The South African Constitution is lauded globally for its inclusion of a set of justiciable socio-economic rights. The Constitution requires government to immediately realise the right to basic education. It further requires that government progressively realise other socio-economic rights including further education, health, food, water and social security.
In 2015 the South African government ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR also enumerates the protections and state party obligations in respect of a number of socio-economic rights.
The cost of austerity
Notwithstanding the unequivocal commitment to socio-economic rights in South Africa’s national Constitution and in terms of the country’s international law obligations, in recent years the government has attempted to contain expenditure in order to reduce national debt. Of particular concern is the effect of cost containment measures on social spending, including in health and education.
In 2018, the Committee on Economic, Social and Cultural Rights, referring to the austerity measures adopted by the South African government, noted:
“The Committee is concerned that the State party has introduced austerity measures to relieve the debt level without defining the timeframe within which such austerity measures should be re-examined or lifted. It is concerned that these measures have resulted in significant budget cuts in the health, education and other public service sectors, and that they may further worsen inequalities in the areas covered by the Covenant rights and even reverse the gains made, particularly in the health and education sectors.’’
Cost containment measures have been adopted in South Africa as a result of a combination of sustained low levels of economic growth following the global economic crisis of 2008-09 and the aftershocks of the rampant looting and corruption of the South African fiscus, particularly under the Zuma presidency.
In the health and education sectors, cost-containment has meant sharply reduced expenditure on health and basic education necessities. Where the budget is constrained, but the public sector salary bill continues to increase, expenditure on clinics and hospitals, equipment and medicines, schools and learning materials gets crowded out.
These dynamics have led to a growing chasm between the legal recognition of socio-economic rights and the political enforcement of socio-economic rights that could potentially render the justiciability of socio-economic rights meaningless.
Within this context, as civil society organisations working in the field of socio-economic rights, we must rethink our strategies to secure socio-economic justice. We will need to navigate this increasingly challenging terrain to explore new legal and extra-legal strategies for the enforcement of socio-economic rights.
Socio-economic rights litigation: Where we have succeeded
Socio-economic rights litigation over the past two decades has produced a vibrant socio-economic rights jurisprudence. Notable successes include judgments requiring improved education provisioning in key areas such as textbooks, desks and chairs, school infrastructure and personnel. In health, litigation has ensured the development of health facilities, the provision of ARVs in different settings, and screening for tuberculosis in prisons. Socio-economic rights litigation has also resulted in specific government policies such as in the areas of housing (Government of the Republic of South Africa v Grootboom) and the treatment and prevention of HIV (Minister of Health v Treatment Action Campaign) being declared unreasonable and therefore unconstitutional where these policies have failed to provide for the most vulnerable members of society.
Our jurisprudence is looked to globally as an example of the power of the law to make rights real.
Separation of powers and budgets as policy
Our strong rights jurisprudence is, however, based firmly on the doctrine of separation of powers. This doctrine requires that the judiciary not intrude into the domain of the other two tiers of government, being the executive and the legislature. The courts have interpreted this to mean that they cannot interrogate the policy choices – including fiscal policy choices – of the other two tiers government.
In the case of Mazibuko v The City of Johannesburg, a community challenged the City of Johannesburg’s Free Basic Water Policy and its installation of pre-paid water meters pursuant to that policy. The policy was however not declared unconstitutional as the Constitutional Court stated:
“[I]t is institutionally inappropriate for a court to determine precisely what the achievement of any particular social and economic right entails and what steps government should take to ensure the progressive realisation of the right. This is a matter, in the first place, for the legislature and executive, the institutions of government best placed to investigate social conditions in the light of available budgets and to determine what targets are achievable in relation to social and economic rights. Indeed, it is desirable as a matter of democratic accountability that they should do so for it is in their programmes that are subjected to democratic popular choice.”
Judicial scrutiny of budgetary concerns in socio-economic rights has therefore occurred only within a very narrow ambit, which will have to be taken into account in rethinking litigation strategies relating to austerity and its impact.
