Makalah

Makalah WORKSHOP Memperkuat Justisiabilitas Hak-Hak Ekonomi, Sosial dan Budaya : Prospek dan Tantangan Yogyakarta, 13 - 15 November 2007

Adjudication of Socio-Economic Rights in South Africa: Progres Made and Challenges Remaining Contribution by Dr. Jackie Dugard (University of the Witwatersrand, South Africa)

Adjudication of socio-economic rights in South Africa: Progress made and challenges remaining J Dugard, November 2007

INTRODUCTION Considered in many quarters to be non-justiciable, economic and social rights have not achieved the priority in the human rights debate that civil and political rights have. As Henry Steiner and Philip Alston have observed, if “one single issue has dominated the debate over economic and social rights, it is the question of whether those rights are justiciable at the national level”.1 In contrast to the generalised reticence to recognise the justiciability of socio-economic rights, post-apartheid South Africa has explicitly incorporated socio-economic rights into its Constitution. Moreover, South Africa’s Constitutional Court has confirmed the justiciability of socio-economic rights in a number of landmark judgments, and it is one of the few courts in the world to have overtly considered the minimum core content and the minimum state obligations pertaining to particular socio-economic rights. Nonetheless, as I outline in this paper, despite this considerable progress, the Constitutional Court’s timid approach to the adjudication of socio-economic rights has compromised the ultimate realisation of socio-economic rights in South Africa. This paper utilises international and domestic law frameworks to analyse the judgments of the key socio-economic rights cases to have come before South Africa’s Constitutional Court to date. It delineates their significant contributions to socio-economic rights jurisprudence, and it examines their failings. In doing so the paper highlights some of the challenges of adjudicating socio-economic rights claims in South Africa and, perhaps, beyond. Part A outlines the legal framework within which South Africa’s Constitutional Court enforces socio-economic rights. Part B analyses the Constitutional Court’s socio-economic rights’ jurisprudence, reflecting on progress made and gaps remaining. Part C reflects on the challenges of enforcing socio-economic rights through the courts in South Africa [Part C is schematic in this paper].

1 Steiner, H. & Alston, P. 2000. International Human Rights in Context: Law, Politics, Morals. Oxford: Oxford University Press, p. 275.

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PART A

SOCIO-ECONOMIC RIGHTS’ ENFORCEMENT FRAMEWORK

Operating in a relatively new and still evolving democratic order, South Africa’s post-apartheid judiciary is located within a highly formalised legal framework with considerable human rights-related protections. Unlike many jurisdictions, socioeconomic rights have been explicitly incorporated into the constitution, which, along with international law, must guide all judicial interpretation.

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Constitutional framework

The Constitution of the Republic of South Africa (Act 108 of 1996)2 is widely regarded as among the most progressive constitutions in the world. Chapter two of the Constitution (comprising sections 7 through 39) contains the Bill of Rights, with a combination of civil, political, cultural and socio-economic rights. The Bill of Rights is expressly justiciable in terms, inter alia, of the following provisions: •

Section 7(2): “The state must respect, protect, promote and fulfil the Rights in the Bill of Rights”.

•

Section 8(1): “The Bill applies to all law, and binds the legislature, the executive and the judiciary and all organs of the state”.

•

Section 38: “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”.

Economic and social rights are entrenched in section 23 (labour rights), section 25 (the right to have access to land), section 26 (the right to have access to housing), section 27 (the rights to have access to health care services, sufficient food and The 1996 Constitution, which came into force in 1997, is often referred to as the ‘final Constitution’. It was based on the ‘interim Constitution’ of 1993, which was a transitional arrangement that regulated the drafting of the 1996 Constitution, and provided the framework for the regulation of the transitional government while the 1996 Constitution was being drafted. 2

