Memoire Online - A jurisprudential analysis of the enforceability of socio-economic rights in South Africa: a constitutional discourse

The thrust of this study is to examine and analyse the jurisprudential approach regarding the enforceability of socio-economic rights in South Africa. The unequal distribution of wealth is acute nowadays. While all wealth is concentrated in some few hands, others on the contrary, live in extreme poverty¹. Millions of people across the world are homeless or do not have access to health care services, sanitation and potable water.²

In South Africa, previously disadvantaged people are living in similar conditions³. In an attempt to curb the effect of poverty, a number of Conventions have been ratified at international level in a view to provide affected people some social and economic relief⁴. Some countries have followed this trend by including socio-economic rights in

¹ The Constitutional Court of South Africa held in Soobramoney v Minister of Health Kwazulu-Natal 1998

(1) SA 765 (CC) 1997 (12) BCLR 1696 (CC) 8 that «We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services.». See also the few number of the world?s billionaires listed on www.forbes.com compared to millions of poor people living with less than one dollar a day the across the globe.

shelter/key-facts-shelter.html 2 September. It is estimated worldwide that 900 millions urban dwellers and over one billion rural people now live in overcrowded and poor quality housing without adequate provision for water, sanitation, drainage or the collection of household waste. See also Anon http://www.stwr.org/health-education-shelter/key-facts-health.html.2 September. It also estimated that more than one billion people in the world lack access to basic health service.

http://www.sarpn.org.za/documents/d0000990/P1096-FactSheetNo1Poverty.pdf. 2 September. New estimates of poverty show that the proportion of people living in poverty in South Africa has not changed significantly between 1996 and 2001. However, those households living in poverty have sunk deeper into poverty and the gap between rich and poor has widened. It is further estimated that approximately 57% of individuals in South Africa were living below the poverty income line in 2001, unchanged from 1996. Limpopo and the Eastern Cape had the highest proportion of poor people with 77% and 72% of their populations living below the poverty income line, respectively. The Western Cape had the lowest proportion in poverty (32%), followed by Gauteng (42%).

⁴ Some of these Conventions are: the Protocol Relating to the Status of Refugees, 1967, the United

Declaration of Human Rights, 1948, the Universal Declaration on the Eradication of Hunger and Malnutrition, 1974 and the United Nations Educational, Scientific and Cultural Organization, 1960. Some of these Conventions are explored in chapter 2.

their Constitution⁵.The inclusion of these rights in the Constitution was done not without resistance. It is argued that the controversial nature of these rights militates against their judicial enforcement⁶. Another contention pertaining to the inclusion of justiciable socio-economic rights in the Constitution is the enforcing mechanism reserved to these rights. In response to all the arguments surrounding the inclusion of justiciable rights in the Constitution, the United Nations Committee on Economic, Social and Cultural Rights in its General Comments as well as the Constitutional Court of South Africa unanimously held that these rights were indeed enforceable.

Before the advent of the new Constitution⁷, South Africa was characterised by racial
discrimination. The 1909 Constitution⁸ of South Africa endorsed the methods that
promoted the system of discrimination. All law and regulations favoured white

⁵ Some of these countries are India, Namibia, Columbia, Ireland, Portugal and South Africa. However,

South Africa and Columbia have included enforceable socio-economic rights in their Constitutions whereas others have done so only as directive principle of state policies.

⁶ It was argued that socio-economic rights are positive in nature and enjoin the state to provide measures

that will foster the realisation of these rights. Their judicial enforcement will enable the courts to intervene in executive domain thereby violating the doctrine of separation of powers. A full discussion on the controversial nature of socio-economic rights is provided in chapter 4 of this dissertation.

⁷ The Constitution of the Republic of South Africa Act 200, 1993. Hereafter referred to as the Interim Constitution (IC).The IC was a transitional instrument, a means where a democratically elected legislature can act legally to draw up the final Constitution. The IC was an innovative step for the democracy in South Africa. It introduced for the first time the doctrine of the supremacy of the Constitution and the Bill of Rights in the Constitution. The Bill of Rights provided for in Chapter 3 of the IC contains various rights: Freedom of association, of movement of religion, belief, rights of property, education, economic activity, of residence etc. The doctrine of the constitutional supremacy provided in section 4 of the IC which reads as follows: «This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency. This Constitution shall bind all legislative, executive and judicial organs of state at all levels of government».

⁸ South Africa Act, 1909 of Edward VII. This Act was also referred to as the 1910 Constitution of the

Republic of South Africa. Section 4 of the South Africa Act of 1909 stated that: «It shall be lawful for the King, with the advise of the privy Council, to declare by proclamation that... the Colonies of the Cape of Good Hope, Natal, the Transvaal, and the Orange River Colony,..., shall be united in a legislative Union under one Government under the name of the Union of South Africa. On and after the day of appointed by such proclamation, the Government and the Parliament of the Union should have full power and authority within the limits of the Colonies, but the King might at any time after the proclamation appoint a Governor-General for the Union». Section 6 further proclaimed that the colonies mentioned in section four should become original provinces of the Union under the names of Cape of Good Hope, Natal, Transvaal, and Orange Free State. The original provinces were the same limits as the respective colonies at the establishment of the Union.

population to the detriment of black people. It is in this context that, the post-apartheid regime has engaged in the eradication of the past injustices and inequalities. The new era of constitutional democracy in South Africa aims at eradicating the imbalances of the past through the promulgation of legislation and policies which promote and protect human rights. Both the Interim Constitution (IC) and the 1996 Constitution⁹ acknowledge the injustices of the past and seek to redress these imbalances. For instance, the promulgation of the 1996 Constitution tries to correct the social and economic imbalances of the past. Its Preamble acknowledges these imbalances and provides that¹⁰:

We, the people of South Africa, recognise the injustices of our past. We therefore, through our freely elected representatives, adopt this Constitution as the Supreme law of the Republic so as to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights...

In order to redress past injustices, the Constitution has further entrenched justiciable socio-economic rights in the Bill of Rights. The inclusion of such rights for the first time in the Constitution was of political importance to the African National Congress (ANC) which has some socialist tendencies and which argued strongly for the inclusion of a

⁹ The Constitution of the Republic of South Africa Act 108, 1996. Hereafter referred to as the 1996

Constitution or the final Constitution (FC). The Interim Constitution was not intended to be a final Constitution for South Africa. The new parliament, constituted under the IC was to play the dual role of legislature and Constitutional Assembly (CA). The CA had the task of adopting a FC for South Africa within two years of its first sitting. The CA was however bound to produce a Constitution that conformed to the 34 constitutional principles that had been agreed on during the 1991-1993 political negotiations. The principles were entrenched in the IC. The Constitutional Court (CC) had to decide whether the FC complied with the 34 constitutional principles. If the CC found no deviation from the principles, it would mean that the FC was certified. A first draft was adopted by the CA on the 10 May 1996, but the CC found that it did not comply with the 34 principles in all respects and consequently referred it back to the CA. the CA adopted an amended draft on 11 October 1996. This version was subsequently certified by the CC. On 4 February 1997 it came into effect as the FC.

range of socio-economic rights in the Constitution¹¹. Although the final draft of the Constitution showed a schism between political parties, academics¹² were also interested in the inclusion of socio-economic rights in the Bill of Rights. In fact, socioeconomic rights have been the centre of political debate and discussions before and after their adoption in the IC and the 1996 Constitution. The discussions focus on the enforceability of these rights by the courts¹³. Another contention was the protection of socio-economic rights by the state¹⁴. The Constitutional Court (CC) in many of its decisions¹⁵ with regard to the enforceability of socio-economic rights put an end to the debate and held that these rights are indeed enforceable by courts.

The Justiciability of socio-economic rights is new in South African jurisprudence and the CC has to entertain matters pertaining to such rights after the adoption of the IC in Soobramoney v Minister of Health (Kwazulu Natal)¹⁶. Therefore the CC has to develop a method that will enable the enforceability of these rights. In this regard, it adopted the reasonable approach as its approach to interpret and enforce socio-economic rights. The reasonable approach as developed by the CC has received extensive critique. Legal scholars argue, for instance, that, the CC could adopt the minimum core as the approach to determine the enforceability of socio-economic rights. This is the case in

¹¹ In March 1995, the African National Congress (ANC) made its submission on fundamental rights to the

relevant theme committee of the Constitutional Assembly. It listed, inter alia, that socio-economic rights include freedom from hunger, the right to shelter, the right to work, the right to health, welfare rights, the right to education, and the right to a minimum income. For more reading see Devenish Commentary 358.

¹² Some of the academics are Devenish, Bilchitz, Pieterse, Iles and Liebenberg.

¹³ See for example Devenish A Commentary on the South African Bill of Rights (Butterworths Durban

¹⁴ According to Black?s Law Dictionary, justiciability is the quality or state of being appropriate or suitable

for adjudication by a court. Citing 13 Charles Alan Wright et al; Federal Practice and Procedure § 3529 at 278-79 (2ed 1984) « concepts of justiciability have been developed to identify appropriate occasions for judicial action...The central concepts often are elaborated into more specific categories of justiciability- advisory opinions, feigned and collusive, cases, standing, ripeness, mootness, political questions, and administrative questions." The justiciability debate is discussed lengthy in Chapter 4 of this study.

¹⁵ This study analyses the relevant cases where the court has developed the reasonable approach. The

leading case in this regard is Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC). This concept has been reaffirmed inter alia in Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 1033; Resident Joe Slovo Community Western Cape v Thubelisha Home CCT 22/08 2009 ZACC 16.

International Convention¹⁷. Despite this criticism, the CC has nevertheless reiterated the reasonable approach as its approach for the justiciability of socio-economic rights.

The study critically analyses the approach and jurisprudence of the CC pertaining to the enforceability of socio-economic rights. The study also analyses the suggested approach which advocates the adoption of the minimum core as an approach to entertain and enforce socio-economic rights¹⁸. It is also argued that combined methods of the reasonable and minimum core approaches will be of value for a jurisprudential foundation regarding the enforceability of socio-economic rights in South Africa.

The study is based on literature review of books, articles in journal, various pieces of legislation, theses, dissertations, reports, internet sources and case law. The study is also a critical analysis of the relevant South African literature and case law where socio-economic rights can be sourced from. In addition to this, the study also discusses some International Conventions signed by South Africa and some foreign legislation and case law.

¹⁷ International Convention referred to the International Covenant on Economic, Social and cultural Rights

(CESCR) which was adopted and opened for signature, ratification and accession by the General Assembly resolution 2200A of 16 December 1966 and which came into force on the 3^rd January1976. The United Nation Committee on its General Comment N03 on section 2 of the CESCR was of the view that a minimum core obligation upon each state party to the Covenant is necessary for the satisfaction of at least a minimum of the rights. The core minimum is dealt in detail in Chapter 6 of this study.

18 In South Africa, judicial support for the adoption of the minimum core obligation can be sourced from the judgments of the High Courts. See for instance, the Cape of Good Hope High Court?s judgment in Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR 277 (C).

CHAPTER 2: OVERVIEW OF SOCIO-ECONOMIC RIGHTS IN SELECTED INTERNATIONAL AND REGIONAL INSTRUMENTS

The socio-economic rights expressed in the 1996 Constitution of South Africa are also found in the International Conventions to which the country is party¹⁹. Socio-economic rights are entrenched in many United Nations (UN) instruments. This study is limited to two UN instruments: the Universal Declaration of Human Rights (the UDHR Charter or the 1948 Declaration) and the International Covenant on Economic, Social and Cultural Rights (CESCR). However, some specific international instruments dealing with socioeconomic rights are briefly mentioned within the section dealing with the UDHR document. On a region level, the African Charter on Human and People's Rights is also outlined. The purpose of this part of the study is therefore to provide an overview of socio-economic rights entailed in these selected international documents.

2.1 SELECTED SOCIO-ECONOMIC RIGHTS CONTAINED IN THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

The UDHR²⁰ contains many provisions with regard to socio-economic rights. The
UDHR covers rights such as the right to education²¹, the right to social security, the

¹⁹ Section 39 of the 1996 Constitution provides that when interpreting the Bill of Rights a court or a tribunal

must consider international law. In S v Makwanyane 1995 (3) SA 391 CC, the CC held that: «Customary international law and the ratification and accession to international agreements is dealt with in section 231 of the Constitution which sets the requirements for such law to be binding within South Africa. In the context of section 35(1), public international law would include non-binding as well as binding law. They may both be used under the section as tools of interpretation. International agreements and customary international law accordingly provide a framework within which Chapter three can be evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable instruments, such as the United Nations Committee on Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the European Commission on Human Rights, and the European Court of Human Rights, and in appropriate cases, reports of specialised agencies such as the International Labour Organization may provide guidance as to the correct interpretation of particular provisions of Chapter three».

²⁰ The Universal Declaration of Human Rights (UDHR), 1948 was adopted by the General Assembly on the

10 December 1948. South Africa played an important role in the creation of the UN and has been a party to the UN Charter since the beginning. However, South Africa was also one of the eight countries that abstained from adopting the UDHR. South Africa?s apartheid policies of racial discrimination led to a number of steps being taken against it by the UN. In 1974, South Africa was excluded from participating in the General Assembly of the UN and from participating in the activities of a number of specialised agencies of the UN, such as the International Labour Organisation (ILO) and the Food and Agriculture

right to work²², the right to an adequate standard of living including health, food, housing and clothing and the right to participate in cultural activity of the community²³. Some of these rights are detailed below. Some international documents have been promulgated and ratified under the auspice of the UN to specifically give content of the rights expressed in the UDHR. Some of these documents are also outlined in this study.

Everyone, as a member of society, has the right to social security and is entitled to realisation, through national effort and international co-operation and in accordance with the organisation and resources of each State, of the

Organisation (FAO). Today there are 19 specialised agencies in the UN system. Many of these agencies make substantial and important contribution to the UN human right system. The UDHR is almost universally accepted as being the main guide to the meaning of the human rights commitments in the UN charter, and most of its provisions have been included in treaties and national Constitutions. Some of its provisions have also become part of customary international law. Significantly, the UDHR protects both civil and political rights and socio-economic rights. Its preamble provides that «... the peoples of the United Nations have in the charter reaffirmed their faith in the fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, ... member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms and,... a common understanding of these rights and freedoms is of the greatest importance for the full realisation of this pledge».

²¹ Article 26 of the UDHR provides that:» (1) everyone has the right to education. Education shall be free, at

least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children.

²² Article 23 of the UDHR reads as follows: «(1) everyone has the right to work, to free choice of

employment, to just and favourable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests».

²³ Article 27 UDHR reads as follows: «(1) everyone has the right freely to participate in the cultural life of

the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author».

economic, social and cultural rights indispensable for his dignity and the free development of his personality.

The above section compels national and international entities to provide everyone with social security. According to Rensburg and Lamarche, social security is one form of social protection and refers to the contribution scheme of social protection in terms of which employees contribute for unexpected events and can be in the form of private scheme or public scheme²⁵. A number of international documents under the initiative of the UN have been adopted and ratified to protect social security of vulnerable group of people. Among these are the treaties on the protection of refugees and stateless persons for instance, the Convention relating to the Status of Refugees²⁶, the Protocol Relating to the Status of Refugees²⁷, the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families²⁸; the Convention on the Elimination of all Forms of Racial Discrimination²⁹ and the Convention of the rights

www.chr.up.ac.za/centrepublications/socio/socio.html 210.10 June. De Waal, Currie and Erasmus Bill of Rights 407. Social security refers to insurance scheme to which workers and employers contribute for the purpose of financial old-age pensions, medical and unemployment insurance. Social protection or assurance refers to needs-based assistance financed from public fund. For instance, as pointed out by Linda and Lucie, the current social assistance program in South Africa covers the following: the state old age pension, the disability grant, the child support grant, foster grant and the care dependency grant. For further reading on the distinction between social security and social assurance, see in this regard Devenish Bill of Rights 367.

²⁶ The Convention relating to the Status of Refugees, 1951 entered into force on the 22^nd April 1954; Its

Preamble states that the «The High Contracting Parties consider that: , ... the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,... that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms...» Moreover, Article 24 (1) (b) of the Refugees Convention on labour legislation and social security states the contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals inter alia to Social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations.

²⁷ The Protocol Relating to the Status of Refugees, 1967 entered into force on the 4^th October 1967.

²⁸ The International Convention on the Protection of the Rights of all Migrant Workers and Members of their

²⁹ The Convention on the Elimination of all Forms of Racial Discrimination, 1963. The Convention was

proclaimed by the General Assembly resolution on the 20^th November 1963 and entered into force on the 4^th January 1969.

of the Child³⁰. Another Convention that deals specifically with workers? social security is the International Labour Organization (ILO)³¹. The ILO has been established to focus, inter alia, on social security. It provides recommendations which have binding effect on states which have ratified it.

The right to an adequate standard of living is a composite right which is comprised among others of, the right to adequate health, food, clothing and social assistance. In this regard, a specific provision of the UDHR provides that³²:

(1) Everyone has the right to standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

In addition to the above fundamental section of the UDHR, some International Conventions pertaining to specific rights are also outlined. The above provision broadly stresses the fact that any human being is entitled to a minimum standard of living. This minimum is the threshold below which no living condition is acceptable. Therefore, any

³⁰ The Convention of the rights of the Child, 1989. The convention was adopted and opened for signature,

ratification and accession by General Assembly on the 20^th November 1989 and entered into force on 2 September 1990.

³¹ According to Mertus Human Right , the International Labour Organization (ILO) was founded in 1919

under the Treaty of Versailles and became the first specialised agency of the UN in 1946 and is also the oldest continuously existing international organisations. The ILO has set detailed accepted standards on workers? rights and created a usual highly participatory system of enforcement since its inception. The standard-setting work of the ILO has long been related to the UN human rights system. Many of the early ILO Conventions provided language for the International CESCR and CCPR and the later Conventions have likely been elaborated upon through recent ILO Convention. However, compliance has largely been left to private voluntary standard-setting by corporation themselves and monitoring by international Non-Governmental Organisations (NGOs). This has prompted many to call for still greater institutional enforcement mechanism.

state party to the UDHR is under an obligation to respect and ensure that its citizens enjoy a minimum standard of living. Many International Conventions have been signed and ratified by many countries to give effect to the UDHR. For instance, the human rights standard to adequate health and housing are found in many International Conventions. In addition to the Conventions mentioned above with regard to the right to social security which also deal with the right to health and housing, some other Conventions are: the American Declaration of the Rights and Duties of Man, 1948 (Article XI and XVI); the International Labour Organisation Convention N0 102 Concerning Minimum Standard of Social Security, 1952; the European Social Charter,1961(Articles 12,13,16 and 17); the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities Resolution (39/1994) on «Force Evictions'³³ etc.

