People living in South Africa committed to human rights and the rule of law should pay attention to critically reflective perspectives on socio-economic rights litigation, particularly when these criticisms emanate from communities who have expended significant energy approaching courts to vindicate their rights.
It is only by fully understanding the real, tangible impact of socio-economic rights litigation that its value can be honestly and openly evaluated. A Cabinet-commissioned report authored by University of Fort Hare and the Human Sciences Research Council on the “impact of the decisions of the Constitutional Court and the Supreme Court of Appeal on the transformation of society” should be read in this light.
Despite the controversy accompanying the assessments’ initiation there is much in the report, launched early in November, worth engaging. The assessment canvasses the views of litigants in the Constitutional Court about their experiences during and consequent to constitutional litigation.
One such litigant is Abahlali BaseMjondolo. Abahlali approached the Court arguing that a law called the “Slums Act” unconstitutionally made it significantly and unlawfully easier to evict people living in informal settlements. The Court condemned the law declaring it inconsistent with protection against arbitrary evictions in terms of the right to access to adequate housing.
Years after the decision, members of Abahlali continue to be violently evicted from their homes. When they resist, they are intimidated, their homes are destroyed and their possessions stolen and members assassinated. Most often, the police fail to come to their assistance. Worst still, they have at times been guilty of assaulting and harassing members of Abahlali themselves. The Court’s judgment has not then in itself brought an end to the underlying violations of international human rights law and the Constitution.
The way members of Abahlali have been treated by other State officials and institutions makes Abahlali’s experience of the judiciary – a branch of government itself – crucial. Abahlali has been given little reason to trust State institutions they have experienced as complicit in their oppression.
In the assessment we learn that Abahlali’s experience in constitutional litigation entrenched the Court’s legitimacy. As a result of this experience one member of Abahlali is adamant “in the Concourt everyone is equal”. She continues expressing faith in the Court’s independence: “they’ve [the government] got connection[s] in the High Court, but they can’t have eleven judges [in the Constitutional Court”.
But while the assessment provides some hope about the Constitutional Court’s legitimacy, it also underlines the contrast between the promise of human rights (enshrined in various international human rights treaties and the Constitution itself) and the grim realities faced by South Africa’s people daily.
Once the Constitutional Court has made a decision it has little ability to ensure that it is acted on expeditiously. The other branches of government have both the sword and the purse necessary to make orders of court a reality. When they fail to do so the effect is to militate against – and potentially completely nullify – the potential positive impact of progressive court decisions on the well being of the communities whose rights the Court exists to protect.
Failure to implement judgments is obvious to communities who are acutely aware of these constitutional contradictions. “The lesson out of [our litigation] is that you can win in Court but still fail in reality”, says one member of Abahlali.
Residents of Harry Gwala Informal Settlement in Ekurhuleni are even more adamant. They approached the Constitutional Court to provide them with access to one toilet per household instead of the one toilet per ten families offered to them by the authorities. Five years after the Court handed down its judgment in the residents’ case (Nokotyana), the assessment notes, the government had still failed to take action.
But this is not where the residents’ criticisms end. They also hold the Constitutional Court partially responsible for the continued absence of basic services in their community.
“Emotionally [the Court] has hurt us … because it never felt our policies and our intentions”, one community member says. Another shares this sentiment complaining “justice has taken a decision that does not improve upon our lives” and therefore concludes “the courts of South Africa have no reason”. A third community member puts most starkly the potential threat to the judiciary’s legitimacy posed by the executive and legislatures’ failures to implement court judgments: “I would say that I do not trust them. There is nothing that would make me to say that I trust them. One trusts something that presents itself as trustworthy.”
These dire realities should make committed constitutionalists pause and reflect on current obstacles to the effectiveness of litigation aimed at producing social change. Communities’ and social movements’ doubt, frustrations and distrust in these methods’ effectiveness should be taken seriously.
Some confusion also arises in public discussions as a result executive and legislative failure to implement judgments. First, what exactly litigants have asked for may be misconstrued. The result is that a judgment that has produced its intended result is misunderstood.
This mistake is often made with regard to the famous case of Mrs Grootboom who is reported to have died “homeless and penniless” seven years after the famous judgment vindicating her housing rights. This is frequently used as an example to suggest the futility of constitutional litigation. Mrs Grootboom, however, did not approach the Court asking for the provision of permanent housing. She and her community – who at the time were sleeping in an open field following a flood– wanted emergency shelter, access to basic services and a secure, safe, dry place to live securely, temporarily. They got this as a result of Mrs Grootboom’s litigation. The case also resulted in formulation of a national Emergency Housing Policy.
Second, effective judicial remedies are important in producing real change. The Universal Declaration of Human Rights, like the South African Constitution, provides everyone with the right to an “effective remedy” from a court or tribunal when our rights have been violated.
The continued plight of the Nokotyana litigants is a case in a point. The Court ordered the provincial executive to “take a final decision” on the upgrading of Harry Gwala Informal Settlement within 14 months. When, after five years, this had still not occurred, the anger of the community was undoubtedly warranted. In these circumstances, the residents of the informal settlement may well question whether the Court’s order packed a hard enough punch to ensure compliance.
Abahlali’s leader Sbu Zikode’s words haunt: “poor people do not eat ideology, nor do they live in houses that are made out of ideology”. Nor do they eat beautiful prose from judgments or live in houses made of eloquent constitutional jurisprudence. Actual change is sorely needed.
While acting as the “ultimate guardian” of people’s rights, courts must leave room for the other two branches of government to operate flexibly. But doing so is made that much more difficult when by the repeated recalcitrance of the executive, as in Nokotyana. People will – and should – demand effective remedies with tangible results from all three branches of government: the executive, the legislature and the judiciary.
The assessment therefore exemplifies South Africa’s constitutional contradictions. While socio-economic rights litigation can assist poor South Africans to access their rights it cannot do so if the legislature and the executive do not fulfill their duties to implement the decisions of the courts. Failing to understand the central role of elected representatives in the realization of socio-economic rights sets South Africa’s courts up as easy scapegoats for the government’s own failures.
Most importantly the assessment reminds us that the patience of South Africa’s poor is not without its limits. The Nokotyana litigants’ despair is palpable: “There is no greater frustration than being born in a place, and to grow up and old still without rights.” Reality prevails and its cruel bite is increasingly met with the righteous indignation of those in dire need of the protection of human rights. The assessment serves as a timely reminder that if the legitimacy of the human rights is to endure, people must see tangible change follow from progressive judgments.
Tim Fish Hodgson is a legal adviser on economic, social and cultural rights working from the International Commission of Jurists’ Johannesburg office