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water, and social security and assistance), section 28(1)(c) (children’s right to basic nutrition, shelter, basic health care services and social services), section 29 (the right to basic education and, under certain circumstances, further education) and section 35(2)(e) (detained persons’ right to the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment). The Constitution does not distinguish between socio-economic rights and all other rights. The fact that socio-economic rights are found alongside other traditionally justiciable rights implies that socio-economic rights are also justiciable, which has been confirmed by the Constitutional Court. In certifying the 1996 Constitution (against the argument that the final Bill of Rights should not contain socio-economic rights because of the policy/budgetary and separation of powers implications), the Court stated: In our view, it cannot be said that by including socio-economic rights within a bill of rights, a task is 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 … These rights are, at least to some extent, justiciable. As we have stated … many of the civil and political rights entrenched in the [Constitution] will give rise to similar budgetary implications without compromising their justiciability … The fact that socio-economic rights will almost inevitably give rise to such [budgetary] implications does not seem to us to be a bar to their justiciability.3

Furthermore, South Africa’s Constitution clearly instructs relevant courts to consider international law when interpreting the Bill of Rights. Section 39, on interpretation of the Bill, stipulates that “a court, tribunal or forum” “must consider international law;” and “may consider foreign law”. In practice, international human rights law and comparative case law have played an important role in the decisions of the Constitutional Court. Moreover, the Constitutional Court has held that, in the context of interpreting the Bill of Rights, it is subject to non-binding, as well as binding, international law. This principle was first established by the Constitutional Court in S v Makwanyane, when Chaskalson, P stated:

Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution 1996 1996(4) SA 744(CC), paras. 76-78.

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Adjudication of socio-economic rights in South Africa: Progress made and challenges remaining J Dugard, November 2007 … public international law would include non-binding as well as binding law. They may both be used under the section as tools of interpretation.4

The guiding role of international law is particularly important in the South African context, where a non-discriminatory legal order is a recent development and extreme socio-economic inequalities persist. Thus, although South Africa has not ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR),5 the ICESCR can and should guide the interpretation of socio-economic rights so that they are enforced in a transformative manner by the courts. 2

International law

Internationally, one of the main reasons why socio-economic rights are not afforded the same enforcement weight as civil and political rights is because the standard of implementation specified in the ICESCR - progressive realization “to the maximum of available resources” - differs profoundly from the analogous provision in the International Covenant on Civil and Political Rights (ICCPR).6 Its inclusion reflected the drafters’ acknowledgement of differing levels of economic development between states and the fact that, due to the cost implications of socio-economic rights,7 most states parties would not be able to fully realize all socio-economic rights immediately on ratification or even in a short period of time. However, the notion of progressive realization, especially within the context of the maximum available resources clause, has complicated the conceptualization of socio-economic rights, as well as their implementation and monitoring. In practice, many states have utilized the claim of lack of resources as an ‘escape hatch’ from their international law obligation to realize socio-economic rights.

S v Makwanyane 1995(3) SA 391 (CC), para. 35. International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966. 6 Article 2(1) reads: “Each State party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant…” (International Covenant on Civil and Political Rights, 1966). 7 Today it is widely accepted that, contrary to the initial view that in terms of realizing rights only socio-economic rights incurred financial costs, the fulfilment of civil and political rights also requires financial resources and is also resource-intense. 4 5

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To prevent states from using the ICESCR’s more vague, less onerous, terminology to evade enforcement obligations and thereby to nullify the Covenant’s guarantees, in recent years a jurisprudence has evolved at international level that establishes that, in addition to the principle of nondiscrimination defined in ICESCR Article 2(2),8 core elements of socio-economic rights “create an immediate duty on the part of the State and therefore are not subject to the progressive realization standard”.9 The main sources of authority for this evolving jurisprudence on the minimum core of socio-economic rights have been the Limburg Principles and the Maastricht Guidelines,10 and the General Comments of the Committee on Economic, Social and Cultural Rights. The 1986 Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights11 provide guidance on interpreting the ICESCR, especially Articles 1-5. Establishing a violations approach to the ICESCR, they state: “a failure by a State party to comply with an obligation contained in the ICESCR is, under international law, a violation of the ICESCR”.12 Crucial to the understanding of enforcement of socio-economic rights, the Limburg Principles introduce the concept of minimum state obligations by stating: “States parties are obligated, regardless of economic development, to ensure respect for minimum subsistence rights for all”.13

