Litigating Socio-Economic Rights in South Africa: A choice between corrective and distributive justice

Christopher Mbazira

Description

The South African Constitutional Court has handed down a number of prominent decisions in socio-economic rights cases. The doctrine and modes of legal analysis employed by the Court in these cases have drawn praise from across the world. At the same time, however, the Court has been criticised for the lack of immediate impact of its socio-economic rights decisions, most pertinently on the basis that it has issued weak remedies.In this book, Christopher Mbazira investigates the nature of judicial remedies issued in constitutional litigation in general, and socio-economic rights litigation in particular, to assess this criticism. He argues that the Court’s choice for weaker, generalised remedies rather than strong, individualised remedies can be explained in light of a basic philosophical choice for distributive justice as a remedial guide – a choice that is dictated by the high levels and wide-spread nature of poverty in South Africa.About the editor:Christopher Mbazira is Associate Professor at Makerere University, Coordinator, Public Interest Law Clinic. Visting Professor Wits South Africa

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2009
• Nombre de lectures: 0
• EAN13: 9780981412474
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA A choice bet w een correct ive and dist ribut ive j ust ice

Christopher Mbazira

2009

Litigating socio-economic rights in South Africa: A choice between corrective and distributive justice

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: ABC Press Cape Town

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-0-9814124-7-4

© 2009

The financial assistance of the Norwegian Centre for Human Rights is gratefully acknowledged.

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PREFACE

TABLE OF CONTENTS

ACKNOWLEDGMENTS

ABOUT THE AUTHOR

INTRODUCTION 1.1 Influence of corrective and distributive forms of justice 1.2 Scope of this book 1.3 Work done in this field 1.4 Outline of this book

THE LEGAL NATURE OF SOCIO-ECONOMIC RIGHTS: ARE THEY CAPABLE OF JUDICIAL ENFORCEMENT 2.1 Introduction 2.2 Legitimacy-based objections 2.2.1 Human rights engender negative obligations 2.2.2 Universality of human rights 2.2.3 Absolutism and resources limitations 2.2.4 Vagueness of socio-economic rights 2.3 Institutional competence-based objections 2.3.1 Democracy, separation of powers and technical deficiency 2.3.2 Democracy and separation of powers overstated 2.3.3 The problem of polycentricity 2.4 Conclusion

TRANSLATING SOCIO-ECONOMIC RIGHTS TO FULLY-FLEDGED RIGHTS: THE SOUTH AFRICAN JURISPRUDENCE 3.1 Introduction 3.2 An appraisal of the Constitutional Court’s reasonableness review approach 3.2.1 Rejection of the minimum core obligations approach 3.2.2 Giving the rights normative content 3.2.3 Available resources and a justification inquiry 3.3 Conclusion

RECONCILING CORRECTIVE AND DISTRIBUTIVE FORMS OF JUSTICE AND THEIR IMPACT ON REMEDY SELECTION 4.1 Introduction 4.2 Corrective and distributive forms of justice distinguished 4.2.1 The ethos of corrective justice 4.2.2 The ethos of distributive justice 4.3 Relationship between rights and remedies 4.3.1 Synchronisation of the rights and remedies debate 4.4 Conclusion

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SOUTH AFRICA: DISTRIBUTIVE OR CORRECTIVE JUSTICE? 5.1 Introduction 5.2 The 1996 Constitution and distributive justice 5.3 ‘Appropriate, just and equitable relief’ 5.3.1 Purpose of damages - distributive or distributive justice 5.3.2 Declarations 5.4 Conclusion

THE STRUCTURAL INTERDICT: NATURE, ROLE AND APPROPRIATENESS 6.1 Introduction 6.2 The interdict as a constitutional remedy 6.2.1 Types of interdicts and appropriateness in socio-economic rights litigation 6.3 Nature, functions and models of the structural interdict 6.3.1 The unusual features of the structural interdict 6.3.2 Models of the structural interdict 6.4 Arguments for and against the structural interdict 6.4.1 Separation of powers-type arguments 6.4.2 Corrective justice-type arguments 6.5 South Africa: Which way 6.5.1 The approach of the High Court 6.5.2 The approach of the Constitutional Court 6.6 Norms and principles for the structural interdict 6.6.1 Utilisation as a remedy of last resort in graduated manner 6.6.2 Participation 6.6.3 Impartiality and judicial independence 6.6.4 Reasoned decision making 6.6.5 Remedy that complies with substantive norms 6.6.6 Flexibility, monitoring and supervision 6.7 Conclusion

