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

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.

4.2.1 SOCIO-ECONOMIC RIGHTS COMPARED WITH CIVIL AND POLIICAL RIGHTS

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

125 Devenish Commentary 358.

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.

127 See in this regard General Comment N03.

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

128 Khoza 2009 HYPERLINK http: // www.communitylawcentre.org.za/Socio-Economic-Rights/2nd-ed 13

June.

129 The UN Committee on ESCR General Comment N03 [Found on Internet] HYPERLINK

http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+Comment+3 [Date of use 4 June 2009]

130 2001 (1) SA 46 (CC) 23.

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

protected for invasion 78.

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.

4.2.2 THE NEGATIVE OBLIGATION OF THE STATE PREGARDING SOCIO- ECONOMIC RIGHTS

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

treatment».

138 Currie and De Waal Administrative law 398.

139 Liebenberg Socio-economic rights 41-56.

140 Liebenberg Socio-economic rights 41-28.

141 1999 (2) BCLR 151 (CC).

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,

142 The Prevention of Illegal Squatting Act 52, 1951.

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».

146 2004 CCT 53/03 56.

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,

challenged the disconnection of water supply because of non-payment of arrears.

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.».

150 2002 (6) BCLR 625 (W).

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

151 2000 (12) BCLR 1322 (E).

152 Act 59 of 1992.

153 Liebenberg Socio-Economic Rights 41-29.

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.».

155 De Vos 2001 SAJHR 267.

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

4.2.3.1 The Duty to Protect 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

156 1998 (2) SA 363 (CC).

157 De Vos 1997 SAJHR 83.

158 De Vos 1997 SAJHR 84.

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.

4.2.3.2 The Duty to Promote and Fulfill Socio-Economic Rights

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.

161 Liebenberg Socio-Economic Rights 41-33.

162 De Vos 1997 SAJHR 87.

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.