Expanding on the Limburg

Principles with the objective of discouraging states from gratuitously using the ‘escape hatch’ of lack of resources, the 1997 Maastricht Guidelines place on the

8 Article 2(2) calls on States parties to guarantee that ICESCR rights are “exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Together with Article 3 - which obligates states to “undertake to ensure the equal rights of men and women to the enjoyment of all economic, social and cultural rights set for the in the present Covenant” – this ensures that nondiscrimination is not subject to the progressive realization caveat. 9 Chapman, A. & Russell, S. 2002. “Introduction”, in Chapman, A. & Russell, S. (eds.) Core obligations: Building a framework for Economic, Social and Cultural Rights. Oxford: Intersentia, p. 7. 10 The Limburg Principles and the Maastricht Guidelines were developed by international experts at two meetings held approximately ten years apart at the University of Limburg (now called Maastricht University) in the Netherlands as a means of clarifying the enforcement criteria of socioeconomic rights. 11 UN doc. E/CN.4/1987/17, Annex. 12 “The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights”, UN doc. E/CN.4/1987/17, Annex, at para. 70. 13 Ibid., para 25.

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state the burden of proving that it is unable to carry out its socio-economic rights obligations: A State claiming that it is unable to carry out its obligation for reasons beyond its control has the burden of proving that this is the case. A temporary closure of an educational institution due to an earthquake, for instance, would be a circumstance beyond the control of the State ….14

Such progressive interpretation of the enforcement obligations of the ICESCR framework has, since 1991, been advanced by the Committee on Economic, Social and Cultural Rights (the Committee). Established in 1986 to supervise states parties’ compliance with ICESCR rights, the Committee on Economic, Social and Cultural Rights (the Committee) was relatively slow off the mark to utilize a holistic minimum core obligations approach. In real terms, it has only been since the adoption of General Comment 3 (1990) on the nature of states parties’ obligations (Art. 2(1) of the Covenant), that the Committee has meaningfully addressed minimum core content and minimum state obligations issues. General Comment 3, which was adopted in 1991, was useful in consolidating and fortifying the evolving jurisprudence on minimum core content and minimum state obligations, but provides only a few concrete examples of the essential elements of rights: On the basis of the extensive experience … the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, or essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to

14 “The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights”, Human Rights Quarterly vol. 20 (1998), para 13.

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Adjudication of socio-economic rights in South Africa: Progress made and challenges remaining J Dugard, November 2007 be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’etre.15

Regrettably, in the years immediately following the adoption of General Comment 3, the Committee did little to further develop the minimum core obligations jurisprudence. However, in recent years the Committee has begun the task of identifying the essential elements of and/or related minimum obligations attached to some specific socio-economic rights. In General Comment 12 of 1999 on the right to adequate food, the Committee took a step forward and identified the core content of the right to adequate food: The Committee considers that the core content of the right to adequate food implies: (a) the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture; (b) the accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other rights.16

While this was an important turning point for the Committee, the stipulated core content of the right to food remains rather vague. And, perhaps due to the difficulties the Committee encountered in identifying the minimum essential level of this right, the Committee has subsequently opted for a more pragmatic approach, instead identifying minimum state obligations.17 Thus, in General Comment 13 of 1999 on the right to education, the Committee notes that, in the context of the right to education, the minimum core: … includes an obligation: to ensure the right of access to public educational institutions and programmes on a non-discriminatory basis; to ensure that education conforms to the objectives set out in article 13, paragraph 1; to provide primary education for all in

General Comment 3 (1990) of the Committee on Economic, Social and Cultural Rights on the nature of States parties’ obligations (Art. 2(1) of the Covenant), para. 10. 16 General Comment 12 (1999) of the Committee on Economic, Social and Cultural Rights on the right to adequate food (Art. 11 of the Covenant), para. 8. In paras. 9-13 the Committee further elaborates on what is meant by each of the concepts referred to in para. 8. 17 Sepulveda, M. 2003. The nature of the obligations under the International Covenant on Economic, Social and Cultural Rights. Oxford: Intersentia, p. 368. 15