The World Health Organisation (WHO)³⁴ deals particularly with the right to health. Its Preamble proclaims that the enjoyment of the highest standard of living is one of the fundamental rights every human being is entitled to without distinction of race, gender, political belief or social condition. The right to adequate food quoted from the above article, is also widely established in international instruments. The most important international instrument is of course the UDHR cited above. Another instrument is the Universal Declaration on the Eradication of Hunger and Malnutrition, 1974 (UDEHM)³⁵. The right to food is also found in specific documents that deal for instance with the rights of vulnerable groups (children, women, refugees etc). The Convention of the Rights of the Child, 1989 cited above is such an example. It requires state parties in Article 24(2) (c) with regard to children to combat diseases and malnutrition through the provision of adequate nutritious food³⁶. Another example is the Convention on the

³⁴ The World Health Organisation 2009 http: // www.who.int/governance/ 15^th June. The Constitution of the

World Health Organisation was adopted at the International Conference on Health on the 22^nd July 1946 and entered into force on the 7 April 1948.

³⁵ The Universal Declaration on the Eradication of Hunger and Malnutrition, 1974 was adopted on 16

November 1974 by the World Food Conference convened and endorsed by the General Assembly resolution on the 17^th December 1974.

³⁶ Article 24 (2)(c) of the Convention of the Right of the Child, 1989 provides that states parties shall

pursue full implementation of this right and, in particular, shall take appropriate measures: to combat

Elimination of all Forms of Discrimination against Women, 1979³⁷. The right to education is also entrenched in international instruments as a fundamental right. The United Nations Educational, Scientific and Cultural Organisation (UNESCO)³⁸ Convention against Discrimination in Education is one example. Its Preamble provides that the right to education is recognised by the UDHR. The purpose of the Convention is to institute collaboration among the nations with a view to furthering for all universal respect for human rights and equality of educational opportunity. The right to education is also enshrined in specific international documents dealing with the protection of vulnerable groups. The Convention on the Rights of the Child, 1989 once more contains a provision pertaining to the progressive realisation of the rights of child to education³⁹.

diseases and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution.

³⁷ The Convention on the Elimination of All Forms of Discrimination against Women, 1979 was adopted by the United Nations General Assembly. It entered into force as an international treaty on 3 September 1981 after the twentieth country had ratified it. By the tenth anniversary of the Convention in 1989, almost one hundred nations have agreed to be bound by its provisions. Article 12(2) of the Convention on the Elimination of All Forms of Discrimination against Women, 1979 reads as follows: «Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation».

³⁸ The United Nations Educational, Scientific and Cultural Organisation (UNESCO) Convention against Discrimination in Education, 1960 was adopted by its General Conference at its eleventh session in Paris on the 14^th December 1960.

³⁹ Article 23 (3) and (4) of the Convention of the Right of the Child, 1989 states that: « State parties shall....

ensure that the disabled child has effective access to and receives education, training, health care services, ...in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development ; States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services,...».

2.2 SELECTED SOCIO-ECONOMIC RIGHTS CONTAINED IN THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS40

The International Covenant on Economic, Social and Cultural Rights (CESCR or Covenant) entrenches a number of socio-economic rights that include the rights to: social security, work, housing, health, education, cultural activities, join a trade union etc. These rights are subject to the availability of resources and are realised progressively. This is expressed in a provision of the Covenant which provides that⁴¹:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant...

Therefore, each state party to this Covenant should implement progressively these rights within its maximum available resources. In General Comment N03, the Committee on Economic, Social and Cultural Rights (ESCR) emphasises the fact that state parties should take steps for the enjoyment of the rights. According to the Committee on ESCR, these steps are subject to no limitations. It further states that to take steps means the adoption of legislative measures that will enable the fulfillment of the rights.

⁴⁰ The International Covenant on Economic, Social and Cultural Rights, 1966 entered into force on the 3rd

January 1976 in accordance with its Article 27 which reads as follows:» (1) the present Covenant shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession. (2) For each State ratifying the present Covenant or acceding to it after the deposit of the thirty-fifth instrument of ratification or instrument of accession, the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.».

⁴¹ Article 2 of CESCR. This Article has been commented by the UN Committee on Economic, Social and

2.2.1 THE RIGHT TO SOCIAL SECURITY UNDER THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Social security is provided by Article 9 of the Covenant. This article enjoins state parties to recognise the right of everyone to social security including social assurance. Article 9 reads thus: «The State Parties to the present Covenant recognise the right of everyone to social security, including social insurance». This Article is in line with Article 11(1) of the Covenant which requires the state to guarantee an adequate standard of living. In terms of the aforementioned Article state parties should recognise the right of everyone to an adequate standard of living for himself and his family. According to Linda and Lucie, this provision can be interpreted to mean that the state must provide at least a minimum standard of living to everyone in need of social assistance⁴².

The right to health is expressed in Article 12 of the ESCR which reads as follows: «The States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health...». The UN Committee on ESCR in its General Comment N014⁴³ with regard to the right to the highest attainable standard of health views health as a fundamental human right indispensable for the exercise of other human rights. According to the Committee on ESCR, the right to health should not be understood as a right to be healthy. The right to health contains freedoms and entitlements. Freedoms include the right to control one?s health and body where as the entitlements refer to a system of health protection

http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+Comment+14 15 June. The Committee on ESCR was established in 1985. Its primary function is to monitor the implementation of the Covenant by states parties. It strives to develop a constructive dialogue with states parties and seeks to determine through a variety of means whether or not the norms contained in the Covenant are being adequately applied in states parties and how the implementation and enforcement of the Covenant could be improved so that all people can enjoy the right enshrined in the CESCR.

which provides equality of opportunity for people to enjoy the highest attainable level of health. The Committee on ESCR concludes therefore that, the right to health is the right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realisation of the highest standard of health⁴⁴. The realisation of the right may also be pursued through numerous and complementary approaches, such as the formulation of health policies, the implementation of health program developed by the WHO. It might also depend on the condition prevailing in each state party such as the availability, quality and accessibility of health facilities.

The right to an adequate standard of living is a generic expression that contains the right to adequate food, clothing and housing. It is expressed in a specific provision of the Covenant which states that⁴⁵:

The States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realisation of this right, recognising to this effect the essential importance of international cooperation based on free consent.

Some of these rights have been the subject of comment by the Committee on ESCR. For instance, the human right to adequate housing which is derived from the right to adequate standard of living is of paramount importance for the enjoyment of all socioeconomic rights⁴⁶. It cannot be viewed in isolation from other human rights contained in

international instruments. This affirms the interconnection of all the rights enshrined in the Covenant. The Committee on ESCR further states that the right to housing should be understood as the right to adequate housing. It should be seen as the right to live in a secure place, in peace and in a decent shelter. Most importantly, the right to adequate housing should take into account many considerations such as adequate space, adequate privacy, adequate security, adequate lightning, adequate ventilation, adequate basic infrastructure and adequate location and basic facilities at a reasonable cost. Moreover, the realisation of the right to adequate housing varies from one state party to another. The Covenant requires each state party to take the necessary steps for the realisation of this right. For example, the adoption of a national housing policy is one suggestion.

In addition to this, General Comment N0 4 also advises states parties to take into consideration legal security tenure (public and private accommodation, cooperative housing, lease, owner-occupation, emergency housing etc), the availability of services, materials, facilities and infrastructures, the affordability, the habitability, the accessibility and the location. Despite the provision of the right to adequate housing, the Committee on ESCR found that there is a large gap between the standard set in Article 11(1) of the Covenant and the situation prevailing in many parts of the world mainly in developing countries. According to the General Comment N0 4, the UN estimates that there are over 100 million homeless people worldwide and over 1 billion inadequately housed.

The right to education entrenched in the CESCR reads inter alia as follows⁴⁷:

The States Parties to the present Covenant recognise the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity and shall strengthen the respect for human rights and fundamental freedoms...with the view to achieving the full realisation of this right, primary education shall be compulsory and available free to all, secondary education in its different forms, including technical and vocational secondary education shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education...

The right to education in the opinion of the Committee on ESCR⁴⁸ is both a human right in itself and an indispensable means to realise other human rights. The Committee on ESCR further states that education is empowering human beings and it is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and fully participate in their community. Education plays a vital role in empowering women, children and in promoting freedom and democracy.

According to the Committee on ESCR, education is the subject to which states can invest on. The Committee on ESCR is also of the view that the application of the right to education depends on the condition prevailing in each state party. However, it stresses the fact that the application of the right to education regardless of the state depends on the following factors: availability (this means that educational institutions

⁴⁷ Article 13 of the CESCR. In South Africa, section 29 of the 1996 Constitution provides for the right to

basic and further education for everyone. In Western Cape Minister of Education v Governing Body of Mikro Primary School [2005] 3 All SA 2006 (1) SA (1), the SCA recognised the right to receive education in official language in public school.

and programs have to be available in sufficient quantity), accessibility (it means that educational institutions and programs have to be available to everyone without discrimination), acceptability (it refers to the form and substance of education, including curricula and teaching method which have to be acceptable) and adaptability (this stresses that education has to be flexible so that it can adapt to the needs of changing societies). These rights are monitored by the Committee on ESCR.

In order to ensure that all state parties to the Covenant on ESCR abide to their obligations, a system of monitoring is put in place. In this perspective, a Committee on ESCR⁴⁹ is established to oversee the implementation of the Covenant. The function of the Committee is to monitor the enforcement of the rights enshrined in the Covenant by state parties. It strives to develop a constructive dialogue with state parties and seeks to determine through a variety of means whether or not the norms contained in the Covenant are being adequately applied in state parties. The Committee on ESCR also seeks views on how the implementation and enforcement of the Covenant could be improved so that all people who are entitled to the rights entrenched in the Covenant can fully enjoy them.

The Committee on ESCR was established in 1985 by the Economic and Social Council (ECOSOC). The monitoring of the rights entrenched in the Covenant is done through a reporting system. In this regard, Article 16 of the CESCR provides that: (1)»The State Parties to the present Covenant undertake to submit in conformity with this part of the Covenant reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognised herein. (2) (a) All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit copies to the Economic and Social Council for consideration in accordance with the provisions of the present Covenant; (b) The Secretary-General of the United Nations shall also transmit to the specialised agencies copies of the reports, or any relevant parts therefrom, from States Parties to the present Covenant which are also members of these specialised agencies in so far as these reports, or parts therefrom, relate to any matters which fall within the responsibilities of the said agencies in accordance with their constitutional instruments.». Article 17 of the Covenant states that: (1)»The State Parties to the present Covenant shall furnish their reports in stages, in accordance with a Program to be established by the Economic and Social Council within one year of the entry into force of the present Covenant after consultation with the State Parties and the specialised agencies concerned. (2) Reports may indicate factors and difficulties affecting the degree of fulfillment of obligations under the present Covenant. (3) Where relevant information has previously been furnished to the United Nations or to any specialised agency by any State Party to the present Covenant, it will not be necessary to reproduce that information, but a precise reference to the information so furnished will suffice.».

2.3 SOCIO-ECONOMIC RIGHTS IN THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS (ACHPR or the African Charter) 50

Socio-economic rights recognised by the African Charter and the monitoring system under the Charter are outlined in this part of the study.

The African Charter contains a number of provisions pertaining to socio-economic rights. Its Preamble reaffirms the commitment of African states to adhere to the fundamental rights enshrined in the UDHR. The African Charter does guarantee the right to work. Its Article 15 states that every individual shall have the right to work under equitable and satisfactory conditions and shall receive equal pay for equal work. Article 16(1) of the African Charter on the other hand states that, every individual shall have the right to enjoy the best attainable state of physical and mental health. Subsection (2) of Article 16 places a duty on the state to take necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick. Article 17 of the African Charter provides the right to education to every individual. The right to life is also guaranteed by Article 4 of the African Charter.

The African Charter on Human and Peoples' Rights (ACHPR) was adopted in Nairobi, Kenya on 27 June 1981 and entered into force on 21 October 1986. South Africa acceded to the charter on the 9 July 1996. Its Preamble provides inter alia that: «The African states member of the Organisation of African Unity, parties to the present Convention entitled "African Charter on Human and Peoples' Rights...; Recalling Decision 115(XVI) of the Assembly of Heads of State and Government at its Sixteenth Ordinary Session held in Monrovia, Liberia, from 17 to 20 July 1979 on the preparation of «a preliminary draft on an African Charter on Human and Peoples' Rights providing inter alia for the establishment of bodies to promote and protect human and peoples' rights»; Reaffirming their adherence to the principles of human and peoples' rights and freedoms contained in the declarations, Conventions and other instruments adopted by the Organisation of African Unity, the Movement of Non-Aligned Countries and the United Nations...; Recognising on the one hand, that fundamental human rights stem from the attributes of human beings, which justifies their international protection and on the other hand, that the reality and respect of peoples' rights should necessarily guarantee human rights; Considering that the enjoyment of rights and freedom also implies the performance of duties on the part of everyone; Firmly convinced of their duty to promote and protect human and peoples' rights and freedoms taking into account the importance traditionally attached to these rights and freedoms in Africa...».

The African Charter further establishes the African Commission on Human and Peoples' Rights (Commission).

Unlike the CESCR which establishes a Committee on ESCR to monitor the implementation of the Covenant, the African Charter vests in the African Commission on Human and Peoples' Rights (Commission) the powers to hear matters pertaining to violations of rights recognised in its provisions. The main objective of the Commission is to monitor and protect the rights provided in the African Charter. The functions of the Commission are, inter alia, to⁵¹:

promote human and peoples? rights and in particular, to collect documents, undertake studies and research on African problems in the field of human and peoples? rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples? rights, and, should the case arise, give its views or make recommendations to governments, to formulate and lay down principles and rules aimed at solving legal problem relating to human and peoples? rights and fundamental freedoms upon which African governments may base their legislation, co-operate with other African and international institutions concerned with the promotion and protection of human and peoples? rights.

The African Commission had heard many cases with regard to the violation of socioeconomic rights protected by the Charter. For instance, in International Pen (pour le compte de Saro-Wiwa) c. Nigeria⁵², a case involving a detainee who had been deprived of medical treatment, the African Commission found that the state of Nigeria had violated Article 16 of the African Charter which guarantees the right of a detainee to medical care. Another important case is that of Purohit and Moore v The Gambia

⁵¹ Article 30 of African Charter states that: «An African Commission on Human and Peoples' Rights,

hereinafter called "the Commission", shall be established within the Organisation of African Unity to promote human and peoples' rights and ensure their protection in Africa». Article 31 African Charter provides that: «The Commission shall consist of eleven members chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples' rights; particular consideration being given to persons having legal experience.».

Communication⁵³. The matter was brought before the Commission to challenge the Mental Health Acts of the Republic of the Gambia. The Commission made a finding that the right to health includes the right to health facilities, access to goods and services to be guaranteed to all without discrimination. The Commission said further that mental health patients deserve special treatment because of their disability.

2.4 CONCLUSION

This study has canvassed some of the relevant international instruments established to promote and fulfill the realisation of socio-economic rights internationally. In addition, some specific international Conventions dealing with protected category of people (such as children, migrant workers, refugees etc) which provide them with socioeconomic rights have been briefly mentioned. The protection of these rights is monitored by special agencies created for the purpose of evaluating the extent to which state parties or governments comply with their obligations under a particular Convention.

Despite the ratification of all these Conventions, the vast majorities of people are deprived of such rights or are not even aware of their existence. Hence, the deplorable conditions in which they are living in. It has been estimated for illustration that at global level, more than one billion people are not having access to housing and health care services⁵⁴. The above study only explored some selected international instruments in which socio-economic rights have been expressed which are relevant and of paramount importance as instruments entrenching socio-economics rights. This part of the study is therefore not an exhaustive analysis of all international instruments with regard to socio-economic rights.

shelter.html 2 Spetember. It is estimated worldwide that 900 million urban dwellers and over one billion rural people now live in overcrowded and poor quality housing without adequate provision for water, sanitation, drainage or the collection of household waste. See also Anon http://www.stwr.org/healtheducation-shelter/key-facts-health.html 2 September. It also estimated that more than one billion people lack access to basic health service.

CHAPTER 3: CONSTITUTIONAL IMPERATIVES OF SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA

Many countries have included socio-economic rights in their Constitutions⁵⁵ mainly in the form of directive principles of state policy⁵⁶. Socio-economic rights are also entrenched in the 1996 Constitution of the Republic of South Africa⁵⁷. It is commonly agreed that the South African Bill of Rights is the most progressive in the world and has the most extensive commitment to the protection of justiciable socio-economic rights⁵⁸. The first part of this section of the study analyses socio-economic rights in previous constitutional dispensation and the negotiation process that took place in South Africa prior to the inception of the new constitutional dispensation. The second part examines some socio-economic rights entrenched in both the 1993 and 1996 Constitutions.

3.1 SOCIO-ECONOMIC RIGHTS IN PRE-DEMOCRATIC ERA AND THE NEGOTIATION PROCESS

Socio-economic rights were not included in the previous South African Constitutions
(namely 1909, 1961 and 1983 Constitutions⁵⁹). The doctrine of parliamentary
sovereignty was the feature of these Constitutions. The doctrine of parliamentary

⁵⁶ Liebenberg Housing 342. The Namibian and the Indian Constitutions for instance, entrench social and

economic rights in the form of directive principles. These directive principles are not enforceable in a court although they may be relevant in the interpretation of the justiciable rights in the Constitution. For a detail comparison of the extent of the inclusion of socio-economic rights in some African countries, see in this regard Mubangizi 2006 Afr J Legal Stud 1-17.

⁵⁷ Section 23, 24, 25, 26 , 27,28 , 29 and 35 of the 1996 Constitution respectively: right to fair labour

practices; environmental rights; property rights; right to access to adequate housing; right to have access to adequate health care services, food, water , social security and social assurance; children rights; right to education and detained person rights.

⁵⁸ Mubangizi 2006 Afr J Legal Stud 1-17 and Mubangizi «Prospects and Challenges in the Protection and

Enforcement of Socio-Economic Rights: Lessons from the South African Experience» 1-14.

