Three Frames SAJHR 2015

SOCIAL RIGHTS AND
TRANSFORMATION IN SOUTH
AFRICA: THREE FRAMES
Sandra Liebenberg*
ABSTRACT
This article conceives of transformative constitutionalism as processes of constitutional
enactment, interpretation and enforcement which help bring about fundamental changes
to South Africa’s current unjust economic and social structures. Transformative
strategies seek to redress the underlying structures which generate patterns of material
deprivation and status hierarchies. Based on this understanding, the article analyses the
transformative potential of three ways in which social rights have been framed in law and
policy discourses in South Africa: (1) social citizenship; (2) equality; and (3) participation.
The concept of a frame is useful as it acts as an ‘interpretive lens’ which highlights certain
dimensions of legal responses to the complex, multi-faceted social problem of poverty. By
drawing explicit attention to how the meaning of rights is constructed, framing invites
reflection on what is included and excluded from the frame, and how this might shape
our understanding of the nature of social rights violations and transformative remedial
responses. Each frame is evaluated in terms of its strengths and limitations in stimulating
and supporting transformation in the sense described above. Strategies for strengthening
the transformative development of each frame are also identified.
Key words: socio-economic rights, transformation
I Introduction
In his celebrated article, Karl Klare characterises transformative
constitutionalism as a ‘long-term project of constitutional enactment,
interpretation and enforcement committed (not in isolation, of course, but
in a historical context of conductive political developments) to transforming
a country’s political and social institutions and power relationships in a
democratic, participatory and egalitarian direction’. It connotes ‘an enterprise
of inducing large-scale social change through non-violence political processes
grounded in law’.1 The fundamental purposes of the Constitution of the
Republic of South Africa, 1996 include a redistribution of socio-economic
* HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch Law Faculty. An earlier
version of this article was presented at a seminar organised by the Center for Interdisciplinary
Research (ZiF), University of Bieleveld titled Understanding Southern Welfare – The B(R)ICS
Countries (24–26 November 2014), and a subsequent version at the SAJHR Transformation
and the Courts Conference, University of the Witwatersrand (28–29 January 2015). I thank the
participants at these events, Katharine Young as well as two anonymous referees for helpful
comments. This article is based on research supported by the National Research Foundation
(NRF). Any opinion, findings, conclusions or recommendations in this article are those of the
author and therefore the NRF does not accept any liability in regard thereto.
1 K Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146–88.
446
social rights and transformation in south africa 447
resources2 as well as dismantling patterns of entrenched inequalities.3 Material

deprivation and status hierarchies prevent people from participating as equals
in social, economic, political and cultural life of our post-apartheid society.
In a very real sense the success of the post-apartheid constitutional project
depends on creating a just social and economic order.
Transformative constitutionalism implies fundamental changes to unjust
economic and social structures. In this sense it resonates with Nancy Fraser’s
concept of ‘transformative strategies’ which seek to bring about changes to the
underlying structures that generate patterns of material deprivation and status
hierarchies.4 In contrast, affirmative strategies ‘aim to correct inequitable
outcomes of social arrangements without disturbing the underlying social
structures that generate them’. The failure to redress the root causes of
5
poverty renders the social rights in our constitution vulnerable to continued

violation. A transformative approach to social rights would seek to achieve a
more equitable distribution of social and economic resources in society whilst
countering both existing status hierarchies (for example, on the grounds
of race, gender, disability etc) as well as the emergence of new patterns of
inclusion and exclusion.
Courts are of course institutionally limited in attempting to redress the root
causes of poverty. They are not the institution directly responsible for making
policy or advocating for social change. Nevertheless, they have a significant
role to play in inducing and supporting the kind of fundamental transformative
changes envisaged by the Constitution. They are constitutionally mandated to
determine whether social policies and programmes are consistent with the
Bill of Rights, and to provide ‘appropriate relief’ when infringements are
found.6 Moreover, as Danie Brand has argued, courts through the reasoning
2 The preamble of the Constitution refers to the objective of establishing a society based, amongst
others, social justice and improving the quality of life of citizens. The provisions in the Bill of
Rights concerning socio-economic rights and property envisage that material resources will be
distributed in a way that ensures ‘everyone’ has access to the relevant social services and assets.
On the redistributive thrust of the property clause (s 25) in the context of land reform, see JM
Pienaar Land Reform (2014) 167–91.
3 The equality clause in the Bill of Rights (s 9) most evidently seeks to prevent and prohibit forms
of unfair discrimination on a range of grounds, including race, gender, disability, religion, and
sexual orientation. Equality is defined in s 9(2) to include ‘the full and equal enjoyment of all
rights and freedoms’. The equality clause seeks to dismantle entrenched patterns of ‘group
disadvantage and harm’ (per O’Regan J in Brink v Kitshoff NO 1996 (4) SA 197 para 42) and to
‘re-imagine power relations within society’ (per Moseneke ACJ in South African Police Service
v Solidarity obo Barnard 2014 (6) SA 123 (CC) para 29).
4 N Fraser ‘Social Justice in the Age of Identity Politics: Redistribution, Recognition and
Participation’ in N Fraser & A Honneth Redistribution or Recognition: A Political-Philosophical
Exchange (2003) 7, 74.
5 As Fraser notes, the distinction is ‘not equivalent to reform versus revolution, nor to gradual
versus apocalyptic change. Rather, the nub of the contrast is the level at which injustice is
addressed: whereas affirmation targets end-state outcomes, transformation addresses root
causes’. Ibid.
6 Section 38 read with s 172.
448 (2015) 31 SAJHR
deployed in their judgments also play an important symbolic role in promoting

constitutional values and influencing public discourse on poverty.7
This article analyses the transformative potential of three ways in which
social rights have been framed in law and policy discourse in South Africa: (1)
social citizenship; (2) equality; and (3) participation. Each frame is evaluated
in terms of its strengths and limitations in stimulating and supporting
transformation in the sense described above. I indicate broadly the direction
in which the jurisprudential application of each frame could be developed so
as to strengthen its transformative possibilities.
The concept of a frame is useful as it acts as an ‘interpretive lens’ which
highlights certain dimensions of legal responses to the complex, multi-
faceted social problem of poverty. A frame can, as Katherine Young explains,
guide people ‘to see the world differently and to act according to that new
understanding’. By drawing explicit attention to how the meaning of rights
8
is constructed, framing invites reflection on what is included and excluded

from the frame, and how this might shape our understanding of the nature
of social rights violations and transformative remedial responses. Framing
is particularly important in relation to the symbolic role of socio-economic
adjudication identified by Brand. As César Rodríguez-Garavito has observed,
drawing on constructivist accounts of the relation between law and social
change,9 the impact of judgments extends beyond their direct material
effects to influence social and political perceptions and worldviews.10 This in
turn helps construct the political terrain on which subsequent struggles for
social change are waged. The nature of this terrain can either open up new
possibilities or close down spaces for policy reforms and public mobilisation
relating to a particular issue. Thus how courts frame questions of poverty
matters because it influences (at least partially) institutional and broader
public perceptions and responses to this phenomenon. This article is intended
as a contribution to understanding prevalent poverty frames in South African
social rights jurisprudence and their potential impact on transformative social
and economic change.
7 D Brand ‘The “Politics of Need Interpretation” and the Adjudication of Socio-economic Rights
Claims in South Africa’ in AJ van der Walt (ed) Theories of Social and Economic Justice (2005)
17, 24.
8 K Young ‘Redemptive and Rejectionist Frames: Framing Economic, Social and Cultural Rights
for Advocacy and Mobilization in the United States’ (2012) 4 Northeastern Univ LJ 323, 324.
9 P Bourdieu ‘The Force of Law: Towards a Sociology of the Juridical Field’ (1987) 38 Hastings
LJ 805; MW McCann Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization
(1994).
10 C Rodríguez-Garavito ‘Beyond the Courtroom: The Impact of Judicial Activism on
Socioeconomic Rights in Latin America’ (2011) Texas LR 1669, 1678. For an application and
adaption of Rodríguez-Garavito’s model for understanding the impacts of socio-economic
rights litigation, see J Dugard & M Langford ‘Art or Science? Synthesising Lessons from Public
Interest Litigation and the Dangers of Legal Determinism’ (2011) 27 SAJHR 39.
II Frame 1: Social Citizenship

(a) Introducing the frame
Historically social rights are associated with the growth of the modern
welfare state in response to the growing influence of market forces over the
distribution of the material necessities of human life.11 Gøsta Esping-Anderson
argues that the core idea of social rights is the de-commodification of human
material needs:
The outstanding criterion for social rights must be the degree to which they permit people to
make their living standards independent of pure market forces. It is in this sense that social
rights diminish citizens’ status as ‘commodities’.
12
In terms of this frame, entitlements which secure people’s livelihoods are

