The Constitution of the Republic of South Africa, 1996 ("the Constitution") protects several socio-economic rights. Among others, it guarantees the right to: adequate housing (section 26(1)), food and water (section 27(1)(b)), social security (section 27(1)(c)) and a basic education (section 29(1)). Broadly speaking, socio-economic rights can be defined as rights which entitle people to the material goods necessary for them to live in conditions consistent with human dignity[1] and reach their full potential.[2]
Not every Bill of Rights protects socio-economic rights. In fact, many do not.[3] Most only protect what are commonly referred to as "first generation" or civil and political rights - rights which broadly prohibit the state from interfering with basic individual liberties.[4] The Bill of Rights protects several civil and political rights such as: freedom of expression (section 16), to equality (section 9), free assembly (section 17) and privacy (section 13). Civil and political rights are also often described as "negative rights" because their primary purpose is to restrict government power by imposing duties on it "to not act in certain ways".[5] For example, the civil and political right to equality imposes duties on the state to not treat people differently for morally arbitrary reasons, while the right to privacy imposes duties on the state to not listen to the private communication of anyone without their permission.[6] By contrast, socio-economic rights are often described as "second generation" or "positive" rights.[7] This is because socio-economic rights impose positive duties on the government to actively do certain things. For example: to actively take steps towards providing people with access to adequate housing, healthcare and an education or to prevent private third parties from interfering with their existing enjoyment.[8] However, as is explained below, there is an ongoing debate about whether there is such a wide distinction between judicial enforcement of "negative" civil and political rights versus "positive" socio-economic rights in practice.
The purpose of this chapter is to unpack the purpose, and importance, of socio-economic rights and explain how they are interpreted and enforced by the courts. It does this in five parts. First, it explains the two justiciability arguments against giving the courts authority to enforce socio-economic rights, the connection between socio-economic rights and transformative constitutionalism and why socio-economic rights and civil and political rights are interdependent. Secondly, it explains the various "negative" and "positive" duties socio-economic rights impose on the state - and private parties - and how to determine the content of these duties by interpreting socio-economic rights. Thirdly, it unpacks the "reasonableness review" test the courts use to determine whether the state has complied with its positive duties to progressively realise and provide a socio-economic right. Finally, it discusses some of the legal remedies a court can order when someone successfully establishes a negative or positive duty imposed by a socio-economic right that has been violated.
Before explaining how the courts interpret and enforce socio-economic rights, it is necessary to consider two fundamental things. First, how, and why, the separation of powers influences how strictly (or leniently) the courts will adjudicate socio-economic rights in practice. Secondly, why socio-economic rights are intrinsically connected to transformative constitutionalism and how they are also interdependent with civil and political rights.
The separation of powers broadly refers to the division of state power between three separate branches of government: (a) the legislature; (b) the executive; and (c) the judiciary.[9] While the Constitution does not expressly provide for the separation of powers, the Constitutional Court ("CC") has confirmed it is "implicit" in the Constitution.[10] There is also no universal model of the separation of powers, how it works may differ from one country to the next.[11] It is also not absolute because there can sometimes be legitimate overlaps between the powers, functions and personnel in each branch.[12] At its most basic, the separation of powers doctrine proposes two reasons why it is necessary to divide state power into three separate parts:
Two important differences between the judiciary and the other branches affect how the courts interpret and enforce socio-economic rights. First, judges are not elected by the people; they are appointed by the President on recommendation of the Judicial Service Commission ("JSC").[17] Secondly, the judiciary is also arguably the least democratically accountable branch of government because judges cannot be removed in elections (albeit for good reason) unlike members of the other two branches.[18] These differences, among others, are sometimes relied upon to argue that it is inappropriate to give judges the authority to enforce socio-economic rights.[19] This raises an important problem regarding judicial enforcement of socio-economic rights known as the issue of justiciability: to what extent can (or should) socio-economic rights be enforceable by the courts?[20] People who oppose giving courts the legal authority to enforce socio-economic rights generally rely on two different and closely connected arguments.[21] Both these arguments can be summarised as follows:
Both arguments against the justiciability of socio-economic rights were rejected by the CC in Ex parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa, 1996 ("the Certification case").[27] In rejecting both arguments, the court said two things.[28]
On several occasions since the Certification case, the CC has confirmed that both the positive and negative duties that socio-economic rights impose on the state are justiciable.[35] This means the CC has consistently confirmed that neither the separation of powers or polycentricity prevent the courts from ordering the state to take positive steps to provide socio-economic rights or to comply with its negative duties not to interfere with their existing enjoyment. However, in practice, the key problem is not whether socio-economic rights are justiciable. Rather, it is how courts should go about enforcing a particular socio-economic right in practice.[36] Whilst the separation of powers and polycentricity do not prevent the courts from enforcing socio-economic rights, both these factors still influence the "level of scrutiny" or "standard of review" the courts will apply when enforcing them. The standard of review broadly refers to how strictly (or leniently) the courts will scrutinise the actions of the state to determine whether it has complied with either the negative or positive duties a socio-economic right imposes upon it. What the court must determine when someone argues that the state has failed to comply with its positive duties to provide a socio-economic right - or has violated its negative duty not to interfere with its existing enjoyment - is set out below.[37] First, it is necessary to briefly consider some important links between socio-economic rights and transformative constitutionalism, and how socio-economic rights and civil and political rights are interdependent and reinforce each other.
The South African Constitution, and more specifically its Bill of Rights, is often described as "transformative".[38] This description comes from the theory (or legal philosophy) of transformative constitutionalism.[39] Transformative constitutionalism argues the Bill of Rights is "transformative" because it has a different role and purpose in society than a "purely liberal" Bill of Rights, such as that of the United States.[40] To understand why the entrenchment of socio-economic rights makes the Bill of Rights "transformative", it is necessary to briefly consider the primary purpose and function of a liberal Bill of Rights.
The main purpose of a purely liberal Bill of Rights is to restrict the exercise of government power by imposing duties on it that prohibit it from doing certain things.[41] In other words, the primary function of a "purely liberal" Bill of Rights is only to prevent the government from acting in ways that violate its "negative duties" to not infringe civil and political rights to guarantees, such as freedom of speech or assembly, equality before the law or privacy. This means that a liberal Bill of Rights does not normally impose "positive duties" on the state, or private individuals, to provide vulnerable people in society with access to the basic material goods necessary to live a decent life such as housing, food and water, an education or adequate healthcare.[42] This is because, as stated, the primary purpose of such a Bill of Rights is only to restrict state power. It does not necessarily concern itself with imposing positive duties on the state, or private persons, to provide other people with the basic material goods necessary for them to live in conditions consistent with human dignity.[43]
The entrenchment of both "negative" civil and political rights and "positive" socio-economic rights makes it clear that the Bill of Rights is not a "purely liberal" one. It is true that it restricts government power by imposing negative duties on the state to not violate constitutional rights, much like the United States Constitution. However, and unlike the United States Constitution, it also has an additional "transformative purpose" - to address the continuing conditions of poverty, economic inequality and exclusion created by both apartheid and colonialism.[44] This is one central reason why the Bill of Rights not only protects socio-economic rights, but also imposes enforceable positive duties on the state to actively provide them. We can also identify two further reasons (or "rationales") for why justiciable socio-economic rights are guaranteed by the Bill of Rights:
It is important to keep these three rationales in mind when we consider the various duties that socio-economic rights impose on the state (and private parties) and how socio-economic rights should be interpreted.[50] This is because all three rationales influence how the courts interpret the various duties socio-economic rights impose on the state and private individuals when enforcing them in practice. What these duties mean, and how socio-economic rights should be interpreted, is considered directly below.
Before we can explain the "reasonableness review" test used by the courts to determine whether the state has complied with its positive duties to progressively realise socio-economic rights, we must first consider two things. First, what kind of duties do socio-economic rights impose on the state and private parties? Secondly, how should these duties be interpreted to determine what they require the state, and private parties, to do or not to do? The factors that provide us with a broad indication about how to answer these two questions are summarised in the following table and expanded upon in more detail immediately below.
APPLICATION: WHAT KIND OF DUTIES DO SOCIO-ECONOMIC RIGHTS IMPOSE ON THE STATE AND PRIVATE PARTIES? |
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This requires considering the following two issues: (a) what duties do socio-economic rights impose on other parties; and (b) which duties are enforceable against the state and which are enforceable against private parties? First issue: what kind of constitutional duties can socio-economic rights impose? Socio-economic rights can impose two types of duties: (a) negative and (b) positive duties.