⁵⁹ Section 1 of the South African Constitution, 1983 states that the republic of South Africa, consisting of the provinces of the Cape of Good Hope, Natal, Transvaal and the Orange Free State, shall continue to exist as a republic under that name. The sovereignty of the Almighty God is acknowledged in section 2 of the 1983 Constitution.

sovereignty was clearly articulated in these Constitutions. For instance, a provision of the 1961 Constitution provided that⁶⁰:

Parliament shall be the supreme legislative authority in and over the Republic, and shall have full powers to make laws for the peace, order and good governance of the Republic. No court of law shall be competent to enquire into or pronounce upon validity of any law...passed by Parliament, other than an Act which repeals or amends or purport to repeal [or] amend the provisions of section one hundred and eight or one hundred and eighteen.

The 1983 Constitution also referred to as the Tricameral Constitution (TC) on the other hand, introduced a parliament with three ethnic houses: Whites, Indians and Coloureds. Each house was responsible to legislate it?s own affairs. According to Khunou⁶¹, the 1910, 1961 and 1983 Constitutions had been perceived by the majority of South Africans as being designed to exclude them from political power and from socio-economic benefits. Khoza concurs with Khunou when he asserts that the exclusion of black people from political sphere had led to deep poverty and inequality⁶². As a result of the apartheid policy, many blacks were dispossessed of their land and subjected to forced removal. They were discriminated in the quality and quantity of health care, education, housing and social security⁶³. In an attempt to reduce these inequalities of the past, the new constitutional dispensation has entrenched enforceable socio-economic rights. The new constitutional dispensation was however the product of intense negotiations.

⁶¹ Khunou «The Regime of Legal Interpretation in South Africa: Some Reflection of Mirage, Miracle and

Hope» (Unpublished Paper Presented in IVR World Congress 2001 on Legal Philosophy in Vrije University, Amsterdam) 1-30.

The achievement of the new constitutional dispensation was the result of heated bargaining among all political forces in South Africa⁶⁴. The early negotiations started in 1985 and were kept secret for many years. The meetings were held at the initiative of the National Party (NP) whose officials met with Mr Mandela in prison⁶⁵. These meetings were initiated to develop an understanding of common grounds for future peace talks. However, increasing local and international pressure on the government as well as the realisation that apartheid could not maintain its legacy forever, nor be overthrown by the opposition without considerable human death accelerated the negotiation process.

It is in this perspective that, significant steps towards formal negotiations took place in February 1990 with the unbanning of the ANC and other banned organisations (such as the Pan Africanist Congress (PAC), the South African Communist Party (SACP) and Azanian Peoples Organisation (AZAPO)) by the former president F.W. de Klerk, and the release of ANC leader Nelson Mandela after 27 years in prison.

The formal negotiations began in May 1990 with a meeting between the NP and the ANC. This resulted in the Groote Schuur Minute. This was an agreement between the NP and the ANC towards the resolution of the climate of violence and intimidation as well as the removal of practical obstacles to negotiations such as indemnity from

⁶⁴ Currie and De Waal Administrative Law 58-59; Currie and De Waal Bill of Rights Handbook 2-3; Anon

prosecution for returning exiles and the release of political prisoners⁶⁶. In addition to the Groote Schuur Minute, the Pretoria Minute further included the suspension of the armed struggle by the ANC and its military wing⁶⁷. These agreements were followed by the Convention for a Democratic South Africa (CODESA), under the chairmanship of judges Michael Corbett, Petrus Shabort and Ismail Mahomed, on 20 December 1991⁶⁸. Although CODESA five working groups were assigned different tasks, the negotiation process did not reach a consensus. For instance, contention around the Constitution-making body divided all participants. For the ANC, an elected Constitutional Assembly (CA) was the only means to adopt a new Constitution.

The NP government and the Inkatha Freedom Party (IFP) were of the opinion that they would be marginalised in an elected Constitution-making body. All various contentions slowed down the negotiations process that resulted in the collapse of CODESA and threatened the negotiations with the escalation of violence⁶⁹. Nevertheless, the negotiation process resumed at the initiative of the SACP chairman Joe Slovo who proposed the adoption of a «sun set clause»⁷⁰ which enabled the

⁶⁶ The release of political prisoners was announced by former president F.W. de Klerk on the 11 February

⁶⁸ The Convention for a Democratic South Africa (CODESA) consisted of representative of principal political parties and liberation movements, the De Klerk government and the (Transkei, Bophuthatswana, Venda and Ciskei) TBVC governments. CODESA was divided in five working groups. The groups were to negotiate and present agreements to the plenary session of CODESA for ratification. Their terms of reference comprised of the re-incorporation of the TBVC Bantustans in South Africa, the creation of transitional government to lead the country to democracy, a set of constitutional principles, a method for drafting and adopting a new Constitution and the creation of a climate of free political activity.

⁶⁹ See in this regard Currie and De Waal Bill of Rights Handbook 5-6; Currie and De Waal Administrative Law 60-62; Klug Historical Background 2-12. In June 1992, the Boipatong massacre took place, with 46 residents of Boipatong killed by mainly-Zulu hostel dwellers. Mandela accused De Klerk's government of complicity in the attack and withdrew the ANC from the negotiations, leading to the end of CODESA II. The ANC instead took to the streets with a program of "rolling mass action", which met with tragedy in the Bisho massacre in September 1992, when the army of the nominally independent homeland of Ciskei opened fire on protest marchers, killing 28. This brought a new urgency to the search for a political settlement.

⁷⁰ Currie and De Waal Administrative Law 61-62; Klug Historical Background 2-12. The essential feature of

the sun set clause was the acceptance of a constitutionally entrenched system of executive power sharing for five years after the first democratic election. During this period, the democratic elected parliament would be empowered to write a new Constitution which may exclude the power sharing provisions.

continuation of political negotiations under the Multiparty Negotiating Forum (MPNF)⁷¹. The two main negotiating parties, the ANC and the NP agreed to reach bilateral consensus on issues before taking them to the other parties in the forum. This put considerable pressure on the other parties. In reaction, the IFP withdrew from the MPNF and formed the Concerned South Africans Group (COSAG) (which later was renamed the Freedom Alliance) together with traditional leaders, homeland leaders and white right-wing groups. However, all the contentious issues were addressed and concessions made. The MPNF later ratified the IC adopted by the TP.

The IC came into operation on 27 April 1994. It introduced for the first time the doctrine of supremacy of the Constitution under which any law or conduct inconsistent with the Constitution had no force and effect⁷². The IC further entrenched the Bill of Rights in its Chapter 3. Few socio-economic rights were entrenched in the IC such as the right related to: detained persons⁷³, environment⁷⁴, education⁷⁵ and children⁷⁶. The IC was a provisional Constitution aimed at facilitating political transition until the elections, the

⁷¹ In contrast to CODESA, the white right (the Conservative Party and the Afrikaner Volksunie), the Pan

Africanist Congress, the KwaZulu homeland government and delegations of "traditional leaders" initially participated in the Multiparty Negotiating Forum.

⁷² Section 4 of the Interim Constitution reads as follows :(1) «This Constitution shall be the supreme law of

the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency.(2) This Constitution shall bind all legislative, executive and judicial organs of state at all levels of government.».

⁷³ Section 25 of the Interim Constitution provides that: «(1) Every person who is detained, including every

sentenced prisoner, shall have the right... (b) to be detained under conditions consonant with human dignity, which shall include at least the provision of adequate nutrition, reading material and medical treatment at state expense.» .

⁷⁴ Section 29 of the Interim Constitution reads as follows «Every person shall have the right to an

⁷⁵ Section 32 of the Interim Constitution reads as follows «Every person shall have the right-(a) to basic

education and to equal access to educational institutions; (b) to instruction in the language of his or her choice where this is reasonably practicable; and (c) to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race.».

⁷⁶ Section 30 of the Interim Constitution reads as follows « (1) Every child shall have the right-(a) to a name

and nationality as from birth; (b) to parental care; (c) to security, basic nutrition and basic health and social services; (d) not to be subject to neglect or abuse; and (e) not to be subject to exploitative labour practices nor to be required or permitted to perform work which is hazardous or harmful to his or her education, health or well- being...».

formation of a government of national unity and the adoption of the 1996 Constitution⁷⁷. The CA was vested with the power to adopt the 1996 Constitution within two years of its sitting⁷⁸.

3.2 REGIME OF SOCIO-ECONOMIC RIGHTS UNDER THE 1996 CONSTITUTIONAL DISPENSATION

This part of the study gives comprehensive details of selected socio-economic rights enshrined in the 1996 Constitution. Both the 1993 and the 1996 Constitutions have entrenched justiciable socio-economic rights. The fundamental difference between the two Constitutions is the commitment for the protection of extensive justiciable socioeconomic rights in the 1996 Constitution⁷⁹. Moreover, the 1996 Constitution imposes a duty on the state to fulfill, respect, protect, and promote the Bill of Rights⁸⁰.

The court is further mandated by the Constitution to monitor the implementation of socio-economic rights⁸¹. However, the judiciary is not the only institution to ensure the enforcement of socio-economic rights⁸². The South African Human Rights Commission (SAHRC) is also entrusted to monitor the implementation of socio-economic rights. A specific provision of the 1996 Constitution reads as follows⁸³:

⁷⁷ The elections which were held on 27 April 1994 resulted in the ANC winning 62% of the vote, and

Nelson Mandela becoming president, with De Klerk and Thabo Mbeki as deputies. The NP, with 20% of the vote, joined the ANC in a Government of National Unity.

⁷⁸ The Constitutional Assembly (CA) was vested with the power to adopt a new Constitution that complied

with the 34 principles agreed upon during the negotiations process and entrenched in Schedule 4 of the Interim Constitution. The coming to effect of this new Constitution was subject to its certification by the CC. The first draft on the Constitution which was sent to the CC was declared unconstitutional and referred back to the CA. See in this regard Ex parte Chairman of the Constitutional Assembly: In Recertification of the Constitution of the Republic of South Africa, 1996 (1996) SA 744 CC. The revised text passed the scrutiny of the CC in the second certification case: Ex parte Chairman of the Constitutional Assembly: In Recertification of the amended Text of the Constitution of the Republic of South Africa, 1996 1997 (2) SA 97 (CC).

⁷⁹ Liebenberg Housing 342. Chapter 2 entrenches an entirely new set of rights not foreshadowed in the

Interim Constitution. These are section 26 which protects housing rights, and section 27 protecting the rights to health care services, food, water and social security.

⁸⁰ Section 7(2) of the 1996 Constitution states that the state must respect, protect, promote and fulfill the

Each year, the Human Rights Commission must require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment.

This study is limited to the analysis of some socio-economic rights entrenched in the Bill of Rights of the 1996 Constitution. Therefore, any reference to the Constitution should be understood as the 1996 Constitution of the Republic of South Africa.

According to Liebenberg, socio-economic rights included in the 1996 Constitution follow three main drafting styles⁸⁴. Brand also identifies three features of the rights entrenched in the Bill of Rights (though his distinction is a bit different from Liebenberg but the content remains the same)⁸⁵. Brand classifies socio-economic rights into: «qualified socio-economic rights» (refer to the formulation access rights that are subjected to reasonable and progressive realisation. Section 26 and 27 of the 1996 Constitution fall in this category); «basic socio-economic rights» (this group is neither subjected to progressive realisation nor formulated as access rights. Sections 29, 28 and 35 of the 1996 Constitution fall within this group);

The third group describes particular elements of section 26(2) and 27(2) of the Constitution (this group prohibits certain conduct rather than providing a right to a particular thing). According to the Liebenberg approach, the first category entrenches a set of «basic rights» consisting of: children? socio-economic rights⁸⁶, the right to basic

⁸⁶ Section 28(1) (c), (d) and (e) of the 1996 Constitution reads as follows: «every child has the right to basic

nutrition, shelter, basic health care services and social services; to be protected from maltreatment, neglect, abuse or degradation; and to be protected from exploitative labour practices...».

education, including adult basic education⁸⁷ and the right of detained persons including sentenced prisoners⁸⁸. These rights are not subject to progressive realisation within the state?s available resources. In other words they do not have internal limitations. The second category entrenches the right to everyone to have access to adequate housing, health care, food, water and social security⁸⁹. Section 26(2) and 27(2) of the 1996 Constitution expressly requires the state to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of each of these rights.

It means that these rights contain internal limitations that may impact on their realisation. The third category prohibits the state or private parties from acting in a certain manner. These include the prohibition of the eviction of people from their homes without a court order and on the refusal of emergency medical treatment⁹⁰.The 1996 Constitution also protects labour and cultural rights. The rights to have access to adequate housing, health care services and social security are briefly analysed below.

The right to have access to adequate housing is recognised in section 26(1) and (2) whereas subsection 26(3) of the 1996 Constitution protects everyone from arbitrary eviction. Section 26(1) recognises the right to have access to adequate housing rather than the right to adequate housing. According to Liebenberg⁹¹, the distinction avoids to impose demand on the state to guarantee the right to housing to everyone. The

⁸⁷ Section 29 of the 1996 Constitution states that everyone has the right to basic education including adult

⁸⁸ Section 35 (2) (e) of the 1996 Constitution provides that everyone who is detained, including sentenced

prisoners has the right to condition of detention that are consistent with human dignity, including at least

at the state expense, adequate accommodation, nutrition, reading material and medical treatment.

⁸⁹ Section 26 (1) and 27(1) of the 1996 Constitution state that everyone has the right to have access to adequate housing, to health care services, including reproductive health care, sufficient food and water, and social security.

⁹⁰ Sections 26(3) of the 1996 Constitution provides that «No one may be evicted from their home, or have

their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions». 27(3) of the 1996 Constitution provides that: «No one may be refused emergency medical treatment».

court also has the same approach in the Government of the Republic of South Africa v Grootboom⁹², when it held that:

The right delineated in section 26(1) is a right of access to adequate housing? as distinct from the right to adequate housing encapsulated in the Covenant. This difference is significant. It recognises that housing entails more than bricks and mortar. It requires available land, appropriate services such as the provision of water and the removal of sewage and financing of all of these, including the building of the house itself. For a person to have access to adequate housing all of these conditions need to be met...

Moreover, in terms of section 26(2) of the 1996 Constitution, the state is allowed some time for the achievement of this right. As Liebenberg pointed out, it cannot be expected from the state to ensure access to housing to everyone overnight. The court further stated that the term progressive realisation means that the right could not be achieved immediately but the objective of the Constitution is that everyone should be provided with basic needs. Therefore; state must take reasonable steps to achieve this goal. The duty of the state to fulfill and promote the right to adequate housing and to protect everyone from eviction has been challenged before the CC in other cases.

For instance, in Port Elizabeth v Various Occupiers⁹³, the CC turned down the municipality?s application for eviction in terms of section 6 of The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act⁹⁴ (PIE). The CC held that the municipality took no steps to attend to the occupiers but rather launched the eviction proceedings. Moreover, neither the municipality nor the landowners needed the eviction to make the land productive. In a more recent case Occupiers of 51 Olivia Road v City of Johannesburg⁹⁵, the CC held that section 12(6) of the National Building Regulations and Building Standards Act⁹⁶ which empowers the municipality to issue an

⁹⁴ The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

order to vacate any building without a court order is inconsistent with section 26(3) of the 1996 Constitution. Similarly, in Jaftha v Schoeman; Van Rooyen v Stoltz, the CC held that any measure permitting a person to be deprived of existing access to adequate housing, limiting rights protected by section 26(1) of the 1996 Constitution , may be justified under section 36 of the 1996 Constitution 97.

The right to have access to health care services and social security is provided in section 27(1) (a) and (c) of the 1996 Constitution. According to De Waal, Currie and Erasmus⁹⁸, health care services must be understood as to have proper medical care whereas people will have access to social assistance if only they are unable to support themselves. According to Ngwena and Cook on the other hand, the right to have access to health care services translates the value of equality and social justice. It provides a foundation for an egalitarian health system in South Africa⁹⁹. These rights are subject to section 27(2) of the 1996 Constitution which requires the state to take reasonable legislative measures within its available resources to achieve the progressive realisation of these rights.

As with the right to have access to housing, the state also owes a duty to fulfill and protect the right to have access to health care. Any person deprived of this may seek appropriate relief from the court. It is in this context that, courts have been approached for the enforcement of the right to have access to health care services. For instance, in B v Minister of Correctional Services¹⁰⁰, the High Court (HC) held that the state owes a constitutional duty to provide anti-retroviral drugs to applicant to whom it has been prescribed. Unfortunately, in Soobramoney v Minister of Health Kwazulu-Natal¹⁰¹, the court held that the right of emergency medical treatment under section 27(3) of the

1996 Constitution was interpreted in the sense that the state is under an obligation not to deny a person remedial treatment that is necessary and available to forestall harm in the case of a sudden catastrophe or emergency. It did not extend the provision of ongoing treatment of chronic illness for prolonging life. To hold otherwise, "it would make it substantially more difficult for the state to fulfill its primary obligations under section 27(1) (2) of the 1996 Constitution" to provide health care services to «everyone» within its «available resources". However, in Minister of Health v Treatment Action Campaign¹⁰², the CC held unreasonable the government?s policy that limited the provision of nevirapine to certain clinics. It further ordered the government to make nevirapine available in all public health centres.

The right to have access to social security is also challenged before courts. For instance, in Khosa v Minister of Social Development; Mahlaude v Minister of Social Development¹⁰³, the CC extended the right to receive social assistance grant to permanent residents. This shows that the court is keen to protect any infringement of the right to health care services including social security afforded by the Constitution. In the event of an impairment of this right, courts provide proper relief to the aggrieved person. The above was also decided in Bushula v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government¹⁰⁴. The Eastern Cape HC ordered retrospectively the reinstatement of the disability grant within two weeks from the date of the court order. The same decision was held in Ngxuza v Secretary, Department of Welfare, Eastern Cape Provincial Government¹⁰⁵. The courts in this perspective ordered mandatory judgments that enjoin the state to fulfill its constitutional obligation to promote and respect socio-economic rights.

102
	2002 (5) SA 721 (CC), 2002 10 BCLR 1033.
103	CCT 13/03 and 14/03).
104	2000 (7) BCLR 728 (E); 2000 (2) SA 849 (E).
105	2000 (12) BCLR 1322 (E); 2001 (2) SA 609 (E).

It is evident from the above that, the negotiations process that took place during the apartheid era laid a strong foundation for the constitutional democracy in South Africa. The gist of the negotiations was to provide a set of principles that will enhance the betterment of South Africans in all aspects of their life (social, political and economic). It is in this context that, the new constitutional era is founded on democratic values that promote human dignity, equality, and freedom. In a view of promoting human dignity, the current constitutional dispensation has entrenched intensive socio-economic rights within its text. The realisation of such rights would enable all citizens to live decent lives and without which, they will be deprived of their dignity as human beings. However, it transpired that, despite the provision of socio-economic rights, majority of South Africans are still deprived of basic necessities. Many are still living in abject poverty¹⁰⁶.