conferred on the basis of their status as citizens or, within a contemporary
human rights paradigm, their status as human beings. These entitlements
to the means of living are de-commodified in that they are not rendered
dependent on the vicissitudes of the market.13 The extent of social provisioning
which the state should be obligated to provide remains a contentious political
and philosophical issue.14 Social citizenship suggests provisioning beyond
survivalist benefits to encompass benefits that enable people to participate fully
in the political, economic, social and cultural life of a political community.15
The core ideal of this frame is that the state should guarantee a comprehensive
set of entitlements to income support and subsidised social services to those
under its jurisdiction, and that these entitlements should be insulated from
market forces.
How does this frame of social citizenship fare in terms of a transformative
strategy for securing a more just distribution of resources and the dismantling
of status hierarchies? According to Fraser, reliance on income transfers in
the liberal welfare state typically constitutes an affirmative, as opposed
to a transformative strategy. It seeks to increase the consumption share of
the disadvantaged through social assistance rights, whilst leaving intact
the underlying economic structure generating the need for such repeated
allocations.16 In essence it does not fundamentally transform the patterns of
ownership and income distribution in a capitalist market economy. Moreover,
such cash or in-kind transfers can also entrench status hierarchies in society,
provoking a ‘recognition backlash’.17 As Fraser explains:
11 On the evolution of the ‘market society’ and its impact on human and social life, see K Polanyi
The Great Transformation: The Political and Economic Origins of our Time (2002).
12 G Esping-Andersen The Three Worlds of Welfare Capitalism (1990) 3.
13 The seminal work deriving social rights from the concept of social citizenship is that of TH
Marshall Citizenship and Social Class (1959).
14 See Esping-Andersen (note 12 above) 18–19.
15 For an early argument in favour of constitutionalising a basic floor of social rights in the South
African Constitution in order to secure the minimum material conditions for participation in
social and political life, see N Haysom ‘Constitutionalism, Majoritarian Democracy and Socio-
economic Rights’ (1992) 8 SAJHR 451, 461–62.
16 Fraser (note 4 above) 74.
17 Ibid 76.
450 (2015) 31 SAJHR
In the liberal welfare state, for example, public assistance programs channel aid to the poor,
while leaving intact the deep structures that generate poverty; thus, they must make surface
reallocations again and again. The result is to mark the disadvantaged as inherently deficient
and insatiable, as always needing more and more. … Their net effect is to add the insult of
disrespect to the injury of deprivation.18
Nevertheless, as Fraser rightly observes, the distinction between affirmative

and transformative remedies is not absolute, but contextual. Under certain
conditions, affirmative strategies can have transformative effects – what she
terms, the via media of ‘nonreformist reforms’.19 If social citizenship rights in
the form of income transfers and basic social services are structured to provide
a reliable set of entitlements of a decent quality they can change the balance
of power between disadvantaged and economically privileged classes thereby
creating a conducive terrain for more fundamental reforms. Such entitlements
can provide the material and psychological security for disadvantaged groups
to organise to redress structural poverty and disadvantage. Through such
strategies of solidarity, the recognition harms associated with public assistance
can also be countered more effectively.
I turn now to consider to what extent the frame of social citizenship is
incorporated in South African policy, legislative and judicial approaches to
constitutionally entrenched social rights.
(b) Social citizenship: Policy and legislative measures

As noted above, the courts are not the sole interpreters of social rights, and
the constitutional duty to give effect to these rights is the responsibility of
all organs of state.20 In the post-apartheid period a number of legislative
and policy measures have been adopted giving effect to social rights either
through the introduction of new programmes or through expanding benefits
conferred on a racially discriminatory basis during the apartheid period. In
the context of the de-commodification of social needs, the most significant
programmes are non-contributory, means-tested social assistance cash
transfers targeted at particular categories of vulnerable groups,21 as well as a
basket of basic social services. The latter comprises free health-care services,
22
an emergency housing programme, and free basic municipal services such

23
18 Ibid 76–77.
19 Ibid 78–81.
20 Section 7(2) places an overarching duty on the state to ‘respect, protect, promote and fulfil’ the
rights in the Bill of Rights. Specifically in the context of the social rights in ss 26 & 27 the duty
to achieve the progressive realisation of the relevant rights is placed on the state through the
adoption of reasonable legislative and other measures (ss 26(2) & 27(2)). Many of the duties in
the Bill of Rights are also applicable to private actions: ss 8(2) read with (3) & 39(2).
21 Social Assistance Act 13 of 2004.
22 See s 3(1)(e) read with s 4 of The National Health Act 61 of 2003. For an analysis of the
shortcomings in the implementation of these provisions, see M Pieterse Can Rights Cure? The
Impact of Human Rights Litigation on South Africa’s Health System (2014) 42–46.
23 In response to the judgment of the Constitutional Court in Government of the Republic of South
Africa v Grootboom 2001 (1) SA 46 (CC) (Grootboom) government adopted an emergency
housing programme, titled ‘Housing assistance in emergency housing circumstances’: Chapter
12 of the National Housing Code enacted in terms of s 4 of the National Housing Act 107 of 1997.
as water, electricity, sanitation and refuse removal services.24 In terms of the

National Development Plan (NDP) government is committed to defining by
2030 a ‘social floor’ which aims to meet the basic needs of recipients so as to
break the cycle of poverty.25 However, these legislative and policy measures
for giving effect to social rights have not succeeded in providing access to a
comprehensive and reliable set of entitlements of a decent quality.
Although the extensive system of social grants in South Africa has
undoubtedly produced positive socio-economic benefits for beneficiaries and
their dependants,26 its impact on the underlying structural causes of poverty
remains limited. The social security system is premised on a residual model
where employment is regarded as the primary source of income with the
social assistance system catering for those who face various obstacles to
participation in the labour market. However, with stubbornly high levels of
structural unemployment, and little prospect of fundamental improvement
27
in formal employment prospects, this residual ‘safety nets’ model is clearly

inadequate.28 Thus the social security system does not cater for the large
24 This basket of free basic services is referred to in the NDP as the ‘social wage’ 359. For example,
according to national water regulations promulgated to give effect to s 3 of the Water Services Act
108 of 1997, a minimum standard of free basic water is prescribed consisting of 25 litres per person
per day or 6 kilolitres per household per month within 200 metres of a household. Regulations
Relating to Compulsory National Standards and Measures to Conserve Water, GN 22355 GG
Notice R509 (8 June 2001) published in terms of s 9 of the Water Services Act. For an analysis of
other free basic municipal services, see: Socio-Economic Rights Institute of South Africa (SERI)
Targeting the Poor? An Analysis of Free Basic Services and Municipal Indigent Policies in South
Africa (2014) <http://www.seri-sa.org/images/Targeting_the_Poor_Nov13.pdf>.
25 National Planning Commission National Development Plan: Vision for 2030 (2011) <http://www.
npconline.co.za/medialib/downloads/home/NPC%20National%20Development%20Plan%20
Vision%202030%20-lo-res.pdf> 363–64. According to the NDP, this social protection agenda
should be attained ‘through a combination of public and private provision of services’ 363.
26 M Samson et al (2004) The Social and Economic Impact of South Africa’s Social Security System
Report commissioned by the Department of Social Development, Economic Policy Research
Institute, Research Paper 37; D Budlender & I Woolard The Impact of the South African Child
Support and Old Age Grants on Children’s Schooling and Work (2006); M Leibbrant et al Trends
in South African Income Distribution and Poverty since the Fall of Apartheid (2010); World Bank
South Africa Economic Update: Fiscal Policy and Redistribution in an Unequal Society (2014)
<http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2014/10/30/00
0470435_20141030130616/Rendered/PDF/921670WP0P131400SAEU60for0web01029b.pdf>.
27 Unemployment rates (excluding discouraged work seekers) are in the vicinity of 25 per cent, and
particularly high (in the region of 50 per cent) amongst the youth. See StatsSA Poverty Trends in
South Africa: An Examination of Absolute Poverty between 2006 and 2011 (2014) Report 03-10-
06 <http://beta2.statssa.gov.za/publications/Report-03-10-06/Report-03-10-06March2014.pdf>;
see also StatsSA, Quarterly Labour Force Survey, P0211, 3rd Quarter 2014 <http://www.statssa.
gov.za/publications/statsdownload.asp?PPN=P0211&SCH=5935>.
28 Jeremy Seekings & Nicoli Nattrass have noted that the social assistance system in South Africa
was expanded primarily through deracialisation and parametric reforms (such as adjustments to
the age and means-test thresholds that restricted eligibility and the value of the benefits). It was,
however, not transformed and continues to reflect ‘a conception of desert that was similar to that
of “liberal” welfare regimes in the global North’. ‘Income Support through the Welfare State’ in J
Seekings & N Nattrass Policy, Politics and Poverty in South Africa (2015) 140. See also J Seekings
‘Deserving Individuals and Groups: The Post-apartheid State’s Justification of the Shape of South
Africa’s System of Social Assistance’ (2008) 68 Transformation 28. Michael Samson has described
South Africa’s social safety net as having ‘a very loose weave’. M Samson ‘The Social, Economic
and Fiscal Impact of Comprehensive Social Security Reform in South Africa’ (2002) 28 Social
Dynamics 69, 59.
452 (2015) 31 SAJHR
proportion of the population of able-bodied persons between the ages of 18