Second issue: which duties bind the state and which duties bind private parties? Whether a particular duty imposed by a socio-economic right binds another party depends on whether that party is: (a) the state; or (b) a private person. 1. The state: both the positive and negative duties imposed by socio-economic rights are binding and enforceable against the state. The negative and positive duties imposed on the state are regulated by the application provisions of the Constitution and the text of the right: 1.1. Section 7(2): imposes both positive and negative duties on the state to "respect, protect, promote and fulfil" socio-economic rights. 1.2. Section 8(1): states that the Bill of Rights "applies to all law, and binds the legislature, the executive, the judiciary and all organs of state". 1.3. Text: some socio-economic rights "condition" or "qualifiy" the positive duties imposed on the three qualifications of: (a) "reasonable legislative and other measures", (b) "progressive realisation"; and (c) "within available resources". 2. Private parties: negative duties are enforceable against private parties. It is less settled whether positive duties are too. Determining whether a positive socio-economic right duty can bind a private person requires considering sections 8(2) and 8(3) of the Constitution: 2.1. Section 8(2): provides that a socio-economic right can impose positive duties on a private person, "if, and to the extent that it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right". 2.2. Section 8(3): requires the court to consider four questions to determine how any duty imposed by a socio-economic right on a private person should be enforced: 2.2.1. Whether legislation gives effect to the horizontal application of the socio-economic right. If not, it must consider whether the common law does. 2.2.2. The court must consider whether the common law gives effect to the horizontal application of any duty imposed by the right. If yes, the court must apply the common law or develop the common law if necessary to do so. 2.2.3. The court must create a common law rule to give effect to the horizontal application of any duty imposed by the right, if that duty is not regulated by any legislation or by any common law rule. 2.2.4. When the court creates a common law rule to give effect to any duty imposed by a particular socio-economic right, the court can limit the extent of any duty imposed by the right under section 36(1) of the Constitution. |
INTERPRETATION: WHAT FACTORS INFLUENCE THE CONTENT OF THE DUTIES SOCIO-ECONOMIC RIGHTS IMPOSE ON THE STATE AND PRIVATE PARTIES? |
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This requires considering how to determine the content of the various duties socio-economic rights impose on both the state and private parties. This is influenced by four general factors: 1. Section 39(1) of the Constitution: this is the "interpretation clause". Section 39(1) influences the interpretation of the duties imposed by socio-economic rights in three different ways: 1.1. Section 39(1)(a): requires the court to interpret the duties imposed by socio-economic rights in a way which will "promote the values of human dignity, equality and freedom". 1.2. Section 39(1)(b): imposes a duty on the court to "consider international law" when determing the content of any duties that socio-economic rights impose on other parties. 1.3. Section 39(1)(c): gives the court a choice to "consider foreign law" when determining the content of any duties that socio-economic rights impose on other parties. 2. Generous and purposive interpretation: the courts must interpret socio-economic rights broadly so that they achieve their purpose and so that they benefit as many people as possible "as far as the language [of that socio-economic right] permits". 3. Text: qualified socio-economic rights require courts to consider that the state"s positive duty to realise these socio-economic rights are qualified by the three conditions of (a) "reasonable legislative and other measures"; (b) "progressive realisation"; and (c) "available resources". 4. Connection to civil and political rights: courts should consider that one purpose of socio-economic rights is to ensure that everyone can meaningfully exercise civil and political rights. |
Before considering the various duties socio-economic rights impose on the state, and also private parties, it is useful to first distinguish between three different categories of socio-economic rights which the Bill of Rights guarantees. These three categories are: (1) "qualified socio-economic rights"; (2) "unqualified/basic socio-economic rights"; and (3) "negative socio-economic rights". Each category can be broadly summarised as follows:
Having explained the differences between the three categories of socio-economic rights, we can now consider the following question: what kind of duties do socio-economic rights impose on other parties and who can those duties be enforced against?
Socio-economic rights impose both "positive" and "negative" duties on the state. When socio-economic rights are enforced against the state - based on the allegation it has violated either a positive or negative obligation - the Bill of Rights applies vertically. When a socio-economic right applies vertically, it does two things: (a) it confers benefits on a private person; and (b) it imposes corresponding duties on the state.[56] Before explaining these different duties, it is useful to briefly reiterate the difference between a "negative" versus a "positive" duty:
The Constititution imposes both negative and positive duties on the state in relation to the entire Bill of Rights.[57] This is because section 7(2) of the Constitution requires the state to "respect, protect, promote and fulfil" all the rights contained in the Bill of Rights.[58] In other words, section 7(2) of the Constitution imposes both "positive" and "negative" duties on the state to "respect, protect, promote and fulfil" socio-economic rights.[59] The duty to "respect" imposes negative obligations on the state to not directly or indirectly violate, or interfere with, the existing enjoyment of a socio-economic right.[60] Conversely, the duties to "protect, promote and fulfil" socio-economic rights impose positive duties on the state to: (a) "protect" socio-economic rights against interference by third parties; (b) "promote" awareness of socio-economic rights; and (c) "fulfil" socio-economic rights by ensuring they are provided to people in society who do not currently have access to them.[61] These duties are briefly summarised in the following table and expanded upon in more detail immediately below:
"RESPECT, PROTECT, PROMOTE AND FULFIL" SOCIO-ECONOMIC RIGHTS |
1. Negative duties
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2. Positive duties
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As explained immediately above, section 7(2) of the Bill of Rights imposes positive duties on the state to: (a) "protect"; (b) "promote"; and (c) "fulfil" socio-economic rights. The broad content of what these positive duties imposed on the state can be summarised as follows:
While section 7(2) of the Constitution requires the state to take active steps to "promote and fulfil" socio-economic rights, it does not tell the state how it should go about fulfilling these positive constitutional obligations. This is why the positive duties to "promote" and "fulfil" must also be read together with the text (wording) of a particular socio-economic right which can flesh out what these positive duties require the state to do in more detail.[69] When it comes to "qualified" socio-economic rights in particular, as explained above, the state"s positive duties to "promote" and "fulflil" the right is subjected to three qualifications: (a) "reasonable legislative and other measures"; (b) "progressive realisation"; and (c) "within available resources". Once these three qualifications are summarised in the following table, we can consider them in more detail immediately below.
"REASONABLE MEASURES", "PROGRESSIVE REALISATION" AND "WITHIN AVAILABLE RESOURCES" |
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1. "Reasonable legislative and other measures": this requires the state to enact legislation and take "reasonable" administrative and other measures to fully realise socio-economic rights. 2. "Progressive realisation": this means the state must ensure any programme it adopts will progressively realise socio-economic rights over time. 3. "Within available resources": this means the state"s duty to progressively realise the right can only take place within the resources available to it at a particular point in time. |
The duty to take "reasonable legislative and other measures" recognises that the separation of powers requires the courts to give the state a degree of leeway when it takes steps to fulfil its positive duty to "promote and fulfil" a particular socio-economic right.[70] This is because this qualification recognises that the elected branches of government (legislature and executive) should - in the first instance - determine how best to "promote" and "fulfil" socio-economic rights by enacting "legislation" and through taking "other measures".[71]
Whenever the legislature enacts legislation to give effect to a socio-economic right, a litigant cannot rely directly on the right to enforce it against the state or even a private person.[72] This is because of the principle of constitutional subsidiarity. This principle broadly states that whenever legislation is enacted to "give effect" to a constitutional right, a litigant must rely on that legislation to enforce that constitutional right in practice and cannot directly rely on the underlying constitutional right that legislation regulates.[73] However, any legislation enacted for the purpose of "giving effect" to a socio-economic right must still be purposively interpreted to ensure it properly gives effect to the socio-economic right it seeks to regulate.[74] However, it is possible for someone to rely directly on a socio-economic right, which is given effect to by legislation, where they challenge the constitutionality of that legislation. Such a constitutional challenge could be because the challenged legislation does not properly "protect", "promote" or "fulfil" that socio-economic right[75] or because it infringes other constitutional rights such as the right to human dignity or equality for example.[76]
At its most basic, the state"s positive duty to take "reasonable legislative and other measures" requires it to do three different things. First, it must enact legislation to "protect, promote and fulfil" socio-economic rights.[77] Secondly, it must also take "other measures" - in addition to enacting legislation - such as formulating socio-economic rights programmes or enacting executive and administrative policies to support the protection, promotion and fulfilment of socio-economic rights in reality.[78] Thirdly, it must ensure that the content of any socio-economic rights legislation or "other measure" is also "reasonable".[79] How the courts determine whether socio-economic rights legislation or "other measure" is "reasonable" is explained below where the reasonableness review test is discussed.[80] First, it is necessary to consider the other qualifications of "progressive realisation" and "within available resources".
The first way in which the positive duties of the state to "respect", "protect" and "promote" qualified socio-economic rights is conditioned is through the concept of "progressive realisation".[81] "Progressive realisation" has two primary principles:
The second way in which the state"s duty to "promote" and "fulfil" qualified socio-economic rights is conditioned through the concept of "within available resources". This qualification expressly recognises that the ability of the state to progressively realise and provide socio-economic rights is constrained by what its present resources allow. In Soobramoney v Minister of Health: KZN ("Soobramomey") the CC explained this qualification as follows:
"...the obligations imposed by the State by ss 26 and 27 in regard to access to housing, health care, food, water and social security are dependent upon resources available for such purposes, and the corresponding rights themselves are limited by reason of the lack of resources"[88] (emphasis added).
Resource availability therefore plays an important role when a court determines whether a socio-economic rights programme or piece of legislation complies with the requirements of 'reasonableness'.[89] This qualification also means that the state could also theoretically justify any "deliberately retrogressive measures" which decrease access to a socio-economic right because of constraints on its current available resources.[90] However, the onus to persuade the court that the state lacks sufficient resources to properly provide a particular socio-economic right rests on the state, not the applicant.[91] This means the state has the duty to place sufficient evidence before the court to convince it that the state is doing all it presently can "within its available resources" to progressively realise that socio-economic right in reality.[92] However, the court will closely scrutinise any claim that a "deliberately retrogressive measure" is justified because of insufficent resources.[93] Furthermore, if resources later become available, it would be difficult for the state to persuade the court any deliberately retrogressive measures it has previously taken continue to remain "reasonable".[94]
This means that the qualification of "within available resources" can operate in two different ways. First, the state could use it as a "shield" to justify a deliberately retrogressive measure or to show that a particular socio-economic programme or measure it has taken will progressively realise the right "within the available resources" the state presently has.[95] Secondly, litigants can use it as a "sword" to show that a deliberately retrogressive measure renders a programme unreasonable, because the state has sufficient resources to progressively realise the right, or because the state is not properly utilising the "available resources" it presently has to progressively realise a particular socio-economic right in reality.[96]
As explained above, section 7(2) of the Constitution also imposes "negative" duties on the state to "respect" socio-economic rights. This broadly prohibits the state from interfering with the existing enjoyment of a socio-economic right or from doing anything which will decrease the existing access to a socio-economic right. In the Certification case, the CC explained that this means that socio-economic rights can "at the very least be negatively enforced against improper invasion".[97] Similarly, in Jaftha v Schoeman ("Jaftha") the CC held that, "any measure which permits a person to be deprived of their access to housing...will violate the negative obligations imposed by the Constitution".[98] At its most basic, the negative duty to "respect" socio-economic rights prohibits the state from adopting any measure - or acting in any way - which will directly or indirectly interfere with the existing enjoyment of a socio-economic right, unless such interference can be justified as "reasonable" or as a permissible and justifiable limitation of that socio-economic right in terms of section 36(1) of the Constitution, the general limitation clause.[99] Brand identifies three things which the negative duty on the state to "respect" socio-economic rights entails:
"First, the state must not limit or take away people"s existing access to [a socio-economic right] without good reason and without following proper procedure. Second, where the limitation or deprivation of existing access [to a socio-economic right] is unavoidable, the state must take steps to mitigate that interference. Third, the state must not place undue obstacles in the way of people gaining access to [socio-economic rights]".[100]
As explained, both the positive and negative dimensions of socio-economic rights are binding on the state and must be enforced "vertically" against it. In addition, and in certain circumstances, socio-economic rights can also be enforced "horizontally" against a private person.[101] When a socio-economic right applies horizontally it also does two things: (a) it confers benefits on a private person; and (b) it imposes duties on another private person.[102] First, we will consider the various "negative duties" that socio-economic rights can impose on private parties. Secondly, we will consider whether socio-economic rights can also impose "positive duties" on private parties to "protect", "promote" or "fulfil" them.
