Constitutional Basis for the Enforcement of ''Executive'' Policies that give effect to Socio-Economic Rights in South Africa

 Although "executive" policies remain an important governance tool, there appears to be confusion on the status and possible basis for their judicial enforcement in South Africa. The aim of this article is to critically reflect on the status and possible constitutional basis for the enforceability of "executive" policies that give effect to socio-economic rights in South Africa. Based on the jurisprudence of courts and some examples of "executive" policies, this article demonstrates that the constitutional basis for the enforceability of "executive" policies could be located inter alia in the positive duties imposed on government by sections 24(b), 25(5), 26(2) and 27(2) of the Constitution to "take reasonable legislative and other measures" within the context of available resources to give effect to relevant rights. This article argues that these duties amount to a constitutional delegation of authority to the legislative and executive branches of government to concretise socio-economic rights. In addition, this article demonstrates that where "executive" policies give effect to socio-economic rights pursuant to powers delegated by enabling provisions in original legislation that covers the field of socio-economic rights, such policies may be perceived to have the force of law, thereby providing a legal basis for their judicial enforcement.   

A Critical Investigation of the Relevance and Potential of IDPS as a Local Governance Instrument for Pursuing Social Justice in South Africa

Unlike the situation in the past, when local government’s role was limited to service delivery, local government is now constitutionally mandated to play an expanded developmental role. As a “co-responsible” sphere of government, local government is obliged to contribute towards realising the transformative constitutional mandate aimed at social justice. South African scholars and jurists share the view that social justice is primarily concerned with the eradication of poverty and extreme inequalities in access to basic services, and aims to ensure that poor people command sufficient material resources to facilitate their equal participation in socio-political life. In order to enable municipalities to fulfil their broad constitutional mandate, the system of integrated development planning (IDPs) came into effect in South Africa in 2000. Each municipality is obliged to design, adopt and implement an integrated development plan in order to achieve its expanded constitutional mandate. The IDP is considered to be the chief legally prescribed governance instrument for South African municipalities. The purpose of this article is to explore and critically investigate the relevance and potential of IDPs in contributing towards the achievement of social justice in South Africa. This article argues inter alia that the multitude of sectors that converge in an IDP makes it directly relevant and gives it enormous potential to contribute towards social justice because, depending on the context, municipalities could include and implement strategies that specifically respond to diverse areas of human need. In this regard, the legal and policy frameworks for IDPs provide a structured scheme that could be used by municipalities to prioritise and meet the basic needs of especially the poor. Despite its potential, it is argued that the ability of IDPs to respond to the basic needs of the poor is largely constrained by a series of implementation challenges partly attributed to the underlying legal and policy framework.   

THE TRANSFORMATIVE POTENTIAL OF THE CONSTITUTIONAL ENVIRONMENTAL RIGHT OVERLOOKED IN GROOTBOOM

It is axiomatic that Grootboom (Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) hereinafter “Grootboom”) remains the hallmark of the Constitutional Court’s success in terms of its transformative socio-economic rights jurisprudence. In this regard, De Vos has argued that lawyers and legal academics who wish to pursue the transformative possibilities of the Bill of Rights may find much to assist them in the Grootboom case. One of the reasons for De Vos’s recommendation is that the Court acknowledged the transformative nature of the Constitution in this Case and strongly asserted the interrelated, interdependent and mutually reinforcing nature of the rights in the Bill of Rights in achieving the transformative objectives of the Constitution. The purpose of this article is to reflect on the court’s transformative jurisprudence in Grootboom and to argue that, although the court strongly asserted the interrelated and interdependent nature of the variety of rights in Bill of Rights in fostering the transformative vision of the Constitution, it failed to highlight the centrality of the section 24 environmental right in fostering that vision. This article argues that the realization of elements of the section 24 environmental right are indispensible to the realization of rights that are generally perceived as having transformative potentials – rights entrenched in sections 26(1) and 27(1) of the Constitution. Drawing from a variety of sources, this article demonstrates the intersection between these rights and argues that the fulfilment of the section 24 environmental right can also contribute to the transformative vision of the Constitution