and 60 who are unable to find employment. One response to the inadequacies
in the social security system has been calls by civil society organisations and
the Congress of SA Trade Unions (COSATU) for the introduction of a basic
income grant (BIG).29 This proposal found favour in a government-appointed
commission of inquiry into a comprehensive social security system for
South Africa.30 However, a BIG has not been endorsed by cabinet and is not
currently part of government’s official policy plans for comprehensive social
security which remain vague and unspecified.31 The social security system,
particularly for the substantial proportion of the population without formal
employment, does not reflect the ideals of the social citizenship frame in
32
the sense of promoting social inclusion, solidarity and the ability of people to
participate fully in society.
In relation to free basic municipal services, local communities experience
multiple problems with the quality and implementation of the relevant
programmes.33 These problems detract from the potential of these programmes
to both alleviate poverty and to provide sustainable pathways out of poverty.
As Jackie Dugard notes, the divergence between the framework for basic
services and the practice thereof is closely related to the limitations of South
Africa’s macro-economic model which has failed to advance inclusive social
and economic development.34 She describes the impact of government’s
market-orientated model of service delivery as follows:
The consequential preoccupation with maximising profits from basic services has resulted
in inadequate extension of basic services and insufficient maintenance of infrastructure,
along with an overly technocratic approach to service delivery. It has also led to widespread
limitation and disconnection of existing services in poor urban areas, which has in turn rolled
back many of the gains made in connecting poor households to basic services’ grids in the
post-apartheid era.35
29 On this campaign, see B Goldblatt & S Rosa ‘Social Security Rights: Campaigns and Courts’ in
M Langford, B Cousins, J Dugard & T Madlingozi (eds) Socio-economic Rights in South Africa:
Symbols or Substance? (2014) 253, 266–68. For a constitutional argument in favour of a basic
income grant, see J Sinclair ‘Poverty: Giving Meaning to the Right to Social Assistance’ (2012)
23 Stellenbosch LR 191.
30 Report of the (Taylor) Committee of Inquiry into a Comprehensive System of Social Security for
South Africa (2002) <http://www.sarpn.org/CountryPovertyPapers/SouthAfrica/taylor/>.
31 The NDP proposals for social protection for the unemployed working age population are
premised primarily on labour market policies complemented by various dimensions of the social
wage. See NDP (note 25 above) 360–64.
32 For those in formal employment, social security coverage is provided through various private
contributory schemes – many of which are run or regulated by the state. See Seekings & Nattrass
(note 28 above).
33 For a detailed evaluation of these programmes, see SERI (note 24 above). On the systemic capacity
constraints of local government, see A Siddle & TA Koelble The Failure of Decentralisation in
South African Local Government: Complexity and Unanticipated Consequences (2012).
34 J Dugard ‘Urban Basic Services: Rights, Reality and Resistance’ in Langford et al (note 29
above) 275, 276.
35 Ibid.
Thus basic municipal services are only partially protected from market
exposure and commodication.36 The high levels of ‘service-delivery’ protests
throughout South Africa are largely a reaction to the intermittent, insecure
and poor quality of services delivered by local authorities.37 The systems of
social security and social services provision – whilst undoubtedly providing
an important bulwark against extreme poverty – are neither comprehensive
nor of sufficiently high quality to realise the objectives of the social citizenship
frame.
(c) Social citizenship: Jurisprudence

As noted above, although courts are not the sole interpreters of constitutional
rights, they are authoritative and influential generators of constitutional
meaning. I consider therefore to what extent the jurisprudence of the
Constitutional Court supports social citizenship through encouraging the
adoption of policies that guarantee a secure, comprehensive set of social
entitlements.
As is well known, in Grootboom38 as well as its subsequent decisions of
Minister of Health v Treatment Action Campaign,39 Nokotyana v Ekurhuleni
Metropolitan Municipality,40 and Mazibuko v City of Johannesburg,41 the
Constitutional Court rejected an interpretation of the social rights in ss 26
and 27 of the Constitution to impose a minimum core obligation on the state.42
The concept of minimum core obligations is based on the idea that each
individual should be secured a floor of social provisioning to secure their basic
human needs.43 The consistent rejection of minimum core type arguments is
36 Patrick Bond has pointed out the regressive effects of the tariff structure of basic municipal
services which has diluted the impact of the free basic allocation. See P Bond ‘Water Rights,
Commons and Advocacy Narratives’ (2013) 29 SAJHR 125, 143.
37 See K von Holdt ‘Insurgent Citizenship and Collective Violence: Analysis of Case Studies’ in
Von Holdt et al Insurgent Citizenship, Collective Violence and the Struggle for a Place in the New
South Africa: Eight Case Studies of Community Protest and Xenophobic Violence (2011).
38 Grootboom (note 23 above).
39 2002 (5) SA 721 (CC) (TAC).
40 2010 (4) BCLR 312 (CC) (Nokotyana).
41 2010 (4) SA 1 (CC) (Mazibuko).
42 The concept of minimum core obligations finds support in General Comments of the UN
Committee on Economic, Social and Cultural Rights (responsible for supervising States Parties
obligations under the International Covenant on Economic, Social and Cultural Rights, 1966). See,
for example, General Comment 3 (1990) The nature of States Parties obligations (art 2(1) of the
Covenant) UN doc E/1991/23 para 10; and General Comment 14 (2000) The right to the highest
attainable standard of health (art 12 of the Covenant) UN doc E/C.12/2000/4 paras 43 & 44.
43 For a sustained philosophical argument in favour of the adoption of the minimum core approach
to interpreting socio-economic rights, see D Bilchitz Poverty and Fundamental Rights: The
Justification and Enforcement of Socio-economic Rights (2007). Bilchitz argues that the
minimum core should secure a first threshold of ensuring individuals are not exposed to general
conditions that threaten their survival. The second threshold that socio-economic rights should
protect, according to Bilchitz, is to ensure the socio-economic conditions that are necessary
for the fulfilment of a wide range of purposes (188–89). For an analysis of the theoretical
justifications and strategic utility of various conceptions of the minimum core, see KG Young
‘The Minimum Core of Economic and Social Rights: A Concept in Search of Content’ (2008) 33
Yale J Int Law 113.
454 (2015) 31 SAJHR
indicative of its reluctance to assume a vanguard role in setting fixed standards

of social provisioning.44 This reluctance derives primarily from institutional
considerations sourced in the court’s understanding of its own role, legitimacy
and competencies.45
The court’s preferred approach is to induce the legislature and executive
to adopt legislation and policies to give effect to the social rights, and – if
called upon to do so – to review those programmes in terms of an overarching
reasonableness assessment.46 Reasonableness review in the context of socio-
economic rights is designed to allow the state a generous margin of policy
choice whilst reserving to the courts the power to intervene should these
choices not fall within the bounds of reasonableness.
47
In its jurisprudence the court has distilled certain factors which are indicative
of unreasonableness, warranting judicial intervention. A significant factor is
whether the government’s social programmes make provision for those in
desperate need. The latter component requires attention to urgent needs in
any government programme relating to social rights. Such a programme –
even though statistically successful in advancing overall access to the rights
– will not be deemed reasonable if it fails to treat each individual with ‘care
and concern’.48 Thus in Grootboom, the Constitutional Court found that the
state housing programme in the area of the Cape Metropolitan Council was
inconsistent with s 26 of the Constitution in that it did not cater for urgent
housing needs.49
Some of the dicta of the court, particularly in the Grootboom judgment, is
suggestive of a more expansive concept of social provisioning aligned to the
social citizenship frame. Thus the court noted in Grootboom that the right of
access to housing is entrenched in the Constitution ‘because we value human
beings and want to ensure that they are afforded their basic human needs’.50
It went on to add: ‘A society must seek to ensure that the basic necessities
of life are provided to all if it is to be a society based on human dignity and
44 The court has explicitly stated ‘The Constitution contemplates a restrained and focused role for
the courts … ’ TAC (note 39 above) para 38.
45 Mazibuko (note 41 above) para 61.
46 As synthesised by O’Regan J in Mazibuko (ibid): ‘Thus the positive obligations imposed upon
government by the social and economic rights in our Constitution will be enforced by courts
in at least the following ways. If government takes no steps to realise the rights, the courts
will require government to take steps. If government’s adopted measures are unreasonable, the
courts will similarly require that they be reviewed so as to meet the constitutional standard of
reasonableness.’ para 67.
47 Grootboom (note 23 above) para 41. Compare the similar wording adopted in art 8(4) of the
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
UN doc A/63/435. B Porter ‘Reasonableness of Article 8(4) – Adjudicating Claims from the
Margins’ (2009) 27 Nordic J of HR 39. For an analysis of the similarities and differences between
reasonableness review in administrative law and socio-economic rights review, see G Quinot
& S Liebenberg ‘Narrowing the Band: Reasonableness Review in Administrative Justice and
Socio-economic Rights Jurisprudence in South Africa’ (2011) 22 Stellenbosch LR 639.
48 Grootboom (note 23 above) para 44.
49 Ibid para 99.
50 Ibid para 44.
freedom.’51 However, the actual ratio of the judgment is formulated more

narrowly in terms of the responsibility of the state to ensure that urgent
and emergency needs are catered for through appropriate programmes. The
relevant programme must include reasonable measures ‘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’.52 This formulation is suggestive
of temporary emergency responses to social deprivation rather than the fuller
set of social entitlements envisaged by the social citizenship frame.
Subsequent jurisprudence has demonstrated the court’s reluctance to review
the adequacy or sufficiency of the benefits provided in terms of programmes
to give effect to social rights. Thus in Mazibuko, the Constitutional Court
53
dismissed the challenge to the sufficiency of the City of Johannesburg’s free

basic water provision of 6 kilolitres per household per month.54 It held that it
was ‘institutionally inappropriate for a court to determine precisely what the
achievement of any particular social and economic rights entails and what
steps government should take to ensure the progressive realisation of that
right’.55 The court ultimately concluded that it could not fault the City’s water
policies as the basic criteria of reasonableness review had been satisfied.56
Mazibuko illustrates the difficulty faced by impoverished groups in seeking
to challenge the constitutionality of alleged insufficiencies in the provision of
social services. Provided the state has a programme in place to cater for those
in desperate need, the relevant programme does not unreasonably exclude
groups from its ambit, and government displays a willingness to adapt its
policies,57 the court will not interfere.58
Nevertheless, it is possible that over time reasonableness review will evolve
to incorporate a firmer set of social citizenship entitlements. Signs of potentially
transformative developments are evident in the context of South African
evictions jurisprudence. Here the basic ratio of Grootboom that people should
not be left ‘without a roof over their heads’ has evolved into a relatively firm
principle that evictions of people from their homes should not be ordered by
a court without a guarantee of at least temporary alternative accommodation
51 Ibid.
52 Ibid para 99. Order paras (b) & (c).
53 Note 41 above.
54 Regulations relating to compulsory national standards and measures to conserve water, GN
22355 GG Notice R509 (8 June 2001) published in terms of s 9 of the Water Services Act 108
of 1997. The 6 kilolitres per household is calculated on the basis of an allocation of 25 litres per
person per day for a household comprising eight persons.
55 Mazibuko (note 41 above) para 61.
56 Ibid para 67 read with paras 159–69.
57 A weighty factor in favour of the City in the reasonableness assessment was its adoption during
the course of the litigation of an indigency policy, providing an additional 4 kilolitres of water
per month to households that registered as indigent. This brought the total household allowance
for this group to 10 kilolitres of water. Mazibuko (ibid) paras 90–97. See notes 68–71 below and
accompanying text regarding the residents’ arguments in relation to the indigency register.
58 See Mazibuko (ibid) para 67.
456 (2015) 31 SAJHR
for those that face homelessness as a consequence of the eviction.59 However,

