Under our Constitution, poor people have enhanced opportunities to use the powerful language and institutions of human rights law to protect and advance their interests. But how have they fared thus far?
The Constitutional Court has established the foundations of its jurisprudence on socio-economic rights in a series of landmark cases. It has developed a sophisticated model for reviewing the negative and positive duties imposed by these rights.
In Jaftha v Schoeman, the Constitutional Court held that legislation that deprives people of their existing access to socio-economic rights can only be justified by the state in terms of the stringent requirements of the general limitations clause. In other words, there must be a compelling reason for the deprivation and it must be proportional.
This case concerned the sale in execution of the RDP homes of two poor people for trifling debts they had incurred. The court held such sales could not occur automatically, but required judicial oversight in order to ensure that people’s housing rights were properly protected in the processes of debt collection.
The court spelt out its approach to reviewing the positive duties imposed by socio-economic rights in the well-known Grootboom (government’s obligations towards homeless communities) and Treatment Action Campaign (government’s obligations to reduce mother-to-child transmission of HIV/Aids) cases. It held that the government was under a duty to act reasonably in extending access to socio-economic rights to those who currently lack such access.
The reasonableness of the government’s conduct will be judged according to a range of criteria, but particularly on whether it caters for those whose needs are urgent and those who are living in intolerable conditions.
Through this model of ”reasonableness review”, the court has been able to achieve a balance between respecting the roles and competencies of the executive and legislature, while paying proper attention to the rights of the poor when the government formulates and implements social programmes.
Another area where the courts have made an important contribution is in interpreting legislation such as the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act, enacted to give effect to the right against arbitrary evictions (Section 26(3) of the Constitution).
In addition to a series of procedural protections, the courts have developed substantive safeguards for those facing eviction from their land and housing. For example, the availability of alternative accommodation and attempts to mediate a solution with the affected community are now relevant factors in the inquiry as to whether an eviction order is ”just and equitable” in the circumstances.
These are major achievements that are also internationally signifi-cant, as the United Nations and other countries grapple with developing workable models for enforcing socio-economic rights. South Africa’s evolving jurisprudence on socio-economic rights will also be a useful precedent when the African Court on Human and Peoples’ Rights begins the business of interpreting the economic and social rights in the African Charter.
What are the major challenges that lie ahead in ensuring that socio-economic rights fulfil their transformative potential? In the first place, it is critical that the courts continue to develop the content of reasonableness review so that it does not degenerate into a weak and toothless standard. Socio-economic rights do not amount to much if they cannot assist everyone to gain access to at least the basic necessities of life.
Second, in order to have a deep transformative impact on our legal system, socio-economic rights must play a larger role in the development of other areas of law, such as the common law rules of property and contract and customary law. The courts should be prepared to develop these areas of the law so that they are more responsive to the context and needs of those who are poor and in a weak bargaining position.
Third, socio-economic rights will not fulfil their transformative potential unless a range of institutional factors are firmly in place. This includes broad access to legal services, proper guarantees of judicial independence, changes in legal culture to make the judiciary and lawyers more receptive to socio-economic rights, proper implementation of judgements and strong civil society organisations that are able to use litigation strategically in support of transformative political and social projects. The strategic use of socio-economic rights litigation by the TAC is an excellent illustration of the latter point.
Finally, the question of South Africa’s non-ratification of the premier international treaty protecting socio-economic rights, the International Covenant on Economic, Social and Cultural Rights (1966), must be addressed. This is the only major human rights treaty we have not ratified, and is vital to South Africa’s role as one of the key advocates for socio-economic justice in today’s globalised world.
Professor Sandy Liebenberg, HF Oppenheimer Chair in Human Rights Law, Stellenbosch University