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Adjudication of socio-economic rights in South Africa: Progress made and challenges remaining J Dugard, November 2007 accordance with article 13, paragraph 2(a); to adopt and implement a national educational strategy which includes provision for secondary, higher and fundamental education; and to ensure free choice of education without interference from the State or third parties, subject to conformity with “minimum educational standards” (article 13, paras. 3 and 4).18

General Comment 14 of 2000 on the right to the highest attainable standard of health has adopted the same pragmatic approach. With regard to the highest standard of health, General Comment 14 states at paragraph 43 that “… in the Committee’s view, these core obligations include at least the following obligations:” (a)

To ensure the right of access to health facilities, goods and services on a nondiscriminatory basis, especially for vulnerable or marginalized groups;

(b)

To ensure access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone;

(c)

To ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water;

(d)

To provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs;

(e)

To ensure equitable distribution of all health facilities, goods and services;

(f)

To adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population; the strategy and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and transparent process; they shall include methods, such as right to health indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all vulnerable or marginalized groups.

General Comment 14 goes on in paragraph 44 to confirm “that the following are obligations of comparable priority:” (a)

To ensure reproductive, maternal (pre-natal as well as post-natal) and child health care;

18 General Comment 13 (1999) of the Committee on Economic, Social and Cultural Rights on the right to education (Art. 13 of the Covenant), para. 57.

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Adjudication of socio-economic rights in South Africa: Progress made and challenges remaining J Dugard, November 2007 (b)

To provide immunization against the major infectious diseases occurring in the community;

(c)

To take measures to prevent, treat and control epidemic and endemic diseases;

(d)

To provide education and access to information concerning the main health problems in the community, including methods of preventing and controlling them;

(e)

To provide appropriate training for health personnel, including education on health and human rights;

(f)

To provide training for health personnel, including education on health and human rights.

The identification in international law of the core content of the right to food and of the core obligations implied by the rights to education and health has to some extent clarified certain elements of the minimum core of ICESCR rights, and can be used by countries as a template to develop appropriate national minimum core standards regarding each right. Of critical importance to the development of a minimum core approach in especially developing countries such as South Africa, the Committee has also established crucial normative parameters pertaining to the implementation of minimum core obligations. For example, it is now clear from the Committee’s work that privatization “does not relieve the state of its obligation to ensure that minimum essential levels of each right are enjoyed by individuals, particularly the most vulnerable and disadvantaged groups within society”.19 Furthermore, the Committee has underlined that “even in times of severe resources constraints … the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes”.20 So, at least conceptually, there is an evolving jurisprudence suggesting that states have a duty to adopt a minimum core approach to socio-economic rights. Arguably, the most critical aspect of this international law imperative is the establishment of the minimum core obligation to immediately provide relief to the most vulnerable members of society. Indeed, this requirement to realize core contents of rights for disadvantaged groups should serve as the baseline for all

Sepulveda, M., supra note 16, p. 367, who cites as evidence of this principle General Comment 14, para. 35; Concluding Observations Philippines E/1996/22 para.120; Concluding Observations Peru E/1998/22 para. 161; and Concluding Observations Australia E/2001/22 para. 395. 20 General Comment 3, supra note 15, para. 12. 19

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countries to devise, implement and enforce socio-economic rights at the national level. PART B