in its current form temporary alternative accommodation is often located far
away from community networks and livelihood opportunities, and residents
spend prolonged periods there in situations of insecurity and uncertainty.60
Even in well-resourced metropolitan areas, emergency accommodation is
plagued with problems of inadequate planning and implementation. There
are signs of the courts adopting a more robust stance in protecting both
the basic entitlement to alternative accommodation and in developing its
substantive content. Thus in City of Johannesburg Metropolitan Municipality
v Blue Moonlight Properties,61 the Constitutional Court rejected the City
of Johannesburg’s argument that it was not obliged to provide temporary
alternative accommodation for persons evicted by private landowners
(as opposed to public authorities), and who were facing homelessness as a
result. It also specifically ordered that the City provide temporary alternative
accommodation to occupiers of the relevant building ‘in a location as near
as possible to where the property is situated’. There have been a number of
62
High Court orders over a period of two years in an attempt to get the City to
comply with its obligations to provide alternative accommodation to evicted
occupiers in the wake of the Blue Moonlight judgment.63
Recently, aspects of the City of Johannesburg’s outsourced managed care
model for providing temporary alternative accommodation for some evicted
residents has been declared unconstitutional.64 Specifically, the High Court
held that rules imposed on residents in the shelter run by the Metro Evangelical
59 See: Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 454
(CC); City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty)
Ltd 2012 (2) SA 104 (CC) (Blue Moonlight); Occupiers of Skurweplaas 353 JR v PPC Aggregate
Quarries (Pty) Ltd 2012 (4) BCLR 382 (CC); Occupiers of Portion R25 of the Farm Mooiplaats
355 JR v Golden Thread Ltd 2012 (2) SA 337 (CC). See further S Wilson ‘Breaking the Tie:
Evictions from Private Land, Homelessness and a New Normality’ (2009) 126 SALJ 270; S
Liebenberg Socio-economic Rights: Adjudication under a Transformative Constitution (2010)
chapter 6; G Muller ‘On Considering Alternative Accommodation and the Rights and Needs of
Vulnerable People’ (2014) 30 SAJHR 41.
60 M Huchzermeyer Cities with Slums: From Informal Settlement Eradication to a Right to the
City in Africa (2011) 133–38; M Strauss & S Liebenberg ‘Contested Spaces: Housing Rights and
Evictions Law In Post-apartheid South Africa’ (2014) 13 Planning Theory 428. On the problems
experienced in relation to the formal Emergency Housing Programme in terms of Chapter 12
of the Housing Act, and the more informal temporary relocation areas (TRA’s) or transit areas,
see K Tissington A Resource Guide to Housing in South Africa 1994–2010: Legislation, Policy,
Programmes and Practice (2011) 94–96; Housing Development Agency Implementation of
Emergency Housing: Case Studies (2012) <http://www.thehda.co.za/uploads/images/HDA_
Implementating_Emergency_Housing_Case_Studies.pdf>. For an instructive recent account
of government relocations in Gauteng, see BC Simelani ‘Government relocations: One more
losing battle for shack dwellers’ Daily Maverick (30 October 2014) <http://www.dailymaverick.
co.za/article/2014-10-30-government-relocations-one-more-losing-battle-for-shack-dwellers/#.
VFN9j_mUd8E>.
61 Blue Moonlight (note 59 above).
62 Ibid para 104. Order para (e)(iv).
63 See, for example, the latest judgment in Hlophe v City of Johannesburg Metropolitan Municipality
2013 (4) SA 212 (GSJ). This judgment was appealed to the Supreme Court of Appeal (SCA): see
City of Johannesburg Metropolitan Municipality v Hlope [2015] 2 All SA 251 (SCA).
64 Dladla v City of Johannesburg Metropolitan Municipality 2014 (6) SA 516 (GJ).
Services requiring gender segregation of married couples, and a compulsory

day-time lock out for residents violated the rights to human dignity, privacy
and security of the person.65
While the court has not carved out a clear set of entitlements guaranteeing
access to social rights for all, developments in the sphere of housing rights
jurisprudence suggests that stronger, more specific entitlements may emerge
in time. Given the court’s preferred model of review for positive social rights
claims, the nature of this evolution is likely to be incremental through the
application of reasonableness review to various factual contexts.66 As Dugard
notes, the process for communities and public interest lawyers in constructing
and enforcing such entitlements through incremental litigation is a ‘lengthy,
convoluted and expensive effort’. By carving out a secure set of entitlements
67
– as has occurred with the evolution since the handing down of the Grootboom
judgment of an entitlement to alternative accommodation for those facing
homelessness – the jurisprudence can help shift public perceptions that basic
social needs should be left to the vicissitudes of market forces. The courts play
a significant role in this context in framing unmet social needs as a human
rights concern and fundamental public responsibility.
(d) Transformation and the social citizenship frame

The social citizenship frame is limited in its ability to focus directly on the
underlying structural causes of socio-economic deprivations. Its emphasis
is on securing rights which ameliorate the consequences of resource
misdistributions. Moreover, such rights can provoke stigmatising responses
to the recipients of social benefits thereby creating status hierarchies between
wealthy and impoverished classes, and amongst the poor between groups
perceived to be ‘deserving’ and ‘underserving’. There is certainly evidence of
this in the South African context. For example, in the context of the Mazibuko
case, only approximately one-fifth of eligible households were registered on
the City’s Indigency Register, which qualified households who registered and
passed a means test to an additional allocation of 4 kilolitres per household per
month of free water (over and above the 6 kilolitres free allocation).68 Evidence
in the case suggested that the under-inclusiveness of the register was largely
due to the fact that residents experienced registering as indigent demeaning.69
While the court acknowledged the dilemmas associated with the provision of
means-tested versus universal benefits, it held that the City’s policy could not
65 For a detailed analysis of these developments, see S Wilson ‘Curing the Poor: State Housing
Policy in Johannesburg after Blue Moonlight’ (2012) 5 Constitutional Court Review 279.
66 On the evolution of health entitlements through jurisprudence in South Africa, see Pieterse (note
22 above) 59–78.
67 J Dugard ‘Beyond Blue Moonlight: The Implications of Judicial Avoidance in Relation to the
Provision of Alternative Housing’ (2012) 5 CCR 265, 278.
68 Mazibuko (note 41 above) paras 92 & 93.
69 Ibid paras 98–102.
458 (2015) 31 SAJHR
be regarded as constitutionally unreasonable.70 Studies have also shown how

recipients of the child support grant face public stigma and stereotyping.71
Furthermore, the concept of ‘social citizenship’ may suggest that social
rights should be allocated on the basis of citizenship understood in the sense
of a person’s formal nationality status.72 Such a reading would be at odds with
the formulation of ss 26 and 27 which accord these rights to ‘everyone’ as
opposed, for example, to the political rights in the Bill of Rights accorded
only to ‘citizens’.73 However, at a more fundamental level the frame of ‘social
citizenship’ expands the concept of membership of a political community to
incorporate the social and economic preconditions for effective participation
in that community. Such membership and participation does not depend on
a person’s nationality, but accrues by virtue of the fact of living within a
political community which has the power – for better or worse – to affect
their social and economic wellbeing. Such a reading would be consistent with
the more empowering discourses of citizenship used by social movements
claiming rights to the city and other social and political spaces.
74
Despite the limitations of affirmative strategies, they have the potential to

lay the foundation for transformative changes. However, this depends on the
extent to which they create secure entitlements in a form which is empowering
to impoverished groups, and builds their capacities to pursue deeper reforms.
In this form social citizenship entitlements would constitute the kind of ‘non-
reformist reforms’ contemplated by Fraser.75 As I have sought to demonstrate
in this part – although there are signs that a more robust set of social citizenship
entitlements could emerge over time – currently neither political nor judicial
interpretations of social rights in South Africa lay a comprehensive, secure
foundation for social and economic transformation.76
I proceed to explore two further ways in which social rights have been
framed to assess their contribution to the quest for a transformative trajectory.
70 In the words of the court: ‘Means-testing may not be a perfect methodology because it is under-
inclusive …, and it may be that those who apply for means-tested benefits dislike doing so, but
these considerations must yield to the indisputably laudable purpose served by means-testing.’
Ibid para 101.
71 See G Wright, M Noble, P Ntshongwana, D Neves & H Barnes The Role of Social Security in
Respecting and Protecting Dignity of Lone Mothers in South Africa: Final Report (2014) 232–33.
72 I am grateful to David Bilchitz for raising this potential objection to the ‘social citizenship frame’
as a question at the SAJHR conference.
73 Section 19. For a nuanced account of alternative conceptions of citizenship within the
Constitutional Court’s dignity-based jurisprudence, see H Botha ‘The Rights of Foreigners:
Dignity, Citizenship and the Right to have Rights’ (2013) 130 SALJ 837.
74 See in this context B Davy & S Pellissery ‘The Citizenship Promise (Un)fulfilled: The Right to
Housing in Informal Settings’ (2013) 22 Int J of Social Welfare 68 drawing on J Hoston Insurgent
Citizenship: Disjunctions of Democracy and Modernity in Brazil (2009).
75 See notes 16–19 above and accompanying text.
76 The NDP (note 25 above) 355 recognises that in addition to its protective and preventive functions
social protection has ‘promotive’, ‘transformative’, ‘developmental and generative’ functions.
However, the NDP is short on the detail of how these transformative functions will be achieved.
III Frame 2: Equality

