Human Development and Human Rights: South African Country Study

human development, human rights

The courts and socio-economic rights: carving out a role

Although the jurisprudence on the socio-economic rights in the Bill of Rights is still in its infancy, the number of cases coming before the courts is gathering momentum. In particular, the Constitutional Court judgment in the case of Government of the RSA v Grootboom 2000 (11) BCLR 1169 (CC) [the Grootboom case] is a landmark in socio-economic rights enforcement in South Africa. Several important insights can be garnered from the emerging jurisprudence, particularly from the Grootboom case. The Constitutional Court has confirmed that the socio-economic rights in the Bill of Rights place both a duty on the State and other important role players to respect these rights, and a positive duty on the State to protect, promote and fulfil them

Universal access to social security rights: can a basic income grant meet the challenge?

Access to social assistance for those unable to support themselves and their dependants is a fundamental human right enshrined in the Constitution. In March this year, the Committee of Inquiry into a Comprehensive System of Social Security for South Africa, chaired by Prof. Viviene Taylor, released its consolidated report, entitled Transforming the present protecting the future. It recommends a range of policy measures aimed at building a comprehensive social security system in South Africa. The report's underlying philosophy is that social security reform should form part of a comprehensive social protection package. This package of developmental strategies and programmes should be designed to ensure, collectively, at least a minimum acceptable living standard for all citizens. Without such a core minimum of social provisioning, the constitutional promises of socio-economic rights, human dignity, equality and freedom will have a hollow ring

Needs, rights and transformation: adjudicating social rights

One of the most contested issues in South Africa’s burgeoning jurisprudence on social rights relates to how the courts should enforce the duties imposed by these rights. Debate has focused in particular on the extent to which the courts should affirm an enforceable right to the provision of basic needs by those who lack access to these needs. In the South African context, this is a plight affecting a substantial portion of our population, and must also be contextualised within the high degree of inequality existing in our society. This article explores the relationship between a jurisprudence of basic needs and the transformative goals of the Constitution. The question that interests me is whether a jurisprudence relating to the fulfilment of social and economic needs can have transformative potential, and if so, under what conditions. My aim is to examine how such a perspective can inform the development of our socio-economic rights jurisprudence in a way that supports a project of social transformation consistent with constitutional values and rights

Engaging the paradoxes of the universal and particular in human rights adjudication: The possibilities and pitfalls of ‘meaningful engagement’

This article examines the disjunctures between the universal aspiration of human rights norms and the complexity of their interpretation and application in diverse and pluralistic contexts. It examines the extent to which a deliberative model of democracy can assist in promoting a more dialectical relationship between the universal and particular in human rights constitutional adjudication. The article further evaluates the potential of the mechanism of meaningful engagement employed by the South African Constitutional Court in the context of evictions jurisprudence to negotiate the tension between the universal normative values and purposes of human rights, and the democratic ideal of popular participation in the making of decisions which affect people’s daily lives.This article is based on research supported by the National Research Foundation (NRF

Remedial Principles and Meaningful Engagement in Education Rights Disputes

 This article evaluates the meaningful engagement doctrine in the education rights jurisprudence of the Constitutional Court in the light of a set of normative principles developed by Susan Sturm for evaluating participatory public law remedies. It commences by identifying four principles for evaluating participatory remedies appropriate to South African constitutional law and jurisprudence. Thereafter the relevant jurisprudence is analysed and evaluated in the light of these principles. The article concludes by making proposals for the development of meaningful engagement as a participatory remedy in educational rights disputes. These proposals seek to ensure a better alignment between the meaningful engagement remedy and the four remedial principles identified.     &nbsp

The value of human dignity in interpreting socio-economic rights

There has been considerable criticism of the use of human dignity as a guiding value in the context of South Africa's equality jurisprudence. What are the implications of the use of the value in socio-economic rights jurisprudence? Drawing on the work of Martha Nussbaum, the article links the value of human dignity to the material conditions necessary to enable people to develop and exercise their capabilities. Access to basic social services is crucial not only to people's physical survival, but also to enable the development of their potential to shape their own lives and to be active agents in the shaping of our new society. Human dignity as a relational concept requires society to respect the equal worth of the poor by marshalling its resources to redress the conditions that perpetuate their marginalisation. This, in turn, requires a focus on the actual impact of the state's actions or omissions on the life chances of disadvantaged groups, and a response that is proportionate to the seriousness of that impact. In constitutional adjudication, it requires that a high burden of justification is placed on the state in cases involving a deprivation of basic human needs. The article concludes by examining how the Constitutional Court's reasonableness review standard and remedial jurisprudence could be strengthened to accord greater value to this conception of human dignity

Social Citizenship: A Precondition for Meaningful Democracy

In 1959, the scholar, TH Marshall, analysed the historical development of those features that were vital to effective 'citizenship'. He viewed democratisation as a progression, spanning three centuries. Civil rights were the great achievement of the 18th Century, establishing the principle of the equality of all members of society before the law. Political rights emerged in the 19th Century, paving the way for increasingly broader participation in the exercise of political power. The fulfilment of democracy is the recognition of the concept of 'social citizenship' in the 20th Century

The application of socio-economic rights to private law

The constitution is explicitly committed to redressing and transforming socio-economic exclusion and marginalisation. This is manifest, amongst other constitutional provisions, in the entrenchment of a comprehensive range of socio-economic rights read together with the provisions relating to substantive equality, land reform and environmental rights.3 Moreover, the constitution contains a number of express provisions signalling that the rights and values in the bill of rights are intended to apply to private relations and to influence the development of the common law and customary law. Sections 8(1)-(3) and 39(2) are the primary provisions governing the application of the bill of rights to private parties.This article is based on material in the author’s Adjudicating Socio-Economic Rights under a Transformative Constitution (2008) which is supported by a grant from the National Research Foundation (NRF)