The recent nation wide protests in South Africa against poor service delivery are a testimony of poor living conditions. Some reporters showed some areas where inhabitants do not have proper housing, any running water and electricity¹⁰⁷. These conditions are far below what one might expect after more than fifteen years into democracy. The inclusion of socio-economic rights in the 1996 Constitution has raised some concerns about their justiciability.

http://www.sarpn.org.za/documents/d0000990/P1096-FactSheetNo1Poverty.pdf. New estimates of poverty show that the proportion of people living in poverty in South Africa has not changed significantly between 1996 and 2001. However, those households living in poverty have sunk deeper into poverty and the gap between rich and poor has widened. It is further estimated that approximately 57% of individuals in South Africa were living below the poverty income line in 2001, unchanged from 1996. Limpopo and the Eastern Cape had the highest proportion of poor with 77% and 72% of their populations living below the poverty income line, respectively. The Western Cape had the lowest proportion in poverty (32%), followed by Gauteng (42%).

107 The recent nation wide protests against poor service delivery and broadcasted on national televisions in

the last week of July 2009 is the manifestation of frustrated people living in desperate situation. Inhabitants of some areas such as Thokoza still do not have access to housing, running water, electricity and sanitation.

The provision for socio-economic rights in the Covenant in general and in both the 1993 and the 1996 Constitutions in particular has been the centre of heated debate that has divided legal scholars regarding their justiciability. It has been argued that the controversial nature of socio-economic rights is the impediment of their enforcement. Therefore, and in a view to analyse the enforceability debate, this study also examines the nature of socio-economic rights that prompted the discussion.

4.1 THE ENFORCEABILITY DEBATE OF THE INCLUSION OF SOCIO-ECONOMIC RIGHTS IN THE CONSTITUTION

The inclusion of socio-economic rights in the 1996 Constitution of South African was not without any contestation. The opponents of the inclusion of justiciable socioeconomic rights in the Constitution canvassed three main arguments to support their views namely: socio-economic rights are not universally accepted fundamental rights (this objection is examined below when analysing the controversial nature of socioeconomic rights); the separation of powers and the institutional competence of the courts.

4.1.1 THE SEPARATION OF POWERS: OBJECTION TO THE INCLUSION OF
JUSTICIABLE SOCIO-ECONOMIC RIGHTS IN THE CONSTITUTION

The argument of the separation of powers relies on the fact that by giving the courts a jurisdiction to hear matters relating to socio-economic rights, courts will interfere with executive and legislative terrain. This is because judges are not accountable to the electorate and therefore they cannot be involved in decisions that have major implications on governmental spending. As stated by Albie Sachs, the defendants of this view fear that courts will diminish their authority by interfering in political

decision¹⁰⁸. Devenish, citing De Villiers concurs with this view when he states that the justiciability of socio-economic rights will involve the court in highly problematic issue of the allocation of resources, a task that should be done by democratically elected legislature and executive. He argues further that such intrusion will lead to the erosion of the practice of separation of powers¹⁰⁹. Therefore, the justiciability of socio-economic rights will overstretch the judicial capacities and cause transgressions of separation of powers. However, the CC is of the opinion that the separation of powers is not a strict or absolute doctrine¹¹⁰. Most of the authors concur with these findings of the court and appeal for a more flexible approach of separation of powers.

Liebenberg for instance, holds that, the doctrine of separation of powers is not reflecting the reality of modern political processes. It also limits the extent to which socio-economic rights can be effectively protected by courts¹¹¹. Moreover, the doctrine is given nowadays different expressions without depriving the doctrine of its purpose and substance to avoid concentration of powers in one hand. Currie and De Waal cite some examples of modern practices of separation of powers such as the delegation of legislative power to the executive since most parliamentarians do not have the expertise to do so; the adjudicating role of the executive through for instance, commissions of enquiries¹¹². The court?s response to these arguments was clear in Ex parte Chairman of the Constitutional Assembly: In Re certification of the Constitution of the Republic of South Africa, 1996 when the CC held that¹¹³:

108 Sachs 2009 HYPERLINK http:/www.googleschorlar/controversialnatureofsocio-ecomomicrights.html 2

109 Devenish Commentary 358. The doctrine of separation of powers demands that the function of the

three branches of government vests in three different organs. No branch should encroach in another one domain.

110 Ex parte Chairman of the Constitutional Assembly: In Recertification of the Constitution of the Republic

112 Currie and De Waal Administrative Law 93-94. According to these authors, «lawmaking has become

highly technical and specialised process. Representatives simply do not have the expertise to make informed decisions on the issues dealt with in the Bills before them. As a result, laws are nowadays the products of state departments and consultants... Not only is legislation effectively written by administration, but the administrators often confer wide discretionary powers onto themselves and sometimes onto private institutions through law.»

It is true that the inclusion of socio-economic rights may result in courts making orders which have direct implications on budgetary matters. However, even when a court enforces civil and political rights such as equality, freedom of speech and the right to fair trial, the order it makes will often have such implications...In our view, it cannot be said that by including socio-economic rights, a task conferred upon the courts so different from that ordinarily conferred upon them by a Bill of Rights that it results in a breach of separation of powers.

The court concluded that the inclusion of these rights does not violate the doctrine of separation of powers by encroaching on the proper terrain of the legislature and the executive. The court further reasserts this position in Minister of Health v Treatment Action Campaign¹¹⁴ when it rejected arguments of the state?s counsel that the questions raised fall in the sphere of government policy and as such are outside the domain of the judiciary. Therefore, courts are mandated to protect the rights enshrined in the Bill of Rights. The Committee on ESCR summarises the role of the court in the following words¹¹⁵:

The adoption of a rigid classification of economic, social and cultural rights which put them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.

The second argument frequently cited against the inclusion of enforceable socioeconomic rights in the Constitution is relating to the limit of judicial skills and the

problems created by polycentricity¹¹⁶. In the words of Liebenberg, judges are not economists or public policy experts to evaluate complex policy options¹¹⁷. Socioeconomic rights involve complex policy and have some ramification that the court cannot foresee when handing down their judgments. Furthermore, there are problems that render the judicial vindication of socio-economic rights complicated. According to Pieterse, the judiciary lacks the economic expertise in deciding matters with budgetary consequences or specific specialist expertise in cases where the enjoyment of social rights involves a specific field¹¹⁸.

However, it has been rightly argued that this objection may not preclude the judicial enforcement of socio-economic rights. It is also argued that polycentricity is not exclusive to socio-economic rights. It is involved in all matters before the courts. For instance, certain civil and political rights are also polycentric as socio-economic rights¹¹⁹. Albie Sachs acknowledges this view when he states that Judges are «institutionally unsuited to take decision on houses, hospital, schools, and electricity» because they «do not have the know-how and the capacity to handle those questions» but he argues on the other hand that judges «do know about human dignity, oppression and things that reduce human being to a status below that which a democratic society would regard as tolerable»¹²⁰.

116 Pieterse 2004 SAJHR 392- 391. Citing Lon Fuller, the author defines polycentricity as decisions that

affect an unknown but potentially vast numbers of interested parties and that have many complex and unpredictable social and economic repercussions, which inevitably vary for every subtle difference in the decision.

119 Pieterse 2004 SAJHR 395; Liebenberg Socio-Economic Rights 41-11. In reality, degrees of judicial

involvement in polycentric matters must vary depending on the context of every specific case. In any event, there are polycentric elements to virtually all disputes before courts. Certainly, civil and political rights matters are no less polycentric than socio-economic rights.

120 Sachs 2009 HYPERLINK http:/www.googleschorlar/controversialnatureofsocio-ecomomicrights.html 2

4.1.3 OTHER ARGUMENTS PERTAINING TO THE JUDICIAL ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS

Another issue raised against the judicial vindication of socio-economic rights concerns their judicial protection. This aspect of the debate stresses the fact that the realisation of socio-economic rights depends on the availability of resources and that it is pointless to provide rights without means to enforce them¹²¹. Moreover, sections 26(2) and 27(2) of the 1996 Constitution provide that the state must take reasonable measures within its available resources to achieve the progressive realisation of these rights. It is clear that the availability of resources is the condition for the fulfillment by the state of socioeconomic rights.

Sachs¹²² concurs with this view when he points out that the problem in all cases concerning the enforcement of socio-economic rights is that resources are always limited. This view confirms Mubangizi?s concern about the scarcity of resources¹²³. The last view expressed with regard to the justiciability of socio-economic rights, though not an objection but questions the extent to which socio-economic rights may be included in the Constitution. The vital issue according to Devenish who defends this approach is the nature and the extent of their inclusion¹²⁴. The author argues that the intensive inclusion of socio-economic rights could only be achieved in a rigid socialist country. He concludes that the institutionalisation in 1996 Constitution of the doctrine of separation of powers coupled with the free enterprise economic system militate against the implementation of the whole range of socio-economic rights such as employment,

122 Sachs 2009 HYPERLINK http:/www.googleschorlar/controversialnatureofsocio-ecomomicrights.html 2

123 Mubangizi 2006 2 Afr J Legal Stud 4. The author states that: «One of the main challenges to the

protection and enforcement of socio-economic rights in Africa is the prevalent poverty. This has to be seen in the context of the point made earlier that many socio-economic rights reflect specific areas of basic needs or delivery of particular goods and services. In that regard, I have argued elsewhere that of all the social phenomena that have a significant impact on human rights, poverty probably ranks highest. Some have actually argued that poverty is in itself a violation of human rights. Nowhere is this more true than on the African continent where about 315 million (one in two people) survive on less than one dollar per day, 33% of the population suffer from malnutrition, 50% have no access to hospitals or doctors and the average life expectancy is about 41 years.».

health and housing¹²⁵. It can therefore be inferred from this argument that the inclusion of socio-economic rights in the Bill of Rights is problematic in nature. These rights are too wide and could only be implemented in a socialist state employing central planning. The recent waves of services delivery protests are indicative of the problematic nature of the inclusion of socio-economic rights in the 1996 Constitution¹²⁶.

4.2 THE ANALYSIS OF SOCIO-ECONOMIC RIGHTS

This part of the study analyses and argues on the one hand the controversial nature of socio-economic rights and on the other hand, the positive and negative nature of socioeconomic rights. The controversial nature of socio-economic rights has been commented by the Committee on ESCR in its General Comments¹²⁷. Therefore, this study refers to some UN Committee on ESCR?s Comments that provide useful understanding of socio-economic rights. Moreover, in South Africa, courts as well as legal scholars rely on ESCR Comments to analyse socio-economic rights provided in the 1996 Constitution.

The nature of socio-economic rights is distinguished from civil and political rights. Socio-economic rights or second generation rights are generally termed positive rights whereas civil and political rights are known as negative rights. The distinction lies in the fact that socio-economic rights impose a duty on the state to secure and fulfill some social goals whereas civil and political rights enjoin the state to refrain from doing or

126 A documentary conducted by Belinda Moses and broadcasted on the 21^st and 22^nd July 2009 on etv with

regard to the state of service delivery in the country showed that the current implementation of socioeconomic rights is ineffective. Habitants of Thokoza township are complaining of lack of housing, proper sanitation, water and electricity. An investigation by the reporter confirmed the habitant complain and manifestations. It means that the current socio-economic policy is failing since everyone does not have access to water, health and adequate housing depriving by so doing citizens from their rights.

not to act in a certain way. This distinction is well explained by Khoza when he states that¹²⁸:

For decades, socio-economic rights have been treated differently from civil and political rights. They have often been regarded as mere aspirations or second class rights? not deserving of the status of human rights. Yet, civil and political rights have always been seen as fundamental rights or first class rights?.

Khoza is of the view that the two groups of rights cannot be separated and that to live a meaningful life, one needs to enjoy civil and political rights and socio-economic rights. According to the Committee on ESCR, to act otherwise, would overlook a postulate of the global human rights system formulated as long ago as 1948 with the adoption of the UDHR namely, that the indivisibility and interdependence of civil and political rights and economic, social and cultural rights are fundamental tenets of international human rights law¹²⁹.

Therefore, both rights have positive and negative obligation on the state. As pointed out by Jacoob J in Government of the Republic of South Africa v Grootboom, «our Constitution entrenches both civil and political rights and socio-economic rights». He went on to say that all rights in the Bill of Rights are interrelated and mutually supportive¹³⁰ reaffirming the decision of the CC in Ex parte Chairman of the Constitutional Assembly: In Recertification of the Constitution of the Republic of South Africa, 1996¹³¹. While assenting to the above statement, Mokgoro J in Jaftha v Schoeman¹³², agreed with counsel of the applicants that positive and negative rights

131 (1996) SA 744 CC. the court stated that at very minimum, socio-economic rights can be negatively

132 2004 1 BCCLR 78 (CC) 31and 33. The case challenged the constitutionality of section 66(1)(a) of the

Magistrates' Courts Act 32 of 1944 that permits the sale in execution of peoples? homes because they
have not paid their debts, thereby removing their security of tenure. The court set aside the order of the

are contained in the right to housing. Moreover, a specific provision of the 1996 Constitution imposes on the state the duty to respect, protect, promote and fulfill the rights entrenched in the Bill of Rights¹³³. The duty to respect entails negative action of the state not to impair on the rights while the duty to protect, promote and fulfill requires a positive action from the state. Therefore, the 1996 Constitution does not make any distinction between civil and political rights and socio-economic rights. Both rights are interdependent and indivisible. According to De Vos, the indivisibility and interdependence are drawn from the articulation of all the rights contained in Chapter 2 of the 1996 Constitution.

The structure of the Bill of Rights does not distinguish between rights traditionally seen as civil and political rights from those perceived as social and economic in nature¹³⁴. At international level, the Vienna Declaration states that all human rights are universal, indivisible, interdependent and interrelated. The international community must treat human rights in a fair and equal manner. It is the duty of each state to promote and protect all fundamental rights and freedoms¹³⁵. In essence, socio-economic rights and civil and political rights entail positive and negative duty on the state.

HC and declared unconstitutional and invalid the failure to provide judicial oversight over sales in execution against immovable property of the judgment debtors in section 66(1) (a) of the Magistrates' Courts Act 32 of 1944. The court further ordered that in a view to remedy the defect section 66(1) (a) of the Magistrates' Courts Act 32 of 1944 is to be read as though the words «a court, after consideration of all relevant circumstances, may order execution» appear before «against the immovable property of the party».

133 Section 7 of the Constitution of the Republic of South Africa, 1996 provides that: «(1) This Bill of Rights

is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfill the rights in the Bill of Rights. (3) The rights in the Bill of Rights are subject to the limitations contained in the legislation or referred to in section 36, or elsewhere in the Bill». According to Iles 2004 SAJHR 429, section 7(2) of the Constitution mandates the state to respect, protect, promote and fulfill the rights in the Bill of Rights. The four words impose on the state a mixture of both positive and negative obligations.

134 De Vos 1997 SAJHR 71. The approach of indivisibility is reflected in the document of the technical

committee of experts to the constitutional committee who argue that grouping these rights together will devalue them and will make them seem like some special species of rights.

135 The Vienna Declaration was adopted at the World Conference on Human Rights, Vienna, 1993.

The negative nature of socio-economic rights is provided in the Bill of Rights. Sections 26 (3)¹³⁶ and 27(3)¹³⁷ of the 1996 Constitution specifically prohibit certain conduct in connection with the rights provided in the Bill of Rights. It means that, the negative nature of socio-economic rights obliges the state to respect and not to impede or hinder the enjoyment of socio-economic rights. The nature of socio-economic rights prohibits the state from adopting deliberate regressive measures such as depriving access to water, food, housing or forced eviction¹³⁸. According to Liebenberg¹³⁹, the duty of the state to respect socio-economic rights comprises the duty not to deprive access, not to deny or obstruct access and not to unfairly discriminate. This pattern is followed to examine the state?s negative duty towards socio-economic rights.

4.2.2.1 Deprivation of Access: Violation of the Duty to Respect Socio-Economic Rights

The state, through its conduct, may deprive citizens of their rights. This may arise when the state through legislation or administrative conduct deprives people of the access to enjoy socio-economic rights¹⁴⁰. The state?s action may amount to a denial or put obstacles in the way a person can gain access to a particular right. For instance, the state may infringe upon the right to housing by evicting a person or by denying access to social security, access to water, food or education. In the Premier of Mpumalanga v Executive Committee of the Association of Governing Bodies of State-Aided Schools: Eastern Transvaal¹⁴¹, the cancellation of subsidies by the premier impaired on the right

136 Section 26(3) of the 1996 Constitution provides that: «No one may be evicted from their home, or have

their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary eviction».

137 Section 27(3) of the 1996 Constitution reads as follows: «No one may be refused emergency medical

to education of those school children depending on such facilities to pursue their studies. Section 26(3) of the 1996 Constitution expressively prohibits the eviction of anyone from his home without considering all the relevant circumstances. This provision is enacted to avoid arbitrary eviction such as the erstwhile section 3B of the Prevention of Illegal Squatting Act¹⁴² characterised as «notorious» by Liebenberg and which permitted land owners to demolish structures on their land without a court order¹⁴³. This Act is a violation of section 26(3) cited above. The Prevention of Illegal Squatting Act has been repealed by the PIE¹⁴⁴. The state duty not to evict people from their home is being challenged under the PIE in many occasions. For instance, in Port Elizabeth v Various Occupiers, the application was based on section 6 of the PIE¹⁴⁵,

143 Port Elisabeth v Various Occupiers 2004 CCT 53/03 8 and 9. The court described the Prevention of

Illegal Squatting Act 52 of 1951 in the following statement: «In terms of the Prevention of Illegal Squatting Act 52, 1951 (PISA), the only question for decision would have been whether the occupation of the land was unlawful. Once it was determined that the occupiers had no permission to be on the land, they not only faced summary eviction, they were liable for criminal prosecution. Expulsion from land of people referred to as squatters was accordingly accomplished through the criminal and not the civil courts, and as a matter of public rather than of private law. The process was deliberately made as swift as possible: conviction followed by eviction. Thus, even if they had been born on the land and spent their whole lives there, persons from whom permission to remain on land had been withdrawn by new owners were treated as criminals and subjected to summary eviction. PISA was an integral part of a cluster of statutes that gave a legal/administrative imprimatur to the usurpation and forced removal of black people from land and compelled them to live in racially designated locations».