CONSTITUTIONAL COURT JURISPRUDENCE21

As has been established, in South Africa, the question is not whether socioeconomic rights are justiciable - they are “as justiciable as any other rights and freedoms”,22 and to this end “the courts are given the widest possible powers to develop and forge new remedies for the enforcement of Constitutional Rights”.23 Rather, in the words of Yacoob, J in the Grootboom judgment, the question is “how to enforce them in a given case”.24 The Constitutional Court has decided five socio-economic rights cases to date: Soobramoney v Minister of Health (KwaZulu-Natal)25 (health care rights); Government of the Republic of South Africa and others v Grootboom and others26 (housing rights); Minister of Health and others v Treatment Action Campaign and others (No. 2)27 (health care rights); Khosa and others v Minister of Social Development and others 28 (social security rights); and Port Elizabeth Municipality v Various Occupiers29 (housing rights). Soobramoney, Grootboom and TAC all dealt with claims for positive relief against the state based on socio-economic rights enumerated in the 1996 Constitution. Khosa concerned whether certain provisions of the Social Assistance Act 59 of 1992 that excluded non-citizens from receiving benefits were 21 This section draws from an article: Dugard, J and Roux, T. 2006. “The Record of the South African Constitutional Court in Providing an Institutional Voice for the Poor: 1995-2004”, in Gargarella, R, Domingo, P and Roux, T (eds) Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor. London: Ashgate. 22 Gutto, S. 1998. “Beyond justiciability: Challenges of implementing/enforcing socio-economic rights in South Africa”, Buffalo Human Rights Law Review vol. 4, p. 101. 23 Govender, V. 2002. “Economic, Social and Cultural Rights in South Africa: Entitlements, not mere policy options”, in Goldewijk, B., Contreras Baspineiro, A. & Cesar Carbonari, P. (eds.) Dignity and Human Rights: The implementation of Economic, Social and Cultural Rights. Oxford: Intersentia, p. 77. 24 Government of the Republic of South Africa and others v Grootboom and others 2001(1) SA 46 (CC), para. 20. 25 1998 (1) SA 765 (CC). 26 2001 (1) SA 46 (CC). 27 2002 (5) SA 721 (CC). 28 2004 (6) BCLR 569 (CC). 29 2004 (12) BCLR 1268 (CC).

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constitutional. The fifth case, Port Elizabeth Municipality, dealt with the negative infringement of the right not to be evicted from one’s home without an order of court. Although the Court decided in favour of the applicants in four of these cases,30 there are two broad reasons why its socio-economic rights jurisprudence is a little disappointing from a pro-poor perspective. First, none of the judgments provided direct, substantive relief to the applicants, an outcome that gives little incentive to poor litigants to seek relief through constitutional litigation. Second, the standard of review adopted by the Court – viz. that the overall policy, legislation and practices of government in the sector concerned should be reasonable – requires litigants to have a sophisticated understanding of complex policy and budgetary issues. This requirement, too, acts as a disincentive to the poor to bring cases to the Court, unless they have substantial legal and other expert support. The remainder of this section elaborates on these two criticisms. 1.

Relief

Section 172(1) of the 1996 Constitution provides that, ‘[w]hen deciding a constitutional matter within its power, a court—(a) … (b) may make any order that is just and equitable.’ In addition, section 38 confers on courts the power to grant ‘appropriate relief, including a declaration of rights’. In theory, these provisions give the Constitutional Court scope to develop innovative remedies for the enforcement of constitutional rights, including pro-poor rights.31

Despite the

existence of these powers, however, ‘litigation aimed at advancing the rights of the poor has [thus far] resulted in fairly conventional and somewhat limited relief’.32

In its first social rights case, Soobramoney, the Court did not find in favour of the applicant, interpreting section 27(3)’s right to emergency medical treatment as not including a right to ongoing renal dialysis treatment for chronic diabetes sufferers such as Mr Soobramoney. 31 T Bollyky ‘R if C > P + B: A paradigm for judicial remedies in socio-economic rights violations’ (2002) 18 South African Journal on Human Rights 161. 32 K Pillay ‘Addressing poverty through the courts: How have we fared in the first decade of democracy?’ paper presented at Conference ‘Celebrating a decade of democracy’, Durban, 2325 January 2004. 30