The CC has indicated that socio-economic rights can, "at the very least", impose negative duties on private parties to "respect" them.[103] This means socio-economic rights can impose negative duties on private parties not to do anything that will directly or indirectly interfere with the existing enjoyment of a socio-economic right held by another private person.[104] For example, in NM v John Wesley School, the High Court held that a private school violated its negative duty to "respect" the basic/unqualified socio-economic right to a basic education by unreasonably preventing a child from attending class because his parents could no longer afford school fees.[105] Similarly, in Governing Body Juma Musjid Primary School v Essay NO the CC held that a private person violated its negative duty to "respect" the socio-economic right to a basic education in section 29(1)(a) by failing to take steps to minimise the negative impact on this right on school children when evicting a primary school from its property.[106]
The wording (text) of a socio-economic right can sometimes provide an indication about the kind of negative duties it may impose on a private person. For example, section 26(3) states that "no one may be evicted from their home or have their home demolished without an order of court" and section 24(a) states that "everyone has the right to an environment that it not harmful to their health or wellbeing". The negative duty not to evict someone from their home without a court order is a duty which is clearly capable of binding both the state and private persons.[107] Similarly, the right to a clean environment which is "not harmful to health or wellbeing" is also capable of imposing negative duties on the state and private parties by, for example, imposing duties on a private mining company or government department to not directly or indirectly pollute the water supply of a local community.[108]
In practice, legislation regulates many of the negative duties that socio-economic rights impose on private parties. For example, the negative duty to not interfere with the right to a clean environment is largely regulated by the National Environmental Management Act ("NEMA")[109] and the negative duty not to evict someone from their home without a court order is regulated by the Prevention of Illegal Evictions Act ("PIE").[110] Whenever such legislation exists, as noted above, litigants must rely upon it to enforce any negative duty a socio-economic right imposes on a private party, or the state, because of the principle of constitutional subsidiarity.[111] However, as explained earlier, it is possible to rely directly on any negative or positive duty imposed by a socio-economic right, which is regulated by legislation, if the constitutionality of that legislation is challenged.[112] However, where no legislation regulates any duty a socio-economic right imposes on a private party (or the state), it may be necessary for the court to develop the common law to create a remedy for the violation of any negative duty that socio-economic right may impose.[113]The development of the common law to achieve this objective would occur in terms of section 8 of the Constitution which is discussed in more detail immediately below.
Unlike negative duties, it is less clear whether socio-economic rights can also impose positive duties on private parties to "protect", "promote" or "fulfil" them.[114] The CC has not yet definitively decided whether socio-economic rights can impose positive duties on private people. However, it has also not definitively said private parties can never have positive duties to "protect", "promote" or "fulfil" socio-economic rights either. In Daniels v Scribante ("Daniels") the CC reiterated this fact when it said that "this Court has not held that under no circumstances may private parties bear positive obligations under the Bill of Rights".[115]
Similar to the horizontal application of the negative duty to "respect" socio-economic rights, certain pieces of legislation do in fact impose limited positive duties on private parties to "promote" or "fulfil" socio-economic rights.[116] For example: the Mineral and Petroleum Resources Development Act ("MPRDA")[117] states that every person who applies for a mining licence must submit a "Social and Living Plan" ("SLP") to promote socio-economic development in any community where mineral resources are mined.[118] Similarly, the National Health Act ("NHA") imposes a legal duty on both private and state doctors to provide people with "emergency medical treatment" whenever it is requested.[119]
However, there may be cases where a positive duty on a private person to "promote" or "fulfil" a socio-economic right is not regulated by any legislation. In these circumstances, it would be necessary for the court to apply both section 8(2) and 8(3) of the Constitution to determine two things.[120] First, the court must apply section 8(2) to determine if that socio-economic right can (or should) impose a positive duty on private persons to "protect" or "promote and fulfil" it.[121] Secondly, if yes, the court must apply section 8(3) to determine how any positive duty imposed by that socio-economic right should be enforced.[122]
In Daniels, the CC said the following should be considered to determine whether a socio-economic right does (or should) impose positive duties on a private person to "protect", "promote" or "fulfill" it in terms of section 8(2) of the Constitution:
"...Whether private persons will be bound depends on a number of factors. What is paramount includes: what is the nature of the right; what is the history behind the right; what does the right seek to achieve; how best can that be achieved; what is the "potential of invasion of that right by persons other than the State or organs of state"; and, would letting private persons off the net not negate the essential content of the right? If, on weighing up all the relevant factors, we are led to the conclusion that private persons are not only bound but must in fact bear a positive obligation, we should not shy away from imposing it; section 8(2) does envisage that."[123]
If the court concludes that the socio-economic right should impose positive duties on a private person, it must then apply section 8(3) to determine how that positive duty should be enforced.[124] Section 8(3) would require the court to consider these four questions:
Having explained the various negative and positive duties socio-economic rights can impose on the state and private parties, we are now in a position to consider the following question: how should these duties be interpreted to determine what they require the state and private parties to do or not to do? For present purposes, we can identify three general factors that influence how the courts interpret the duties imposed by socio-economic rights. First, general factors of constitutional interpretation which include: (a) the generous and purposive theory of Bill of Rights interpretation; (b) constitutional values of human dignity and equality; (c) text of the socio-economic right and its history; and (d) the interdependence between socio-economic rights and civil and political rights. Secondly, the duty to consider international law in terms of section 39(1)(b) of the Constitution. Thirdly, the discretion (choice) to consider foreign law in terms of section 39(1)(c) of the Constitution.
Broadly speaking, four general factors of constitutional interpretation influence socio-economic rights interpretation. First, all constitutional rights, including socio-economic rights, must be interpreted "generously and purposively".[132] Secondly, all socio-economic rights must be interpreted in a manner that will best promote the values of "human dignity, equality and freedom".[133] Thirdly, the history and text of socio-economic rights should be taken into account in determining their content. Fourthly, the interdependence between socio-economic rights and civil and political rights should be considered when determining the content of the duties which they impose on the state or private persons.
The generous and purposive theory of rights interpretation means that the courts should interpret socio-economic rights in a manner which seeks to maximise their enjoyment and ensure they benefit as many people as possible "as far as their language [text] permits".[134] For example, in Khosa v Minister for Social Development ("Khosa"), the CC relied on this principle of interpretation to conclude that the exclusion of indigent permanent residents from the Social Assistance Act[135] violated their constitutional right to both social security (section 27(1)(c)) and against unfair discrimination (section 9(3)).[136] The founding constitutional values of human dignity and equality also mean socio-economic rights should be interpreted in a way which will ensure all people can live in conditions consistent with human dignity[137] but also so everyone can meaningfully exercise all their civil and political rights in reality.[138]
The history and text of socio-economic rights influence their interpretation in two ways. First, as above, the text of "qualified" socio-economic rights condition the duties they impose on the state through the qualifications of: (a) "reasonable legislative and other measures"; (b) "progressive realisation"; and (c) "within available resources."[139] Secondly, the history of socio-economic rights influences their content and understanding because a central purpose of the Constitution is not only to prevent rights abuses from occurring in the constitutional era - such as the abuses which occurred during Apartheid and Colonialism - but also to ensure that the ongoing legacy of poverty and inequality which apartheid and colonialism created is comprehensively and fully addressed.[140]
Section 39(1)(b) of the Constitution imposes a duty on the courts to "consider" international law when interpreting socio-economic rights.[141] The reference to "international law" in section 39(1)(b) is not limited to binding international law.[142] This means that the courts should consider both binding and non-binding sources of international law when interpreting the socio-economic rights guaranteed by the Bill of Rights.[143]
The CC has used international law fairly extensively when interpreting socio-economic rights.[144] Perhaps the most influential source of international law it has relied upon is the International Covenant on Economic, Social and Cultural Rights of 1996 ("ICESCR") which South Africa ratified in 2015.[145] For instance, in Government RSA v Grootboom ("Grootboom"), the court referred to comments on the ICESCR written by its supervisory body of experts - the Committee on Economic, Social and Cultural Rights ("CESCR") - when interpreting the socio-economic right of access to adequate housing in section 26(1) and (2) of the Constitution.[146] Another influential source of international law, which may provide guidance about the interpretation of socio-economic rights, is the African Charter on Human Rights, a treaty of the African Union ("AU"), which South Africa has also ratified.[147]
However, in Grootboom the CC also held that whilst international law is a valuable tool to interpret socio-economic rights, textual and other differences between the Bill of Rights and international should always be kept in mind.[148] This resulted in the CC rejecting two arguments about the interpretation of the socio-economic right of access to adequate housing which the CESCR has made when interpreting the ICESCR.[149] First, it rejected the argument that all socio-economic rights have a "minimum core" that are enforced immediately realised and enforcable against the state because it would be difficult for courts to determine in the abstract what a "minimum core" of a socio-economic right would be.[150] Secondly, it held the socio-economic right of access to adequate housing in section 26(1) and (2) could not be interpreted in entirely the same way as the ICESCR. The court explained this was because of two differences in wording between the socio-economic right of access to adequate housing in the Constitution and the corresponding textual formulation of the right in the ICESR:
"(a) the Covenant provides for a right to adequate housing while section 26 provides for the right of access to adequate housing.
