Professor David Bilchitz said the state should not be able to claim a lack of resources prevented it from providing a minimum of food and shelter. (@IDEA_Africa/X)
Constitutional rights should not be defined in relation to the state’s available resources, the first academic in 25 years to be shortlisted for a seat on the Constitutional Court argued on Monday.
David Bilchitz, a professor of constitutional law at the University of Johannesburg, submitted that socio-economic rights were political rights and the courts and the executive bore the duty to ensure these were realised in a manner that was at least minimally adequate.
“My reading of the placement of socio-economic rights in our constitution is that we placed certain things outside the boundaries of politics,” he said in his interview with the Judicial Service Commission.
“We said in 1996 that whether you have access to housing, food, water and so forth is something that we are going to guarantee as a matter of right but it is easier said than done in a country that is resource-poor with so many demands on the fiscus.”
But the state should not be able to argue that a lack of resources forced the realisation of basic rights to be deferred for decades, leaving people without food 10 minutes away from Sandton where the JSC was sitting, he said.
“They are actual rights, they are claims that people can make.
“If I go to someone who lacks food and say you have a right to reasonable government action that does not sound like a right. I want to be able to say to someone who is poor, you have a right to sufficient food and the constitutional court will guarantee you at least a minimum level of access to certain resources in our country.”
South Africa was among many countries in the global south that had to balance large needs with limited resources but in his view had sufficient money to make sure nobody was deprived of dignity, Bilchitz said.
“My reading is the resources in our country and distribution of resources can guarantee a minimum level that we will not accept anyone in our community to go below the line of dignity and autonomy.
“That is a challenge I think not just for the constitutional court, it is a challenge for the legislature, for the executive.”
Bilchitz has published internationally on poverty and fundamental rights and said he was advocating for a definition as to “the minimum below which we will not accept people go”.
“The constitutional court then enforces that minimum and then requires the government over time to improve that minimum to the point where we recognise that everyone has access to fully adequate housing.”
The proposition met with some scepticism from commissioners. It was voiced most plainly by Khameshni Pillay who asked Bilschitz whether, if appointed, he would accept that the operative legal philosophy was the standard of reasonableness of the steps taken by the state to ensure realisation of a right, not quantifying the core minimum content of that right.
He said he would not impose his theories but hoped these could contribute.
“One could strengthen and improve existing jurisprudence so that perhaps something like reasonableness takes account of some of the critiques without jettisoning the precedent that is involved and that the court has developed.”
Pressed further by commissioners, he explained that his concern with the seminal Grootboom judgment on the right to housing was “lack of engagement with the content of the right”.
This was the first constitutional court judgment on socio-economic rights that found that the state had not complied with its obligations and gave an order compelling the government to take action.
The court held that though the government had a long-term housing programme, it did not make provision for those who found themselves destitute at the time and that this was unreasonable.
But, Bilchitz said, in taking the approach that it had to establish if there were reasonable legislative and other measures to achieve the progressive realisation of a right, the court set a vague standard that did not provide guidance to other courts or arms of government.
“It removes a sense of what the content of the right is and actually what I think what the court was saying is there is a minimum requirement that you need to ensure that everyone has a roof over their head,” he said.
“It could have gone to the right itself, to section 26(1), the right of access to adequate housing … the court needed to say more about everyone having access to adequate housing, that adequacy at least means a roof over your head, basic services and so forth.”
Bilchitz, who was a clerk at the constitutional court when the case was heard, recalled that the applicant, Irene Grootboom, died homeless eight years after the 2000 ruling.
He said though the judgment moved the government to adopt an emergency housing policy, the order was weak in its lack of specificity and beyond that the court laid down an onerous approach for evaluating the reasonableness of a government programme.
“My main problem lies with the way of approaching socio-economic rights.”
“You need to come to court and instead of simply showing I don’t have food, I don’t have housing, which in many other jurisdictions have … instead of doing that in South Africa, you need to show a hell of a lot of complicated things.
“You need to show that the government in its whole housing programme is unreasonable in the way that it is giving effect to those rights. And that involves evidence, it involves social science research, it involves a whole lot of aspects which make it very difficult to get access to rights.”
Bilchitz has been acting at the constitutional court for the past two months at the invitation of Chief Justice Raymond Zondo.