The South African Constitution promised a society that would break the mould of centuries of colonial and apartheid rule. It, therefore, provided a legal framework to give tangible content to citizenship. Hence, the Constitution contains a number of rights that mark the document as a transformative instrument: a commitment to substantive equality, to redressing past injustice suffered by the majority of the population, rights of workers to form trade unions, to bargain collectively and strike, and the provision of a range of rights to healthcare, housing, food, water, social security and education.
The inclusion of these social and economic rights prompted fierce debate during the constitutional negotiations. It was argued that judges are simply not institutionally competent to be placed in charge of key distributional decisions, and even if they were, social and economic policy entail calls best left to the democratically elected arms of the state.
David Bilchitz’s book provides the most sustained examination to date concerning the justification for the inclusion of these rights and the record of the Constitutional Court’s jurisprudence. The book is divided into two parts. In the first section, Bilchitz explores the possible philosophical justifications for social and economic rights. In the second part, he engages with a meticulous examination of the key judgements of the Constitutional Court which give content to these enshrined rights.
Bilchitz begins to develop an overlapping theory for the existence of social and economic rights that is one which is not so precise that we, as a diverse community, can never agree on its contents but not so bland that it could not guide society in general and the judiciary in particular towards the practical development of these rights.
The essence of Bilchitz’s formulation is captured in the following passage: ‘[a] society must in its background rules treat the lives of beings as having equal importance. Since it should not seek to realise the particular goods of such beings, it must concentrate on ensuring that its members are provided with the enabling conditions in which to live lives of value to them. To do so requires guaranteeing to each individual the necessary prerequisites for realising a life of value. Thus, for society to provide protection for such enabling conditions in its background rules would require that , in the case of human beings, individuals are guaranteed basic freedoms — including those of speech, religion, and political participation — as well as sufficient resources — including adequate food, housing and water — to enable them to realise a wide variety of goals.” (pp 64-65) Crisply stated, the purpose of these rights is to safeguard each individual against basic threats to survival and to provide a minimum of capability sufficient to realise life purposes specifically important to that person.
In part two, Bilchitz moves to discuss the South African record. He correctly observes that the role of social and economic rights in South Africa is important for three key reasons: the dire poverty of millions of citizens, the potential that the implementation of these rights may lift millions out of the poverty trap and finally the impact of these rights on a legal system inherited from apartheid and which assisted in reproducing so racially skewed a pattern of income and capital distribution.
The Constitutional Court got off to a very ropey start, when in its first socioeconomic rights case, Soobramoney, it rejected an application brought under s27(3) of the Constitution (the right to emergency medical treatment) for the provision of dialysis treatment. The court essentially relied upon the argument that treatment of irreversible chronic renal failure did not fall within the scope of emergency medical treatment. Further, the court was compelled by the budgetary constraints raised by the medical authorities to reject the relief sought. Sadly, Soobramoney died shortly after his application failed.
From there on, the court has developed what has been referred to as an administrative model for the adjudication of these socio-economic claims. This approach can be described broadly as follows: the applicant complains that he or she is without any housing or shelter and is forced to live on open ground, totally captive to the vagaries of the elements. This, he or she claims, is in breach of his or her right to access to housing. Government responds by providing the court with much evidence about its housing policy and programmes. The court refuses to determine the exact nature of the applicant’s right to access to housing. Rather, the court examines the government plans as set out in its evidence and asks whether the measures taken by the government are reasonable in the circumstances. This is the same approach adopted by courts in assessing decisions made by administrative bodies such as a licensing board or a tender authority. Hence in the seminal case of Grootboom, the court held that a housing policy which failed to deal in the first instance with the poorest of the poor was clearly unreasonable.
Bilchitz disapproves of this model. For him the court’s failure to specify the content of a minimum core for each of the socioeconomic rights enshrined in the Constitution means that the fundamental interests of individuals are not made the centre piece of the inquiry. Instead, the court is concerned with some abstract notion of proportionality between applicants’ needs and government policy which inquiry is never required to state the content of the right possessed by each individual.
Bilchitz follows in the footsteps of the pioneering work of Sandra Liebenberg in the argument that the court should give at least some general content to each right. This approach is found in international precedent, being the jurisprudence dealing with the International Covenant on Social and Economic Rights.
Bilchitz effectively brings about the integration of the two parts of his book. Acceptance of his normative theory of rights leads to the recognition of a minimum core for social and economic rights, a core ‘which represents a conditional right whose content is determined by the minimal interest of individuals in being free from general threats to their survival.” (p 235)
Notwithstanding Bilchitz’s heroic attempt to parse constitutional court judgements to find support for his minimum core argument, the evidence points clearly in favour of the court’s adherence to the administrative law model. Why has this happened? Two possibilities come to mind: the court has not accepted his normative argument or the court finds its model more appropriate to South African conditions. While the court has been very slow to develop a comprehensive and coherent normative framework for the constitution, it is more likely that it has chosen to reject a minimum core argument. By employing a flexible reasonableness test, it is able to give effect to these rights without encroaching unduly on policy prerogatives of the other arms of the state.
Thus, it is unlikely that Bilchitz’s argument will gain traction in practice. However, the book offers a compelling intellectual alternative to dealing with the key challenge for our Constitution — closing the gap between its promised society and the degrading daily reality still encountered by millions of South Africans.