(b) the Covenant obliges state parties to take appropriate steps which include legislation while the Constitution obliges the state to take reasonable legislative and other measures".[151]
In sum: section 39(1)(b) requires the courts to "consider" relevant sources of international law when interpreting socio-economic rights. However, this does not mean that the courts are not necessarily required to always interpret all socio-economic rights in exactly the same way as international law. The amount of weight the court will place on international law would thus depend on the particular facts and circumstances of each case.[152]
Section 39(1)(c) of the Constitution gives the courts a discretion (or choice) to consider foreign law when interpreting socio-economic rights.[153] However, and unlike international law, foreign law tends to be far less influential when it comes to socio-economic rights.[154] There is a logical reason for this. As explained above, very few countries have a Bill of Rights which expressly gurantee justiciable socio-economic rights and which also impose legally enforceable positive duties on the state to provide or progressively realise them.[155] This means there is not much comparable and relevant foreign case law that the South African courts can rely upon when interpreting socio-economic rights in practice. However, on one or two occasions, the courts have referred to the decisions of foreign courts when interpreting socio-economic rights, but this does not appear to happen that often in practice.[156]
We should now broadly understand the different negative and positive duties socio-economic rights impose on the state and private parties, and how these duties should be interpreted. We can now consider a central question about judicial enforcement of socio-economic rights: what test do the courts apply to determine whether the state has complied with its positive constitutional duties to progressively realise qualified socio-economic rights? The primary test courts use to determine this question is known as the "reasonableness review" test. This test has two elements and both elements must be established by the state.[157] First, it must establish that it has taken "legislative and other measures" to give effect to a socio-economic right.[158] Second, it must show that the content of any "legislative" or "other measures" it has enacted to give effect to that socio-economic right is also "reasonable".[159] How both elements of this test work is briefly summarised in the following table and then expanded on further immediately below.
TWO ELEMENTS OF REASONABLE REVIEW: "THE REASONABLE PLAN" |
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Qualified socio-economic rights require the state to do two things: (1) "take legislative and other measures" to "respect, protect, promote and fulfil" socio-economic rights; and (2) ensure that the content of any legislative or other measures it adopts for this purpose are also "reasonable". 1. The state must have a programme: the state must create a plan or programme by taking "legislative and other measures" to "respect, protect, promote and fulfil" socio-economic rights and which will "progressively realise" these rights within its current "available resources". If the state fails or refuses to create such a programme, the court can order the state to create one. 2. The programme must be reasonable: the programme must be "reasonable" which means it must be capable of "progressively realising" the right "within [the state"s] available resources". Case law shows us that a "reasonable plan" must have (at least) the following six elements: 2.1. Comprehensive and co-ordinated: the plan must address all aspects relating to the progressive realisation of the right and be co-ordinated between all three spheres of state. 2.2. Sufficient personnel and resources must be allocated: sufficient resources must be allocated and the state cannot adopt "token measures" to progressively realise the right. 2.3. Sufficiently flexible to cater for short, medium and long term needs: the plan must be able to cater for people who are in desperate situations or in immediate need of the right. 2.4. The plan must be transparent: the plan must be made available when it is conceived and made publicly available once it is finalised, especially to those people it affects. 2.5. The state must continuously revise the plan: the plan cannot be set in stone and the state must continuously revise it to ensure that it is progressively realising the right in reality 2.6. The plan cannot exclude a significant or vulnerable section of society: the plan cannot unreasonably exclude a significant part of society or vulnerable people in desperate need. |
First, the state must take "legislative and other measures" to comply with its positive constitutional duties to progressively achieve the right of "access" to the right within its available resources and to "protect", "promote" and "fulfil" the right. Logically, this is the first thing the state must do to comply with the positive duties that the socio-economic rights in the Bill of Rights impose on it.[160] This means that if the state has no plan whatsoever it will have failed to comply with its positive duty to take "legislative and other measures" to promote access to the right and "promote" and "fulfil" it.[161] In this scenario, the court can order the state to take "legislative and other measures" but will not - as explained below - tell the state what those legislative or other measures should contain or how the socio-economic right should be progressively realised.[162] The court will only order the state to: (a) take "legislative and other measures" to progressively realise the right; and (b) ensure that the content of any measures it takes to progressively realise the right is also "reasonable".[163] Generally speaking, most cases turn on this second element: whether the legislative and other measures adopted by the state are "reasonable". This second element is considered below.
Secondly, the state must ensure that the content of any "legislative and other measures" it takes are reasonable. This means that if the state has adopted legislative and other measures - often referred to collectively as a socio-economic rights "plan" or "programme" - the court must then determine whether the content of that plan is also "reasonable".[164] This means if the content of the plan is not "reasonable", it will be unconstitutional and the court will order the state to fix or remove any "unreasonable" aspects of the plan.[165] The essential purpose behind this second element is to require the state to ensure that any measures or plans it adopts "does not exist on paper only" - they must be capable of progressively realising the right in reality.[166] In Grootboom, the CC summarised the enquiry into this second element as follows:
"The programme must be capable of facilitating the realisation of the right. The precise contours and content of the measures to be adopted are primarily a matter for the legislature and the executive. They must, however, ensure that the measures they adopt are reasonable. In any challenge...where it is argued the state has failed to meet the positive obligations imposed upon it...the question will be whether the legislative and other measures taken by the state are reasonable. A court considering reasonableness will not enquire if other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question will be whether the measures adopted are reasonable. It is necessary to recognise a wide range of possible measures could be adopted by the state to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met."[167] (emphasis added)
Whenever it is argued that the measures taken by the state do not satisfy this second element, the applicant should produce sufficient evidence to establish a prima facie case of "unreasonableness."[168] Once a prima facie case is established, the state has the onus to convince the court that the challenged measures are "reasonable".[169] This means the state (not the applicant) bears the overall onus to establish the measures are "reasonable", which means they should be capable of progressively achieving the full realisation of that right within the current available resources of the state in reality.[170] If the state convinces the court that the challenged measures are "reasonable", that will be the end of the case because the state will have established compliance with its positive duties to take "reasonable" legislative and other measures to progressively achieve the full realisation of the right within its current available resources.[171] The case law shows us that in order for the measures to be "reasonable", the state should produce enough evidence to convince the court that the measures have, at least, the following six characteristics: (1) the programme is comprehensive and coordinated between all three spheres of state; (2) sufficient personnel and resources have been allocated to the programme; (3) the programme is sufficiently flexible to cater for short, medium and long term needs; (4) the programme is transparent; (5) the programme is continuously revised to ensure it is progressively realising the right in reality; and (6) the programme does exclude a significant or vulnerable section of society.[172] Each characteristic is explained below.
This characteristic can be broken down into two parts. First, the programme must be "comprehensive" which requires it to address all aspects related to the provision and progressive realisation of the right.[173] Second, the programme must be "coordinated" which means all three spheres of government (national, provincial and local) must be allocated duties and responsibilities under the programme to progressively realise the right.[174] An example of a programme which was not "comprehensive" occurred in Minister of Health v Treatment Action Campaign ("TAC").[175] In the TAC case, the CC held that the HIV/AIDS programme adopted by the state was not "comprehensive", and therefore unreasonable and unconstitutional, because it did not provide for the provision of the anti-retroviral ("ARV") drug Nevirapine beyond various restricted "test sites".[176] This meant HIV positive mothers who could not access the test sites, to prevent mother to child transmission of HIV, were denied access to Nevirapine which meant the programme was not "comprehensive" because it did not address all aspects related to the provision of the socio-economic right to adequate healthcare in section 27(1)(a) and was therefore "unreasonable" and unconstitutional.[177]
This characteristic means a reasonable programme "cannot exist on paper alone".[178] For a programme to be reasonable the state must ensure that sufficient resources and personnel are allocated to it, to ensure it will progressively achieve the full realisation of that socio-economic right in reality.[179] This means that if the state only adopts "token measures" - cosmetic measures which will never actually progressively achieve the full realisation of the right - the programme itself will be unreasonable and unconstitutional.[180]
This means the programme must be sufficiently flexible to ensure it can provide relief for people living in desperate or intolerable conditions.[181] This requires the programme to be sufficiently flexible so that all three spheres of state have sufficient room to adapt the programme to respond to any short, medium and long terms needs as they may arise.[182] In Grootboom, the CC concluded that the state housing programme failed to meet this requirement because it made no provision for emergency temporary housing for people who were in desperate need and living in intolerable conditions.[183] Similarly, in TAC, the CC concluded that the "rigidity" of the HIV/AIDS programme rendered it unreasonable because the programme could not be properly adapted by the different spheres and organs of state to assist HIV positive mothers who could not access the various limited test sites.[184]
The state must make the plan available to the public when it is being conceived and ensure that the programme is made available to all people who are affected by it.[185] In practice, this "transparency" requirement is very important because people who want to challenge the 'reasonableness' of a socio-economic rights programme cannot properly do so in court if they do not know the contents of the programme.[186] In the TAC case, this was a significant factor, among others, which rendered the state HIV/AIDS programme unreasonable because various spheres and organs of state refused to disclose the contents of the HIV/AIDS programme, despite various and repeated requests for the contents of the programme to be made public.[187]
The state must continuously revise the programme to ensure it is progressively achieving the full realisation of the socio-economic right in reality[188] and also so that it can be expanded over time.[189] This means that any programme which is "set in stone" is unlikely to be reasonable and constitutional.[190] The basic reason is because conditions change over time. Therefore, any programme which is never adapted or revised, to adapt to changing conditions to ensure it is actually achieving the full realisation of the socio-economic right in reality is unlikely to be a reasonable one.[191]
The plan cannot exclude a significant section of people in society or vulnerable group who do not presently have access to the right and require state assistance to be provided them with the basic material goods necessary for them to live in conditions consistent with human dignity.[192] An example of such a programme occurred in Khosa, where the state decided to exclude permanent residents from social security legislation based on its belief that only "citizens" benefited from the constitutional right to social security in section 27(1)(c).[193] The CC declared the exclusion of permanent residents from social security benefits to be "unreasonable" and unconstitutional because it found that not only do indigent permanent residents benefit from the socio-economic right to social security, but also because it was also unreasonable for the state to exclude poor permanent residents from social security benefits given that they are a vulnerable and marginalised group who require state assistance to ensure they can provide for their basic material needs.[194]
We should now have a basic understanding about how the "reasonableness review" test works and the various factors that the state must ensure a "reasonable" socio-economic rights programme should have. Next, we will consider a further question: how strictly or leniently ("deferentially") will a court apply the reasonableness review test when scrutinising a socio-economic rights programme? While the CC has not said so expressly, the case law clearly shows us that the courts will scrutinise the 'reasonableness' of a socio-economic rights programme more strictly or leniently depending on the circumstances of the case.[195] This means the "reasonableness review" test has a variable standard of scrutiny, i.e. it can be applied more strictly or leniently depending on the presence (or absence) of various factors.[196] Before discussing these factors, it is necessary to discuss and explain the three "standards of review" the courts could adopt when applying the "reasonableness review" test.