A critical investigation of the relevance and potential of IDPs as a local governance instrument for pursuing social justice in South Africa

Unlike the situation in the past, when local government’s role was limited to service delivery, local government is now constitutionally mandated to play an expanded developmental role. As a “co-responsible” sphere of government, local government is obliged to contribute towards realising the transformative constitutional mandate aimed at social justice. South African scholars and jurists share the view that social justice is primarily concerned with the eradication of poverty and extreme inequalities in access to basic services, and aims to ensure that poor people command sufficient material resources to facilitate their equal participation in socio-political life. In order to enable municipalities to fulfil their broad constitutional mandate, the system of integrated development planning (IDPs) came into effect in South Africa in 2000. Each municipality is obliged to design, adopt and implement an integrated development plan in order to achieve its expanded constitutional mandate. The IDP is considered to be the chief legally prescribed governance instrument for South African municipalities. The purpose of this article is to explore and critically investigate the relevance and potential of IDPs in contributing towards the achievement of social justice in South Africa. This article argues inter alia that the multitude of sectors that converge in an IDP makes it directly relevant and gives it enormous potential to contribute towards social justice because, depending on the context, municipalities could include and implement strategies that specifically respond to diverse areas of human need. In this regard, the legal and policy frameworks for IDPs provide a structured scheme that could be used by municipalities to prioritise and meet the basic needs of especially the poor. Despite its potential, it is argued that the ability of IDPs to respond to the basic needs of the poor is largely constrained by a series of implementation challenges partly attributed to the underlying legal and policy framework

The transformative potential of the constitutional environmental right overlooked in Grootboom

It is axiomatic that Grootboom (Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) hereinafter "Grootboom") remains the hallmark of the Constitutional Court’s success in terms of its transformative socio-economic rights jurisprudence. In this regard, De Vos has argued that lawyers and legal academics who wish to pursue the transformative possibilities of the Bill of Rights may find much to assist them in the Grootboom case. One of the reasons for De Vos’s recommendation is that the Court acknowledged the transformative nature of the Constitution in this Case and strongly asserted the interrelated, interdependent and mutually reinforcing nature of the rights in the Bill of Rights in achieving the transformative objectives of the Constitution. The purpose of this article is to reflect on the court's transformative jurisprudence in Grootboom and to argue that, although the court strongly asserted the interrelated and interdependent nature of the variety of rights in Bill of Rights in fostering the transformative vision of the Constitution, it failed to highlight the centrality of the section 24 environmental right in fostering that vision. This article argues that the realization of elements of the section 24 environmental right are indispensible to the realization of rights that are generally perceived as having transformative potentials - rights entrenched in sections 26(1) and 27(1) of the Constitution. Drawing from a variety of sources, this article demonstrates the intersection between these rights and argues that the fulfilment of the section 24 environmental right can also contribute to the transformative vision of the Constitution

Constitutional Basis for the Enforcement of ''Executive'' Policies that give effect to Socio-Economic Rights in South Africa

Although "executive" policies remain an important governance tool, there appears to be confusion on the status and possible basis for their judicial enforcement in South Africa. The aim of this article is to critically reflect on the status and possible constitutional basis for the enforceability of "executive" policies that give effect to socio-economic rights in South Africa. Based on the jurisprudence of courts and some examples of "executive" policies, this article demonstrates that the constitutional basis for the enforceability of "executive" policies could be located inter alia in the positive duties imposed on government by sections 24(b), 25(5), 26(2) and 27(2) of the Constitution to "take reasonable legislative and other measures" within the context of available resources to give effect to relevant rights. This article argues that these duties amount to a constitutional delegation of authority to the legislative and executive branches of government to concretise socio-economic rights. In addition, this article demonstrates that where "executive" policies give effect to socio-economic rights pursuant to powers delegated by enabling provisions in original legislation that covers the field of socio-economic rights, such policies may be perceived to have the force of law, thereby providing a legal basis for their judicial enforcement