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In Soobramoney, where the Court found that the right not to be refused ‘emergency medical treatment’ did not extend to renal dialysis, no relief was granted to the applicant, who died of kidney failure shortly after the judgment. In Grootboom, a declaratory order was granted requiring the state to meet its obligations under section 26(2) of the 1996 Constitution to ‘devise and implement within its available resources a comprehensive and coordinated [housing] program’.33 Such a programme, the Court continued, should ‘include reasonable measures such as … [the provision of] relief for people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations’.34 Although remarking in passing that the South African Human Rights Commission (which appeared as amicus curiae in the case) would in the course of carrying out its constitutional mandate ‘monitor and report’ on the state’s progress in complying with the judgment,35 the Court did not incorporate this oversight function in its order. In consequence, when the Human Rights Commission attempted to report back to the Court on the intolerable conditions still prevailing in the Grootboom community, the Court refused to engage with it, saying that it had been divested of jurisdiction in the case. In the Treatment Action Campaign case, the Pretoria High Court had granted a structural interdict requiring the government to revise its policy regarding the prevention of mother-to-child transmission of HIV/AIDS and to submit the revised policy to the court.36

Whilst deciding in favour of the TAC, the

Constitutional Court considered a structural interdict to be inappropriate, and instead granted an order declaring government policy to be unreasonable, coupled with a mandatory order directing that the restrictions on the use of a particular antiretroviral drug outside of selected research sites be removed, and that the drug be made available at all public hospitals and clinics.37 In Khosa, the remedy chosen by the Court was to provide a curative rewording for sections of the Social Assistance Act 59 of 1992 and other relevant

Grootboom (note 53 above) para 99. Ibid. 35 Ibid para 97. 36 Minister of Health v Treatment Action Campaign 2002 (4) BCLR 356 (T). 37 TAC (note 54 above) para 135. 33 34

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legislation and regulations, so as to allow permanent residents the same social assistance benefits as South African citizens.38 Thus, in spite of the power given to the Court to fashion appropriate relief, in the four cases where the Court has considered the state’s positive obligations visà-vis particular socio-economic, the Court has refused relief in the one case in which a poor person sought a direct remedy (Soobramoney) and, in the other three cases, mandated that the applicable government policy be changed, without granting any direct relief to the affected individuals.39 In the most recent socio-economic rights case, where the Court was asked to consider the ambit of the state’s negative obligation to protect the right not to be arbitrarily evicted from one’s home (Port Elizabeth Municipality), the municipality sought a ruling that it was not constitutionally obliged to find alternative accommodation or land when seeking to evict unlawful occupiers. The Court rejected this argument, finding that in most circumstances a municipality would be obliged to procure a mediated solution and provide alternative accommodation or land before an eviction could be executed.40 This decision does provide concrete benefits to poor people, in as much as municipal evictions may now not proceed without a proper plan for relocation. 2.

Reasonableness standard of review

Although it was not the first SER case to be heard by the Court, Grootboom was the first case in which the Court began to develop a systematic approach to the justiciability of socio-economic rights. Declining to accept the minimum core content argument raised by the amicus curiae,41 the Court chose instead to advance a narrow interpretation of the state’s obligations vis-à-vis socio-economic rights in which the standard of review was not whether a particular right had been Khosa (note 55 above) paras 86-96. Prior to the main decision in the Grootboom case, the Court did grant an interim order, on 21 September 2000, in terms of which the Court ordered the government to provide basic sanitation, water and basic waterproofing materials to the applicants (Grootboom and others v Government of the Republic of South Africa and others. Unreported. CCT Case 38/00 paras 1-3). However, this order was only ever partially implemented and its enforcement was not monitored by the Court. 40 Port Elizabeth Municipality (note 56 above) paras 29-30, 39-47, 56-59. 41 Grootboom (note 53 above) para 18. 38 39

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violated but ‘whether the legislative and other measures taken by the state are reasonable’ in the context of ‘the state’s available means’.42 Grootboom established the principle that, to be regarded as reasonable, a government programme must be ‘comprehensive’ and ‘coordinated’, and must ‘clearly allocate responsibilities and tasks to the different spheres of government and ensure that the appropriate financial and human resources are available’.43 Furthermore, ‘to be reasonable’, programmes must be ‘balanced and flexible’,44 and measures must take into account ‘those whose needs are the most urgent’.45 The reasonableness test developed in Grootboom was relied on in Treatment Action Campaign and now appears to be the Court’s established approach when it comes to deciding the positive obligations imposed on the state by socio-economic rights. Cass Sunstein has described this model of review as one derived from administrative law.46 Although at least one recent commentator has questioned this description,47 it remains broadly accurate given the Court’s continued refusal to entertain arguments about the minimum core content of socio-economic rights. The Court has responded more unambiguously when called on to consider the interaction between socio-economic rights and the prohibition on unfair discrimination, a civil and political right. This was the case in Khosa, where the Court had to decide whether the exclusion from South Africa’s social security system (as governed by the Social Assistance Act 59 of 1992) of permanent residents ‘who, but for their lack of citizenship, would qualify for the benefit provided under the scheme’,48 amounted to unfair discrimination and as such was unreasonable. The Court found in the affirmative, ruling that the exclusion of permanent

