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Sandra Liebenberg
The Constitution of the Republic of South Africa, 1996
(‘Constitution’) has been widely described both in academic literature and in judgments of the courts as a ‘transformative’ Constitution.[1] Unlike many classic liberal constitutions, its primary concern is not to restrain State power, but to facilitate a fundamental change in the legacy of injustice produced by over three centuries of colonial and apartheid rule.
Notwithstanding, deep racial, gender and class divisions persist in South African society, in spite of over a decade of democratic governance. Large parts of our population still experience unemployment, a lack of access to decent services and productive assets such as land. Poverty and social marginality has been intensified by the HIV/AIDS epidemic ravaging the country. Moreover, South Africa remains one of the countries with the highest levels of income inequality in the world.2
The South African Constitution is internationally renowned for its inclusion of a holistic set of socio-economic rights. These rights are regarded as integral to advancing the transformative goals of the Constitution. This article assesses the extent to which the enforcement of socio-economic rights by the courts is contributing to the realisation of the transformative vision of the Constitution.
During the drafting of South Africa’s Constitution there were extensive debates regarding the inclusion of socio-economic rights. Those opposed to their inclusion argued that the judicial enforcement of these rights would result in a breach of the separation of powers doctrine by forcing judicial usurpation of government powers over budgetary matters and social policy. It was argued that the judiciary has neither the institutional legitimacy nor the requisite training and skills necessary to make these determinations.
There was also a critique emanating from the tradition of leftist legal scholarship arguing that, given the background and class of the judiciary, they could not be entrusted with decisions which have implications for socio-economic redistribution. The effect of judicial intervention in these areas would be to erode the influence of civil society and impoverish participatory democracy. It was accordingly argued that socio-economic rights should be entrenched in the Bill of Rights in the form of judicially unenforceable Directive Principles of State Policy, following the Indian and Irish models.[3]
In the end all political parties and a large constituency of civil society[4] supported the inclusion, in the Bill of Rights, of a full range of socio-economic rights as fully justiciable. Three arguments were particularly persuasive in this context.
First, it was argued that the Bill of Rights – as the supreme law reflecting the highest normative commitments of the nation – should make explicit provision for the redress of the systemic socio-economic discrimination and deprivation experienced by the black population in South Africa under colonial and apartheid rule.
Second, it was argued that without access to a basic level of socio-economic services and resources, there could be no effective enjoyment of many of the civil and political rights enshrined in the Constitution. In the words of former President Nelson Mandela:
A simple vote, without food, shelter and health care is to use first generation rights as a smokescreen to obscure the deep underlying forces which dehumanise people. It is to create an appearance of equality and justice, while by implication socioeconomic inequality is entrenched. We do not want freedom without bread, nor do we want bread without freedom. We must provide for all the fundamental rights and freedoms associated with a democratic society.5
Third, socio-economic rights were regarded as integral to the building of a transformed society based on social justice and a more equitable distribution of resources.
In Re Certification of the Constitution of the Republic of South Africa, 1996[6] the Constitutional Court overruled objections to the inclusion of socio-economic rights as justiciable rights in the Bill of Rights. It pointed out that many civil and political rights such as the right to vote, the right to a fair trial and equality rights also have budgetary implications.
The core provisions on socio-economic rights are contained in sections 26, 27, 28(1)(c), 29 and 35(2)(e). I will focus particularly on sections 26 and 27 because these are the provisions in respect of which the Court has developed the foundations of its socio-economic rights jurisprudence. Sections 26(1) and 27(1) of the Constitution entrench the right of everyone to have access to: adequate housing; health care services, including reproductive health care; sufficient food and water; and social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. The State is required, under sections 26(2) and 27(2) to ‘take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights’. Section 26(3) is a guarantee against arbitrary evictions and provides that no-one may be evicted from their home or have their home demolished without a court order made ‘after considering all the relevant circumstances’. Section 27(3) provides that no one ‘may be refused emergency medical treatment’.
The Court has developed a distinctive approach to reviewing claims which seek to enforce the positive duties imposed by socio-economic rights, rejecting an interpretation of the provisions in section 26 and 27 that would entitle individuals to the direct provision of essential, basic level of goods and services from the State (a so-called ‘minimum core obligation’ derived from the General Comments of the UN Committee on Economic, Social and Cultural Rights under the International Covenant on Economic, Social and Cultural Rights (ICESCR)).[7] The Court argued that it lacked the necessary information to specify the content
Damon Kowarsky, Poplac and Podujevo, 2005, etching with aquatint, 32.5 x 46cm, Courtesy the artist and Dickerson Gallery, Sydney.
of minimum core obligations given the diversity of needs of different groups[8] and that the notion was inconsistent with the institutional roles and competencies of the judiciary.[9]
Instead, in the landmark decisions of Government of the RSA and Others v Grootboom and Others[10] and Minister of Health and Others v Treatment Action Campaign and Others,[11] it adopted a model of ‘reasonableness review’ in which the key question is whether the measures the State has taken towards the progressive realisation of the relevant rights are reasonable.
