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

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.

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

2.4 CONCLUSION