In 1921, in the matter of Van Breda v Jacobs, African customary law was treated the same way as common law and consequently this case was used as the precedent for proving customary law. However, 67 years later, the South African legislature under the apartheid regime “put an end to this burdensome procedure” by amending section 1 of the Law of Evidence Act providing that all courts in the country must simply take “judicial notice” when dealing with customary law.
The Freedom Charter and customary law are two sides of the same coin insofar as the liberation of Africans, in particular, and black people, in general, is concerned. They are, at least, the cornerstone of the rights and freedom of the majority of South Africans, the indigenous people, so to speak.
So, by abandoning the precedent set by Van Breda’s case, once again a golden opportunity was missed by the South African legislature to contribute positively to the development of indigenous law, which even to this day regulates the lives of the majority of our people.
I was particularly pleased that the Gauteng Provincial Conference of the ANC held on the weekend of 23 to 26 June was going to end with a celebration of the Freedom Charter. I was not only a delegate to this conference but a contender for one of the “top five” positions.
I was, however, disappointed that due to a number of delays, the Freedom Charter was never celebrated as planned, which spurred me to write this piece.
Of particular interest to me is clause 7 of the Freedom Charter: There shall be work and security, which provides that the state “shall recognise the right and duty of all to work, and to draw full unemployment benefits”.
This then brings to the fore the debates on the right to work as distinguished from the rights in work.
According to the Quarterly Labour Force Survey for the first quarter of 2022, the unemployment rate was 63.9% for those aged 15-24 and 42.1% for those aged 25-34, while the current official national rate stands at 34.5%.
These facts call on our state institutions to act now in order to avoid a revolution, if not a rebellion, from many of those who are unemployed, in particular the youth.
It will be a mammoth task to attempt to begin de novo in addressing this high rate of unemployment without making reference to the Freedom Charter. In this regard, a question must be asked: Why was it so important for the many freedom-loving delegates who attended the adoption of the Freedom Charter in 1956 to include the right to work in their resolutions and what does that mean given the current unemployment situation in our country?
I have searched our Constitution for a passage on the right to work and, to my dismay, that right is not included in this important document. However, I drew solace from the fact that the rights in work are covered by section 23, which provides that every worker has the right to fair labour practices, to form and join a trade union of their choice, and the right to strike. The question remains why the right to work, as envisioned in the Freedom Charter, was not included in our Constitution.
The right to work is a “foundation for the realisation of other human rights and for life with dignity”. The Universal Declaration of Human Rights obliges its member states to stimulate economic growth and development, raise levels of living, meet manpower requirements, and overcome unemployment and underdevelopment. It further obliges its member states to “ensure the availability of technical and vocational guidance, and to take appropriate measures to develop and enable an environment for productive employment opportunities”.
It has been argued that countries reach full employment when their unemployment rate is at 5% or less. Employment in this regard is always understood both in terms of wage employment and self-employment.
It is crucial to call on the current generation that is carrying the obligation of economic freedom to have an honest and objective conversation on the implementation of the Freedom Charter. Failure to do so will constitute a golden opportunity missed and will subject many of our people, the young in particular, to unemployment, poverty and inequality.
As a precursor to fulfilling that mission, we have no option but to declare that the Freedom Charter is the sine qua non for economic freedom, and the right to work must be inserted in our Constitution as a stand-alone right under the Bill of Rights. DM
If there is a right to work, who has the obligation to provide that work? You politicians are really full of it, aren’t you?
Gobbledygook!! Everyone obviously has the right to work. Sadly many people who want to work as employees are unemployed and are being kept out of work because the economy is a mess. The writer would do better to channel his energies into persuading his beloved ANC, so long as it is in power, to start managing the economy and the justice and education systems properly and credibly. This will create an environment that will no doubt “stimulate economic growth and development, raise levels of living, meet manpower requirements, and overcome unemployment and underdevelopment.” If that happens the wish of many to reap the benefits of their right to work will surely come true. Until then Mr Khumalo shouldn’t hold his breath.