Equality frames in respect of socio-economic rights tend to be both diagnostic
and remedial in their orientation. They view inequality as a primary generator
of socio-economic deprivations and view equality-promoting policies and
legal remedies as an effective response in redressing resource disparities.
With regard to inequality as an underlying generator of deprivation, empirical
research has demonstrated that countries that have the highest levels of
inequality fare worst in terms of quality of life indicators ranging from
life expectancy, crime levels, literacy and health. Resource equalities also
77
undermine fair and equal political participation thereby reinforcing systemic

distributive biases against disadvantaged classes.78 Octavio Ferraz has recently
argued that the real obstacle with regard to realising social rights both within
and across countries is not absolute resource scarcity, but rather unequal
resource distributions. He accordingly posits that the focus of social rights
should be on equalising opportunities for people to satisfy their basic needs.79
With regard to the remedial dimension, there is a growing body of literature
seeking to demonstrate the utility of an equality frame in redressing social
rights violations.80 Equality legislation and policies are commonly pursued
in democratic countries, increasingly applying across a range of spheres.81
Moreover, equality and non-discrimination appear to be a more comfortable
paradigm for courts to adjudicate cases with resource allocation implications.
Courts are familiar with non-discrimination as a normative principle, and a
solid body of jurisprudence exists to guide judicial decision-making within
this frame. Geoff Budlender recently highlighted how an equality frame could
assist in the adjudication of social rights:
For reasons of separation of powers, judges find it understandably difficult to answer the
question: ‘How much does the Constitution oblige the State to provide?’ Some doubt that
77 R Wilkinson & K Pickett The Spirit Level: Why Equality is Better for Everyone (2010). See also
Amartya Sen’s account of how relative poverty can yield a capabilities deficit: A Sen ‘Poor,
Relatively Speaking’ (1983) 35 Oxford Economic Papers 153; A Sen The Idea of Justice (2009)
256.
78 See M Jackman ‘Constitutional Contact with the Disparities in the World: Poverty as a Prohibited
Ground of Discrimination Under the Canadian Charter and Human Rights Law’ (1994) 2 Review
of Constitutional Studies 76, 95–100; J Stiglitz The Price of Inequality (2012) 118–45; M Gilens
& BI Page ‘Testing Theories of American Politics: Elites, Interest Groups and Average Citizens’
(2014) 12 Perspectives on Politics 564.
79 OLM Ferraz ‘Inequality, not Insufficiency: Making Social Rights Real in a World of Plenty’
(2014) 12 Equal Rights Review 77, 91.
80 See, for example: P de Vos ‘Grootboom, the Right of Access to Adequate Housing and
Substantive Equality as Contextual Fairness’ (2001) 17 SAJHR 258; S Liebenberg & B Goldblatt
‘The Interrelationship between Equality and Socio-economic Rights under South Africa’s
Transformative Constitution’ (2007) 23 SAJHR 335; S Fredman ‘The Potential and Limits to an
Equal Rights Paradigm in Addressing Poverty’ (2011) 22 Stellenbosch LR 566. For a set of essays
examining various socio-economic rights from a gender equality perspective, see B Goldblatt &
K McLean (eds) Women’s Social and Economic Rights: Developments in South Africa (2011).
81 See, for example, B Hepple Equality: The Legal Framework 2 ed (2014) 135–54 in relation to
English equality legislation.
460 (2015) 31 SAJHR
this is a question which they can answer at all. The equality right offers a way through
this dilemma. It offers a simple answer to the question ‘how much?’ – ‘as much as other
people receive’. The State may equalise either upward or downward (assuming that this is
permissible), but it must equalise. When this happens, questions of resource allocation are
left to those who have been elected to make those decisions.82
In addition to its diagnostic and remedial virtues, equality also enjoys strong
political support, particularly within the South African context given the
legacy of systemic racial discrimination in the allocation of socio-economic
benefits and assets. Given the historical legacy of colonialism and apartheid,
Africans are disproportionately affected by poverty and fare worse in terms of
a range of socio-economic indicators. According to Statistics South Africa by
2011, 54 per cent of the black African population were living under the upper-
bound poverty line compared to 27.6 per cent of the coloured population, 3.4
per cent of Indian/Asian population, and 0.6 per cent of the white population.83
(b) The equality frame: Constitutional, legislative and judicial

interpretations
The text and ethos of the South Africa Constitution suggests a close
interrelationship between equality and socio-economic rights.84 Equality is
not only a foundational value to be promoted, along with human dignity and
freedom, in the interpretation of all rights in the Bill of Rights,85 it is also an
enforceable right entrenched in s 9 of the Bill of Rights. Equality is defined
in s 9 to include ‘the full and equal enjoyment of all rights and freedoms’.86
In addition to a general guarantee of equality before the law and the right to
equal protection and benefit of the law,87 a permissive clause in respect of
affirmative action measures,88 s 9 incorporates a prohibition against unfair
discrimination on an open list of prohibited grounds of discrimination.89 The
latter prohibition is binding on both public and private actors.90
The Promotion of Equality and Prohibition of Unfair Discrimination Act
4 of 2000 (PEPUDA) has been enacted to give effect to this right as required
82 G Budlender ‘20 Years of Democracy: The State of Human Rights in South Africa’ (2014) 3
Stellenbosch LR 440, 443–44.
83 Poverty Trends in South Africa (note 27 above) 27–28.
84 Constitution s 1(a) refers to ‘human dignity, the achievement of equality, and the advancement of
human rights and freedoms’ as amongst South Africa’s founding constitutional values.
85 Section 39(2).
86 Section 9(2).
87 Section 9(1).
88 Section 9(2) reads: ‘Equality includes the full and equal enjoyment of all rights and freedoms.
To promote the achievement of equality, legislative and other measures designed to protect
or advance persons, or categories of persons, disadvantaged by unfair discrimination may be
taken.’
89 Sections 9(3) & (4) read with (5).
90 Thus while s 9(3) prohibits unfair discrimination by the state, s 9(4) extends the prohibition to
private persons.
by s 9(4) of the Constitution.91 The preamble, definition of prohibited grounds

of discrimination, guiding principles, and a number of other provisions of
the PEPUDA92 indicate that its fundamental objective is to redress systemic
inequalities in a range of social spheres. Significantly, the PEPUDA
incorporates a directive principle recognising the possibility of unfair
discrimination on the ground of ‘socio-economic status’ which is defined in
the Act to include ‘a social or economic condition or perceived condition of a
person who is disadvantaged by poverty, low-employment status or lack of or
low-level educational qualifications’.93 In addition to creating a mechanism for
adjudicating unfair discrimination claims, the Act also imposes far-reaching
positive duties on public and private organisations to promote equality.
94
The Constitutional Court has also explicitly recognised the close

interrelation between socio-economic rights and the achievement of equality
in society. Thus in Grootboom it held that socio-economic rights are ‘key to
the advancement of race and gender equality and the evolution of a society in
which men and women are equally able to achieve their full potential’.95 In its
subsequent judgment in Khosa v Minister of Social Development; Mahlaule
v Minister of Social Development,96 the Constitutional Court held that the
provisions in the Social Assistance Act, 1992, which restricted eligibility to
social grants to citizens, thereby excluding the applicants who were permanent
residents, was unconstitutional. The restriction was inconsistent both with
the right of ‘everyone’ to have access to social security (including social
assistance if they are unable to support themselves and their dependants),97
as well as the prohibition on unfair discrimination on grounds of citizenship
in terms of s 9(3). The interconnection between society’s distributive choices
and poor people’s equal citizenship was underscored by Mokgoro J when she
observed that ‘decisions about the allocation of public benefits represent the
extent to which poor people are treated as equal members of society’.98
Although this case could arguably have been decided solely on the basis
of s 9, the overlap between equality rights and a social right, triggered a
higher standard of scrutiny than traditionally applied under reasonableness
review. This standard approximates a proportionality analysis in that the
court held that the least rights restricting policy option was to incorporate
91 In accordance with subsidiarity principles, constitutional challenges based on rights to equality

and non-discrimination – except in employment relationships where the Employment Equity Act
55 of 1998 applies – must be brought in terms of this Act unless the Act itself is challenged as
unconstitutional.
92 See, for example: preamble, ss 1, 4(2), 7–9 & 29 read with the schedule to the Act containing an
‘illustrative list of unfair practices in certain sectors’.
93 Section 34 read with s 1.
94 Sections 24–27.
95 Grootboom (note 23 above) para 23.
96 2004 (6) SA 505 (CC) (Khosa).
97 The court held that the denial of social grants to permanent residents did not constitute a
reasonable measure as contemplated by s 27(1)(c) read with (2). Ibid paras 49 & 82.
98 Ibid para 74.
462 (2015) 31 SAJHR
permanent residents in the social assistance legislative scheme.99 The range of

constitutionally permitted policy choices was thus substantially narrowed.100
(c) Transformation and the equality frame