The case law establishes there are three potential standards of review the court could apply when determining the 'reasonableness' of a socio-economic rights programme: (a) 'rationality'; (b) 'reasonableness'; and (c) 'proportionality'. These standards, and the factors that influence which one the court could adopt, are summarised in the following table.
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THE VARIABLE STANDARD OF REASONABLENESS REVIEW |
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THE THREE STANDARDS OF REVIEW |
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1. 'Rationality': this is the most lenient standard of review which makes it easier for the state to show a plan is "reasonable". This requires determining if the state has acted in good faith. 2. 'Reasonableness': this is a stricter standard than rationality. This requires determining if the plan is reasonably capable of progressively realising the socio-economic right in reality. 3. 'Proportionality': this is the strictest standard. This requires determining if the right could be better achieved through other more effective measures other those the state has adopted. |
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FACTORS WHICH INFLUENCE THE STANDARD OF REVIEW |
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Two groups of factors influence the standard of reasonableness review: (1) factors which may increase the intensity of review; and (2) factors which may decrease the intensity of review. The following five factors tend to increase the standard of review: 1. If the state has defined its own obligations in legislation or executive policies. 2. If the court is asked to enforce a "negative" duty and not a "positive" duty. 3. If the plan contains "deliberately retrogressive measures". 4. If the plan violates other constitutional rights or impacts on vulnerable people. 5. The state"s enthusiasm in taking steps to progressively realise the right. The following three factors tend to decrease the standard of review: 1. If the court is asked to enforce a "positive" and not a "negative" duty. 2. If there are practical problems in providing the right or if resource availability is an issue. 3. The enthusiasm of the state in taking reasonable steps to progressively realise the right. |
The first standard of review is 'rationality'. Rationality is the most deferential or lenient standard of review. This standard of review only appears to have been applied by the CC in Soobramoney v MEC Health: KZN ('Soobramoney') which involved complicated polycentric questions about the state"s available resources and the socio-economic right not to be refused emergency medical treatment (section 27(3)).[197] When the court applies the rationality standard, it will only ask the following question to determine whether the programme is 'reasonable': has the state acted in good faith in allocating resources to the programme and have the beneficiaries of the programme been selected in a rational manner?[198] If yes, the programme will be reasonable and the state will have complied, in terms of this standard of review, with its positive duty to take reasonable legislative and other measures to progressively realise that socio-economic right within its available resources.[199]
The second standard of review is 'reasonableness'. This is the second most intense standard of review. The courts usually apply this standard of review in most cases where the 'reasonableness' of a socio-economic rights programme is challenged.[200] This standard of review requires the court to ask the following question: are the measures the state has adopted 'reasonably capable' of achieving the progressive realisation of the socio-economic right?[201] It is not necessary for the state to show that the chosen measures will "definitely" achieve the realisation of the socio-economic right within a specific time period, or that the state has chosen the 'best measures' to progressively realise the right.[202] Provided the measures chosen by the state are "reasonably capable" of progressively achieving the full realisation of that socio-economic right, the plan will be reasonable and constitutional.[203]
The third standard of review is 'proportionality'. This is the most intense standard of review. The CC only appears to have applied this standard of review in Khosa which involved the violation of the constitutional rights to: social security (section 27(2)), equality (section 9) and human dignity (section 10) of a vulnerable and marginalised group - indigent permanent residents.[204] Proportionality is the most intense standard of review because it does not only ask whether the programme was formulated and applied in good faith ('rationality') or whether the measures are reasonably capable of progressively achieving the right ('reasonableness'). The proportionality standard of review also requires the court to ask whether the benefits of excluding any person or group from the programme is outweighed by the harm caused to the excluded group or whether the right could be achieved in a more efficient or better way.[205] For example, in the Khosa case the CC applied the 'proportionality' standard of review by examining whether: (a) the purpose of excluding permanent residents from social security benefits ('expanding provision to South African citizens') against (b) the impact of the exclusion on the rights of indigent permanent residents ("violation of dignity, equality and social security rights"); struck a proportional balance between the harm caused by the exclusion, the purpose it sought to achieve and whether means less restrictive of the rights of permanent residents were available to achieve the purpose of expanding social security benefits to South African citizens.[206] Given the serious violations of the constitutional rights of permanent residents to equality, dignity and social security, it was unsurprising the state was unable to convince the court that excluding them from the constitutional right to social security benefits was "reasonable" and proportional.
Five factors generally result in the courts feeling less constrained by the separation of powers and polycentricity when enforcing socio-economic rights.[207] These factors are: (1) if the state has defined its own duties in executive or legislative policies; (2) if the court is only asked to enforce a "negative" duty not to interfere with the existing enjoyment of a socio-economic right; (3) if the plan contains "deliberately retrogressive measures" which decrease access to the right; (4) if the plan violates other constitutional rights or adversely affects the dignity of a vulnerable group; and (5) if the state has not shown sufficient enthusiasm and responsibility towards its duties to progressively achieve the full realisation of that socio-economic right.
As explained above, the duty to take "reasonable legislative and other measures" means the Constitution envisages that the progressively realisation of socio-economic rights will - in the first place - be determined by legislation and executive policies enacted by the legislative and executive branches at all three spheres of government.[208] When the legislature and executive extensively define the content of the state"s positive duties to provide socio-economic rights, the courts are more likely to adopt a stricter review standard.[209] This is because the court will not necessarily be required to determine the content of the positive duties socio-economic rights impose on the state. Rather, it will only be required to "police" the state"s duties by holding it accountable to the duties it has already set itself to provide.[210] This can be illustrated by the case of B v Minister of Correctional Services where the High Court ordered the state to provide the applicants, HIV positive prisoners, with ARV medication.[211] Here, the court was relatively unconstrained by polycentricity and the separation of powers, regarding the provision of ARV medication to convicted prisoners, because the state had already made a commitment to provide ARV medication to them.[212] The court therefore did not have to determine the content of the state"s positive duty to provide adequate healthcare in the circumstances: the court only had to "police" the state"s own pre-defined duties by ordering it to comply with its previous commitment to the applicants to provide them medication.[213]
The courts tend to adopt a stricter standard of scrutiny when asked to enforce "negative" duties not to interfere with the existing enjoyment of socio-economic rights, as opposed to when they are asked to enforce "positive" duties to actively provide them.[214] The basic reason appears to be that asking the court to order the state (or even a private person) to comply with any negative duty not to interfere with a socio-economic right has less implications for state resources and the separation of powers.[215] An example of such a case is Jaftha, where the CC concluded that both a private person, and the state, violated their negative duties not to interfere with the applicant"s existing enjoyment of the right to adequate housing in section 26(1), by attempting to sell her home for a relatively minor debt she owed to another person.[216] However, as both Brand and Liebenberg have noted, the difference between asking the court to enforce a "negative" versus a "positive" duty imposed by a socio-economic right is sometimes more of a fiction than a reality.[217] This is because distinguishing between the violation of a "negative" versus a "positive" duty, when it come to socio-economic rights in particular, can be a difficult and often even somewhat artificial exercise in practice.[218] Regardless, the general point remains that the courts will, generally speaking, scrutinise the infringement of a "negative" duty to "respect" socio-economic rights more strictly than any alleged infringement of a "positive duty" to "promote" or "fulfil" a socio-economic right.
As explained, a key element of a "reasonable" programme is that it will actually progressively achieve the full realisation of the right in reality. Any programme which deliberately decreases the existing access or enjoyment of a socio-economic right could constitute an infringement of both the positive duty to "promote and fulfil" that right and also the negative duty to "respect" it.[219] An example of a deliberately retrogressive measure occurred in Khosa, where decision of the state to exclude permanent residents from social security benefits - benefits they previously enjoyed - deprived them of their existing enjoyment of the constitutional right to social security.[220] This resulted in the court adopting the strictest standard of review ('proportionality') because the measure (or decision) to exclude permanent residents was deliberately retrogressive as it directly resulted in a decrease of their existing enjoyment of a socio-economic right. However, this does not necessarily mean that every deliberately retrogressive measure is unreasonable or unjustifiable. Rather, the state would have to convince the court that any deliberately retrogressive measure complies with the requirements of 'reasonableness', but this could be very difficult to establish in practice.[221]
If the programme violates the constitutional rights or dignity of a vulnerable group, the court is more likely to adopt a stricter standard of review when determining its reasonableness.[222] This occurred in Khosa where, as explained above, the exclusion of destitute permanent residents from the socio-economic right to social security also violated several other constitutional rights, such as: the right not to be unfairly discriminated against on the analogous ground of citizenship (section 9(3)) and to inherent human dignity (section 10).[223]
If the state does not take its obligations to provide a socio-economic right seriously by, for example, never reviewing the programme to determine whether it is progressively realising the right in reality, the court is more likely to adopt a stricter standard of review.[224] By the same token, if the state continuously reviews the programme to determine its effectiveness, and takes serious and deliberate measures to provide the right, the court is more likely to adopt a more deferential standard of review.[225] However, even where the state takes its obligations to provide the right seriously, that does not mean the courts will hesitate to invalidate an unreasonable programme. This occurred in Grootboom where the CC accepted that the state had taken serious and deliberate steps to progressively realise the socio-economic right to adequate housing.[226] However, the fact that the state housing programme failed to provide for people who required emergency shelter, and who lived in intolerable conditions, meant that the court did not hesitate to declare the programme "unreasonable".[227]
Three factors generally result in the courts feeling more constrained by the separation of powers and polycentricity when enforcing socio-economic rights.[228] These factors are: (1) when the court is asked to enforce a "positive" duty to order for the state to provide a socio-economic right; (2) when there exist practical problems in ordering the state to provide the right because resource constraints or polycentricity are properly in issue; and (3) how seriously the state has approached its positive duty to take steps to progressively achieve the full realisation of the socio-economic right within the available resources it presently has.
As explained above, the courts tend to feel less constrained by polycentricity and the separation of powers when asked to enforce a "negative" duty not to interfere with the existing enjoyment of a socio-economic right. Conversely, the courts could feel more constrained by the separation of powers and polycentricity when asked to order the state (or even a private party) to comply with any positive duties to "promote" or "fulfil" a socio-economic right. However, as explained above, it is arguable that the distinction between "negative" versus "positive" duties is often more of a fiction than a reality insofar as socio-economic rights are concerned. Regardless, the general point remains that the courts tend to adopt a more deferential and lenient standard of review when this factor exists.
