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.
CHAPTER 8: BIBLIOGRAPHY
8.1 Books
B
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 3rd 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)
D
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)
C
Currie I and De Waal J The Bill of Rights Handbook
5th ed (Juta 2005)
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 3rd ed (Juta 2000)
G
Garner B Black?s Law Dictionary 8th ed (Thomson West
2004)
K
Klug H «Historical Background" in Chaskalson M et
al Constitutional Law of South Africa (Juta Cape Town 1996)
L
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)
M
Mertus J The United Nations and Human Rights: A Guide for a
New Era (Routledge 2005)
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