residents

from

social

security

benefits

amounted

to

unfair

discrimination, which was neither reasonable under section 27(2) (right to social security) nor justifiable in terms of section 36 (the general limitations clause). In Ibid para 41. Ibid para 39. 44 Ibid para 43. 45 Ibid para 44. 46 Cass R Sunstein Designing Democracy: What Constitutions Do (2001) 224-37. 47 M Wesson ‘Grootboom and beyond: Reassessing the socio-economic jurisprudence of the South African Constitutional Court’ (2004) 20 South African Journal on Human Rights 284. 48 Khosa (note 55 above) para 9. 42 43

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doing so, the Court implied the existence of a new component to the reasonableness test: whether or not the policy amounts to unfair discrimination.49 The Court has also been more robust when it has been called on to protect an unqualified right such as the section 26(3) right not to be arbitrarily evicted from one’s home, as it did in Port Elizabeth Municipality. Beyond clarifying the state’s negative obligation correlative to this right, the Court read particular positive obligations into section 26(3), placing an obligation on the state in most cases to provide

alternative

undertaken.

accommodation

or

land

when

evictions

are

being

In this regard, the Court held that, in determining in each case

whether an eviction order was just and equitable (and consequently reasonable), the trial court would have to take into account ‘the reasonableness of offers made in connection with suitable alternative accommodation’, with particular reference to vulnerable occupiers (e.g. the elderly, children, disabled persons and femaleheaded households).50 Notwithstanding such advances, the failure of the Court to pursue a rightsbased analysis of the content of socio-economic rights and the nature of the state’s obligations vis-à-vis each right has, in the view of several commentators, been detrimental to the development of South Africa’s socio-economic rights jurisprudence.51 Instead, the Court has devised a relatively weak standard of review that would not be out of place in an administrative-law setting. Indeed, this standard has the potential to diminish the capacity of the Court to function as an institutional voice for the poor since it requires expert understanding of complex policy and budgetary issues, making it all but impossible for the poor to bring socio-economic rights cases without extensive technical and financial support.

To some extent this is a moot point because if any policy is found to violate the section 9 prohibition on unfair discrimination, it will automatically be unconstitutional. 50 Port Elizabeth Municipality (note 56 above) para 30. 51 David Bilchitz ‘Giving socio-economic rights teeth: the minimum core and its importance’ (2002) 118 South African Law Journal 484; David Bilchitz ‘Towards a reasonable approach to the minimum core: Laying the foundations for future socio-economic rights jurisprudence’ (2003) 19 South African Journal on Human Rights 1; Sandra Liebenberg ‘Socio-economic Rights’ in M Chaskalson et al Constitutional Law of South Africa 2ed (2004); Danie Brand ‘The proceduralisation of South African socio-economic rights jurisprudence, or “What are socio-economic rights for?”’ in H Botha, A van der Walt and J van der Walt (eds) Rights and Democracy in a Transformative Constitution (Sun Press, 2003) 33. 49

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PART C:

CHALLENGES

Problems at the institutional level 1.

Failure to advance direct access: poor people access court less and less

2.

Separation of powers issues/jurisprudential conservatism •

Failure to espouse minimum core – acceptance of reasonableness

•

Failure to grant individual relief

•

Reticence to deal with policy/budgets

How does this translate: Problems for community organisations, social movements 1.

Reasonableness of measure: requires enormous resources & legal expertise to mount a challenge

2.

No individual remedies: what’s the point?

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