In the first major test case on socio-economic rights decided by the Constitutional Court, Soobramoney v Minister of Health, KwaZulu-Natal,[12] the Court established criteria for assessing the reasonableness of a government program impacting on socio-economic rights, namely:
In addition, the Court held in Grootboom that the concept of reasonable measures requires consideration of the
degree and extent of the denial of the right they endeavour to realise. Those whose needs are most urgent and whose ability to enjoy all rights is therefore most in peril, must not be ignored by the measures aimed at achieving realisation of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right. Furthermore, the Constitution requires that everyone be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.[18]
This requirement of the reasonableness test is justified particularly in terms of the value of human dignity.[19]
The assessment of the reasonableness of government programmes is influenced by two further factors. The internal limitations of sections 26(2) and 27(2) require that the rights may be ‘progressively realised’20 and that the availability of resources is ‘an important factor in determining what is reasonable’.[21] While both concepts provide the State with a potential justification for failing to ensure access to socioeconomic rights, they can also support a finding of unreasonable acts or omissions by the State.
In Grootboom the Court found that the Government’s housing program, though in other respects rational and comprehensive, was inconsistent with section 26 of the Constitution in that it failed ‘to provide relief for people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations’.[22] The Court did not specify what form this relief should take, but simply made a declaratory order to the effect that the State’s housing program should include ‘reasonable measures’ to provide relief for this group of housing beneficiaries.[23]
The TAC case concerned a challenge to the Government’s restrictive policy on providing anti-retroviral therapy for the purpose of reducing the rate of mother-to-child transmission of HIV throughout the public health sector. The Ministry of Health had implemented a pilot program in which it provided Nevirapine, an anti-retroviral drug with proven efficacy in the reduction of the mother-to-child transmission of HIV during childbirth, at two clinics in each province. These pilot sites catered for only for 10 percent of all births in the public health sector. Despite being pressed repeatedly to do so by the Treatment Action Campaign, the Ministry of Health refused to make any commitment as to whether and when the program would be rolled out throughout the public health sector. The Government defended its restrictive policy on mother-to-child transmission by raising a range of concerns ranging from the efficacy and safety of Nevirapine to a lack resources and capacity to roll-out a comprehensive programme to prevent motherto-child transmission of HIV throughout the public health sector.
The Court closely scrutinised and ultimately rejected all of these justifications. It held that it was an unreasonable failure by the Government not to take measures without delay to permit and facilitate the use of Nevirapine throughout public health care facilities in South Africa for the purpose of preventing mother-to-child transmission of HIV. These omissions violated the right of access to health care services entrenched in section 27.
The Court made a range of mandatory orders against the State, requiring it to remove the restrictions which prevent Nevirapine from being made available for the purpose of reducing the risk of mother-tochild transmission of HIV at public hospitals and clinics and to facilitate and expedite the use of Nevirapine at hospitals and clinics throughout the public health sector.
The Court has applied a particularly rigorous standard of scrutiny (approaching a proportionality analysis) in cases where there is an
overlap between socio-economic rights and the right to equality. This is illustrated by the case of Khosa & Mahlauli v Min of Social Development,[24] which involved a challenge to the exclusion of permanent residents from social assistance legislation. This legislation made provision for the payment of means-tested, non-contributory social grants to defined categories of vulnerable groups such as children, the elderly and people living with disabilities. However, eligibility for these grants was confined to South African citizens.
The Court took a hard look at the State’s resource and policy justifications for excluding permanent residents from social grants and found them wanting. The main factors underlying the more rigorous review standard were the fact that the Government had already enacted social legislation which excluded a relatively small group. Also significant was the overlap between the section 27 right to social security and the section 9 prohibition on unfair discrimination. On this basis the Court found that the exclusion of permanent residents was both an unreasonable denial of the right of everyone to have access to social assistance in section 27(1)(c) of the Constitution and constituted ‘unfair’ discrimination against permanent residents as a particular class of non-citizens.