The advantage of an equality frame in relation to social rights is that it
draws attention to how socio-economic deprivations are intimately related to
structural patterns of unequal resource distributions and status hierarchies.
As noted above, in the South African context the link between poverty and
inequality has a strong racial dimension in that the vast majority of the poor
are black persons who continue to bear the brunt of the colonial and apartheid
system. Thus Geoff Budlender has argued, ‘[i]n most cases, it is not difficult
to demonstrate that unequal access to benefits and facilities has a racial basis,
whether directly or indirectly’.
101
However, there are also limitations associated with the equality frame in the
context of transformative change. First, David Bilchitz argues that it conflates
the normative substance of social rights with the question of the groups
entitled to claim the relative benefits.102 Equality is a potentially limitless
concept and it is necessary to define a clear sphere for its application.103 In
the context of social rights, this implies according content to social rights
independent of the relative benefits enjoyed by others. From the perspective of
transformation, the implications of this argument are that an equality frame
is too vague and indeterminate to provide a clear basis for challenging socio-
economic deprivation.
I have argued, however, that a substantively developed concept of equality is
capable of providing normative guidelines, particularly within a multi-factor
review standard such as reasonableness review.104 Giving the political and
economic salience of inequality in generating poverty, substantive equality
should constitute an important (though not exclusive) value in developing both
the normative purposes of social rights and indicators for their progressive
realisation. Redressing inequality is an integral component of a transformative
vision for social rights, and should therefore not be dismissed as too vague
to play a meaningful role in developing a more substantive standard of
reasonableness review.
The above analysis suggests that equality could play a more significant
role in the reasonableness review standard applied to the positive duties
imposed by socio-economic rights. However, it will be more challenging to
seek redress for socio-economic disadvantage through a direct reliance on the
equality rights enshrined in s 9 of the Constitution and legislation enacted to
99 See the analysis by D Brand ‘Introduction to Socio-economic Rights in the South African
Constitution’ in D Brand & C Heyns (eds) Socio-economic Rights in South Africa (2005) 51.
100 See Quinot & Liebenberg (note 47 above) 639, 650–51.
101 Budlender (note 82 above) 442.
102 Bilchitz (note 43 above) 166–73.
103 Ibid 169.
104 S Liebenberg ‘Towards an Equality-promoting Interpretation of Socio-economic Rights in South
Africa: Insights from the Egalitarian Liberal Tradition’ (2015) 132 SALJ 411.
give effect to this right. The legal record thus far in South Africa regarding the use
of equality rights to address socio-economic disadvantage is unpromising. This is
so whether the legal challenge is framed in terms of indirect racial discrimination
or direct discrimination on the grounds of socio-economic status.
The difficulties of proving indirect racial discrimination in the context of
service delivery are well illustrated by the Mazibuko case. The Constitutional
Court rejected an unfair discrimination challenge alleging that the imposition
of pre-paid water meters discriminated unfairly between poor black residents
in Phiri, and the wealthy residents of former white group areas.105 The latter
were given the option to have their water metered through a credit system
that allows a period of grace to pay for water already used and incorporates
procedural safeguards such as an opportunity to make representations to the
local authority prior to the cut-off of their water supply. In contrast, the pre-
payment water meter brings about an automatic disconnection of a water supply
if no additional water credits are purchased and loaded on the meter. The basis
on which the court rejected this challenge was that it was not convinced that
the relevant water policy was in fact disadvantageous to the residents on the
pre-payment water meter system as compared to those on the credit system.
The latter were charged higher tariffs for water, and faced sanctions such
as the charging of interest on arrear amounts and listing on a credit bureau
as a defaulter. It seems indisputable, however, that these consequences are
106
not as severe as a poor household having their water supply cut off because
they cannot afford to purchase additional credits to load on the pre-paid water
meter. The evidence was that the free basic water-supply of poor households
was exhausted, and their water disconnected, approximately halfway through
the month.107 This imperilled the life and health of Phiri residents as opposed
to the mainly economic consequences visited by non-paying residents in the
areas subject to the credit system.
In circumstances such as these where social policy creates a complex set of
benefits and burdens, it is difficult to persuade a court that the overall impact
of the policy is discriminatory against the poor, particularly when compared
to the advantages secured through the superior purchasing power of wealthier
households. The latter type of advantage is perceived as the ‘natural’ outcome of
market forces as opposed to a consequence of social policy choices. Moreover,
using race as a proxy for poverty could prove to be limited strategy in the longer
term where the primary harm is socio-economic inequality, particularly if the
overlap between race and poverty becomes less stark over time.
A further difficulty with an equality frame is that a superficial understanding
of equality as equal treatment would suggest that inequalities in social benefits
can be remedied by levelling down to the lower benefit thereby creating equal
105 Mazibuko (note 41 above) paras 148–57. Compare the High Court judgment in response to the
equality argument: Mazibuko v City of Johannesburg (Centre on Housing Rights and Evictions
as amicus curiae) [2008] 4 All SA 471 (W) paras 151–56.
106 Mazibuko (note 41 above) paras 152–56.
107 See the analysis of the impacts of the free basic water policy and pre-payment water meter system
in the judgment of the High Court (note 105 above) paras 84, 159–60 & 169–79.
464 (2015) 31 SAJHR
treatment. However, this ‘equality of the graveyard’108 approach is less likely

in the South African context because of the courts’ endorsement of substantive
equality. Rather than requiring strict equal treatment, the latter seeks to
encourage measures that dismantle systemic disadvantage and promote equal
outcomes for vulnerable groups.109 Moreover, the obligation of ‘progressive
realisation’ in the social rights clauses in ss 26(2) and 27(2) would suggest that
benefits should rather be improved or ‘levelled up’ rather than down.110
Finally, the available legislative and judicial tools for redressing inequality
have historically been designed to redress inequalities associated with
discrete identity groups, for example, discrimination on the basis of race,
gender, disability, religion etc. They are not tailored to redress inequalities
in people’s access to economic resources and social services which arise
from the operation of the market. Although the South African legislature
111 112
and the courts have developed relatively sophisticated principles for limiting
property rights in order to protect housing rights,113 they have been timid in
seeking to mitigate the unequal bargaining power in the area of contract law.114
Moreover, despite the provisions in legislation such as the PEPUDA115 creating
the possibility of challenging discriminatory practices on the grounds of
socio-economic status, to date there have been no successful legal challenges
based on this ground.116 Applying an equality frame does not automatically
resolve the difficulties of separation of powers and polycentricity which arise
when courts make decisions with far-reaching distributive implications.
108 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 para
77 citing Lamer CJC in Schachter v Canada (1992) 93 DLR (4th) 1, 15g.
109 See, for example, Minister of Finance v Van Heerden 2004 (6) SA 121 (CC); South African Police
Service (note 3 above) para 29; C Albertyn ‘Substantive Equality and Transformation in South
Africa’ (2007) 23 SAJHR 253.
110 See in this regard Budlender (note 82 above) 443–44.
111 See the discussion by Fredman (note 80 above) 566, 581–84.
112 See, for example, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998 creating procedural and substantive protection for unlawful occupiers against the
eviction from their homes.
113 See AJ van der Walt Property in the Margins (2009); Liebenberg (note 59 above) chapter 6;
Wilson (note 59 above).
114 DM Davis ‘Developing the Common Law of Contract in the Light of Poverty and Illiteracy: The
Challenge of the Constitution’ (2011) 22 Stellenbosch LR 845; S Liebenberg ‘Socio-economic
Rights Beyond the Public-Private Law Divide’ in Langford et al (note 29 above) 63, 81–86. For
an account of the ineffectiveness of equality legislation such as the Employment Equity Act 55
of 1998 in addressing current manifestations of workplace inequality, see J Theron ‘Prisoners of
a Paradigm: Labour Broking, the “New Services” and Non-Standard Employment’ (2012) Acta
Juridica 58.
115 Note 91 above and accompanying text.
116 ‘Socio-economic status’ as a prohibited ground of discrimination in terms of the PEPUDA currently
has the status of a directive principle in terms of s 34 and has not yet been expressly incorporated
within the definition of prohibited grounds of discrimination in terms of s 1. Nevertheless, s 34(2)
of the PEPUDA provides that litigants are entitled to institute proceedings on any of the s 34
grounds in a court, and a court may determine that any of these grounds fall within the scope
of the definition of prohibited grounds in terms of s 1 (a) or (b). The latter part of the definition
would seem to be particularly well-suited to responding to socio-economic discrimination in that it
refers to grounds which cause or perpetuate ‘systemic disadvantage’, undermine human dignity, or
adversely affect ‘the equal enjoyment of a person’s rights and freedoms in a serious manner that is
comparable to discrimination on a ground in terms of paragraph (a)’.
The overwhelming reality in South Africa remains that wealth buys vastly
superior housing, health care, education, food, water and social security,
thereby entrenching deep patterns of social privilege and disadvantage. The
post-apartheid legal system, despite a myriad textual provisions in support
of socio-economic equality, has not been successfully mobilised to combat
these patterns. The major challenge presented by an equality framing of social
rights is designing policy, legislative and judicial tools that are able to respond
more effectively to market-based inequalities in access to these rights.
Such responses will require improving the quality and extent of publicly
provided services so that the gaps in service delivery between the public
and private sector is significantly narrowed. A complementary strategy
117
requires strengthening legislative and common law regulation of key private

institutions through which social rights are accessed such as banks, medical
aid schemes, insurance companies, and private schools and hospitals. The
purposes of such regulation should be to provide more effective protection
against discriminatory exclusion, and to equalise people’s bargaining power
when entering into contractual relations with such entities.
The equality frame is valuable as it focuses attention on the extent to which
gaining and maintaining access to social rights is a function of unequal power
relations in the broader political economy of society. Of course, if equality
is only understood in a limited formal equality sense, then this framing
will hold out a facile promise of equality whilst obscuring the structural
foundations of socio-economic inequality. But even if equality is understood
in a more substantive socio-economic sense, there is still much work to be
done in designing effective legal strategies to promote transformative socio-
economic change through utilising equality tools. A starting point would
be for litigants and the courts to integrate a more contextual analysis of the
impact of poverty in creating systemic patterns of socio-economic inclusion
and exclusion. These patterns of inequality are a major underlying cause of
persistent inter-generational poverty, and a transformative jurisprudence on
socio-economic rights would seek to develop the equality frame to be more
responsive to these social realities. As argued above, the extent to which both
the state and private actors’ conduct and omissions undermine equal access to
socio-economic rights should be a factor in the reasonableness assessment in
terms of ss 26(2) and 27(2). Moreover, a deeper understanding of poverty as a
ground of systemic inequality should be reflected in the courts’ interpretation
of all phases of equality jurisprudence such as the determination of prohibited
grounds of discrimination,118 the test for unfair discrimination,119 the design of
positive restitutionary measures,120 and remedial responses.121
117 For example, see the objectives of the National Health Insurance Scheme.
118 PEPUDA s 1 read with s 34.
119 Ibid s 14.
120 Ibid s 14(1) read with chapter 5 (promotion of equality).
121 Ibid s 21.
466 (2015) 31 SAJHR
IV Frame 3: Participation