The courts have rejected attempts by the government to assert bald budgetary constraints and the courts have “looked behind the veil” where a government body “has not budgeted for something, if it should have planned and budgeted for it in the fulfilment of its socio-economic rights obligations”. (City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39)
This has opened up pathways for civil society organisations in socio-economic rights cases to pre-empt and counter bald budgetary constraints arguments by government. Litigants can highlight evidence of insufficient budgeting and planning for socio-economic rights as well as fruitless and wasteful expenditure, irregular expenditure and underspending by the relevant government departments responsible for socio-economic rights delivery.
Our approach to dealing with resource constraints claims by government has created a jurisprudence that allows for budgeting decisions to be challenged where resource constraints claims cannot be proven.
Where actual budgetary constraints are becoming more of a reality than an excuse, however, what is required are more refined methods for challenging government policy choices and budgetary allocations.
One way of doing so may be to challenge retrogressive measures that seek to curtail the existing realisation of access to socio-economic rights. A key feature of austerity in many countries has been the employment of retrogressive measures such as pension cuts, co-payments for previously free healthcare services, or hospital closures.
The South African Constitutional Court in the Grootboom judgment endorsed the view of Committee of Economic Social and Cultural Rights that:
“[A]ny deliberate retrogressive measures… would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.”
We are seeing retrogression in the realisation of rights in South Africa, often without the kind of justification that the Constitutional Court found was required. Mary Metcalfe, an education specialist, former MEC for Education in Gauteng and former Director-General in the Department of Higher Education and Training, notes that in 2016 only 75% of schools received the prescribed minimum amount of non-personnel funding allocations. Also in Gauteng, the number of public health facilities providing abortion services has decreased in the past year. These are the kinds of clear retrogression that could be challenged.
Public participation in budget decisions
While cases targeting retrogressive measures may be successful in halting specific measures such as reductions in prescribed minimum school allocations, more may be required to fundamentally shift fiscal policy choices.
Aoife Nolan, a legal scholar writing about human rights in the time of financial crisis, notes that challenges to austerity measures which impact on inequality have often been too reactive and too court centric. She says:
“If human rights law scholarship is really to engage with the causes and impacts of the crisis in a way that is meaningful for right-holders, then its focus must shift – at least in part – towards non-judicial national and supranational bodies and decision making fora that are key for the purposes of minimising the crises’ human rights impacts.”
Moving away from judicial solutions, civil society must intensify its pursuit of public participation mechanisms to ensure more human rights-friendly fiscal policies. In so doing, we could use South Africa’s human rights obligations as a normative framework for assessing fiscal policy to protect the most vulnerable in society during the hard times whilst simultaneously developing measures to address the fiscal and economic challenges facing our country.
South Africa’s National Treasury is in the process of launching a long overdue initiative on “participatory mechanisms in fiscal policies pilot project” which civil society must vigorously engage to contest fiscal policy choices.
Social spending cuts are not the only way to create fiscal space
In 2012, following the economic crisis in the Eurozone, the Parliamentary Assembly of the Council of Europe passed a resolution arguing that austerity measures with an almost exclusive focus on expenditure cuts in social spending was the undermining of democracy and social justice. It recommended the adoption of measures aimed at increasing public revenues such as increasing taxes on wealthier groups and large corporate profits and fighting tax evasion as well the establishment of measures to boost employment. Such options are seldom seriously considered in reality.
Equally, where government chooses to bail out SoEs, it chooses not to allocate funding to social spending. Social spending need not always be what suffers when it is time to tighten belts. Alternatives are available and should be under consideration. There may be a role for civil society in making these alternatives clear and challenging government in moving first to cut social spending before seeking to increase revenue or cutting spending elsewhere.
The consequences of staying on the current strategic path
One need only look at the increasing numbers of destitute people at every traffic light in our towns and cities to see the impact of a shrinking social safety net. This is the true cost of austerity and our current legal and advocacy approaches are powerless against it. Unless civil society organisations committed to reducing poverty and inequality explore new and innovative ways to address the challenges of austerity, the enormous implementation gap of socio-economic rights in the Constitution and in practice will only widen. MC
Faranaaz Veriava and Sasha Stevenson are the heads of the Education & Health Rights programmes respectively at SECTION27.