This means that if the state can properly show the court, with reliable evidence, that providing the right in the manner contended for by the applicant will affect the proper administration of the programme, or have severe budgetary consequences, the court could be inclined towards adopting a more deferential standard of review. This occurred in Soobramoney where the applicant, a terminally ill unemployed man, asked the court to order a state hospital to provide him with weekly dialysis treatment to prolong his life.[229] The CC denied his application on the basis that ordering the hospital to provide him with weekly treatment simply to prolong his life would have a disproportionate impact on the limited resources of the hospital which would place the lives of other patients at risk.[230] This was because the court accepted the argument that state hospitals did not have enough resources to provide terminally ill people with indefinite medical treatment simply to prolong their lives, as opposed to patients whose lives the hospital could use those same resources to save.[231]
Similar to how the court could adopt a stricter standard of review when the state has not shown sufficient enthusiasm or responsibility for its positive duties to progressively realise socio-economic rights, the courts could equally adopt a more lenient standard where the state takes its positive obligations seriously to provide the right and continuously reviews its existing socio-economic rights programmes.[232] For example: if the state does not treat people with respect and dignity when evicting them, or demolishing their home, it is possible the court could declare the eviction unlawful on the basis of, amongst other things, that the state has not taken seriously its negative duty to "respect" the socio-economic right to housing.[233] Conversely, if the state continuously reviews its socio-economic rights programmes, and can show it has properly budgeted for these programmes and is using its available resources to the best of its ability to progressively realise the socio-economic right in question, the court may potentialy be more inclined towards adopting a more lenient standard of review.[234]
Having discussed the "reasonableness review" test, and the three different standards of review, we can now consider one final question: what remedies can a court provide a litigant who successfully establishes that either a positive or negative duty imposed by a socio-economic right has been violated? Some of these remedies are considered below.[235]
As emphasised, the first thing the state must do to fulfil its positive obligations to "protect", "promote" and "fulfil socio-economic rights is create a plan to progressively and fully realise socio-economic rights over time.[236] If the state takes no steps to create any plan whatsoever, the court can order it to create one.[237] Similarly, as noted above, where the state has created a plan, but the plan itself does not comply with the requirements of a "reasonable" programme, the court can order the state to remove or fix any "unreasonable" aspects of the plan.[238]
Some case law examples can illustrate this second scenario. In Grootboom, the state created a plan to progressively realise the socio-economic right to adequate housing.[239] This meant the main issue before the court was whether the content of the housing plan was "reasonable".[240] The court concluded the plan was "unreasonable" and unconstitutional because it "was not sufficiently flexible to cater for short, medium and long term needs" and because it "made no provision for people who required immediate assistance and who were living under intolerable conditions".[241] In TAC, the CC similarly concluded that the state HIV/AIDS programme was "unreasonable" because it was "not comprehensive" as it did not provide for the ARV Nevirapine beyond various limited test sites, because the programme was "rigid" and also because it was not "transparent".[242] In Khosa, the CC similarly ordered the state to include permanent residents in social security legislation because their exclusion meant the programme "excluded a significant section of society" and "violated the human dignity and constitutional rights of a vulnerable group".[243]
What the above examples illustrate is that this remedial power could operate in two different ways. First, the court could order the state to "remove" obstacles in a programme to ensure it becomes "reasonable". Second, the court could order the state to "expand" a programme to ensure it becomes "reasonable", so that the measures taken actually become capable of progressively realising that right within the state"s current available resources.
In appropriate circumstances, the remedy of "meaningful engagement" could provide an appropriate and effective remedy for the violation (or threatened violation) of a socio-economic right.[244] Meaningful engagement is when a court orders the parties to engage in a process of mediation in an attempt to reach a middle ground with each other to resolve their dispute in a mutually agreeable way.[245] Meaningful engagement could, for example, be used between the state and private parties to determine the best way for the state to provide socio-economic rights in particular circumstances and for the parties to then make their agreement legally enforceable by asking for it to be made an order of court. However, meaningful engagement will not be appropriate in every case. If meaningful engagement is to have any measure of success, both parties must engage transparently with an open mind and be willing to compromise in order to resolve their dispute.[246] Coupling an order of meaningful engagement with a structural interdict, requiring the parties to report back to the court on their progress in resolving their dispute, could provide an effective remedy where the parties mutually determine their own solution without involving the court in the finer details.
A structural interdict is when the court supervises the implementation of any order it makes.[247] Generally, a structural interdict requires the state, or even a private person, to provide the court with regular updates on its progress in implementing the order of the court.[248] In its early cases, the CC appeared hesitant to grant structural interdicts whenever it found that the state failed to comply with a negative or positive duty imposed by a socio-economic right.[249] However, persistent failures of some spheres of government to take pro-active steps towards progressive realisation of socio-economic rights has resulted in some courts taking a more robust approach, by ordering structural interdicts when it is established the state has failed to comply with the duties imposed by socio-economic rights.[250]
It is possible that the courts could order the state, or even private persons to pay people constitutional damages for the violation of a socio-economic right.[251] However, the courts are, generally speaking, very reluctant to order constitutional damages for the violation of a constitutional right - including the violation of a socio-economic right.[252] Regardless, and in certain appropriate circumstances, it remains possible that the courts could consider granting constitutional damages when this remedy would provide appropriate relief for a litigant who has had their socio-economic right(s) violated.[253] This occurred in the recent Supreme Court of Appeal ("SCA") decision in Ngomane v City of Johannesburg ("Ngomane") where police officers, employed by the City of Johannesburg, forcefully removed various homeless people from a traffic circle and destroyed their makeshift homes and belongings.[254] Whilst the SCA technically ordered the City to compensate the victims of the police actions based on a violation of their right not to be arbitrarily deprived of property (section 25(1)), and not a violation of a socio-economic right per se, it remains possible that the courts could, in future appropriate cases, consider constitutional damages as an appropriate remedy to repair the violation of a socio-economic right by either the state or a private individual.[255]
[1 mark each. If the answer is false, you must briefly substantiate your answer and refer to relevant case law or international law where possible.]
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The three categories of socio-economic rights are: (a) "qualified socio-economic rights" (b) "unqualified/basic socio-economic rights" and (c) "negative socio-economic rights." (1 mark)
"Qualified" socio-economic rights are subject to the positive duty of the state to "promote and fulfil" the right based on three qualifications/conditions: (i) "reasonable legislative and other measures" (ii) "progressive realisation" and (iii) "available resources. Examples are: access to adequate housing (section 26(1)) and food and water (section 27). This category of socio-economic rights requires the state to do two things. First to adopt a "programme". Secondly, to ensure the programme is "reasonable" which means it must progressively realise the right within its available resources (Grootboom; Mazibuko). Generally, it is difficult to apply the general limitation clause in section 36(1) to limitations of these rights (Khosa). (2marks)
"Unqualified/basic" socio-economic rights are not subject to the three qualifications of: (i) "reasonable measures" (ii) "progressive realisation" or (iii) "resource constraints". Examples are the rights of children to basic nutrition (section 28(1)(c)) or the right of everyone to a basic education (section 29(1)(a)). If the state infringes any of these rights, then the court must determine if the infringement ("limitation") can be justified under section 36(1). (2 marks)
"Negative socio-economic rights" are not necessarily separate free-standing rights. Rather, this category refers to particular rights where its wording (text) expressly protects a particular aspect of it. For example: section 26(1) is a "qualified socio-economic right" which protects the right of everyone to have access to adequate housing. Section 26(3) is a particular component of this right because it expressly prohibits people from been evicted from their home without an order of court and only after considering all relevant circumstances. (2marks)
The separation of powers and polycentricity arguments are two different arguments against the justiciability of socio-economic rights by the courts, i.e. their ability to be enforced by courts against the state or private parties. People who oppose making socio-economic rights justiciable rely on both arguments to argue it is inappropriate for unelected judges to have the constitutional power (authority) to determine how the state should provide socio-economic rights. (2 marks)
The separation of powers argument says that because judges are not elected (rather appointed) and cannot be removed in elections, they are the least directly democratically accountable branch of government. This argument says the courts should therefore not have the power to enforce socio-economic rights because their enforcement of socio-economic rights means they will always breach the separation of powers because it means the courts must always necessarily tell the elected branches of government (legislature and executive) how to spend tax money to provide material goods to people. (1 mark)
The polycentricity argument says that determining how to provide socio-economic rights requires engaging in "polycentric decision-making". Polycentric decision-making refers to decision-making which requires balancing mutually interacting variables - such as the government budget. This argument says that because judges do not have sufficient experience, knowledge or expertise to determine how state money should be spent, they should leave the provision of socio-economic rights to the legislature and executive to determine. (1 mark)
In the Certification case, three organisations argued that the inclusion of socio-economic rights in the Bill of Right was incompatible with the constitutional principle requiring a separation of powers between the three branches of government, the legislature, executive and judiciary. The court rejected this argument. It made two points. First, the enforcement of "negative" civil and political rights such as the right to vote (August) to legal representation in a criminal trial at state expense (Jaipal) could also have resource implications. This means the distinction between the justiciability of civil and political rights and socio-economic rights is not as wide as often made out. Second, socio-economic rights can - at the very least - be "negatively enforced" by preventing the state from interfering with the existing enjoyment of the right (Khosa; Jaftha). The court will also not tell ("dictate") the government how to give effect to a socio-economic right. It will only require the state to act "reasonably" and ensures that any programme it adopts will progressively realise the right over time (Grootboom, TAC). (2 marks)
The "standard of review" refers to how strictly or leniently the court will apply the "reasonableness review test" when determining whether the state has complied with its positive obligation to: (i) "take reasonable legislative and other measures"; (ii) to "progressively realise"; (iii) a socio-economic right within its available resources". While the court has not expressly said that "reasonableness review" has a variable standard of review/level of scrutiny, the case law shows that such a variable standard does exist depending on the facts of the case. (2 marks)
Generally speaking, the following factors will result in a more lenient standard of review: (i) when the case involves "polycentric issues" or when resource availability is in issue (Soobramoney) (ii) when the case involves the enforcement of positive duties (to provide the right) and not negative duties (not to interfere with the right) (Soobramoney, Mazibuko)) or (iii) when the state has acted with enthusiasm to provide the right (Grootboom). (2 marks)
Generally speaking, the following factors will result in a stricter standard of review: (i) when the court is asked to enforce negative duties and not positive duties (Jaftha);
(ii) when the programme impacts, excludes or infringes the rights of a vulnerable group (Khosa, TAC) (iii) when the state has defined its own duties in legislation or executive action or (iv) when the state cannot provide proper evidence to show that its available resources cannot progressively realise the right in the circumstances (Khosa). (2 marks)
