Chief Justice, it is a great honour to be invited to deliver these reflections on the Court’s role in enforcing socioeconomic rights at such a historical milestone in the Court’s illustrious history.
I will focus on three main themes: (1) the significance of including socioeconomic rights as justiciable fundamental rights in the Constitution; and (2) the impact of the Court’s socioeconomic jurisprudence; and (3) the model of review it has developed for adjudicating these rights.
I will conclude with some general remarks on the Court’s role against the background of the challenges of poverty and inequality that continue to blight our society.
The significance of including socioeconomic rights as justiciable rights in the Constitution
The integration of both civil and political rights as well as economic, social and cultural rights, including land rights in the Bill of Rights, was a response to the nature of the oppression experienced by black people under successive colonial and apartheid regimes. Political, social, economic and cultural repression were closely intertwined and mutually reinforcing. The denial of the right to vote of the black majority was accompanied by the dispossession of their land, the destruction of their traditional livelihoods and systemic discrimination in their access to housing, health care, food, water, social security and education. Resistance was met with increased violations of civil and political rights, including killings, torture, banning and detentions without trial.
Freedom from all forms of oppression – political, civil, economic, social and cultural – was reflected in the political demands of the movements that fought for liberation.
It was thus natural that when it came to drafting the Bill of Rights in the Constitution that the Bill of Rights would reflect a holistic and integrated understanding of human rights.
This holistic, integrated understanding of human rights was also reflected in the mechanisms envisaged for the enforcement of the rights. Thus, all rights in the Bill of Rights, including socioeconomic rights, were rendered justiciable in terms of section 38 and the remedial provisions in s 172 of the Constitution.
Although the South African Constitution is not the only Constitution in the world incorporating justiciable socioeconomic rights, it is a high influential model internationally. It gives practical expression to the reality that without the material foundations for a decent quality of life, the values of human dignity, freedom and equality, “have a hollow ring” – borrowing the words of the late former President of the Constitutional Court, Chaskalson P, in Soobramoney v Minister of Health, KwaZulu-Natal.
The impact of socioeconomic rights jurisprudence
While the recognition of socioeconomic rights as justiciable rights in the Bill of Rights was symbolically important, the proof was going to be in the proverbial pudding. Would these rights, as some predicted, simply amount to window-dressing with no practical impact? Or would they impose unmanageable expectations on the courts and drive the Constitutional Court into dictating legislative choices and policy and budgetary priorities to the legislature and executive?
None of these predictions have come to pass. The courts, under the leadership of the apex Constitutional Court, have developed an impressive body of jurisprudence. In the time available to me, I am not able to recount all the achievements of this jurisprudence. I will for present purposes highlight a few important developments.
There have been a series of cases decided by the Constitutional Court that have had a profound impact on the interrelationship between property rights and the newly recognised right of access to adequate housing in section 26 of the Constitution. Instead of the right to property always trumping weaker rights – as was the position under the pre-constitutional common law – the Constitutional Court has held that there should be an equitable balance between the two rights.
They have also developed a set of procedural and substantive safeguards which must be observed when people face homelessness as a result of their eviction from housing and land. Landmark cases that have established these principles include: Government of the Republic of South Africa v Grootboom; Jaftha v Schoeman; Van Rooyen v Stoltz; Port-Elizabeth Municipality v Various Occupiers; City of Johannesburg v Blue Moonlight Properties, and Daniels v Scribante.
In the celebrated judgment of Minister of Health v Treatment Action Campaign, the government was ordered to extend anti-retroviral treatment to all women giving birth in the public health sector to prevent mother-to-child transmission of HIV. The judgment, along with the pioneering social mobilisation of the Treatment Action Campaign, broke a political logjam, resulting in South Africa developing the largest public sector ARV programme in the world for HIV/Aids treatment.
The Court has also developed the integral relationship between socioeconomic rights and the right to equality and non-discrimination. Thus, for example, in Khosa & Mahlauli v Minister of Social Development, the Court (per Mokgoro J) upheld the rights of permanent residents to social assistance. In Mahlangu v Minister of Labour, the Court per Victor AJ declared the exclusion of domestic workers from vital society security legislation – the Compensation for Occupational Injuries and Diseases Act, 1993, to be unconstitutional.
The courts have also developed a rich and substantive jurisprudence on the right to basic education in section 29(1)(a) of the Constitution, building on the foundations of the Constitutional Court’s foundational judgment Governing Body of the Juma Musjid Primary School v Essay NO. In the latter judgment, the Court held that the right to basic education is an “immediately realisable” right, unlike the qualified socioeconomic rights in sections 26 and 27. Significantly, in AB v Pridwin Preparatory School, the Court held the right to not to be deprived of a basic education without a fair procedure was also enforceable against independent schools.
These cases are not only jurisprudentially extremely rich and nuanced, but they have also had real world impacts in improving the material conditions for those socioeconomic exclusion and discrimination.
