically illustrated by the suicide on February 8, 2011 in Qwaqwa, Free State, of Mbulelo Mjekelo, a 35-year-old husband and father of two children who was so distraught about the fact that he could not find a job to earn money to support his family that he committed suicide. He drank beer laced with rat poison and died an agonising death. Had his right to the dignity of being free to work been respected, this tragic event would not have occurred.


Section 12(1): Everyone has the right to freedom and security of the person, which includes the right: Section12(1)(c) to be free from all forms of violence from either public or private sources: Violence can take many forms, not all of them physical. The violence to which unemployed South Africans are being subjected is that they are legally deprived of the right to enter into contracts of employment on terms and conditions acceptable to them. That the violence is perpetrated indirectly makes it no less real.

12(1)(d) not to be tortured in any way: Torture can be either physical or psychic. Deliberately denying unemployed people of the right to negotiate voluntary employment agreements on their own terms with employers is a form of psychic torture when the consequence is to make it impossible for them to find jobs. This results in the desperation of long term unemployment, which destroys the self-respect and self-worth of the individual due to the frustration of not being able to earn an income to sustain themselves and their families.

Section12(2) Everyone has the right to bodily and psychological integrity, which includes the right – 12(2)(b) to security in and control over their body: Having control over their body means that they have the right to sell their labour on terms and conditions acceptable to them and any law or regulation that denies them that right is unconstitutional.

Section 18: Freedom of Association – Everyone has the right to freedom of association. The Human Rights guide says, “Everyone may therefore choose to associate with whomever he or she wishes”. Any legislation that interferes with freedom of association between an employer and an unemployed person wishing to enter into a contract on conditions of employment acceptable to the jobless person, is unconstitutional.

Section 22: Freedom of trade, occupation and profession – Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law: The Human Rights guide says, “This right protects activities by means of which a livelihood is pursued and is aimed at enabling individuals to live profitable, dignified and fulfilling lives.” It is impossible to learn a trade or profession through on-the-job training if you are prevented from getting your foot on the first rung of the jobs ladder. And the NMW will make it even harder.

The unemployed people of South Africa are subjected to appalling indignity by the fact that they are being denied their right to negotiate freely with potential employers who are blocked by the labour laws from employing them on mutually agreeable terms. It is time for all parties to recognise the wrong that is being done to the unemployed and to give them their constitutional right to work by adopting new measures that will allow them to negotiate freely with employers. This can be done by exempting the unemployed from the labour laws. Such a measure would restore constitutionality without threatening the job security of those who already have jobs.

Author: Eustace Davie is a director of the Free Market Foundation, the author of Jobs for the Jobless and a contributor to the book Jobs Jobs Jobs. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Free Market Foundation.

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