Section 7(2) of the Constitution imposes positive duties on the state to take active steps to "promote and fulfil" the socio-economic rights the Constitution protects. When it comes to "qualified socio-economic rights", the positive duty to "promote and fulfil" is subjected to an additional three qualifications/conditions: (i) "reasonable legislative and other measures" (ii) "progressive realisation" and (iii) "within available resources". (1 mark)
In Grootboom, the Constitutional Court held that the duty to take "reasonable" legislative and other measures means the Constitution imposes a duty on the state to ensure any programme it adopts is "reasonable". The Court has identified the following elements a "reasonable" programme should have: (i) it must be co-ordinated between the three spheres of government who must all have specified duties (Grootboom) (ii) sufficient personnel and resources must be allocated (Grootboom) (iii) it must be comprehensive (TAC) (iv) it must be transparent (TAC) (v) it should be periodically revised to ensure the programme is progressively realising the right over time (Mazibuko) (vi) it must be sufficiently flexible to cater for short, medium and long term needs and to provide for people in desperate need (Grootboom) and (vii) it cannot exclude a vulnerable section of society (TAC) or discriminate against them (Khosa) (5 marks)
Constitutional remedies are determined by the following three things. First, section 38 which gives the court authority to grant "appropriate relief" for any violation or threatened violation of the Bill of Rights. Second, section 172(1)(a) which requires the court to declare any law that is inconsistent with the Bill of Rights to be unconstitutional. Third, section 172(2)(b) which allows the court to grant any order that is "just and equitable". (2 marks)
There are various remedies courts can order when it is established that either the "positive" or "negative" duties socio-economic rights impose have been violated. First, it must declare any programme that is "unreasonable" to be unconstitutional (Dawood, Grootboom). Second, if the state does not have a plan, it can order the state to adopt a plan (Mazibuko). Third, if the plan is "unreasonable" the court can order the state to remove the "unreasonable" aspects of the plan. Fourth, it could order a private person or the state to comply with any negative obligation/duty not to interfere with the existing enjoyment of the right (Khosa; Juma Masjid). Fifth, in appropriate cases, it could order a structural interdict to supervise the implementation of the state"s positive duty to give effect to that socio-economic right (August, Strydom). Sixth, in appropriate cases, it could also order constitutional damages (Ngomane). (4 marks)
New Rust decides to elect a leadership Committee ("the Committee"). The Committee asks the City to provide alternative accommodation in terms of the "housing programme" created by the National Government under the Housing Act 32 of 2008 ("the Housing Act"). The City says it cannot use the housing programme to help New Rust for the following reasons: (a) the programme does not give the local or provincial spheres of government any authority to implement it (b) the programme only applies to "citizens" and not "permanent residents" and (c) the programme has rigid requirements and cannot be adapted to cater for the immediate needs of the New Rust community. When the Committee asks for a copy of the programme, the City refuses because National Government has classified the programme as "confidential".
The City then tells the Community that even if it had its own programme - which it does not have - it would not be able to help them because it "does not have enough resources to assist them". However, it turns out the City recently used R350million to provide the Mayor with "security upgrades" which included a vintage Rolls Royce and personal sushi chef. When the Community tells the City of this expenditure, they reply that the community should "mind their business and not interfere with state security issues".
Rondebosch residents are also unhappy about "New Rust". They complain the community is decreasing the value of their properties and ask the City to evict them. The City arrives on an early winter morning and destroys the homes and possessions of the New Rust community. They are then forcefully loaded into vans and taken to a makeshift settlement on the outskirts of town. The City tells the community the settlement is only temporary because it is arranging alternative accommodation. The makeshift settlement also lacks proper water and sanitation facilities and is located near a nuclear storage facility that is unsafe for human habitation. Later, the community discovers that the City failed to comply with local by-laws that required it to: (i) give the community seven days" notice before evicting them (ii) reasonably engage with them (iii) relocate them in a humane way that is consistent with the Bill of Rights (iv) provide alternative temporary accommodation which does not pose a risk to human health or safety and which has proper water and sanitation facilities that are consistent with human dignity.
Three years later, the community still lives in the settlement on the City outskirts. Again, they approach the mayor, Mr Milton Hayek, for assistance, but he says, "government does not give handouts and they should get a job like everyone else". The City still does not have a proper programme and the National Housing programme has stayed the same. The national, provincial and local economy has boomed in the past three years but no sphere of government has put any more money into its socio-economic rights programmes.
You are a lawyer who specialises in socio-economic rights. The leadership Committee approaches you for advice about their situation and whether the actions of the City and National government are constitutional. They ask you to advise them on the following:
(30 marks in total)
The Minister asks you to write a memo which explains the following:
(30 marks in total)
Write an essay where you respond to this argument and indicate if you agree or disagree with it. Your answer should refer to relevant case law and should consider the arguments both for and against justiciable socio-economic rights.
(25 marks)
This memo discusses three issues: (i) does the national housing programme comply with the elements of a "reasonable" socio-economic rights programme; (ii) would the court adopt a "strict" or "lenient" standard of review if the housing programme and eviction of the New Rust community were challenged in court; and (iii) what remedies could a court provide the community if it established their socio-economic right to adequate housing was violated?
Section 7(2) of the Constitution imposes "positive" duties on the state to take active steps to "promote and fulfil" socio-economic rights - such as the socio-economic right of access to adequate housing (section 26). Because the right to housing is a "qualified" socio-economic right, the positive duty of the state to provide this right is subject to three qualifications/conditions. First, the state must take "reasonable legislative and other measures" to provide the right. Second, it must ensure that the right is "progressively realised" over time. Third, its duty to progressively realise the right is subject to "available resources". (2 marks)
The Constitutional Court has held that the duty to take "reasonable legislative and other measures" has two broad elements (Grootboom; Mazibuko). These are: (i) the state must adopt a programme; and (ii) the programme must also be "reasonable" in conception and implementation (Grootboom, Mazibuko). If the programme is "reasonable" that is the end of the case because the state will have complied with its positive constitutional obligation to "promote and fulfil" that socio-economic right (Grootboom). If the state does not have a programme - or if the programme itself is "unreasonable", the state will have failed in its positive constitutional duty to take "reasonable legislative and other measures" to "promote and fulfil" that socio-economic right (Grootboom; TAC). (3 marks)
In this case, the national government has adopted a programme under the Housing Act. This means it has complied with the first element because it has created a programme to fulfil this right. However, the housing programme itself must also be "reasonable" to comply with the second element. If the programme is "unreasonable" it will be unconstitutional.
(1 mark)
The Constitutional Court has identified the following elements which a "reasonable" socio-economic rights programme must have: (i) it must be sufficiently coordinated between the three spheres of government (Grootboom) (ii) sufficient personnel and resources must be allocated to it (Grootboom) (iii) it must be transparent (TAC) (iv) it cannot exclude a significant section of society or discriminate against them (Khosa) (v) it must be periodically revised to ensure it will "progressively realise" the right over time (Mazibuko) and (vi) it must be flexible to cater for short, medium and long term needs (Grootboom). The duty (or onus) to persuade the court that the national housing programme is "reasonable" and constitutional rests on the state and not the New Rust Community (Khosa, Grootboom). The community should still place evidence before the court to establish a prima facie ("face value") case that the programme is unreasonable and does not properly comply with the state"s positive obligations. (5 marks)
In this case, the New Rust community has good prospects of successfully arguing that the national housing programme is "unreasonable" and unconstitutional. This is because of the following: (i)the programme is not properly coordinated between the three spheres of government because the local sphere ("the City") has no duties under the programme; (Grootboom); (ii) it excludes a significant and vulnerable section of society because it excludes permanent residents which also violates their constitutional right to equality (Khosa); (iii) it is not flexible because it is rigid and cannot cater for short, medium and long term needs; (Grootboom); (iv) it is not transparent because national government has classified it as "confidential" (TAC); and (v) the programme has not been periodically revised to ensure that it is progressively realising the right to adequate housing. (4 marks)
The standard of review refers to how strictly or leniently the court will apply the "reasonableness review" test to determine if the state has complied with its positive duties to provide socio-economic rights. The Constitutional Court has not expressly said that "reasonableness review" has a variable standard of scrutiny. However, case law clearly shows the court will apply a stricter or more lenient standard depending on the facts. Generally, there are two different standards of review the court will apply: (i) rationality: which is more lenient and (ii) proportionality: which is more strict/intensive. (2 marks)
Rationality only requires the court to ask if the measures the state has chosen to provide that socio-economic right are rational and were taken in good faith (Soobramoney). However, rationality can also be applied more strictly when the court considers the elements of a "reasonable programme" to determine if the programme the state has adopted will actually progressively realise the right in practice over time (TAC, Grootboom). (2 marks)
Proportionality is the strictest standard of review (Khosa; Jaftha). This means the court will not only consider rationality but will also consider other things such as how the programme impacts on other constitutional rights and whether there are less restrictive means the state could use to ensure people are not excluded from the programme. (2 marks)
In this case, it is likely that the court will adopt a "strict" standard of review closer to proportionality in examining the constitutionality of the national programme and the eviction of the community from the common and their relocation. First, both the state and city have defined their own duties in legislation - when this occurs the court is more likely to adopt a stricter standard of review. The City has failed to comply with its own by-laws because it: (i) evicted the community without consulting them; (ii) removed them in conditions inconsistent with human dignity; (iii) placed them in alternative accommodation which is not safe for human habitation because it is near a nuclear storage facility and has no proper sanitation; and (iv) did not reasonably engage with them or give them seven days advance notice of the eviction. Second, neither the national government nor the City have taken their obligations seriously to progressively realise the right to housing. The City does not have any plan whatsoever and the Mayor, Mr Hayek, has made it clear that he does not think the City has a constitutional duty to assist the community. The plan has also not been revised at all in the past three years and no additional money has been allocated to it despite the fact that the entire economy is booming. Third, the programme violates the rights to equality of the permanent residents in the community because it discriminates against them because of citizenship (Khosa). (4 marks)
The New Rust community should ask the court to provide it with the following remedies: (i) declaring the national housing programme to be "unreasonable" and unconstitutional in terms of section 172(1)(a) of the Constitution (Dawood; Grootboom); (ii) ordering the city to adopt a plan which complies with its positive obligations to take "reasonable legislative and other measures" to progressively realise the right of the community to adequate housing (Grootboom); (iii) ordering the national government to remove the parts of the national housing programme which are "unreasonable" such as the exclusion of permanent residents (Khosa), to make it more flexible to cater for short, medium and long term needs (Grootboom) and to ensure the local sphere of government is allocated duties under the programme (Grootboom); and (iv) it may also be appropriate to ask for constitutional damages to be paid to the members of the community for the destruction of their property and possessions during their unlawful eviction from the Rondebosch common (Ngomane). (5 marks)
This memo discusses three issues: (i) does the Social Security Act prevent people from directly relying on the right to social security if the programme is challenged in court; (ii) what test will the court apply to determine if the Department has complied with its positive duties to provide the constitutional right to social security; (iii) what factors will the court consider to determine whether the programme is constitutional; and (iv) can the Department exclude permanent residents from the programme because it does not have sufficient resources to assist them?
