EUSTACE DAVIE: Repeal unconstitutional causes of mass youth unemployment

Removing the causes of mass youth unemployment in SA would have multiple positive consequences for jobseekers. If small businesses and households, “the natural employers of young and untrained workers in an open labour market”, were free of the burden of the minimum wage and other unnecessary regulatory burdens, they could make an unprecedented contribution to the economy.

The National Minimum Wage Act was adopted in 2018 and implemented in January 2019, with the minimum rate set at R20 per hour. According to employment & labour minister Thulas Nxesi, the minimum wage was “aimed at protecting lower earning workers in SA and providing a platform for inequality reduction”. Since the introduction of the act there have been annual wage increases guided by the National Minimum Wage Commission.

Certainly, if the unemployed could find jobs at whatever (even low) wage is acceptable to them, they could improve their lives and that of their families. When the National Minimum Wage Act came into force in 2019 this choice was stripped away as they lost the right to voluntarily accept a wage lower than what the political elite deems appropriate.

The minimum wage set by government has become a burden on the unemployed, not an advantage. Given the freedom to set their own rules of employment, they could not only enhance their own employment opportunities but also, in the long term, make a more substantial contribution to the economy.

If the 8-million unemployed South Africans could earn R1,500 per month they would yield a collective monthly income of R12bn. This would result in the poorest people in the country earning a total of R144bn per annum.

The act did not result in the unemployed earning R3,500 per month. On the contrary, every time the minimum wage increases it becomes even more difficult for a jobless individual to find a job, and many of those who do have jobs risk losing it.

Competition protection

US judge William Douglas said the right to earn a living is “the most precious liberty that man possesses” and that this view is deeply rooted in American history and tradition. Just as important is that courts of law should protect innocent entrepreneurs against the wrongs done to them by regulators and crony businesses.

The SA minimum wage, which on the surface may appear to be a measure to aid low-income workers, is in fact a measure intended to protect union members from labour market competition. The SA government and courts would do well to heed the advice expressed by the US judge.

SA’s bill of rights contains various protections for vulnerable individuals, including, in section 7(1), recognition of the values of human dignity and freedom. Unemployment causes people to lose their dignity, has a negative effect on their lives, and is a great burden on them. Denying people the right to bargain freely with a prospective employer takes away the right to end the indignity of destitution. It also takes away the freedom of the individual.

Section 7(2) of the constitution provides that the state must “protect, promote and fulfil the rights in the bill of rights”. This means citizens can peacefully use their power to end unemployment by having the laws and regulations that get in the way of the right to work repealed.

Furthermore, section 9(2) of the constitution provides that the state must promote the achievement of equality and take measures designed to protect or advance people, or categories of people, who are disadvantaged by unfair discrimination.

Young South Africans are being unfairly discriminated against by the legal framework, and they have the constitutional right to peacefully demand that the state grant them their section 9(2) rights and remove the unconstitutional minimum wage that is prohibiting potential employers from contracting with them on mutually agreeable terms. 

Freely contract

Section 9(3) of the constitution reads the state may not unfairly discriminate directly or indirectly against anyone. SA’s labour laws, especially the minimum wage, discriminate against the unemployed, particularly young unemployed citizens. They unfairly protect the employed from competition from the jobless.

Section 10 of the constitution reads everyone, including young South Africans, have inherent dignity and the right to have their dignity respected and protected. True respect for the dignity of young unemployed citizens includes their right to freely contract for employment, with employers of their choice, on terms and conditions that are acceptable to them and are mutually agreed and accepted.

Section 11 of the constitution provides that everyone has the right to life. There have already been incidents of unemployed people starving to death in SA, and many people’s health is negatively affected by being denied the right to work by the laws and regulations agreed to by the trade unions’ allies in parliament. These laws prevent potential employers from employing those who are prepared to work for wages and under conditions that are not approved by the political elite.

The right to life must include the right to freely and lawfully employ your talents to sustain yourself and your family. This basic human right is not being protected, meaning young South Africans should peacefully, based on their constitutional rights, demand that their “right to life” be restored to them.

Section 12(1) of the constitution reads everyone has the right to freedom and security of the person. Any law that results in unemployment, causes unemployed people to be “treated or punished in a cruel, inhuman or degrading way”, infringes section 12(1)(e), which includes the right not to be treated or punished in such a way. Such a law also takes away the individual’s “right to bodily and psychological integrity”.

Young South Africans have the right to peacefully challenge the way their constitutional right to freedom and security is being trampled upon by parliament. They may be surprised at the value they could receive from browsing through the provisions contained in our constitution. They will find that they have the right to knock on the doors of government and peacefully demand that their economic freedom be restored to them.

• Davie, a director of the Free Market Foundation, is author of “Unchain The Child”. He writes in his personal capacity.