Some years ago Albie Sachs, during the course of a series of celebrated articles, introduced the necessity of including socio-economic rights in the Constitution.
Sachs said that because socio-economic rights raised different questions of enforcement than was the case with traditional civil and political rights, consideration could be given to a specifically constituted commission to ensure compliance with these rights.
Sachs’s idea was only partially implemented in that socio-economic rights now fall under the scope of ordinary courts.
However, the Human Rights Commission, an independent body established in accordance with the Constitution, has an important role in reporting on the state of the implementation by the government of these constitutional obligations. In its recent report the commission confirmed that it has a most significant role in ensuring government accountability even if it is not the primary institution for the enforcement of such rights, as had been proposed by Sachs 13 years ago.
The commission’s report constitutes a serious indictment on the government’s fulfilment of its constitutional obligations in this area. While the commission acknowledges that steps have been taken to realise the right to have access to adequate housing, it concludes that ”despite the landmark decision of the Constitutional Court in Grootboom, millions of people are still living in peril”.
With regard to land reform, the commission finds the process to be slow and that ”poor implementation, corruption and lack of capacity continue to affect the land reform process”.
Turning to health care, the commission concludes that ”there are either few or no specific programmes in place to cater for the needs of the rural population, refugees and asylum seekers, girl-children, people infected or affected by HIV/Aids and Aids orphans”.
Although the report is less critical on the provision of social security by the government, the commission does point out that there are significant challenges to ensure that many South Africans do not continue to be denied the right of access to social security.
In this connection mention is made of the Taylor report on the basic income grant, the important recommendations of which have been allowed to die a quiet death while many die of poverty-related illnesses.
As the commission concedes, the government was faced with a massive burden of socio-economic transformation after three centuries of racist and sexist rule. But nine years have now passed since democracy dawned and as is patently shown in this report, the pace has been too slow.
Corruption, maladministration and an inefficient bureaucracy are not acceptable excuses for the state of socio-economic rights as found by the commission.
But if the government comes off poorly, the legal profession can hardly escape censure. Given the state of poverty as found in the report, the question must be asked why so few cases have been brought before the courts to ensure compliance by the government with its mandated socio-economic obligations.
Save for the Grootboom, Treatment Action Campaign and Kyalami squatters’ cases, which have found their way to the Constitutional Court, little socio-economic rights litigation has been in evidence. Only one land case of real note has been successfully brought to the Supreme Court of Appeal — the Richtersveld case.
The present weakness of civil society has meant that few organisations represent the poor and so they are unable to employ litigation as a tool. But there appears to be a dearth of the legal imagination and the courage that characterised the human rights wing of the legal profession during apartheid.
Similarly, the Constitutional Court has shown a regrettable timidity in these cases, particularly in the manner in which it has refused, on at least two occasions, to introduce supervisory relief that would have made it easier for a successful party such as the TAC to ensure that an order, which compelled the government to implement an anti-retroviral programme for HIV/Aids-infected pregnant mothers, was carried out by the government. Conversely such supervision would ensure the cessation of the kind of delay shown by the Ministry of Health in implementing the TAC order.
After reading the commission’s report, it seems Sachs’s idea should be re-examined; that it may indeed be opportune to give greater powers to the commission to ensure implementation of socio-economic rights rather than relying on traditional forms of litigation.