The case of Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others[25] involved a challenge to the constitutionality of provisions of the Magistrates’ Court Act 32 of 1944 (‘Magistrate’s Court Act’) that permitted the sale in execution of people’s homes in order to satisfy (sometimes trifling) debts without judicial oversight. The Constitutional Court characterised the provisions of the Magistrate’s Court Act as authorising a negative violation of section 26(1) in that it permitted ‘a person to be deprived of existing access to adequate housing’. This negative duty is not subject to the qualifications in subsection (2) relating to resource constraints and progressive realisation. According to the Court, the deprivation of existing access to housing (and by implication, other socio-economic rights), constitutes a limitation of citizens’ rights which fails to be justified in terms of the stringent requirements of the general limitations clause (section 36). The general limitations clause in the Bill of Rights requires that rights can only be limited in terms of a law of general application ‘to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’.
The Court found no justification for the overbroad provisions of the Magistrate’s Court Act and read into it provisions requiring judicial oversight of executions against the immovable property of debtors taking into consideration ‘all relevant circumstances’.
The courts are under a general duty to develop the common law and customary law to ‘promote the spirit, purport and objects’ of the Bill of Rights.[26] Socio-economic rights have the potential to promote changes in many areas of the common law which regulate people’s access to socio-economic resources such as the rules of property and contract law. In South Africa these developments have occurred primarily in the context of cases involving the interpretation of legislation enacted to give effect to the guarantee in section 26(3) against evictions made without a court order in which all relevant circumstances are considered. Although the Court has not gone so far as to recognise an unqualified right to alternative accommodation in eviction cases, it has, in cases such as Port-Elizabeth Municipality v Various Occupiers[27] , requiredserious consideration of the impact of the eviction and the availability of feasible alternatives to avoid homelessness.[28]
The jurisprudence of the courts on housing rights and the protection of people against procedurally and substantively unfair evictions has helped to promote a more balanced notion of property rights which takes into the interest of poor people in the protection of their homes and in avoiding homelessness.[29]
The courts[30] have been prepared to apply a wide range of remedies in socio-economic rights cases, ranging from declaratory orders,[31] mandatory orders,[32] ‘reading-in’ orders,[33] damages,[34] and structural interdicts. The latter orders typically require the State to put in place a plan or program that will give effect to the relevant right and to take concrete measures in terms of that plan. The applicants and their attorneys are also given an opportunity to comment on the plan and implementation thereof. Courts retain supervision over the case by assessing the adequacy of the plan and the steps taken to implement it.
A major focus of academic criticism in South Africa has been that reasonableness reviews do not force the courts to engage sufficiently seriously with the content and scope of socio-economic rights, meaning it can easily become a highly deferential standard of review. On the other hand, reasonableness review has the advantage of being a flexible, context-sensitive model of review for socio-economic rights
claims. Government’s justifications are subjected to stringent scrutiny by the courts and it is required to present convincing reasons why particularly vulnerable sectors of society are excluded from accessing basic socio-economic services and resources.
However, in order to ensure that the courts’ socio-economic rights jurisprudence remains on a transformative trajectory, it is crucial that the courts ensure that reasonableness review receives a sufficiently substantive interpretation. This in turn requires assessing the reasonableness of the State’s acts or omissions in the light of the purposes and values which socio-economic rights are intended to promote. All three of the foundational constitutional values of human dignity, equality and freedom can contribute significantly to the substantive content of reasonableness review. Assessing the impact of socio-economic deprivations on these constitutional values would require the courts to undertake a rigorous analysis of the position of the claimant in society, the nature and historical causes of the deprivation experienced and its impact on her and others in a similar situation.
What lessons can be learnt from South Africa’s experiment with justiciable socio-economic rights?
In the first place, the caution of sceptics that socio-economic rights adjudication would cast the courts in an inappropriate and unmanageable role has proven to be unfounded. The courts have been quite capable of developing a model of review for adjudicating socio-economic rights. This model enables the courts to respect the competencies and roles of the other branches of government whilst playing a meaningful role in enforcing socio-economic rights.
The second concern was that justiciable socio-economic rights would undermine participatory democracy and possibly result in the courts frustrating important socio-economic reforms. Although we are still at a relatively early stage in our constitutional journey, the indications thus far are that socio-economic rights are making a contribution to deepening democracy and socio-economic transformation. There is a burgeoning jurisprudence on these rights which has made a tangible contribution in many cases to improving the quality of life of disadvantaged groups. Cogent examples are the provision of anti retroviral treatment for people living with HIV/AIDS,[35] the winning of social security benefits for non-citizens and the significant procedural and substantive protections for people facing evictions from their homes.
Moreover, as holders of rights that protect their socio-economic welfare, marginalised groups can require their voices to be heard in policy-making processes and the design and implementation of social programs. When democratic institutions neglect their socio economic welfare, they can ultimately turn to the courts for a reasoned consideration of whether the conduct of the State or private parties is consonant with the socio-economic rights in the Bill of Rights.