CONCLUSION 7.1 Influence of the normative nature of rights on remedies 7.2 Overcoming separation of powers-based objections 7.3 Appropriate, just and equitable remedies: Role of form of justice 7.4 Concluding remarks

TABLES OF STATUTES

TABLE OF CASES

TABLE OF INTERNATIONAL TREATIES AND DOCUMENTS

BIBLIOGRAPHY

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PREFACE

As an international LLM Student, I was fascinated by the Bill of Rights in the 1996 Constitution of South Africa. The inclusion in the Bill of Rights of socio-economic rights as justiciable is one of the most outstanding features of the instrument. More fascinating is the position of the South African Constitutional Court and the approach it has adopted in giving meaning to the rights in the Constitution and its determination to ensure that the country breaks away from the legacy of racial discrimination and unconstitutional governance. It is against this background that I picked interest in studying the South Africa constitutional system and jurisprudence in depth. When the time came for me to register for my PhD at the University of the Western Cape, the subject of remedies for socio-economic rights, widely perceived as ineffective, stood out as a novel area of research. This book is therefore deduced from my PhD thesis titled ‘Enforcing the economic, social and cultural rights in the South African Constitution as justiciable individual rights: The role of judicial remedies’ completed at the University of the Western Cape under the supervision of Professor Pierre De Vos.

The Constitutional Court has handed down a number of novel decisions in socio-economic rights cases. TheSoobramoney, Grootboom andTreatment Action Campaigncases all stand out. These cases have heralded a new paradigm in looking at issues around the realisation of socio-economic rights. As a matter of fact, however, legal scholars adoring the socio-economic rights jurisprudence are usually disappointed by the high levels of poverty prevalent in South Africa. The perception immediately created is that the jurisprudence is defective. Indeed, a number of academic scholars have criticised the jurisprudence, mainly on the basis of the Constitutional Court’s reluctance to apply the notion of minimum core obligations, but also on the basis of the fact that the Court has issued very weak remedies.

In spite of the criticisms, there has not been any serious study of the practical and philosophical factors which dictate the types and impact of remedies the courts grant in socio-economic rights litigation. My PhD research was directed at filling this gap, by undertaking an in-depth study of the nature of the judicial remedies issued in constitutional litigation in general, and socio-economic rights litigation in particular. One of my conclusions is that we cannot understand the nature of judicial remedies courts grant without understanding the philosophical factors influencing these remedies defined, amongst others, by the mode of justice to which the courts are inclined. The choice of justice between corrective and distributive justice is determined by the context in which legal standards and norms are enforced. The South African context dictates resort to distributive justice because of the high levels of poverty and the immeasurable backlogs in this regard. This is in addition to the pressures on the public purse. This explains why remedies for socio- economic rights litigation have avoided conferring individual rights on

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demand and instead defined the rights as collective to be realised in a programmatic manner.

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ACKNOWLEDGMENTS

I would like to express my gratitude to Pretoria University Law Press for the decision to publish this book. The contribution of the independent anonymous reviewers who reviewed and commented on the manuscript for this book is also appreciated. The persons who contributed to my PhD research from which this book emerges, are once again acknowledged. Parts of my PhD thesis from which this book emerges have been published in the following journals, which I acknowledge: (a) From ambivalence to certainty: Norms and principles for the structural interdict in socio-economic rights litigation in South Africa (2008) 24South African Journal on Human Rights1 (b) Judicial enforcement of socio-economic rights in South Africa: Heightening the reasonableness approach (2008) 26(2)Nordic Journal of Human Rights131 (c) Confronting the problem of polycentricity in enforcing the socio- economic rights in the South African Constitution, (2008) 23SA Public Law30. (d) ‘Appropriate, just and equitable relief’ in socio-economic rights litigation: The tension between corrective and distributive justice (2008) 125South African Law Journal71 (e) Bolstering the protection of economic, social and cultural rights under the Malawi Constitution (2007) 1(2)Malawi Law Journal220 (f) Translating socio-economic rights from abstract paper rights to fully- fledged individual rights: Lessons from South Africa (2006) 12(2)East African Journal of Peace and Human Rights183. This journal is published by the Human Rights & Peace Centre, Faculty of Law, Makerere University.

The financial assistance of the Norwegian Centre for Human Rights is gratefully acknowledged.

