Social and Cultural Rights (IESCR) in 1966. This Covenant put economic and socialrights on an equal footing to civil and political rights
. 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
Preamble to International Covenant of Economic, Social and Cultural Rights, 1966.
Ibid. at Article 2.1.
Kristine Yigen, “Enforcing Social Justice: Economic and Social Rights in South Africa
International Journal on Human Rights
Constitution of the Republic of South Africa 1996, Section 26(b), Section 27(b).
Ibid at Section 7.
Marius Pieterse, “Coming to Terms with Judicial Enforcement of Social Economic Rights
South African Journal on Human Rights