144 2004 CCT 53/03. The court per Sachs J stated that: «The Prevention of Illegal Eviction from and

Unlawful Occupation of Land Act 19, 1998 was adopted with the manifest objective of overcoming the above abuses and ensuring that evictions in future took place in a manner consistent with the values of the new constitutional dispensation. Its provisions have to be interpreted against this background» 11. The Preamble of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19,1998 declares that «whereas no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property; and whereas no one may be evicted from their home,or have their home demolished without an order of court made after considering all relevant circumstances; and whereas it is desirable that the law should regulate the eviction of unlawful occupiers from land in a fair manner, while recognising the right of land owners to apply to a court for an eviction order in appropriate circumstances; and whereas special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and that it should be recognised that the needs of those groups should be considered».

145 Section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19, 1998

reads as follows: «(1) An organ of state may institute proceedings for the eviction of an unlawful occupier from land which fall within its area of jurisdiction, except where the unlawful occupier is a mortgagor and the land in question is sold in a sale of execution pursuant a mortgage, and the court may grant such an order f it is just and equitable to do so, after considering all the relevant circumstances and if (a) the consent of that organ of state is required for the erection of a building or structure on that land or for the occupation of the land, and the unlawful occupier is occupying a building or structure on that land without such consent having been obtained or (b) it is in the public interest to grant such an order. (2) For the purpose of this section, public interest? includes the interest of the health and safety of those occupying the land and the public in general. (3) in deciding whether it is just and equitable to grant an order of eviction, the court must have regard to (a) the circumstances under which the unlawful occupier

which states that an organ of the state may institute proceedings for the eviction of unlawful occupies within its area of jurisdiction. The municipality appealed the decision of the Supreme Court of Appeal (SCA), which ordered the occupiers to be offered alternative accommodation prior to their eviction. The CC, per Sachs J, with whom the other judges concurred held that¹⁴⁶:

In considering whether it is «just and equitable» to make an eviction order in terms of section 6 of the Act, the responsibilities that municipalities, unlike owners, bear in terms of section 26 of the Constitution are relevant. As Grootboom indicates, municipalities have a major function to perform with regard to the fulfilment of the rights of all to have access to adequate housing. Municipalities, therefore, have a duty systematically to improve access to housing for all within their area. They must do so on the understanding that there are complex socio-economic problems that lie at the heart of the unlawful occupation of land in the urban areas of our country. They must attend to their duties with insight and a sense of humanity. Their duties extend beyond the development of housing schemes, to treating those within their jurisdiction with respect. Where the need to evict people arises, some attempts to resolve the problem before seeking a court order will ordinarily be required.

Most importantly, in the present case, no attempt to resolve the dispute was made by the municipality. Moreover, no suitable or alternative accommodation was also offered to the occupiers. Lastly, the land did no appear to be needed for immediate productive use by the owners. The court concluded that, for an order of eviction to succeed, the eviction must be just and equitable. In the above case, the court further held that in the light of the period during which the occupiers have lived on the land, considering the fact that there are no evidence that either the municipality or the owners of the land needed to evict the occupiers in order to make the land productive and in the absence of any attempt of the municipality to solve the dispute, it was not just and equitable for the order to be granted. In the words of the Committee on ESCR, instances of forced eviction are prima facie incompatible with the provision

occupied the land and erected the building or structure; (b) the period the unlawful occupier and his or her family have resided on the land in question; and (c) the availability of the unlawful occupier of suitable alternative accommodation or land».

of the Covenant and can only be justified in exceptional circumstances and in accordance with principles of international law. The constitutionality of section 12(4) (b) of the National Building Regulations and Building Standards Act (the NBRA)¹⁴⁷ which permits a municipality to issue notice to people to vacate their building without a court order is another piece of legislation being challenged. A failure to comply with the notice is a criminal offence for which the offender may be fined up to R100 per each day of non-compliance.

This was raised in Occupiers of 51 Olivia Road v City of Johannesburg. The applicants launched an application to the CC to challenge the decision of the SCA which ordered their eviction from their home without alternative accommodation and in violation of section 26(3) of the 1996 Constitution. In an unanimous judgment, the court per Jacoob J held that the City must take into account the possibility of the homelessness of any resident that results from a section 12(4)(b) eviction in the process of making the decision as to whether or not to proceed with the eviction order and stated that¹⁴⁸:

The provisions of section 26(3) would be virtually nugatory and would amount to little protection if people who were in occupation of their homes could be constitutionally compelled to leave by the exertion of the pressure of a criminal sanction without a court order. It

147 Section 12(4)(5) and (6) of the National Building Regulations and Building Standards Act 103,1977

provide that: «(4) If the local authority in question deems it necessary for the safety of any person, it may by notice in writing, served by post or delivered(a) order the owner of any building to remove, within the period specified in such notice, all persons occupying or working or being for any other purpose in such building therefrom, and to take care that any person not authorised by such local authority does not enter such building; (b) order any person occupying or working or being for any other purpose in any building, to vacate such building immediately or within a period specified in such notice. (5) No person shall occupy or use or permit the occupation or use of any building in respect of which a notice was served or delivered in terms of this section or steps were taken by the local authority in question in terms of subsection (1), unless such local authority has granted permission in writing that such building may again be occupied or used. (6) Any person who contravenes or fails to comply with any provision of this section or any notice issued thereunder, shall be guilty of an offence and, in the case of a contravention of the provisions of subsection (5), liable on conviction to a fine not exceeding R100 for each day on which he so contravened».

148 2008 CCT 49. The court further ordered that section 12(6) of the National Building Regulations and

Building Standards Act 103, 1977 must be read as if the following proviso has been added: «This subsection applies only to people who, after service upon them of an order of court for their eviction, continue to occupy the property concerned.» 51.

follows that any provision that compels people to leave their homes on pain of criminal sanction in the absence of a court order is contrary to the provisions of section 26(3) of the Constitution. Section 12(6) provides for this criminal compulsion and is not consistent with the Constitution. Continued occupation of the property should not be a criminal offence absent a court order for eviction.

It is clear from the above analysis that, the state?s duty to respect socio-economic rights is established in the light of the right of person not to be arbitrary ejected from his/her home without court order or alternative accommodation. However, the negative duty to respect socio-economic rights is not only limited to section 26(3). Section 27(1)(b) and (c)¹⁴⁹ of the 1996 Constitution also provides a handful of jurisprudence pertaining to the duty of the state to respect the rights provided in the Constitution. For instance, the right to have access to water has been challenged in Residents of Bon Vista Mansion v Southern Metropolitan Local Council¹⁵⁰. The applicants in this case,

The court held that the disconnection of water supply by the municipality is subject to certain conditions. Firstly, the disconnection needs to be fair and equitable. Secondly, the financial condition of the residents has to be ascertained whether they are able or not to pay their water bill. Lastly, the municipality must give reasonable notice and provide opportunities to make representations. After considering all the above
elements, the court held that the Constitution required the state to ensure access to sufficient water when a local council disconnected water supply to a block of residences. Moreover, the court issued an interim order against the municipality to restore their water supply.

149 Section 27 of the 1996 Constitution reads as follows :»( 1) Everyone has the right to have access to (a)

health care services, including reproductive health care; (b) sufficient food and water; and (c) social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.».

The duty of the state not to deprive a person of the right to social security was also challenged. Firstly, in Ngxuza v the Permanent Secretary Department of Welfare Eastern Cape Provincial Government¹⁵¹ in which the applicants were deprived of the right to receive social grants without notice or justification. The court ordered the reinstatement of the disability grants from the date of the cancellation together with interests. Secondly, in Khosa v Minister of Social Development; Mahlaude v Minister of Social Development a case challenging certain provisions of the Social Assistance Act 152 the court held that permanent residents who are eligible and meet the requirements to receive social grants, are also entitled to the social grants. The court also extended the right to social assistance to all permanent residents in the situation of the applicants.

4.2.2.2 Unfair Discrimination: Violation of the Duty to Respect Socio-Economic Rights

A violation of the state duty to respect socio-economic rights may be possible through unfair discrimination¹⁵³. It means that there is an integral relationship between sections providing for socio-economic rights and the equality clause contained in the 1996 Constitution¹⁵⁴. According to De Vos in particular, the right to equality and the various socio-economic rights are interrelated and mutually supportive. The author suggests that the scope and content of socio-economic rights should be construed with reference to the CC understanding of substantive equality¹⁵⁵. The duty not to unfairly discriminate against a person may arise when the state enacts legislation that denies

154 Section 9 of the 1996 Constitution provides that: «(1) everyone is equal before the law and has the right

to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantage by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection(3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.».

equal benefit to socio-economic rights. According to Liebenberg, it occurs in case of indirect discrimination when an apparently neutral legislation infringes the fundamental rights of a person or category of persons as human beings. This was the case in City Council of Pretoria v Walker¹⁵⁶, where the CC held that the selective recovery of arrears that instituted legal proceedings against whites and not against blacks discriminated indirectly on the grounds of race. Overall, the negative obligation of socio-economic rights imposes a duty on the state to abstain from infringing the rights encapsulated in the Bill of Rights.

4.2.3 THE POSITIVE OBLIGATION OF THE STATE IN RELATION TO SOCIO- ECONOMIC RIGHTS

The positive obligation requires the state to protect, promote and fulfill socio-economic rights. However, the positive duty of the state contains some internal limitations. The

duty to protect socio economic-rights requires the state to enact laws that protect citizens against any violation of their fundamental rights. For De Vos, the state is under a positive obligation to take steps to make sure that all rights are enjoyed effectively¹⁵⁷. It means that the state may create a legislative framework in which citizens will enjoy their rights. As demonstrated by De Vos, the duty to protect the right to housing for instance, should be interpreted to include the duty on the state to take measures to confer legal security of tenure on those persons lacking such protection. He concludes in the following words¹⁵⁸:

On a practical level, such interpretation indicates that section 26 of South Africa?s final Constitution places a duty on the state to enact legislation or promulgate regulation to protect the occupancy rights of the individual against interference by landlords or other powerful actors. Failure to regulate the housing situation would constitute

a prima facie infringement of the state?s duty to protect the right of access to housing.

The 1996 Constitution also expressly provides for such protection in some of its provisions. The right of every child to be protected from maltreatment, neglect, abuse, degradation and exploitive labour practices is illustrative of the duty of the state to protect socio-economic rights¹⁵⁹. The court on the contrary viewed the protection of socio-economic rights through a reasonable allocation of responsibilities and tasks among the three spheres of government¹⁶⁰. For instance, national and provincial governments are responsible to make policies whilst local government function is to implement these policies.

The duty to promote and fulfill socio-economic rights requires the state to take positive measures to assist those who are lacking access to gain access to them. According to Liebenberg, this requires the state to adopt strategies and policies aimed at assisting vulnerable or disadvantaged people¹⁶¹. People are therefore entitled to state positive assistance. According to De Vos, the state?s obligation to fulfill socio-economic rights may consist of the provision of basic needs such as food or resources that can be used to obtain food in desperate cases¹⁶².

According to De Vos, the right to housing for instance, places a duty on the state to assist those who cannot have access to housing. The state may, for example, enact laws which facilitate the acquisition of houses such as affordable housing loans or subsidies for middle income class. The government?s Reconstruction Development Program (RDP) vision to provide houses to disadvantaged people is an example of

159 Section 28 of the 1996 Constitution with regard to children provides that «(1) every child has the right...

(d) to be protected from maltreatment, neglect, abuse or degradation and (e) to be protected from exploitative labour practices».

160 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 39.

state assistance to socio-economic rights¹⁶³. Another example is the state?s various disabilities grants schemes aimed at assisting vulnerable people in South Africa. The promotion of these rights is also done through some campaigns on television, radio etc.

4.2.3.3 The Internal Limitations to the Positive State Obligation towards Socio- Economic Rights

Some rights in the 1996 Constitution contained internal limitations whereas other rights such as the right of children or the right to basic education oblige the state to protect, promote and fulfil them. Sections 26(2) and 27(2) of the 1996 Constitution provide that the state must take reasonable legislative and other measures within available resources to achieve the progressive realisation of the rights. These internal limitations do take into account difficulties that may arise when adjudicating these rights¹⁶⁴.The inclusion of these internal limitations recognises the fact that all rights cannot immediately be fulfilled by the state.

4.2.3.3.1 The Internal Limitation of Reasonable Legislative and other Measures

The state is required to enact laws that will enable the fulfillment of the rights encapsulated in Chapter 2 of the 1996 Constitution. According to the Committee on ESCR, reasonable legislative means to take steps towards the realisation of the goals set in the Covenant but within a reasonably short period. In short, state parties must enact law immediately for the realisation of the rights. Moreover, the Committee on ESCR views legislation as an indispensable mechanism to promote socio-economic rights¹⁶⁵. The court in Government of the Republic of South Africa v Grootboom¹⁶⁶ affirms that this interpretation is indeed correct and corresponds to the provision of the

163 See White Paper on Reconstruction and Development (1994) Government Gazette No.16085, Vol.353,

1996 Constitution. However, legislation is not the only way to realise socio-economic rights. Sections 26(2) and 27(2) of the 1996 Constitution provide for other measures to fulfill socio-economic rights.

According to De Vos, the state may in addition to legislation adopt some administrative, economic, social, and education measures. The state may also establish some action programs and appropriate bodies and set procedures for the implementation of government policies to promote and fulfill the rights¹⁶⁷. Furthermore, the state has the duty to provide for judicial remedies to enable the enforceability of the rights. In the words of the Committee on ESCR, among other measures which may be adopted in addition to legislation is the provision for judicial remedies. In this regard, the 1996 Constitution mandates the court to declare invalid any law inconsistent with its spirit and purport to the extent of its inconsistency¹⁶⁸.

4.2.3.3.2 The Internal Limitation to Achieve the Progressive Realisation of the Rights

According to the Committee on ESCR¹⁶⁹, the concept of progressive realisation of the right acknowledges the fact that the full realisation of socio-economic rights may not be generally achieved within a short period. It is further stated that this should not be construed as depriving the content of the state duty to promote socio-economic rights. Rather the concept of progressive realisation is a flexible devise reflecting the realities of the world. The Committee on ESCR concluded that the phrase should be read in the light of the overall objective or the raison d'être of the Covenant which is to establish an obligation on the state to respect the full realisation of the rights. The court in the

167 De Vos 1997 SAJHR 95. The Committee on ESCR in its General Comment N03 on the nature of states

parties obligations also states that «other measures which may also be considered appropriate? for the purpose of article 2(1) include, but not limited to administrative, financial, educational and social measures.».

168 Section 172 of the 1996 Constitution provides that: «(1) When deciding a constitutional mater within its

power, a court (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect».

Government of the Republic of South Africa v Grootboom concurred with this interpretation and held that the reasoning of the Committee is in harmony with the spirit of the 1996 Constitution. It concluded that «there is no reason not to accept that it bears the same meaning in the Constitution as in the document from which it was so clearly derived»¹⁷⁰.

4.2.3.3.3 The Internal Limitation of the Availability of Resources

According to De Vos, the availability of resources refers to the real resources of the country and not to the budgetary appropriations¹⁷¹. The availability of resources also refers to resources available from international co-operation and assistance. In order for the state to discharge its obligation on the ground of availability of resources, the Committee on ESCR obliges the state to demonstrate that it has strived to ensure the widest possible enjoyment of the rights¹⁷². Therefore, the limitation of resources constraint may be used by the state to avoid its obligation to ensure the full realisation of the rights. However, the state is nevertheless under an obligation to use all means to fulfill the enjoyment of the rights in question.

The above analysis seeks to clarify the nature of socio-economic rights and the judicial enforcement thereby. Socio-economic rights impose both a negative and positive duty on the state. Moreover, the study also showed the interconnectedness and interrelation between socio-economic rights and civil and political rights as well as the justiciability

170 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 45.

According to the Committee on ESCR,» even where the availability of resources are demonstrably inadequate, the obligation remains for the state party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances. Moreover, the obligation to monitor the extent of the realisation, or more especially of the non-realisation, of economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resources constraints.».

of socio-economic rights¹⁷³. The most important issue is the effective realisation and protection of these rights. People need to know whether they can have access to the rights crafted in the Bill of Rights. According to Pieterse, What needs attention is the court?s approach to enforce socio-economic rights. In other words, legal scholars need to assist the court to give meaningful interpretation that will enable the full enjoyment of socio-economic rights¹⁷⁴.

CHAPTER5: THE REASONABLENESS CONCEPT VERSUS THE MINIMUN
CORE APPROACH IN THE ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS

In South Africa, the CC is the guardian of the Constitution and laws. It also has jurisdiction to interpret law in a view to simplify and narrow its understanding¹⁷⁵. At the same break, the inclusion of justiciable socio-economic rights in the Constitution also vests in the judiciary the role to enforce them. More specifically, section 172 of the 1996 Constitution enjoins the court to invalidate any law or conduct inconsistent with its provisions, spirit and purport¹⁷⁶.

Section 39 of the 1996 Constitution further enables the court to interpret any law with a view to promote the values that underline an open society based on human dignity, equality and freedom. With regard to socio-economic rights, it is the role of the court to interpret and to develop an appropriate approach that will foster their full realisation. In this regard, the CC has developed the reasonable approach as its method to give meaning and content for the fulfillment of these rights. This study explores the recommended approach to vindicate socio-economic rights as well as the reasoning of the court to reject this approach. It also focuses on the reasonable approach laid down by the CC to give effect to socio-economic rights.

175 In terms of section 167(3) of the 1996 Constitution, the CC: «(a) is the highest court in all constitutional

matters; (b) may decide only constitutional matters, and issues connected with decisions on. (c) makes the final decision whether a matter is a constitutional matter or whether constitutional matters; and an issue is connected with a decision on a constitutional matter. In terms of section 167(5) of the 1996 Constitution, the HC and the SCA are obliged to refer their judgments relating to the interpretation of the Constitution to the CC for confirmation.

176 Section 172 of the 1996 Constitution provides that: «(1) When deciding a constitutional mater within its

power, a court (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.».

Notwithstanding the fact that socio-economic rights are enforceable in South Africa, it is trite that to give content and meaning to these rights is an onerous task. In the words of Sachs, the problem facing the CC was how to find a secure jurisprudential foundation for responding to socio-economic rights and how to provide for a remedy consonant with the court?s limited institutional capacity that will bear meaningful enforcement¹⁷⁷. The approach suggested by parties to various litigations with regard to the enforcement of socio-economic rights mainly the minimum core obligation suggested by the amici curiae¹⁷⁸ and the reason for its rejection by the CC is discussed hereunder.