Sandra Liebenberg is H. F. Oppenheimer Professor in Human Rights Law, Department of Public Law, Stellenbosch University. This is an edited version of the annual human rights lecture of the Centre for Human Rights, University of New South Wales delivered by the author on 4 October 2007. A more comprehensive version of this paper was presented at the conference, Protecting Human Rights, convened by the Centre for Comparative Constitutional Studies, Melbourne Law School on 25 September 2007. I wish to express my gratitude to both institutions for the opportunities to deliver these addresses.
[1] Karl Klare, ‘Legal culture and transformative constitutionalism’ (1998) 14 South African Journal on Human Rights,146; Pius Langa ‘Transformative constitutionalism’ (2006) 3 Stellenbosch Law Review 351. See further S v Makwanyane 1995 (6) BCLR 665 (CC) [262]; Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (7) BCLR 687 (CC) [73][74].
[2] Jeremy Seekings and Nicoli Nattrass, Class, Race and Inequality in South Africa (2005).
[3] See Dennis Davis ‘The case against the inclusion of socio-economic demands in a Bill of Rights except as directive principles’ (1992) 8 South African Journal on Human Rights 475. See also the discussion of this argument by Judge Albie Sachs, ‘Concluding comments on the panel discussion’ (2007) 8 ESR Review 17 <www.communitylawcentre.org.za/ser/esr_review.php> at 14 November 2007.
[4] See the Petition to the Constitutional Assembly by the Ad Hoc Campaign for Social and Economic Rights (19 July 1995) [on file with the author].
[5] Nelson R Mandela, ‘Address: On the occasion of the ANC’s Bill of Rights Conference’ in A Bill of Rights for a Democratic South Africa: Papers and Report of a Conference Convened by the ANC Constitutional Committee, May 1991 (Centre for Development Studies, 1991) 9, 12.
[6] See Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) [76]–[78].
[7] The concept of ‘minimum core obligations’ was initially adopted by the Committee in its General Comment 3 The nature of States parties obligations (art 2(1) of the Covenant), UN Doc E/1991/23 (1990) [10]. The concept has since been followed in subsequent general comments.
[8] Government of the RSA and Others v Grootboom and Others 2001 (1) SA 46,
[33].
[9] Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 721, [37]-[38].
[10] 2001 (1) SA 46 (‘Grootboom’).
[11] 2002 (5) SA 721(‘TAC’).
[12] 1997 (12) BCLR 1696 (CC).
[13] Grootboom 2001 (1) SA 46, [39]-[40].
[14] Ibid [39].
[15] Ibid [43].
[16] Ibid [40]-[43]
[17] TAC 2002 (5) SA 721, [123].
[18] Grootboom 2001 (1) SA 46, [44].
[19] Ibid [83]. See also Sandra Liebenberg, ‘The value of human dignity in interpreting socio-economic rights’ (2005) 21 South African Journal on Human Rights 1.
[20] Grootboom 2001 (1) SA 46, [46].
[21] Ibid.
[22] Ibid [99].
[23] Ibid [2(b) of the Order].
[24] 2004 (6) BCLR 569 (CC) (‘Khosa’).
[25] 2005 (1) BCLR 78 (CC) (‘Jaftha’).
[26] Section 39(2) of the Constitution.
[27] 2004 (12) BCLR 1268 (CC) (‘PE Muncipality’).
[28] See also President of the RSA and Another v Modderklip Boerdery (Pty) Lt and Others 2005 (8) BCLR 786 (CC) (‘Modderklip’); City of Johannesburg v Ran Properties (Pty) Ltd 2007 SCA 25 (RSA) (judgment in Constitutional Court appeal pending).
[29] Port Elizabeth Municipality v Various Occupiers 2004 (12) BCLR 1268 (CC) [23].
[30] The courts have, by virtue of s 172(1), wide remedial powers under the Constitution.
[31] See, eg, Grootboom 2001 (1) SA 46.
[32] See, eg, TAC 2002 (5) SA 721.
[33] See, eg, Khosa 2004 (6) BCLR 569 (CC) and Jaftha 2005 (1) BCLR 78 (CC).
[34] See, eg, Modderklip 2005 (8) BCLR 786 (CC).
[35] See Mark Heywood, ‘Shaping, making and breaking the law in the campaign for National HIV/AIDS Treatment Plan’ in Peris Jones and Kristian Stokke (eds), Democratising Development: The Politics of Socio-Economic Rights in South Africa (2005) 181.
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