A participatory framing of social rights focuses attention on the role of rights
beneficiaries and social movements in developing the normative meaning
of social rights.122 Whilst not excluding the role of government institutions
and courts in giving substantive meaning to rights, it invites attention to the
various strategies through which the meaning of rights are constructed ‘from
below’.123 This frame emphasises the importance of beneficiaries and social
movements having opportunities to shape the meaning of rights in ways
which are responsive to their lived experiences of poverty. Such grounded
interpretations are more likely to be attuned to the need to transform the
underlying conditions perpetuating poverty and inequality.
By creating effective avenues for the voices of communities and social
movements to be heard in the processes through which social rights are
protected and implemented, the law creates space for transformative
interpretations of these rights to emerge. Such avenues include providing
notice and a fair hearing for those whose social benefits risk being terminated
or reduced as well as meaningful opportunities for participation in the design
and implementation of programmes to give effect to social rights. As described
below, both of these dimensions are reflected in South Africa’s social rights
jurisprudence, legislation and policy.
(b) Judicial and legislative interpretations

The theme of democratic participation as central to the Constitution’s
value-system has been underscored repeatedly by the Constitutional Court.
As expressed by Justices Froneman and Skweyiya, ‘[t]he importance of
participation in decisions affecting the rights and interests of people is a
general theme that runs throughout the Constitution. Its effect is felt in many
diverse institutions and processes’.124 Thus the court has underscored the
important of participation in legislative,125 executive126 and administrative
122 On the constitutive role of social movements in framing and re-framing meaning of rights, see
SG Tarrow Power in Movement: Social Movements and Contentious Politics (2011) 144–47;
KG Young Constituting Economic and Social Rights (2012) 223–55 (drawing on Robert Cover’s
concept of ‘jurisgenesis’: RM Cover ‘The Supreme Court, 1982 Term – Foreword: Nomos and
Narrative’ (1982) 97 Harvard LR 4); T Madlingozi ‘Post-apartheid Social Movements and Legal
Mobilisation’ in Langford et al (note 29 above) 92.
123 See, for example, the nuanced account by Stuart Scheingold of the complex interplay between
political mobilisation and rights-based strategies: SA Scheingold The Politics of Rights: Lawyers,
Public Policy and Political Change 2 ed (2011).
124 Head of Department, Department of Education, Free State Province v Welkom High School 2014
(2) SA 228 (CC) para 137 (Welkom High School).
125 See, for example, Doctors for Life International v Speaker of the National Assembly 2006 (6) SA
416 (CC).
126 See, for example, Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293
(CC).
processes.127 The legislature and executive have also enacted a range of

legislation and adopted various policies for promoting and enabling individual
and public participation in government decision-making. This includes the
Promotion of Administrative Justice Act 3 of 2000,128 the Municipal Systems
Act 32 of 2000,129 and the Framework for Strengthening Citizen-Government
Partnerships for Monitoring Frontline Service Delivery approved by cabinet
in August 2013.130 ‘Active citizenship’ is also a leitmotif running throughout
the NDP.131
In the context of social rights, the Constitutional Court’s embrace of
participatory democracy emerged initially in the context of disputes concerning
evictions. The court developed the doctrine of meaningful engagement as
a way of managing the complexities and tensions associated with the clash
of property rights, housing rights, as well as the enforcement of health and
safety legislation by local authorities. The doctrine has subsequently been
132
extended to the area of education rights.133 The court has held that in order to
be meaningful, engagement must entail structured interaction between local
authorities and communities, and must be characterised by good faith, respect
for the dignity and agency of poor people, transparency, record-keeping, and
civil society involvement.134
127 Minister of Health NO v New Clicks South Africa (Pty) Ltd (TAC as amici curiae) 2006 (2) SA
311 (CC).
128 See, for example, the provisions pertaining to procedural fairness in Act 3 of 2000 ss 3 & 4. For
an application of the principal of procedural fairness to municipal service delivery, see Joseph v
City of Johannesburg 2010 (4) SA 55 (CC).
129 See, for example, the provisions relating to community participation in local government in Act
32 of 2000 ss 16–22; and participation in integrated development planning ss 28–29.
130 Published by The Presidency: Department of Performance Monitoring and Evaluation http://www.
thepresidency-dpme.gov.za/keyfocusareas/cbmSite/CBM%20Documents/Framework%20
for%20Strengthening%20Chtitizen-Government%20Partnerships%20for%20Monitoring%20
Frontline%20Service%20Delivery.pdf.
131 Note 25 above, 37.
132 See, for example Port-Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC);
Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of
Johannesburg 2008 (3) SA 208 (CC) (Olivia Road); Residents of Joe Slovo Community (note 59
above); Schubart Park Residents Association v City of Tshwane Metropolitan Municipality 2013
(1) SA 323 (CC); Pheko v Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC).
133 See Governing Body of the Juma Musjid Primary School v Essay NO 2011 (8) BCLR; Welkom
High School (note 124 above); MEC for Education v Governing Body of the Rivonia Primary
School 2013 (6) SA 582 (CC).
134 See particularly Olivia Road (note 132 above) paras 14–22. For analyses of the meaningful
engagement jurisprudence, see B Ray ‘Proceduralisation’s Triumph and Engagement’s Promise in
Socio-economic Rights Litigation’ (2011) 27 SAJHR 107; S Liebenberg ‘Engaging the Paradoxes
of the Universal and Particular in Human Rights Adjudication: The Possibilities and Pitfalls
of “Meaningful Engagement”’ (2012) 12 AHRLJ 1; G Muller ‘Conceptualising “Meaningful
Engagement” as a Deliberative Democratic Partnership’ (2011) 22 Stellenbosch LR 742; S van
der Berg ‘Meaningful Engagement: Proceduralising Socio-economic Rights Further or Infusing
Administrative Law with Substance?’ (2013) 29 SAJHR 376; L Chenwi ‘Democratizing the
Socio-economic Rights Enforcement Process’ in HA García, K Klare & LA Williams (eds)
Social and Economic Rights in Theory and Practice: Critical Inquiries (2015) 178.
468 (2015) 31 SAJHR
(c) Transformation and the participatory frame

Framing social rights in terms of a right of people to participate in decisions
that have an impact on their socio-economic welfare can potentially
facilitate transformation in the following ways. First, it helps undermining
status hierarchies by recognising the dignity and agency of poor people
and their right to participate in decisions which impact on their lives.135
Second, giving people in a say prior to having their benefits terminated
or being evicted from their homes can provide much-needed mobilising
space to resist the pending deprivation and to press for suitable alternative
provision.136 Third, participatory structural reform processes can facilitate a
redistribution of resources by giving social movements and their supporters
(experts, non-governmental organisations (NGOs), public interest law-firms)
the institutional space to advocate for the social and economic needs of
their constituencies and communities.137 Through such participation their
interpretations of social rights can be legitimated and receive broader cultural
and political legitimacy. This in turn can create favourable circumstances for
building their organisations and to pursue further redistributive struggles.
However, this transformative potential of the participatory frame may
also prove to be elusive in practice. Without specific measures in place to
help equalise the power differentials between community groups and better
resourced public and private institutions, the risk is high that the outcomes of
engagement processes will reflect the interests of the more powerful parties.
Although collective action and solidarity may contribute to minimising
bargaining disparities,138 this depends on a high degree of organisation and
mobilisation.
A further danger is that participation degenerates into empty proceduralism
instead of constituting empowering processes for realising the objectives of
social rights through genuine dialogue and good faith experimentation. This
is likely to occur in the context of the ‘invited spaces’ of institutionalised
participatory fora where there is little tolerance for contentious politics and
135 See Port-Elizabeth Municipality (note 132 above) para 41; Olivia Road (note 132 above) para 56;
Schubart Park (note 132 above) para 50.
136 See, for example, Stuart Wilson’s description of how the residents were able to negotiate for
suitable alternative accommodation in the inner city through the ‘meaningful engagement’
process ordered by the Constitutional Court in Olivia Road (note 132 above): S Wilson ‘Planning
for Inclusion in South Africa: The State’s Duty to Prevent Homelessness and the Potential
of “Meaningful Engagement”’ (2011) 22 Urban Forum 1. See also the account of the use of
rights-based strategies by Abahlali baseMjondolo: J Dugard, T Madlingozi & K Tissington
‘Rights-compromised or Rights-savvy? The Use of Rights-based Strategies to Advance Socio-
economic Struggles by Abahlali baseMjondolo, the South African Shack-dwellers’ Movement’
in HA García et al (note 134 above) 23.
137 See the accounts of the benefits of democratic experimentalist public interest litigation: M Dorf
& CF Sabel ‘A Constitution of Democratic Experimentalism’ (1998) 98 Columbia LR 267; CF
Sabel & WH Simon ‘Destabilization Rights: How Public Law Litigation Succeeds’ (2004) 117
Harvard LR 1015.
138 See Dorf & Sabel’s (ibid) analysis of the conditions which help neutralise bargaining
disadvantages 409–10.
social dissent.139 Such spaces may also constitute the participants as ‘consumers’
of local government services, rather than social citizens. Marius Pieterse has
recently argued that the discursive framing of the procedural fairness rights
accorded to tenants facing a disconnection of their electricity services in
Joseph140 suggests ‘a concept of neo-liberal citizenship based on the existence
of a commercial relationship between citizens, as paying customers, on the
one hand and government, as service provider, on the other’.141 In Mazibuko,
the court also rejected procedural fairness challenges to the imposition of
pre-paid water meters as a condition to receiving a metered water supply
to the home.142 This represents a weakening of legal safeguards against
the commodification of a vital human need such as water. If participatory
processes fail to protect against the commodification of social rights, their
transformative potential is undermined. Within a market paradigm for service
delivery, impoverished communities will always be vulnerable to poor quality
services, disconnections and evictions.
In an adjudicative context, participatory remedies may end up serving as
convenient dispute settlement mechanisms, instead of vehicles for redressing
the structural barriers to the realisation of social rights for the poor. In a
143
policy and legislative context, the result can be an overreliance on negotiated