5.1.1 ANALYSIS OF THE ARGUMENTS SUGGESTED FOR INTERPRETING SOCIOECONOMIC RIGHTS

As indicated above, the judicial interpretation of socio-economic rights is recent in South Africa. The socio-economic rights are the «fruit» of the new constitutional dispensation that seeks to redress the imbalances of the past. The judiciary was therefore not acquainted with such litigation process. In a case involving the adjudication of socio-economic rights, the CC was to establish its jurisprudential foundation for future socio-economic rights disputes. In the same footing, parties to the litigation also provide their own interpretation. For instance, in Government of the Republic of South Africa v Grootboom¹⁷⁹ and Minister of Health v Treatment Action Campaign¹⁸⁰ (Grootboom and TAC), the CC was urged to adopt the concept of

177 Sachs 2009 HYPERLINK http:/www.googleschorlar/controversialnatureofsocio-ecomomicrights.html 2

178 In Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) the South African

Human Rights Commission and the Community Law Centre of the University of the Western Cape were amici curiae. In Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 1033, the amici curiae were the Institute for Democracy in South Africa, the Community Law Centre and the Cotlands Baby Sanctuary. Amicus curiae means friend of the court. It is a civil organisation which joins a court case to assist the court which its knowledge.

minimum core of the rights as developed by the UN Committee on ESCR¹⁸¹. More precisely, in Grootboom, the amici submitted that the CESCR is of paramount importance in «understanding the positive obligations created by the socio-economic rights in the Constitution"¹⁸². The amici further argued that since the CESCR is monitored by the Committee on ESCR, and therefore, it?s General Comments constitute a significant guide to the interpretation of socio-economic rights. Furthermore, the amici suggested the adoption of similar approach taken by the Committee on ESCR in which socio-economic rights contained a minimum core obligation. For Liebenberg, the amici argue that section 26(1) (2) of the 1996 Constitution imposes a minimum core obligation on the state to ensure that those who are in difficult situation receive some rudimentary form of shelter¹⁸³.

In a similar vein, in TAC case, it was contended on behalf of two of the amici that, the right to access to health care comprises a minimum core. However, it was argued that this right establishes an individual entitlement to everyone¹⁸⁴. It is quiet clear in the light of the above cases, and from their submissions to the CC, that the content of socioeconomic rights comprises a minimum core as developed by the Committee on ESCR in General Comment N03. Therefore, and according to the amici, the jurisprudential foundation of socio-economic rights should be developed in the light of the minimum core approach. Despite these submissions, the CC was not of the opinion to receive the minimum core as its approach to interpret socio-economic rights.

181 The minimum core obligation is explored in chapter 5 of this study. It is outlined here only as indicative of

a suggested approach to the court in determining a suitable approach to adjudicating socio-economic rights.

182 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 29.

of-resource-book/indexhtml 7 August. Quoting the head of argument on behalf of the amici, the author states that the amici located the core within a continuum of positive obligations imposed on the state in section 26(1) and (2) of the 1996 Constitution. «This does not imply that only the core? is subject to adjudication or that meeting the minimum core requirements would satisfy all of the obligations of the state... The core? provides a level of minimum compliance, to which resources have to be devoted as a matter of priority. This duty clearly has to be balanced with the obligation to put into operation programs aimed at full realisation of the right, and to move progressively towards full realisation.».

184 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 1033 26.

5.1.2 THE REJECTION OF MINIMUM CORE APPROACH SUGGESTED TO INTERPRET SOCIO-ECONOMIC RIGHTS

This study also analyses the reasoning of the CC in rejecting the minimum core approach. Many authors have expressed their dissatisfaction with the rejection of the minimum core concept by the CC. For instance, Pieterse states that in Grootboom and TAC cases, the CC was requested to interpret the right of access to adequate housing as comprising a minimum core immediately enforceable but declined to do so¹⁸⁵. In declining to adopt the minimum core, the CC argues firstly that it is difficult to define the content of minimum core and it lacks the capacity to determine this content. Secondly, the diversity of needs with regard to the right of access to adequate housing militates against the adoption of such approach and lastly, minimum core provides for individual claims and is rigid.

5.1.2.1 Limited Capacity of the State to Determine the Content of Minimum Core

The first argument leveled by the courts against the adoption of the minimum core approach is that it lacks the capacity to define the content of this concept. This argument reflects the objection that was submitted against the adjudication of socioeconomic rights by courts. The court is not institutionally equipped to make factual and political enquiries to determine what the minimum core is comprised of. In the words of the CC, courts «are ill-suited to adjudicate issues where the court orders could have multiple consequences for the community»¹⁸⁶. The CC concluded by stating that it does not have the necessary information to determine what would comprise the minimum core obligation¹⁸⁷. These findings of the CC are in line with the view expressed by Young for whom the minimum core is in search of content. After

185 Pieterse 2006 SAJHR 484. See also Bilchitz 2003 SAJHR 15, Bilchitz 2002 SALJ 485 and Pieterse

186 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 1033 38.

187 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 33.

analysing all the concepts developed to determine the content of minimum core, Young argues that¹⁸⁸:

The virtue of disaggregating these approaches lies in understanding the root of the conceptual confusion. The resulting clarity helps us to distill several competing operations for the concept: in prescribing content, ranking obligations, signaling extraterritoriality, and introducing a new language of claiming. Many of these operations are not, in the end, suited to the concept of the minimum core.

In addition to the uncertainty to determine the content of the minimum core, another obstacle according to the CC is relating to the definition of minimum core with regard to the right to access to adequate housing in particular¹⁸⁹. The question is whether the minimum core obligation should be defined generally or with regard to specific groups of people. In the light of all these difficulties to define and determine the content of minimum core, the CC accordingly declined to adopt it as the approach to adjudicate socio-economic rights.

Another critical element against the adoption of the minimum core is the diversity of
needs with regard to socio-economic rights. It is difficult to determine the minimum core
particularly with the right of access to adequate housing without identifying the needs

188 Young 2008 Yale Journal of International Law 175. Young concludes that «the essence, consensus,

and obligations approaches to the minimum core provide it with a paradoxical grounding. To restate, the essence approach fails to deliver a determinate core? to economic and social rights because of the inevitability of disagreement in the ordering of both values and needs, and because it is disengaged with the institutional background that impacts how legal rights are realised and enforced. While the normative inquiry and especially the focus on dignity is helpful in charting the substantive content of rights, it misfires when placed within the minimalist and rigid core? formulation. The consensus approach seeks to remove these shortcomings, yet produces only a vague and conservatively articulated core?, which conceals the troubling question of whose consensus counts and whose consensus (and disagreement) is peripheral. The obligations approach is incompatible with a core? designation, due to the polycentric obligations that correlate with each economic and social right, the relativity between their negative? and positive? formulations, and the danger of capture into vocabularies of institutional jurisdiction or justiciability.».

189 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 33.

and opportunities for the enjoyment of such right. For the CC, the adoption of such concept will depend on various factors such as income, availability of land and poverty¹⁹⁰. This stresses the fact that people have different needs with regard for example, to the right to adequate housing. Some might be in need of land; others may need loan or even need house and loan at the same time. Moreover, needs vary from one area to another and are different from rural area to the city. In this context, it is difficult to determine what the minimum core would be and according to the CC, it is not necessary and appropriate to do so¹⁹¹. The minimum core approach of the right to have access to health care services is also not easy to determine. In this perspective, Lehmann argues that the conceptual problems of the minimum approach are particularly noticeable with connection to the right to have access to health care services.

Lehmann further affirms that the court?s reluctance to adopt the minimum core approach is due to the fact that it has not yet fully been articulated and to avoid contradiction inherent to the concept¹⁹². For instance, the minimum core obligation would require the court to distinguish between essential and non essential levels of health care. According to the author, there is no clarity as to whether the conception of the minimum core is absolute or relative¹⁹³. In other words, the content of the minimum core differs from one country to another or there is a universal minimum threshold for all the right. All these uncertainties render difficult the adoption of the minimum core approach.

190 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 32.

191 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 33.

192 Lehmann 2006 am. u. int'l l. rev. 182. Citing Klare 1998 SAJHR 146, 161-64 and 187, the author

expresses the view that «There are significant conceptual flaws with the minimum core concept. I believe that the court?s unwillingness to adopt the minimum core approach stems from an intellectual discomfort that it has not yet fully been able to articulate, not for lack of candor, but for want of opportunity to reflect fully on the contradictions inherent in the concept, and from its reluctance to expose the starkly utilitarian choices that inform the allocation of resources among the beneficiaries of socio-economic rights».

This stance raises the point that the minimum core obligation is not flexible. It provides for individual claims with regard to socio-economic rights. The CC was firm in affirming that, due to the scarcity of resources, the state could not fulfill everyone?s needs. It concluded that «the Constitution does not give rise to a self standing and independent positive right enforceable». When arguing that the court has charged the minimum core approach of being rigid and not taking into consideration the limitation of resources, Bilchitz concedes that¹⁹⁴:

The minimum core approach does require us to take a rigid stance in one respect: it requires us to recognise that it is simply unacceptable for any human being to have to live without sufficient resources to maintain their survival. A state must do everything within its power to rectify such a situation and we must not be intolerant of such living conditions. Such rigidity may indeed be a feature of the minimum core approach but such rigidity occurs in exactly the right place.

In view of the above, the CC accordingly, declined to adopt the minimum core approach to interpret socio-economic rights. The CC rather stated that the real question is whether the measures applied by the state to realise socio-economic rights are reasonable¹⁹⁵. The reasonable approach developed by the court is discussed hereunder.

195 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 33. The court held that:

«As will appear from the discussion below, the real question in terms of our Constitution is whether the measures taken by the state to realise the right afforded by section 26 are reasonable. There may be cases where it may be possible and appropriate to have regard to the content of a minimum core obligation to determine whether the measures taken by the state are reasonable. However, even if it were appropriate to do so, it could not be done unless sufficient information is placed before a court to enable it to determine the minimum core in any given context.»

5.2 THE DEVELOPMENT OF THE REASONABLENESS APPROACH FOR THE INTERPRETATION AND ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA

Many decisions have been held by the CC for the enforcement of socio-economic rights. However, it is submitted that it was in the Grootboom case that the CC laid down its jurisprudential foundation for future adjudication of socio-economic rights¹⁹⁶. Therefore, the reasonable approach is analysed with emphasis to the Grootboom case since other cases decided later simply referred to Grootboom case¹⁹⁷.

The CC in Grootboom case laid down the principles or factors of reasonableness and the requirements against which this approach is assessed. At the outset, the CC held that the test of reasonableness does not seek to enquire whether an alternative option was available or not¹⁹⁸. The test rather focuses on the analysis of the program or policy. In TAC case for instance, the CC held that the question in terms of the Constitution is whether the measure taken by the state to realise the right was reasonable¹⁹⁹. Moreover, the program is assessed at its conception and at its

197 See in this regard the more recent case of Resident Joe Slovo Community Western Cape v Thubelisha

Home CCT 22/08 2009 ZACC 16. The applicants challenged their eviction from their homes. The court per Jacoob J when examining the eviction order of the HC, quoted Grootboom requirements of reasonableness. The court held that «it must be remembered in relation to the requirements of reasonableness that the measures must establish a coherent public housing program directed towards the progressive realisation of the right of access to adequate housing within the State's available means...? and « eviction is a reasonable measure to facilitate the housing development program. In addition, all the factors discussed in relation to the question whether it is just and equitable to grant the eviction order also justify a conclusion that the eviction is, in the circumstances, reasonable.» 115-116.

198 In Khosa and v Minister of Social Development ; Mahlaule v Minister of Social Development (CCT 13/03 and 14/03) 48, Mokgoro J held that when «considering the reasonableness of legislative or other measures taken by the state will not enquire into whether other more desirable or favourable measures could have been adopted, or whether public resources could have been better spent. A wide range of possible measures could be adopted by the state to meet its obligations and many of these may meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement would be met.».

199 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 47.

implementation phase. A policy must therefore meet the following requirements of the reasonableness concept.

The program must be co-ordinated and comprehensive with allocation of tasks to all spheres of government. A reasonable program in the words of the CC «clearly allocates responsibilities to different spheres of government and ensures that appropriate» financial and human resources are available²⁰⁰. Health care services are for instance, concurrent function of the national and provincial government²⁰¹. Therefore, both spheres of government must share responsibility and ensure that services are provided in a sustainable manner to the communities. This means that allocation of responsibility and function has to be coherently and comprehensively addressed²⁰². The CC went on to say that although each sphere of government has the duty to implement part of the program, the national government bears however, the responsibility for ensuring that the program is adequate to meet its constitutional obligation²⁰³. Moreover, the program must represent a «systematic response to pressing social needs»²⁰⁴. Similarly in TAC, the contention of the applicant raised the

200 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 39.

201 Schedule 4 of the 1996 Constitution. Other functional areas of concurrent national and provincial

legislative competence are inter alia administration of indigenous forests, agriculture, airports other than international and national airports, animal control and diseases casinos, racing, gambling and wagering, excluding lotteries and sports pools, consumer protection, cultural matters, disaster management, education at all levels, excluding tertiary education, environment and housing.

202 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 54.

203 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 40. Thus, a co-ordinated

state housing program must be a comprehensive one determined by all three spheres of government in consultation with each other as contemplated by Chapter 3 of the Constitution. It may also require framework legislation at national level, a matter we need not consider further in this case as there is national framework legislation in place. Each sphere of government must accept responsibility for the implementation of particular parts of the program but the national sphere of government must assume responsibility for ensuring that laws, policies, programs and strategies are adequate to meet the state?s section 26 obligations. In particular, the national framework, if there is one, must be designed so that these obligations can be met. It should be emphasised that national government bears an important responsibility in relation to the allocation of national revenue to the provinces and local government on an equitable basis. Furthermore, national and provincial government must ensure that executive obligations imposed by the housing legislation are met.

204 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 54.

question as to whether the government has a comprehensive policy for preventing mother to child transmission of HIV/AIDS²⁰⁵.

The program established to realise socio-economic rights must be directed towards the progressive implementation of the rights within the availability of resources. The program must therefore facilitate the enjoyment of the rights entrenched in the Bill of Rights. However, the measure adopted must be reasonable. The CC held that, the term «progressive realisation» means that the «rights could not be realised immediately» and that state must take steps to achieve these rights. The requirement of progressive realisation obliges the state to ensure that the «basic needs of all in our society must effectively» be fulfilled. Most importantly, the rights should benefit not only a «large number but a wide range of people as time progresses»²⁰⁶. The availability of resources means that the content of the right «in relation to the rate at which it is achieved as well as the reasonableness of the measures employed to achieve the result are governed by the availability of resources»²⁰⁷.

A program will pass the test of reasonableness if it is flexible, balanced and take into account medium, long and short term needs. In TAC case for instance, the CC found that the policy of restricting the provision of nevirapine to research sites was inflexible and did not take into consideration the need of a particular vulnerable group²⁰⁸. The CC further held that, the rigidity of the government?s approach affected its policy as a

205 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 47.

206 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 45.

207 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 45.

208 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 80. Government

policy was an inflexible one that denied mothers and their newborn children at public hospital and clinics outside the research and training sites the opportunity of receiving a single dose of nevirapine at the time of the birth of the child. A potentially lifesaving drug was an offer and where testing and counseling facilities were available it could have been administered within the available resources of the state without any known harm to mother or child.

whole²⁰⁹. It was therefore, unreasonable to restrict the use of nevirapine to researches and training sites. It is clear that, the reasonable approach enjoins the program to be flexible and balance.

According to the CC, a reasonable program though well designed may still not meet the requirements of reasonableness if it does not make provision for people in desperate needs²¹⁰. The program must provide short term provision of services for those living in appalling conditions. Therefore, a significant number of needy people will be afforded relief through proper planning, monitoring and budgeting²¹¹. The CC held in this regard that²¹²:

Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right. Furthermore, the Constitution requires that everyone must be treated with care and concern.

Moreover, the program must enquire whether it is sufficiently flexible to respond to urgent solution and «cater appropriately for immediate and short term»²¹³ relief. This last component is justified with the values that the 1996 Constitution attached to human dignity, equality and freedoms inherent to human beings²¹⁴. In Grootboom case, after

209 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 95.

210 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 68.

211 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 68.

212 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 44.

213 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 56. When assessing the

housing program, the court held that: «to determine whether the nationwide housing program as applied in the Cape Metro is reasonable within the meaning the section, one must consider whether the absence of a component catering for those in desperate need is reasonable in the circumstances. It is common cause that, except for the Cape Metro Land Program, there is no provision in the nationwide housing program as applied within the Cape Metro for people in desperate need.».

214 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 44.

analysing the housing program, the CC held that the housing development policy as «set out in the Act is in itself laudable. It has medium and long term objectives that cannot be criticised»²¹⁵?. However, the court found that²¹⁶:

there is no express provision to facilitate access to temporary relief for people who have no access to land, no roof over their heads, for people who are living in intolerable conditions and for people who are in crisis because of natural disasters such as floods and fires, or because their homes are under threat of demolition. These are people in desperate need. Their immediate need can be met by relief short of housing which fulfils the requisite standards of durability, habitability and stability encompassed by the definition of housing development in the Act.

The CC concluded that the national housing program did not provide «relief for people who have no access to land, no roof, over their heads and who are living in intolerable conditions or crisis situations»²¹⁷.

The 1996 Constitution advocates for transparency in all spheres of government. For instance, administrators are required to be transparent and to provide the public with timely, accessible and accurate information²¹⁸. Moreover, the principles of co-operative government require communication and the facilitation of flow of information between the three spheres of government and among department within one sphere of government²¹⁹. It is in this context that, transparency is an additional requirement of reasonableness.

215 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 64. Elsewhere in the

judgment, the court held that «What has been done in execution of this program is a major achievement. Large sums of money have been spent and a significant number of houses have been built. Considerable thought, energy, resources and expertise have been and continue to be devoted to the process of effective housing delivery. It is a program that is aimed at achieving the progressive realisation of the right of access to adequate housing.».

216 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 52.

217 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 99.

219 Burns and Beukes Administrative Law 45. According to the authors, co-operative government may take

place vertically between all spheres of government, or horizontally within each sphere of government.

According to Liebenberg, it is a welcome feature²²⁰. Furthermore, it was submitted in TAC case that, the threat of HIV/AIDS in the country calls for a «concerted, coordinated and co-operative national effort»²²¹ in which all spheres of government must communicate efficiently. The CC noticed however, that no programs have been «publicly announced to realise progressively the rights of pregnant women and their newborn babies to have access to nevirapine»²²². It concluded that transparency is indeed a constitutional requirement of reasonableness.