The model of review developed by the Constitutional Court
I turn now to the second concern that socioeconomic rights would result in courts usurping the governance functions of the legislature and executive, particularly when enforcing the positive obligations imposed by socioeconomic rights.
In the context of sections 26 and 27 of the Constitution (the so-called qualified socioeconomic rights), the Court has developed the so-called reasonableness model of review. This model of review enables the Court to navigate separation of powers issues by placing the primary burden of realising socioeconomic rights on the State, but preserving its own role to evaluate the reasonableness of the measures adopted by the State.
Thus, in the foundational judgment of Grootboom, the Court stated that, in reviewing the policies and programmes designed by the State to fulfil socioeconomic rights, a court “will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent”. Instead, the question will be whether the measures that have been adopted are reasonable, recognising that “a wide range of possible measures could have been adopted by the State to meet its obligations.”
Over the course of several judgments, the Court has developed several criteria for evaluating reasonableness. These include:
- The State must put in place a comprehensive, coordinated programme with an appropriate allocation of resources and responsibilities between the three spheres of government;
- The programme must include short-term measures to provide relief to those whose needs are urgent and who are living in intolerable conditions;
- The programme should not contain unreasonable restrictions or exclusions of certain groups;
- It should be flexible and responsive to scientific evidence and changing circumstances; and
- It should be transparent and incorporate meaningful engagement with beneficiaries.
Through this model of review, the Court has been able to achieve a balance between appropriate respect for the legislative and policy-making roles of the other branches of government, whilst fulfilling its own constitutional mandate to provide appropriate relief when socioeconomic rights are violated.
The model has also been influential internationally. For example, it was expressly incorporated in the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, providing for a quasi-judicial procedure to adjudicate the rights in this global UN human rights treaty.
However, I would not be an academic if I did not also voice some of the criticisms of the reasonableness model of review. My own scholarship and that of several other academics have pointed out that the reasonableness of State conduct cannot be assessed in a normative vacuum. The reasonableness of the State’s measures can only be assessed in the light of a clear account of the purposes and elements encompassing the relevant socioeconomic right.
I have argued that this can be done without prescribing particular socioeconomic policies, and within the framework of the Court’s existing reasonableness model.
There are many international and regional human rights law and comparative constitutional law sources that can provide guidance in developing the normative elements of socioeconomic rights.
However, there are also important developments in the Court’s own recent socioeconomic rights jurisprudence which point the way for how the normative content of socioeconomic rights can be developed.
Thus, for example, in Daniels v Scribante, the Court (per Madlanga J) adopted a purposive approach to the interpretation of the right of an occupier under the Extension of Security of Tenure Act, 1996 (“ESTA”) “to reside” on the property in question. ESTA is key legislation that gives effect to the land and housing rights in sections 25 and 26 of the Constitution. Thus, the Court held that the right of a farm worker, Ms Daniels, to reside on the farm in question meant a right to reside in conditions consonant with human dignity – namely, a habitable dwelling. Based on this interpretation the Court held that Ms Daniels had the right to make modest improvements to her farm dwelling without the owner’s consent.
Another significant judgment is Charnell Commando v City of Cape Town, handed down in December last year. This judgment built on Justice Majiedt’s minority judgment in Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others to recognise that the redress of the legacies of spatial apartheid in urban land and housing was a key normative goal of the housing rights in section 26 of the Constitution. This led the Court, through the majority judgment of Mathopo J and the partially dissenting judgment of Bilchitz AJ, to recognise that the location of housing is a key element in assessing its adequacy.
Cumulatively, these judgments have recognised the elements of “habitability”, “security of tenure” and “location” as amongst the key elements of the right of access to adequate housing.
The judgments are also rich in historical contextualisation of the rights at issue in the cases. The repair and redress of colonial and apartheid land and housing policies were placed at the centre of the normative goals of the rights in question.
These cases illustrate how the Court can develop the normative content of the rights and draw on this content to evaluate the reasonableness of the State’s conduct.
Conclusion
In conclusion, I believe that the Court can be justifiably proud of its record in adjudicating socioeconomic rights. This body of jurisprudence has had a significant international influence and has strengthened the trend towards ensuring that all fundamental rights are treated equally with regard to both their status and enforcement. The Court is a major source of inspiration and hope, particularly in the current global context where human rights are facing profound threats.
While we should celebrate the Court’s achievements, we should also be acutely aware of the threat posed by the deep patterns of poverty, hunger and inequality to South Africa’s democracy.
These challenges are, of course, primarily for the elected branches of government and indeed society as a whole to overcome. Nevertheless, the Court has a critically important role to fulfil in redressing socioeconomic rights violations – the rights that speak most directly to the scourge of poverty and economic inequality.
In fulfilling this role, the Court is not undermining democracy but rather ensuring that the State remains true to the foundational commitments and values on which our constitutional democracy was founded. As I have attempted to show, a holistic and integrated concept of human rights, incorporating socioeconomic rights, is at the heart of these commitments and values. DM