The existence of the Act will prevent someone from directly relying on the constitutional right to social security if they argue the state has failed to properly provide them with the right. This is because of the principle of constitutional subsidiarity. The principle of subsidiarity says that whenever legislation is enacted to "give effect" to a constitutional right, a litigant must rely on that legislation to enforce that constitutional right in practice (Mazibuko). This means they cannot rely directly on the constitutional right to social security unless the constitutionality of the Social Security Act itself is challenged in court as unconstitutional (Mazibuko). (2 marks)
A challenge to the constitutionality of the Social Security Act could be on two different grounds: (i) the Act does not properly give effect to the right to social security (My Vote Counts NPC); or (ii) because the Act unjustifiably violates other constitutional rights, such as the right not to be unfairly discriminated against because of citizenship (Khosa).
(2 marks)
The court will determine whether the Department has complied with its positive duty to provide social security according to the "reasonableness review" test (Grootboom). This test has two elements: (i) the state must take "reasonable legislative and other measures" to provide the right; and (ii) the plan itself must also be "reasonable" (Mazibuko). (2 marks)
Because the Department has adopted a plan - in terms of the Social Security Act - it has complied with the first element which requires the adopting of a plan. The second element means the plan itself must also be "reasonable" (Grootboom). This means the plan cannot exist on paper only. It must also be "reasonable" in reality which means the plan must also progressively realise the constitutional right to social
security in reality (Mazibuko).
(2 marks)
The Constitutional Court has identified the following elements which a "reasonable" socio-economic rights programme must have: (i) it must be sufficiently coordinated between the three spheres of government (Grootboom); (ii) sufficient personnel and resources must be allocated to it (Grootboom); (iii) it must be transparent (TAC); (iv) it cannot exclude a significant section of society or discriminate against them (Khosa); (v) it must be periodically revised to ensure it will "progressively realise" the right over time (Mazibuko); and (vi) it must be sufficiently flexible to cater for short, medium and long term needs (Grootboom). The onus to persuade the court that the programme is "reasonable" and constitutional rests on the department and not any person who challenges the 'reasonableness' of the plan (Khosa, Grootboom). (6 marks)
What factors will the court consider to determine if the programme of the Department complies with its positive duties to provide social security?
The Constitutional Court has said that any socio-economic rights programme the state adopts must be "reasonable" to be constitutional (Grootboom). It has identified the following elements which a "reasonable" socio-economic rights programme must have: (i) it must be sufficiently coordinated between the three spheres of government (Grootboom); (ii) sufficient personnel and resources must be allocated to it (Grootboom); (iii) it must be transparent (TAC); (iv) it cannot exclude a significant section of society or discriminate against them (Khosa); (v) it must be periodically revised to ensure it will "progressively realise" the right over time (Mazibuko); and (vi) it must be sufficiently flexible to cater for short, medium and long term needs (Grootboom). The duty (or onus) to persuade the court that the programme is "reasonable" and constitutional will be on the Department (Khosa, Grootboom). (6 marks)
In principle, it is possible for the Department to exclude permanent residents from the programme if the Department does not have "available resources" to provide permanent residents with the constitutional right to social security. (1 mark)
However, it will be difficult for the Department to show that the exclusion of permanent residents is "reasonable" and not unconstitutional if challenged in a court. This is because the court will most likely adopt the strict 'proportionality' standard of review for three reasons: (i) the exclusion will impact on a vulnerable group in society; (ii) it could infringe the right of permanent residents to equality (Khosa); and (iii) it will result in a "deliberately retrogressive measure" which creates a presumption of unreasonableness (Grootboom). The court will also require the Department to bring evidence to persuade the court that its "available resources" currently prevent it from providing permanent residents with the right to social security (Khosa). (3 marks)
Note: there are different ways to answer this type of question. Primarily, it requires you to show a proper knowledge and ability to think critically about four things: (i) how justiciable socio-economic rights impact on the separation of powers (ii) the weight of separation of powers and polycentricity arguments against their justiciability (iii) the difference between "negative" civil and political rights and "positive socio-economic rights" and (iv) transformative constitutionalism and the interdependency of socio-economic rights with civil and political rights.
The Constitution is often described as "transformative". This is because it protects both civil and political rights and socio-economic rights. Civil and political rights are often referred to as "negative first generation rights". This is because they restrict the power of government by preventing it from acting in ways - or passing laws - that violate the rights to guarantees such as: freedom of speech, assembly or to vote. Socio-economic rights are often described as "positive second generation rights". This is because they impose active duties on the government to provide people with the material goods necessary for human welfare and dignity, such as adequate housing, education, food, water, clothing or social security.
(4 marks)
Broadly, there are two reasons why the Constitution protects socio-economic rights and imposes justiciable (legally enforceable) duties on the government to provide them. First, because it recognises that people can only enjoy civil and political rights in a meaningful way if they live in conditions consistent with human dignity (Soobramoney, Grootboom). This means civil and political rights are interdependent with socio-economic rights because people cannot properly enjoy civil and political rights if they do not have adequate food, water, clothing or housing (Soobramoney). Third, the values of the Constitution and its preamble commit South African society to one of "substantive equality" which means it expressly recognises that the state (and even private people) must take active positive steps to ensure conditions of poverty caused by apartheid and colonialism are properly addressed.
(3 marks)
People who oppose giving courts the authority to enforce socio-economic rights often rely on two arguments: (i) the separation of powers and (ii) polycentricity. First, the separation of powers argument says socio-economic rights should not be justiciable because giving courts authority to enforce them means that unelected judges must tell the elected branches of government (legislature and executive) how they should allocate tax revenue to provide social goods. Second, the polycentricity argument says socio-economic rights should not be justiciable because the courts lack sufficient knowledge and expertise to tell the government how it should provide things
such as housing, education, food or water.
(4 marks)
In the Certification case, the Constitutional Court rejected both arguments ("separation of powers" and "polycentricity") when various organisations argued justiciable socio-economic rights were inconsistent with the constitutional principle of the separation of powers. The Court said two things in rejecting the separation of powers and polycentricity arguments. (2 marks)
First, it said the difference between enforcing "negative" civil and political rights and "positive" socio-economic rights is not as wide as often appears. This is because the enforcement of civil and political rights such as rights to vote (August), equality (Pillay) or a fair trial (Jaipal) often also have resource implications for the state. Second, it said that socio-economic rights can "at the very least" be negatively enforced against the government by ordering it not to infringe the existing enjoyment of a socio-economic right. (2 marks)
This does not mean that courts will not respect the separation of powers when interpreting and enforcing socio-economic rights. This is because judges are not elected by the people. They are also arguably the least directly democratically accountable branch of government because they cannot be removed in elections. The Bill of Rights also recognises this problem because it subjects certain "qualified socio-economic rights" to things such as housing or health care to three qualifications of: (i) "reasonable legislative and other measures" (ii) "progressive realisation" and (ii) "available resources". "Reasonable measures" means how the government provides socio-economic rights should be determined - in the first instance - by the legislature and executive. "Progressive realisation" recognises the government can only provide these rights over time and not immediately (Soobramoney; Mazibuko; Grootboom). "Available resources" also recognises the state can only provide socio-economic rights according to what its present resources allow (Soobramoney). The Constitutional Court has also recognised these three qualifications only require the state to "act reasonably" which does not require it to provide all socio-economic rights immediately on demand (Grootboom, Mazibuko). (4 marks)
Another point is that courts will give the elected branches of government (legislature and executive) a degree of leeway when determining whether they have complied with its positive duties to provide socio-economic rights. This is because the courts will test the measures adopted by the state according to a "variable standard of scrutiny", i.e. it will test state measures more leniently or strictly depending on the facts of the case. This means the strictness of the standard of scrutiny will depend on: (i) whether the measures of the state exclude a vulnerable section of society or unfairly discriminate against them (Khosa); (ii) how seriously the state has taken its duties to provide the right; (iii) if ordering the state to provide it immediately involves "polycentric issues" the court cannot properly determine (Soobramoney); or (iv) if the state has defined its own duties in legislation. The Constitutional Court has also recognised the state cannot be expected to provide a "minimum core" of socio-economic rights to people immediately on demand to things such as housing (Grootboom), health care (TAC) or water (Mazibuko). Overall, this means the courts will not subject the steps the state has taken to provide socio-economic rights to an unreasonable or unfair standard - without considering the separation of powers - and will also give the state a degree of leeway in determining how the right should be provided, if the state acts "reasonably". (4 marks)
In conclusion, justiciable socio-economic rights are necessary to achieve the society the Constitution envisages and are not incompatible with the separation of powers. If socio-economic rights were not protected or justiciable, the vast majority of people would live in the same conditions they lived in under apartheid. The Bill of Rights and the courts both recognise the tension between justiciable socio-economic rights and the separation of powers but resolve this through: (i) the three qualifications of "reasonable measures, progressive realisation and resource constraints" and (ii) the variable standard of scrutiny. The interdependence of socio-economic rights and civil and political rights means if the vast majority of people do not benefit from socio-economic rights, their respect for the Constitution and courts will be diminished. Justiciable socio-economic rights therefore actually achieve the objective of enhancing the respect of society for the Constitution and the courts - they do not diminish it. (2 marks)