It is evident from the above that, the new dispensation provides for enforceable socioeconomic rights. However, no indication is given on the manner in which such rights must be interpreted for their enforcement. The interpretation of the Constitution is the province of the CC which, in this context, has to develop a suitable approach for socioeconomic rights vindication. In this regard, legal scholars have also suggested the adoption of the minimum core obligation for the interpretation of socio-economic rights. As indicated above, the CC declined to follow this recommendation mainly because it is not easy of application.

For instance, it objected that the rigidity of this approach gives rise to individual claims to socio-economic rights notwithstanding the resource constraints and the progressive realisation inherent in such rights. The CC instead adopted the reasonableness approach that enquires whether or not a program designed to implement socioeconomic rights is reasonable. In terms of this enquiry, the reasonableness of a program must be assessed with regard to its coherency, comprehension, balance, flexibility and transparency. Most importantly, the program must include vulnerable people in the community who need urgent relief. Despite the fact that the CC has

221 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 123.

222 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 123.

reiterated the reasonableness approach in subsequent cases²²³, critics are still questioning this concept. They raise some concerns as to the effectiveness of the reasonableness doctrine to realise socio-economic rights. They urge for the adoption of the minimum approach as developed by the Committee on ESCR. This approach together with the shortcomings of the reasonableness theory is examined below as an alternative approach to interpret and enforce socio-economic rights.

223 Occupiers of 51 Olivia Road v City of Johannesburg 2008 CCT 24/07 10. The court held that: «in

Grootboom this Court said, on the relationship between reasonable state action and the need to treat human beings with the appropriate respect and care for their dignity to which they have a right as members of humanity.». See also Resident Joe Slovo Community Western Cape v Thubelisha Home CCT 22/08 2009 ZACC 16. The CC quoted Grootbom case in analysing the applicants application appeal against their eviction.

CHAPTER 6: THE MINIMUM CORE APPROACH: ALTERNATIVE APPROACH TO SOCIO-ECONOMIC RIGHTS INTERPRETATION

The CC of South Africa has developed the reasonableness approach to interpret and enforce socio-economic rights. This approach has not received great support among legal scholars. In fact, much critique has been leveled against the reasonableness concept. Many legal scholars advocate for the minimum core approach that the court has however, continuously declined to adopt. This study analyses the critique against the reasonableness theory and explores the minimum core approach as alternative for the enforceability of socio-economic rights.

6.1 CRITIQUE OF THE REASONABLE APPROACH INTERPRETATION OF SOCIOECONOMIC RIGHTS

A number of legal scholars in support of the minimum core approach are critical of the court?s rejection of the concept and found the court?s reasoning in declining the minimum core unpersuasive. It is generally argued that the reasonableness approach endorsed by the CC is not easy of definition or application. According Liebenberg, the component of the reasonableness test that requires government to provide short term relief for people living in appalling conditions is «vague and leave many questions unanswered»²²⁴. Another critical element is the court?s failure to provide mandatory judgment and to interfere in government policy in the disguise of the doctrine of separation of powers. According to Bilchitz, the court?s approach diminishes its constitutional mandate²²⁵.

225 Bilchitz 2003 SAJHR 10. Section 172 of the 1996 Constitution mandates the CC to declare invalid any

law or conduct inconsistent with the Constitution to the extent of its inconsistency and to make any order that is just and equitable. This order may be mandatory or prohibitory. A mandatory order enjoins the state to fulfill its constitutional obligation. Bilchitz argues therefore, that the CC diminishes its constitutional function when it does not grant proper order and this cannot be justifiable under the doctrine of separation of powers.

However, the critique leveled against the CC doctrinal approach to socio-economic rights can be grouped in two categories. First, the argument is about the lack of content in the reasonableness concept. Secondly, the ruling of the CC is that socio-economic rights do not provide for individual entitlement. These two arguments are examined hereunder.

Some writers have expressed their dissatisfaction with the abstract and vagueness of the reasonableness concept. It has been argued that this approach fails to award meaningful content to socio-economic rights crafted in the 1996 Constitution. For Iles and Bilchitz, the problem with South African socio-economic rights jurisprudence lies with the court?s reluctance to define the scope and content of the rights or leaving it to be developed on a case-by-case basis²²⁶. Bilchitz is more specific when he asserts that the judgment in TAC²²⁷ is notable for the absence of any analysis of what the right to have access to health care services involves. He went on to ask the following questions²²⁸:

What are the services to which one is entitled to claim access? Do these services involve preventive medicine, such as immunization, or treatment for existing diseases, or both? Does the right entitle one to primary, secondary, or tertiary health care services, or all of these?

It is quiet clear that the reasonableness approach as developed by the CC cannot
provide meaningful answers to the above questions²²⁹. Moreover, the CC does not

226 Iles 2004 SAJHR 454; Bilchitz 2003 SAJHR 6. The author states that «the problem with the court?s

approach in TAC case is that it attempts to sidestep the need to give content to the right in 27(1)».

228 Bilchitz 2003 SAJHR 6. The author concedes in the footnote that he does not suggest the court to

answer all these questions but the court is required to analyse the right in order to reach the conclusion it did mainly that access to nevirapine fell within the entitlements conferred upon people by section 27 (1)(a) of the 1996 Constitution.

229 Although in the context of the right to have access to adequate housing, the court in Government of the

Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), held that «housing entails more than bricks and mortar. It requires available land, appropriate services such as the provision of water and the

define its reasonableness concept²³⁰. According to Bilchitz, the emptiness of this concept derives from the fact that the court is unable to integrate sections 26(1) and 27(1) of the 1996 Constitution. According to the author, the CC focuses the whole enquiry on sections 26(2) and 27(2) of the 1996 Constitution without taking into consideration sections 26(1) and 27(1) of the 1996 Constitution²³¹. This approach distorts the meaning and content of the right crafted in sections 26(1) and 27(1) of the 1996 Constitution. In the words of Bilchitz, «section 27(1) is in fact the right, and the obligations flow from what a person is entitled to by virtue of having the right in question»²³².

Ray, on the other hand, relying on Brand points out that the court?s current approach discourages «future socio-economic rights litigation» because it provides little instrument to the court to deal with future socio-economic rights cases²³³. The reasonableness approach further weakness lies in the fact that it focuses more on procedural and technical issues not related to the content of socio-economic rights rather than on the realisation and the enjoyment by every one of the various rights²³⁴. Furthermore, the CC approach to socio-economic rights mainly analyses the structures of government policies. It enquires among other things the coherency, the flexibility and

removal of sewage and the financing of all of these, including the building of the house itself. For a person to have access to adequate housing all of these conditions need to be met: there must be land, there must be services, there must be a dwelling.».

230 An attempt of the definition is provided by Cora Hoexter quoted by Bilchitz «Giving socio-economic rights

teeth: The Minimum Core and its Importance» 2002 (119) (1-4) SALJ saying that: «the notion of reasonableness is designed to refer to what which lies within the limits of the reason? and allows for a diversity of views. What is reasonable is not only that which is correct but refers to decisions that lie in between correctness and capriciousness. A reasonable decision is one that is supported by reasons and evidence, that is rationally connected to purpose and is objectively capable of furthering that purpose. A reasonable decision generally also reveals proportionality between ends and means, benefits and detriments» the author went on to say that the notion of reasonableness is thus designed to allow scope for the substantive judicial review of decisions by another branch of the government whilst retaining a sense that there is a margin of appreciation which the original deciding body has in making a decision.

231 Bilchitz 2003 SAJHR 9. The author is concerned with the fact that the reasonable approach does not give content to socio-economic rights entrenched in the 1996 Constitution. It focuses its enquiry on the internal limitation of progressive realisation of the right rather than to analyse the right in question. Section 26 provides for instance the right to have access to adequate housing. What is expected from the CC is to interpret and provide how this right may be realised and what is the component of this right.

Proceduralisation of South African Socio-Economic Rights Jurisprudence, or `What Are Socio-Economic Rights For?" in Henk Botha, et al eds Rights And Democracy In A Transformative Constitution (2003).

the transparency of such policies rather than to enquire on the substance of these rights. According to Iles, the consequence of such interpretation is that government is given no instructions «as to what will be expected of it in the implementation of socioeconomic rights»²³⁵. Bilchitz concurs with Iles when he asserts that the fact that there is no clarity of the state?s obligations towards socio-economic rights leaves the government with «an amorphous standard with which to judge its own conduct»²³⁶. He goes on to say that the current reasonableness concept does not provide a «clear and principled basis» for the evaluation of the government?s conduct in future socioeconomic rights cases.

This is to say that, even if the executive is willing to realise a right, it cannot simply because it does not know the scope and content of the right it would like to enforce. The reasonableness approach therefore, lacks the content to determine any matter in relation to socio-economic rights and its vagueness does not provide any answer to the nature of the government?s obligations in terms of the Constitution²³⁷. Bilchitz concludes therefore, that the CC should not waste all its «interpreting energy» to develop the reasonableness concept but rather supplement it by the determination of the state?s socio-economic rights obligations. Pieterse demonstrates the emptiness of the reasonable approach to socio-economic rights in a three acts drama which in essence demonstrate how citizens do not enjoy the rights they have fought for in the

237 Bilchitz Fundamental Rights 172 and 176. The author further asserts that the reasonableness standard

to some extent creates confusion between the scope and content of socio-economic rights as illustrated in the decision of Khosa v Minister of Social Development 2004 (6) SA 505 (CC). He affirms in this regard that: «The reasoning of the majority in khosa is curious: the reasonableness approach that had previously been applied to the question of the normative content of the socio-economic rights is here applied to the question of who is entitled to such rights. The sheer vagueness of reasonableness suggests that it can provide the solution to a range of enquiries. However, the overarching nature of the enquiry can lead to confusion between distinct issues... A closer analysis of the reasoning in this case compared to that of Grootboom and TAC cases exhibits their differences. In the latter cases, the holding appeared to be that the subjects of the rights are entitled to reasonable government action to realise their socio-economic rights. The structure of reasoning would be that X (the subject of the right) is entitled to Y (reasonable government action) from Z (the government). In Khosa, the question concerned the ambit of X: who is entitled to the reasonable government action? The court answers this by saying that the enquiry concerning Y (what one is entitled to) will determine X (who is the subject of the right). The majority in Khosa thus appears to conflate two separated questions: the question of scope and the question of content.».

streets and obtained in courts²³⁸. From Pieterse?s drama, it is quiet clear that the justiciability of socio-economic rights achieves little if people can not enjoy them to the fullest. Moreover, if the court wishes to vindicate socio-economic rights, it must give content to these rights in a view to delineate state?s obligations. Another objection of the CC approach is considered hereunder.

This objection contends the fact that the CC rejected individual claims to socioeconomic rights. This view relies on the 1996 Constitution which provides in its provisions encapsulated in the Bill of Rights that «everyone has the rights to...». It is further submitted that the word «everyone» means that individual has a right to benefit from the right recognised in Chapter 2 of the 1996 Constitution.

Moreover, and according to Pieterse, the structure of the Bill of Rights requires an entitlement-orientated approach to socio-economic rights?²³⁹. The author further asserts that sections 8²⁴⁰ and 38²⁴¹ of the 1996 Constitution provide locus standi to individual and groups to enforce socio-economic rights. Individuals may therefore, legitimately institute legal proceedings against the state in a view to claim the realisation of any right including socio-economic rights they are entitled to. This locus standi is however,

240 Section 8 of the 1996 Constitution reads as follows: «(1) The Bill of Rights applies to all law, and binds

the legislature, the executive, the .judiciary and all organs of state. (2) A provision of 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. (3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36 (1). (4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person».

241 Section 38 of the 1996 Constitution provides that: «Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are (a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d) anyone acting in the public interest; and (e) an association acting in the interest of its members.

subjected to the general limitation provided in section 36²⁴² of the 1996 Constitution. Pieterse concedes in this regard that²⁴³:

The Bill of Rights appears to require of any court tasked with giving effect to a socio-economic right to depart from the double premise that the right is in principle enforceable and that the applicant is in principle entitled to the tangible relief she seeks. In circumstances where the interests of justice or some other compelling interest require that the extent of an applicant?s entitlement be limited, or where it would for some institutional or other reason be inappropriate to award tangible relief, the court is required to indicate whether, to what extent and for what reasons it should divert from this premise.

For Liebenberg, the court?s reasonableness approach will «make it difficult for individuals»²⁴⁴ living in deplorable conditions to use judicial remedies to gain access to a particular right. Pieterse concurs with Liebenberg when he argues that the rejection of the minimum core obligation by the court does not debar meaningful individual enforcement of socio-economic rights in appropriate circumstances²⁴⁵. He concedes that the pursuit of social justice will be enhanced by giving individual entitlements to socio-economic rights²⁴⁶. Moreover, individuals and groups may rely on socioeconomic rights and the legal process to lift their social conditions. Liebenberg concludes by affirming that if socio-economic rights are to «amount to more than paper promises»²⁴⁷, they must enable people to gain access to the basic resources needed to

242 Section 36 of the 1996 Constitution reads as follows: «(1) The rights in the Bill of Rights may be limited

only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.».

resource-book/indexhtml 7 August. According to Wesson, 2004 SAJHR, the reasonableness approach constitutes an administrative law approach to the adjudication of socio-economic rights.

live a decent life²⁴⁸. In view of the above analyses, it has been argued that the reasonableness approach fails to give content to socio-economic rights and for rejecting individual?s entitlement to these rights. This study examines hereunder the minimum approach as an alternative to interpreting and enforcing socio-economic rights.

6.2 THE DEVELOPMENT OF MINIMUM CORE OBLIGATION IN INTERPRETING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA

The UN Committee on ESCR has developed the content of socio-economic rights that comprises a minimum obligation upon the state. It is against this background that this study analyses the minimum core as an alternative approach for the interpretation and enforcement of socio-economic rights in South Africa. An attempt is made to explore the minimum core obligation as developed by the Committee on ESCR which South Africa can follow in interpreting socio-economic rights and to analyse the content of the minimum core approach.

The development of the minimum core approach to socio-economic rights has been conceived under the auspice of the Committee on ESCR mainly in its General Comment N03²⁴⁹. The Committee on ESCR is of the opinion that every state is compelled to fulfill a minimum core obligation by ensuring the satisfaction of «at least minimum essential levels»²⁵⁰ of socio-economic rights. The Committee on ESCR went on to say that a state in which a significant number of individuals is deprived of «essential foodstuffs, of essential primary health care, of basic shelter and housing or

the most basic forms of education» is prima facie not performing its obligations under the Covenant. The minimum core approach was developed to determine what is expected from each state in discharging its obligations under the Covenant. This expected minimum in the words of the Committee on ESCR, is arrived at on the «basis of the extensive experience gained by it over a period of more than a decade» and by having regard to the states? reports.

The minimum core obligation is therefore a threshold below which a state will be failing to honor its obligations as a party to the Covenant. However, this level might not nevertheless be reached due to resources constraints. In order for a state party to be able to justify its failure to meet at least its minimum core obligations because of a lack of available resources, «it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations».

The Committee on ESCR nevertheless attached importance to the minimum core obligation and affirms accordingly that «if the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d'être". It is clear from the above that, the enforcement and realisation of socioeconomic rights should be construed as comprising a minimum core obligation that has to be fulfilled by any state including South Africa. The next step is therefore, to determine the minimum core obligations of socio-economic rights.

6.2.2 DETERMINATION OF THE CONTENT OF THE MINIMUM CORE OBLIGATION IN INTERPRETING SOCIO-ECONOMIC RIGHTS

The Committee on ESCR based on its experiences over many years and reports from state parties recognises that socio-economic rights comprised a minimum core obligation immediately fulfilled by them. However, the Committee on ESCR does not determine the content of such minimum core obligation of these rights. Nevertheless, Bilchitz argues that the minimum core approach to socio-economic rights provides a

«key to providing clear content to these rights and ensuring»²⁵¹ that they are enforceable. The understanding of the minimum core obligation of socio-economic rights is developed mainly by Bilchitz who advocates for such an approach for the interpretation and enforcement of socio-economic rights. The author identifies two different obligations deriving from these rights which he terms levels of interests²⁵². Following his reasoning, the minimum core approach involves therefore two obligations. The first is to realise a minimum level of provision of socio-economic rights as a matter of priority. The second is to improve this minimum provision to reach a high level as time goes one. Therefore, the minimum core obligation should be understood in the light of these two interests to socio-economic rights.

6.2.2.1 Determination of the Minimum Core Obligation Through the Minimal Interest of the Rights

This minimal interest according to Bilchitz represents the basic interest that will enable people to survive²⁵³. It means that the provision of socio-economic rights needs to ensure minimal services to people. The minimum core obligation of socio-economic rights in this context must bear the fact that the minimal interest of such rights must be fulfilled without delay. It should be the priority of the state to ensure that those living in deplorable condition be provided with basic necessities. The minimal interest therefore, caters for the poor so that nobody should live below the threshold established with regard to a particular right. In the words of Bilchitz, «the minimal interest reflects the respect to people who are most vulnerable and most needy»²⁵⁴. Liebenberg concurs with Bilchitz when she concedes that the minimum core protects the survival interests of citizens²⁵⁵. It is also a benchmark against which the state?s action is measured in a

251 Bilchitz Fundamental Rights 184. See in this regard Liebenberg South Africa?s Evolving Jurisprudence

254 Bilchitz 2002 SALJ 491. The author also affirms that the realisation of the first interest has the urgency

255 Liebenberg South Africa?s Evolving Jurisprudence on Socio-Economic Rights: An Effective Tool in

view to determine whether or not it has discharged its obligation. Moreover, the realisation of this minimal interest will embrace the constitutional values of freedom, equality and human dignity²⁵⁶. It would be intolerable and undignified for people to live in intolerable conditions. The minimal interest therefore, addresses this issue by providing to all as a matter of emergency services that will enable people to live an acceptable life. This interest is an attempt to free people from «threats, from severe physical suffering and to serious health risks»²⁵⁷.

