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Legal Protection of Socio-Economic Rights in South Africa

Legal Protection of Socio-Economic Rights in South Africa

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An essay for the 2011 Undergraduate Awards (Ireland) Competition by Conor O'Donnell. Originally submitted for Law at Trinity College, University of Dublin, with lecturer Mr. Gerry Whyte in the category of Law
An essay for the 2011 Undergraduate Awards (Ireland) Competition by Conor O'Donnell. Originally submitted for Law at Trinity College, University of Dublin, with lecturer Mr. Gerry Whyte in the category of Law

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Published by: Undergraduate Awards on Aug 31, 2012
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08/25/2014

 
Legal Protection of Socio-Economic Rights in South AfricaIntroduction
South Africa is a nation that has undergone much change since the fall of theapartheid regime. The first fully representative elections were held in 1994 and this brought with it a complete change in the legal landscape of the country. A newConstitution was enacted in 1996
1
with a fundamental emphasis on the protection of human rights of all citizens. The dedication to human rights is reflected in thePreamble to the 1996 Constitution which acknowledges the troubled past of thecountry but at the same time strives to heal the past tensions and improve the lives of all those who live in South Africa
2
. Perhaps the most radical aspect of the Constitutionis the inclusion of a Bill of Rights which specifically protects various socio-economicrights such as the right to housing and the right to education
3
.Whilst other jurisdictions have also included socio-economic guarantees within their Constitutions, South Africa is unique in that socio-economic rights are directlyenforceable and are not merely directive principles
4
.In this piece I will attempt to examine the problems that can arise when socio-economic rights are included within the constitutional framework. In particular I willfocus on the important role the judiciary has played in enforcing socio-economicrights through a number of key Constitutional Court judgments. Moreover, I intend toevaluate the extent to which the government has fulfilled its duty in protecting socio-economic rights.
Development of socio-economic rights
The notion of affording protection to socio-economic rights first came to prominencethrough the Universal Declaration of Human Rights which was signed in 1948
5
. Thisdocument contained a host of economic and social rights including the right to work 
6
,the right to adequate health care
7
and the right to education
8
.These rights were givenfurther recognition with the signing of the International Covenant on Economic,
1
Constitution of the Republic of South Africa Act 108 of 1996.
2
Preamble to Constitution of the Republic of South Africa, 1996.
3
Ibid. at Section 26 and Section 28 .
4
Countries include among others Brazil, Ireland, and India.
5
Universal Declaration of Human Rights, 1949.
6
Ibid. at Article 23.
7
Ibid. at Article 24.
8
Ibid. at Article 25.
 
Social and Cultural Rights (IESCR) in 1966. This Covenant put economic and socialrights on an equal footing to civil and political rights
9
. It also outlined the premise of ‘progressive realisation’ which takes into consideration the fact that such rights maynot be fulfilled instantly but that states should endeavour to realise socio-economicrights over time and within the limits of their available resources
. The Covenant alsooutlines the fact that each right has a minimum obligation that must be adhered to by astate to show compliance with the Covenant.South Africa is not a signatory to the IECSR but the socio-economic provisionscontained in the 1996 Constitution are very much modelled on the text of theCovenant.
For example, the South African Constitution sets out that in the case of the right to housing and healthcare,
“the state must take reasonable legislative and other measures, within itsavailable resources, to achieve the progressive realisation of this right”
This underlines the positive obligation which socio-economic rights impose on thestate and this positive obligation is further emphasised in Section 7 of the Constitutionwhich proclaims that the state must, 
“respect, protect, promote and fulfil the rights in the Bills of Rights”.
Difficulties with socio economic rights
The main difficulty with socio-economic rights relates to their justiciability, that is tosay whether or not the courts are the correct forum in which to enforce such rights?It has been argued that due to the nature of socio-economic rights, in that they create positive obligations, they should be left to the political organs of the state toimplement as opposed to the judiciary
. Furthermore, decisions on socio-economicmatters often have financial implications for the government and there are those who
9
Preamble to International Covenant of Economic, Social and Cultural Rights, 1966.
10
Ibid. at Article 2.1.
11
Kristine Yigen, “Enforcing Social Justice: Economic and Social Rights in South Africa
(2000) 4
 International Journal on Human Rights
13.
12
Constitution of the Republic of South Africa 1996, Section 26(b), Section 27(b).
13
Ibid at Section 7.
14
Marius Pieterse, “Coming to Terms with Judicial Enforcement of Social Economic Rights
(2004)20
South African Journal on Human Rights
at 389.
 
would maintain that the judiciary are not well equipped to deal with such fiscalconsiderations. As Mureinik has pointed out,
“The judges…do not have a budget, and they are in any event not qualified toevaluate how much to spend, nor how much society can afford, nor what its priorities are, or ought to be.”
 
Yet it is easy to forget that judicial decisions on civil and political rights, which arenormally viewed as imposing negative obligations, will involve some sort of financial burden on the state. A further problem is the ability of the court to perform asupervisory function ensuring that socio-economic rights are being enforced. Another more radical theory which has been put forward by Albie Sachs
asserts that thegreatest problem is not with the ‘institutional legitimacy’ but with the ‘institutionalcapacity’ of the judiciary. He believes that because of the social class to which judgesinvariably belong; the perception is that they are more likely to hold conservativeviews and consequently look to favour the status quo
, therefore hindering any possible enforcement of socio-economic provisions in the Constitution.Yet notwithstanding such contentions, the Constitutional Court confirmed that socio-economic rights would be justiciable in South Africa in its First CertificationJudgment,
 Nevertheless, we are of the view that these rights are, at least to some extent, justiciable. As we have stated in the previous paragraph, many of the civil and  political rights entrenched in the NT will give rise to similar budgetaryimplications without compromising their justiciability. The fact that socio-economic rights will almost inevitably give rise to such implications does not  seem to us to be a bar to their justiciability.
15
Etienne Mureinik, “Beyond a Charter of Luxuries: Economic Rights in the Constitution
(1992) 8
SAJHR
at 465.
16
Former Judge of the Constitutional Court.
17
Albie Sachs,
“Judicial Enforcement of Socio-Economic Rights
”, (Law Society, 2005) at 9-10.
18
 
Certification of the Constitution of the Republic of South Africa, 1996, ex. Parte Chairperson of theConstitutional Assembly, 1996 
, [1996] (10) BCLR 1253 (CC) .

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