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The legal protection of socio-economic rights in South Africa; an examination and analysis.

The legal protection of socio-economic rights in South Africa; an examination and analysis.

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An essay for the 2011 Undergraduate Awards Competition by Emma Dunne. Originally submitted for Public Interest Law at Trinity College, Dublin, with lecturer Gerry White in the category of Law
An essay for the 2011 Undergraduate Awards Competition by Emma Dunne. Originally submitted for Public Interest Law at Trinity College, Dublin, with lecturer Gerry White in the category of Law

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Published by: Undergraduate Awards on Aug 29, 2012
Copyright:Attribution Non-commercial

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10/27/2013

 
The legal protection of socio economic rights in South Africa; an examinationand analysis.Introduction
 Socio-economic rights, also known as second generation rights, are those which areconcerned with a person’s welfare, and include entitlements to housing, healthcare,education and other forms of social assistance. In contrast with the commonly protected and widely promoted first generation (civil and political rights),Christiansen notes that “it has historically been argued, and traditionally accepted,that socio economic rights are non justiciable”
1
. South Africa therefore, has beenhailed as one as the most progressive countries in the world where the legal protectionof socio economic rights is concerned, as it strongly and explicitly protects andenforces these rights through a variety of mechanisms.
2
The paramount safeguard for these entitlements lies in the fact that they are explicitly protected by the constitution
3
, which enumerates many socio economic guarantees -such as those to water, adequate healthcare and a certain standard of education in its bill of rights.The Constitution places an obligation on the state to ‘respect, protect, promote andfulfil’
4
these rights. The state fulfils this duty in a variety of ways, through enactinglegislation, forming policies that promote and enforce the rights, and also, perhapsmost importantly, through giving the courts the power to enforce theseconstitutionally protected rights against the state.Legal protection of Socio economic rights in this jurisdiction is further effected by thework of a number of bodies set up under the constitution for this purpose, most
1
E. C. Chriatiansen ‘Adjudicating non justiciable rights : socio economic rights and the South AfricanConstitutional Court’
Columbia Human Rights Law Review
38:263:2007 at p.321
2
J.C. Mubanizi, ‘constitutionalism and justiciability of socio economic rights’ – paper delivered at theVII world congress of the international association of constitutional law, Athens 11 – 15 June 2007 at p.2
3
Constitution of the republic of South Africa 1996
4
Section 7(2)
 
notably the Human Rights Commission and the Office of the Public Protector, andthrough the work of a number of Non Governmental Organisations established tomonitor the implementation of Human rights.During the course of this essay, it is proposed first to look at the extent which socio-economic rights are protected in the South African constitution. Next, the way inwhich these rights are given effect to, protected and enforced, both by the state and bynon state actors will be examined. It is proposed to look at how the duty on the stateto ‘respect, protect, promote and fulfil’ socio-economic rights is given effect tothrough legislation, executive action, judicial action, chapter 9 institutions and nonstate actors. This essay will conclude by examining how effective the legal protectionof Socio economic rights in the jurisdiction in question has been in practice, and howthe courts and other organs of state have dealt with the barrage of opposition thattraditionally accompanies any proposal that second generation rights be made justiciable.
Constitutional protection of socio economic rights
South Africa’s tumultuous history is one that has been marked by years of foreigndomination, war, poverty and apartheid. While the state was finally granted itsindependence from Britain in 1934, the unjust political practices that had become afeature of the country were not expelled with the foreign rulers, and South Africaremained a society of “poverty amidst plenty”.
5
 Many commentators, including M.Olivier,
6
have suggested that it was this prevalence of inequality and suffering that prompted inclusion of socio-economic rights in the 1996 constitution.
 Rights that are protected 
5
J Nattrass ‘
 Poverty amidst Plenty: The Need for Development Studies
’ Inaugural Lecture, Universityof Natal, Durban, 12 September 1983.
6
M. Olivier ‘Constitutional perspectives on the Enforcement of socio economic rights in SouthAfrica”. (2002) 33 VUWLR at p. 117
 
The South African constitution, hailed by one commentator as “unparalleledrevolutionary and heroic”
7
  protects a number of socio economic rights, enumeratingthem in its bill of rights. Those granted explicit protection include:-Rights dealing with labour relations
8
-Environmental rights
9
-Property rights, for example the right of equitable access to land
-The rights of access to adequate housing, for example a prohibition onarbitrary evictions.
-The rights of access to health care, sufficient food and water 
-The right to social security
-The right to basic and on-going education
-Right of detained persons to be provided with adequate nutrition,accommodation, medical care and reading material.
As Mubangizi has noted, these third generation rights are those which reflect specificareas of basic need, and “create entitlements to material conditions of humanwelfare”.
 Such rights guarantee a citizen’s access to commodities that are regardedas “basic necessities of life, rather than just an adequate standard of living”.
The South African Constitution’s laudably progressive attitude towards socio-economic rights is evident not only from the fact that it affords explicit protection tothese entitlements, but also from the way in which these rights are treated
within
theconstitution. There is no hierarchy of rights, and no effort is made to classify or separate the different categories of entitlements. First, second, and third generation
7
E. C. Chriatiansen ‘Adjudicating non justiciable rights : socio economic rights and the South AfricanConstitutional Court’
Columbia Human Rights Law Review
38:263:2007 at p.321
8
Section 23
9
Section 24, eg section 24(a) provides that everyone has the right to an environment that is notharmful to their wellbeing, and section 24(b) places a duty on the state to prevent pollution and other damage to the environment
.
10
Section 25
11
Section 26
12
Section 27
13
Section 27
14
Section 29
15
Section 35
16
J.C. Mubanizi, ‘constitutionalism and justiciability of socio economic rights’ – paper delivered at theVII world congress of the international association of constitutional law, Athens 11 – 15 June 2007 at p.2
17
 
 Ibid 
at p.5

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