A minimal interest in the right of access to adequate housing would entail for instance, the government to provide accommodation «that will protect people from the elements»²⁵⁸. The accommodation may comprise basic services such as running water, toilet and electricity. At the same break, the right to have access to health care services may comprise among other things, access to primary health care services, access to medication and first aid treatment. However, the fact that the minimal interest imposes a duty upon the state to provide immediately certain services to people does not mean that resource constraints are not taken into consideration. For Bilchitz, when the state cannot realise the minimum core of a right, it may not do so until resources are available. The non realisation of socio-economic rights in this context is just suspended until the availability of resources. This suspension operates like in contract clauses when its performance is delayed and depends on the realisation of a particular event. Therefore, resources constraints must not debar the state to fulfill its obligations. Its obligations are only on standby until resources are available to provide people with

256 According to Liebenberg South Africa?s Evolving Jurisprudence on Socio-Economic Rights: An Effective

HYPERLINK http://www.communitylawcentre.org.za/Socio-Economic-Rights/2nd-ed-of-resourcebook/indexhtml, the recognition of the minimum core obligation on the state is imperative in that it will enable the enjoyment of socio-economic rights entrenched in the 1996 Constitution. She further opines that without such recognition, the enjoyment of all other rights encapsulated in the Bill of Rights will be jeopardised.

257 Bilchitz 2002 SALJ 490. See in this regard Liebenberg South Africa?s Evolving Jurisprudence on Socio-

minimal services. Once all people are provided with minimal services which must be prioritised to other needs, the second interest of the minimum core comes into the play. 6.2.2.2 The Maximal Interest of the Minimum Core Approach

The maximal interest is the second interest of the minimum core obligation imposed upon the state. The maximal interest is a «medium-to long-term goal»²⁵⁹ that has to be realised by the state once the minimal right is enforced. It cannot therefore, be realised if the minimal interest is not achieved. The maximal interest is a step to further the minimal threshold of the rights. The first interest sets a threshold that the state has to fulfill. Once this threshold is achieved, the state takes some measures to improve this lower level so as to reach a maximal standard that has been set for each right.

The maximal interest takes into account the progressive realisation of the rights since it seeks to improve the minimal interest. Bilchitz argues for instance, that the progressive realisation of the right to access to adequate housing means the improvement of some basic interests in housing to the realisation of the maximal interest²⁶⁰. In the words of Bilchitz²⁶¹:

Progressive realisation involves an improvement in the adequacy of housing for the meeting of human interests. It does not mean that some receive housing now, and others receive it later; rather, it means that each is now entitled to basic housing provision, which the government is required to improve gradually over time.

From the above quotation, it is quiet clear that the maximal interest seeks the
progressive improvement of the minimal interest that has been realised by the state.

260 Bilchitz 2002 SALJ 493. Bilchitz acknowledges the fact that socio-economic rights cannot be realised

immediately. He therefore responds to one of the objection of the CC in rejecting the adoption of the minimum core approach that is rigid and does not take into account resources constraints. The maximum interest of the minimum core obligation emphasises that once the threshold of a right is reached, the state must take appropriate measures to improve it to a higher standard that had been set.

The state is therefore compelled to take measures that will improve progressively the provision of services beyond the minimal threshold in a view to reach a high standard. This improvement should be done progressively over a period.

The CC?s reasonableness approach to interpreting and enforcing socio-economic rights was without severe critique. It has been mainly argued that this approach neither circumscribes the scope nor gives the content of these rights. Moreover, it does not provide room for individual claims. The opponents of the reasonableness doctrine have advocated for the adoption of the minimum core approach for the realisation of socioeconomic rights. The minimum core approach is comprised of two interests that are complementary. The first one caters for immediate provisions of services to all, while the second seeks to improve these services as time progresses.

There are in fact two stages in the realisation of minimum core approach that are interconnected and interdependent. The failure to fulfill the first interest diminishes the approach of its essence. This approach nevertheless would provide meaningful relief for those living in extreme need as a matter of emergency. However, this study continues to argue that all these arguments and counter arguments for and against minimum core or reasonableness do not solve the problem at hand. People need food, water, shelters, health care, education etc; and do not understand why the 1996 Constitution has made provision for certain rights that are not made available to them. Therefore the enquiry should be focused on how to realise these rights so that everyone can enjoy them to the fullest.

In view of the preceding discussion, South Africa like many other developing countries is facing challenges with regard to the deplorable conditions in which the vast majority of its population are living. This is mainly the result of apartheid policies which had largely discriminated against black majority²⁶². The new democratic era therefore, seeks to redress those past injustices. The Preamble of the 1996 Constitution for instance, acknowledges those past inequalities and aims at healing them. In order to address these inequalities, socio-economic rights are included in the 1996 Constitution.

However, the inclusion of justiciable socio-economic rights in the Constitution was the centre of a heated debate. There were arguments and counter arguments to the judicial enforcement of these rights which were finally put in rest in consequence of the CC judgments in South Africa. The next step was for the court to develop a suitable approach for the interpretation of socio-economic rights. The court in this context, adopted the reasonableness concept as its approach to the enforcement of socioeconomic rights, while it declined to follow the recommendation of legal scholars for the adoption of the minimum core approach. In view of the above, in the preceding chapters, the requirements of the reasonableness approach were fully dealt with. The above chapters also dealt with the requirements of the minimum core concept.

See in this regard the finding of the Constitutional Court in Brink v Kitshoff No 1996 (4) 197 (CC) 40 that apartheid «systematically discriminated against black people in all aspect of social life. Black people were prevented from becoming owners of property or even residing in areas classified as white?, which constituted nearly 90 percent of the land mass of South Africa; senior jobs and access to established schools and universities were denied to them; civic amenities, including transport systems, public parks, libraries and many shops were also closed to black people. Instead, separate and inferior facilities were provided. The deep scars of this appalling programme are still visible in our society.».

7.1 THE RELATIONSHIP BETWEEN THE REASONABLENESS CONCEPT AND THE MINIMUM CORE APPROACH

This study examined the arguments for and against the reasonableness approach and the minimum core obligation. It is submitted that the proponents and opponents of both approaches are missing two points. This study argues that their differences to some extent are not holding grounds. In fact, both approaches emphasise on immediate relief for people living in appalling conditions²⁶³. This requirement is the key element without which the reasonableness test is meaningless. A program may pass the other elements but fails the test if this key requirement is not met. On the contrary, if a program fails the other requirements and passes this essential one, it may pass the test. The minimum core obligation also requires that those who are in need, be prioritised with minimal provision of services.

Although the CC?s reasonableness test does not make explicit reference for emergency provision of services to poor people, the urgency or priority of this category of people may nevertheless be inferred from the wording of the court. If a program is unreasonable because it does not cater for short term relief, it simply means that the test implicitly requires all people living in deplorable conditions to be prioritised. The difference according to this study is a semantic problem rather than a substantive one. These approaches both seek for emergency provision of services to people whose life is at stake. Another relationship feature lies in the fact that the court in the Grootboom case concurred with the Committee on ESCR on its interpretation of the notion of progressive reaslisation of socio-economic rights. It was mainly argued that the provision of services can not be provided immediately or over night. These approaches also take into consideration the resource constraints that may affect the implementation of socio-economic rights. They all provide for the progressive realisation of socio-economic rights. Therefore, and with regard to the above analysis,

263 Bilchitz 2002 SALJ. For the author, the fact that the reasonableness approach emphasises on short term

relief for people living in desperation signifies that this approach recognises the minimum core concept.

this study opts for the adoption of a combined model approach to interpreting socioeconomic rights²⁶⁴.

7.2 RECOMMENDATIONS

The adoption of a combined approach that incorporates the reasonableness and the minimum core obligation is plausible for the interpretation of socio-economic rights. This new approach will mainly tackle the shortcomings inherent in the other approaches. It is trite that one of the critiques leveled against those approaches is their failure to give meaningful content to the rights. This approach is a palliative measure to give content to the right. In fact, the state designs a program which incorporates a minimum core of the right that has short term provision of services for people living in desperation conditions.

This program delineates the rights that are expected from the state to realise. The implementation of the right to have access to housing for instance, provides for different level of services. Firstly, everyone should receive a house with basic necessities that will protect him or her from avert climatic conditions. It means that the program should prioritise homeless people and secondly, improved the state of the house in a view to upgrade the living conditions of the owners. This approach merges the minimum core approach within the program designed to implement socio-economic rights at the same time given content of these rights. The program is later assessed against the reasonableness test as to whether the state?s program (which contains a

See also RAY 2009 HYPERLINK http www.googlescholar.co.za html 7 August. The author proposes the adoption of a combined approach described as a policentric form of review? which provides that the court shares it interpretive authority with other spheres of government. This approach requires that the Constitution should be regarded as having both political and legal interpretation. He argues that this concept will serve both the interest of all spheres of government and the court so that no encroachment of separation of powers will occur. Further that the policentric form of review will enhance the enforcement of socio-economic rights. However, this study declines to follows this route arguing that the interpretation of laws is the prerogative domain of the judicial. Allowing another branch of government the interpretive role is also an encroachment of the doctrine of separation of powers and a violation of our constitutional values.

threshold rights that is immediately realised) in implementing socio-economic rights is reasonable.

7.3 AFTERTHOUGHT

It has been argued throughout this study that socio-economic rights and civil and political rights are interrelated, therefore justiciable. It has also been argued that socioeconomic rights are not immediately enforceable due to resources constraints. These two elements are examined below. The Committee on ESCR and the CC of South Africa have repeatedly affirmed that there is no distinction between socio-economic rights and civil and political rights. This study argues that this assertion is worth only the paper where it has been expressed. Firstly, the fact that there is an internal limitation to the enforcement of socio-economic rights signifies that there is indeed a distinction. International and domestic instruments are crafted in the same manner. Article 2 of the CESCR and its South African counterpart sections 26(2) and 27(2) of the 1996 Constitution state clearly that the enforcement of these rights is subject to the availability of resources.

Moreover, these rights are realisable progressively. Such articulations are quite different from civil and political rights which do not have any internal limitations beside the general limitation clause. Secondly, these rights do not enjoy equal enforcement. While socio-economic rights are to some an extent justiciable (referring to Grootboom case); civil and political rights are fully adjudicated. One case is sufficient to sustain this view. It is common cause that anyone whose civil and political right has been violated may seek judicial remedy. For instance, in Richter v The Minister for Home Affairs²⁶⁵ the CC extended to all South African living abroad the right to vote for the April 2009 elections. It means that every citizen in the status of the applicant was entitled for the right to vote. Whereas the CC held that socio-economic rights do not provide for everyone to claim for his right. This contradictory statement by the same court which affirms the indivisibility and equality of socio-economic rights and civil and political

265 Richter v The Minister for Home Affairs CCT 03/09 CCT09/09 (2009) ZAA (CC) 3.

rights and at the same time refuses to allow individual claim with regard to the former and accepts it for the latter is no more than differentiating between these rights. This study discusses that since differential enforcement is reserved for these two set of rights, they are therefore not put on the same footing and the term second rights generation attached to socio-economic rights justifies the hegemony of civil and political rights. The second point of contention concerns the availability of resources.

This study maintains that in South Africa, scarcity of resources is not an issue. South Africa is full of natural resources which if well managed are sufficient to realise socioeconomic rights.

The realisation of socio-economic rights depends more on political will than on the availability of resources. However, this study hold the view the fact that socio-economic rights are realised progressively not because of resources constraints but due to timeframe necessary to implement these rights. Finally, the study maintains that all the interpretation of socio-economic rights is missing one essential point. It focuses on abstract consideration rather than on the substance of these rights. The lay person does not understand nor has interest in intellectual debate, what counts for him or her is to be provided with his or her right. Therefore, all the questions surrounding socioeconomic right must take this aspect into account.

Bilchitz D Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (Oxford University Press London 2007)

Burns Y and Beukes M Administrative Law under the 1996 Constitution 3^rd ed (Lexis Nexis Butterworths Durban 2006)

Brand D «The Proceduralisation of South African Socio-Economic Rights
Jurisprudence, or `What Are Socio-Economic Rights For?" in Henk Botha, et al eds Rights And Democracy In A Transformative Constitution (2003)

Davis D, Cheadle H and Hayson N Fundamental Rights in the Constitution: Commentary and Cases (Juta 1997)

Devenish G A Commentary on the South African Bill of Rights (Butterworths Durban 1999)

Currie I and De Waal J The New Constitutional and Administrative Law Vol 1(Juta 2001)

CurrieI I, De Waal J and Erasmus G The Bill of Rights Handbook 3^rd ed (Juta 2000)

Klug H «Historical Background" in Chaskalson M et al Constitutional Law of South Africa (Juta Cape Town 1996)

Liebenberg S «Socio-economic Rights" in Chaskalson M et al Constitutional Law of South Africa (Juta Cape Town 1996)

Liebenberg S «Housing" in Davis D, Cheadle H and Haysom N Fundamental Rights in the Constitution: Commentary and Cases (Juta Cape Town 1997)

Mertus J The United Nations and Human Rights: A Guide for a New Era (Routledge 2005)

8.2 JOURNALS

Foundation for Future Socio-Economic Rights Jurisprudence» 2003 ( vol 19) SAJHR Bilchitz D «Giving Socio-Economic Rights Teeth: The Minimum Core and its Importance» 2002 (vol 119) SALJ

De Vos P «Pious Wishes or Directly Enforceable Human Rights» 1997 (13) SAJHR

De Vos P «Grootboom, the Right of Access to Housing and Substantive Equality as Contextual Fairness» 2001(vol 17) SAJHR

Iles K «Limiting Socio-Economic Rights: Beyond the Internal Limitations Clauses» 2004 (vol 20) SAJHR

Lehmann K «Litigating Socio-Economic Rights and the Myth of the Minimum Core»2006 (vol 22) am. u. int'l l. rev.

Mubagizi J C «The Constitutional Protection of Socio-Economic Rights in Selected African Countries: A Comparative Evaluation» 2006 (vol 2) Afr J Legal Stud 1

Pieterse M «Possibilities and Pitfalls in the Domestic Enforcement of Social Rights: Contemplating the South African Experience» 2004 (vol 26) Human Rights Quarterly Pieterse M «Resusciting Socio-Economic Rights: Constitutional Entitlements to Health Care Services» 2006 (vol 22) SAJHR

Pieterse M «Eating Socio-Economic Rights: the Usefulness of Rights Talk in Alleviating Social Hardship Revisited» 2007 (vol 29) Human Rights Quarterly

Pieterse M «Coming to Terms with Judicial Enforcement of Socio-Economic Rights» 2004 (vol 20) SAJHR

Wesson M «Grootboom and Beyond: Reassessing the Socio-economic Jurisprudence of the South African Constitutional Court» 2004 (vol 20 ) SAJHR

Young K «The Minimum Core of Economic and Social Rights: A Concept in Search of Content» 2008 (vol 33) the Yale Journal of International Law

Khunou S F «The Regime of Legal Interpretation in South Africa: Some Reflection of Mirage, Miracle and Hope» (Unpublished Paper was Presented in IVR World Congress 2001 on Legal Philosophy in Vrije University, Amsterdam)

Mubangizi J C «Prospects and Challenges in the Protection and Enforcement of SocioEconomic Rights: Lessons from the South African Experience» (Unpublished Paper Presented at the VII World Congress of the International Association of Constitutional Law Athens 11-15 June 2007)

8.4 INTERNET SOURCES («WORLD WIDE WEB»)

Anon the world Health Organization [Found on internet] HYPERLINK www.who.int/governance/ [Date of use 15 June 2009]

Anon the world?s billionaires [Found on internet] HYPERLINK www.forbes.com [Date of use 04 September 2009]

Liebenberg S 2009 South Africa?s Evolving Jurisprudence on Socio-Economic Rights
2002 CLC, UWC [Found on Internet] HYPERLINK

Ngwena C and Cook R «Rights Concerning Health» in Brand D and Heyns C SocioEconomic Rights in South Africa (Pretoria University Law Press 2005) [ Found on Internet] HYPERLINK http: // www.chr.up.ac.za/centerpublications/socio/socio.html [Date of use 10 June 2009]

RAY B 2009 Policentrism, Political Mobilization and the Promise of Socio-Economic Rights 2008 [Found on Internet] HYPERLINK http www.googlescholar.co.za html [Date of use 7 August 2009]

Sachs A 2009 The Judicial Enforcement of Socio- Economic Rights: The Grootboom Case [Found on Internet] HYPERLINK http:/www.googleschorlar/controversialnatureofsocio-ecomomicrights.html [Date of use 2 April 2009]

Van Rensburg L and Lamarche L «The Right to Social Security and Assistance" in Brand D and Heyns C Socio-Economic Rights in South Africa (Pretoria University

Committee on Economic, Social and Cultural Rights General Comment 14 of 2000 Committee on Economic, Social and Cultural Rights General Comment 4 of 1991 Committee on Economic, Social and Cultural Rights General Comment 13 of 1999 Committee on Economic, Social and Cultural Rights General Comment 3 of 1990 Committee on Economic, Social and Cultural Rights General Comment 9 of 1998 Convention on the Elimination of all Forms of Racial Discrimination of 1963 Convention of the Rights of the Child of 1989

Convention on the Elimination of all Forms of Discrimination against Women of 1979

International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families of 1992

Universal Declaration on the Eradication of Hunger and Malnutrition of 1974 United Nations Educational, Scientific and Cultural Organization of 1960

8.6 LEGISLATION

Constitution of the Republic of South Africa Act 108 of 1996 Constitution of the Republic of South Africa Act 200 of 1993 Constitution of the Republic of South Africa of 1961

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 Prevention of Illegal Squatting Act 52 of 1951

Bushula v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government2000 (7) BCLR 728 (E); 2000 (2) SA 849 (E)

Ex parte Chairman of the Constitutional Assembly: In Recertification of the Constitution of the Republic of South Africa, 1996 (1996) SA 744 (CC)

Ex parte Chairman of the Constitutional Assembly: In Re certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 1997 (2) SA 97 (CC)

Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR 277 (C)

Khosa v Minister of Social Development and Others; Mahlaule v Minister of Social Development (CCT 13/03 and 14/03)

International Pen (pour le compte de Saro-Wiwa) c. Nigeria RADH 2000 217(CADHP1998)

Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 1033

Ngxuza v the Permanent Secretary, Department of Welfare Eastern Cape Provincial Government 2000 (12) BCLR 1322 (E)

Premier of Mpumalanga v Executive Committee of the Association of Governing Bodies of State- Aided Schools: Eastern Transvaal 1999 (2) BCLR 151 (CC)

Purohit and Moore v the Gambia Communication 241/2001 (2003) AHRLR 96 (ACHPR 2003)

Resident Joe Slovo Community Western Cape v Thubelisha Home CCT 22/08 2009 ZACC 16.

Soobramoney v Minister of Health KwaZulu-Natal 1998 (1) SA 765 (CC) 1997 (12) BCLR 1696 (CC)

Western Cape Minister of Education v Governing Body of Mikro Primary School [2005] 3 All SA 2006 (1) SA (1) (SCA)