standard-setting, and a failure to define clear regulatory standards for the
nature and quality of the various social rights to be delivered. The emphasis on
local problem solving and negotiations may also obscure the extent to which
national policy solutions and resource redistributions may be required.144
In conclusion, realising the transformative potential of participatory
processes requires stronger safeguards against bargaining disparities, and
139 See A Cornwall ‘Spaces for Transformation? Reflections on Issues of Power and Difference
in Participation in Development’ in S Hickey & G Mohan (eds) Participation: From Tyranny
to Transformation (2004) 75. On the dangers of co-option of contentious politics within these
invited spaces see S Liebenberg & KG Young ‘Adjudicating Social and Economic Rights: Can
Democratic Experimentalism Help?’ in García et al (note 134 above) 237, 251–53. For a recent
critique of institutionalised participatory spaces in the context of Marikana, see S Wilson
‘Commissioning the Present: Marikana and the Contemporary Moment’ unpublished paper
<http://www.nylslawreview.com/wp-content/uploads/sites/16/2014/11/Wilson.pdf>.
140 Note 128 above.
141 M Pieterse ‘Procedural Relief, Constitutional Citizenship and Socio-economic Rights as
Legitimate Expectation’ (2012) 28 SAJHR 359, 375. For a more optimistic reading, see D Bilchitz
‘Citizenship and Community: Exploring the Right to Receive Basic Municipal Services in Joseph’
(2010) 3 Constitutional Court Review 45. For criticism of the court’s reliance on procedural
justice in Joseph as opposed to a substantive development of the content of the relevant social
rights at stake, see M Murcott ‘The Role of Administrative Law in Enforcing Socio-economic
Rights: Revisiting Joseph’ (2013) 29 SAJHR 481.
142 For a critique of the court’s reasoning on this aspect, see G Quinot ‘Substantive Reasoning in
Administrative-law Adjudication’ (2010) 3 Constitutional Court Review 111.
143 Such vehicles would be constituted by the participatory structural injunctions/interdicts
described by Sabel & Simon (note 137 above). For an analysis of this tendency in the meaningful
engagement jurisprudence of the Constitutional Court, see S Liebenberg ‘Participatory
Approaches to Socio-economic Rights Adjudication: Tentative Lessons from South African
Evictions Law’ (2014) 32 Nordic J of HR 312, 327–29.
144 See Liebenberg & Young (note 139 above) 253–54; D Super ‘Laboratories of Destitution:
Democratic Experimentalism and the Failure of Antipoverty Law’ (2008) 157 Univ of
Pennsylvania LR 541.
470 (2015) 31 SAJHR
careful attention to how participatory spaces are constituted. Moreover,

the supervisory role of courts is important to ensure that the processes and
outcomes of engagement are consistent with the normative goals and values
of social rights. The challenge is to set accountability standards without
closing down the spaces through which communities give substance to
social rights through both contentious and participatory politics. There are
many valuable lessons to be learnt from comparative experiences relating
to participatory structural remedies such as the continuing mandamus in
India,145 experimentalist forms of structural remedies in the United States,146 and
emerging practices of what Rodríguez-Garavito refers to as ‘dialogic judicial
activism’ in South American contexts. More in-depth comparative and
147
empirical research is required to inform the design of participatory review

and remedial models in the South African context in order to help realise their
transformative potential.
V Conclusion
The purpose of this article has not been to seek to identify the philosophically
or legally ‘correct’ interpretative approach to social rights (if such a project
were even possible). Rather, I have sought to explore the potential of each
of the three frames for advancing transformation through challenging
the underlying conditions which generate structural poverty and status
hierarchies. I demonstrated how each frame has distinct limitations in terms
of advancing this conception of transformation. These limitations are closely
associated with the legal form of rights and their associated legal strategies as
an overarching frame for pursing social change. Nevertheless, as I have sought
to show each frame has the potential to support transformative strategies
through the decommodifying narratives of social citizenship, invoking the
popular and juristic appeal of equality, and affirming the power of ordinary
citizens and social movements to constitute social rights.
All three frames currently co-exist as part of South African legal and
political discourse on social rights. Although not mutually-exclusive, further
work is required on how the frames may complement each other to support
145 S Parmer & N Wahi ‘India: Citizens, Courts and the Right to Health: Between Promise and
Progress’ in AE Yamin & S Gloppen (eds) Litigating Health Rights: Can Courts Bring More
Justice to Health? (2011) 155, 172–83; RJ Alva ‘Continuing Mandamus: A Sufficient Protector
of Socio-economic Rights in India?’ (2014) 44 Hong Kong LJ 207.
146 Dorf & Sabel (note 137 above); Sabel & Simon (note 137 above); K Noonan, CF Sabel & WH
Simon ‘Legal Accountability in the Service-based Welfare State: Lessons from Child Welfare
Reform’ (2008) Columbia Public Law Research Paper 8 <http://papers.ssrn.com/sol3/papers.
cfm?abstract_id=1088020> 162. For an application of the insights of democratic experimentalist
theory in the context of South African constitutionalism, see S Woolman The Selfless
Constitution: Experimentalism and Flourishing as Foundations of South Africa’s Basic Law
(2013).
147 Rodríguez-Garavito (note 10 above); N Angel-Cabo & DL Parmo ‘Latin American Social
Constitutionalism: Courts and Popular Participation’ in García et al (note 134 above) 85; R
Gargarella ‘Deliberative Democracy, Dialogic Justice and the Promise of Social and Economic
Rights’ in García et al (note 134 above) 105.
transformative strategies. Thus, for example, equality as a value could play an

important role in enriching both the social citizenship and the participation
frame. Similarly, as noted above, the development of standards for social
rights provision through participatory processes can help infuse the various
rights with substantive content. Such processes are potentially powerful
in mobilising public opinion in favour of the decommodification of social
needs thereby reinforcing a major pillar of the social citizenship frame. A
deeper exploration of the relationships between various frames constitutes
an important research agenda for scholars interested in the potential of social
rights litigation to produce transformative outcomes.
In conclusion, this article has sought to stimulate awareness of how the
various framings of social rights both accentuates and obscures from view
certain dimensions of the complex, multifaceted phenomenon of poverty.
Each frame exerts a subtle, but powerful, influence on political and social
policy responses to poverty. Awareness of the potential and limits of each
frame enables a more reflective approach to invoking social rights in support
of struggles for transformative justice in South Africa.

Three Frames SAJHR 2015

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Three Frames SAJHR 2015

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SOCIAL RIGHTS AND

Key words: socio-economic rights, transformation

resources2 as well as dismantling patterns of entrenched inequalities.3 Material

poverty renders the social rights in our constitution vulnerable to continued

deployed in their judgments also play an important symbolic role in promoting

is constructed, framing invites reflection on what is included and excluded

II Frame 1: Social Citizenship

In terms of this frame, entitlements which secure people’s livelihoods are

Nevertheless, as Fraser rightly observes, the distinction between affirmative

(b) Social citizenship: Policy and legislative measures

an emergency housing programme, and free basic municipal services such

as water, electricity, sanitation and refuse removal services.24 In terms of the

in formal employment prospects, this residual ‘safety nets’ model is clearly

proportion of the population of able-bodied persons between the ages of 18

(c) Social citizenship: Jurisprudence

indicative of its reluctance to assume a vanguard role in setting fixed standards

freedom.’51 However, the actual ratio of the judgment is formulated more

dismissed the challenge to the sufficiency of the City of Johannesburg’s free

for those that face homelessness as a consequence of the eviction.59 However,

Services requiring gender segregation of married couples, and a compulsory

(d) Transformation and the social citizenship frame

be regarded as constitutionally unreasonable.70 Studies have also shown how

Despite the limitations of affirmative strategies, they have the potential to

III Frame 2: Equality

undermine fair and equal political participation thereby reinforcing systemic

(b) The equality frame: Constitutional, legislative and judicial

by s 9(4) of the Constitution.91 The preamble, definition of prohibited grounds

The Constitutional Court has also explicitly recognised the close

91 In accordance with subsidiarity principles, constitutional challenges based on rights to equality

permanent residents in the social assistance legislative scheme.99 The range of

(c) Transformation and the equality frame

treatment. However, this ‘equality of the graveyard’108 approach is less likely

requires strengthening legislative and common law regulation of key private

IV Frame 3: Participation

(b) Judicial and legislative interpretations

processes.127 The legislature and executive have also enacted a range of

(c) Transformation and the participatory frame

policy and legislative context, the result can be an overreliance on negotiated

careful attention to how participatory spaces are constituted. Moreover,

empirical research is required to inform the design of participatory review

transformative strategies. Thus, for example, equality as a value could play an

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(b) The equality frame: Constitutional, legislative and judicial