July 2009

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ABOUT THE AUTHOR

Christopher Mbazira obtained his PhD from the University of the Western Cape and his LLM in Human Rights and Democratisation in Africa from the University of Pretoria. He currently teaches at the Faculty of Law, Makerere University in Uganda and also practises law as an advocate of the Uganda Courts of Judicature. He is also a research fellow with the Community Law Centre, University of the Western Cape and has done research and co-ordinated some projects for the Human Rights & Peace Centre, Faculty of Law, Makerere University.

To my wife Sandrah and sons Benjamin and Solomon

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1 HAPTER C

I NTRODUCTION

The inclusion of economic, social and cultural rights (socio-economic 1 rights) in the 1996 Constitution of South Africa (Constitution) is aimed at advancing the socio-economic needs of the poor in order to 2 uplift their human dignity. The constitutional protection of these rights is an indication of the fact that the Constitution’s transformative agenda looks beyond merely guaranteeing abstract equality. There is a commitment to transform society, amongst others, from a society based on socio-economic deprivation to one 3 based on equal distribution of resources. This is evidence of a commitment to establish a society based on equality in all respects including socio-economic wellbeing.

It was not until 1994 that South Africa adopted a bill of rights. Before this, human rights did not enjoy constitutional protection as 4 justiciable rights. The apartheid era was characterised by wide- spread socio-economic deprivation in all its forms. Even when provision was made for some socio-economic goods and services, these did not reach all the citizens because of the practices of racial discrimination. The white minority enjoyed access to better quality goods and services, while the black majority either had access to only 5 poor quality services or did not have access to services at all.

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Constitution of the Republic of South Africa, 1996. S Liebenberg ‘South Africa’s evolving jurisprudence on socio-economic rights: An effective tool to challenging poverty?’ (2002) 2Law, Democracy & Development 159 160. See generally K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14South African Journal on Human RightsP Langa ‘Transformative 147; constitutionalism’ (2006) 17Stellenbosch Law Review351 352; and AJ Van der Walt ‘A South African reading of Frank Michelman’s theory of social justice’ (2004) 19SA Public Law253 255. This is with the exception of the homelands that had been created as independent states for the blacks. Most homelands had adopted their own constitutions with a bill of rights. Nevertheless, these bills protected only traditional civil and political rights. N Steytler ‘Local government in South Africa: Entrenching decentralised government’ in N Steytler (ed)The place and role of local government in federal systems(2005) 183 184.

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2Chapter 1

It is within this context of deprivation and discrimination that the struggle for human rights was conducted. The struggle against apartheid was a struggle for both political and socio-economic 6 equality. As early as 1955, the Freedom Charter (Charter), in addition to civil and political rights, made the call for socio-economic justice. It called for the removal of restrictions on land ownership, 7 and equal access to work, housing and education-related rights. The Charter was later to become the blueprint for a future South African constitution with a bill of rights. It recognised the need for people to exercise their civil and political rights while having their socio- economic needs met as well. This book is not intended to go into the details of the events leading up to the inclusion of socio-economic rights in the Constitution. What is apparent, however, is that the inclusion of socio-economic rights in the Constitution was a product of much controversy. Socio-economic rights were rejected by some scholars on the basis of their conception as human rights and the role 8 that the courts would play in their enforcement.

The obstacles to the inclusion of socio-economic rights in the Constitution as justiciable rights were surmounted during the negotiation and drafting of the final Constitution. This was followed by the inclusion of a wide range of these rights on the same basis as civil and political rights in the Bill of Rights as justiciable rights. Subsequent attempts to block these rights during the certification of 9 the Constitution also failed.

The Constitution has received international acclaim for its inclusion of socio-economics rights as justiciable rights on the same 10 basis as civil and political rights. The Constitution’s commitment to the protection of socio-economic rights is made clearer in the Preamble; it declares that the Constitution has been adopted so as to

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The Freedom Charter, adopted by the Congress of the People at Kliptown on 26 June 1955, sourced at http://www.anc.org.za/ancdocs/history/charter.html (accessed 17 May 2005). The Charter was adopted by the liberation movements to exemplify what they considered to be the ideal bill of rights for South Africa. See generally N Steytler (ed)The Freedom Charter and beyond: Founding the principles for a democratic South African legal order(1991). Education would be ‘free, compulsory, universal and equal for all children’. See generally D Davis ‘The case against the inclusion of socio-economic demands in a bill of rights except as directive principles’ (1992) 8South African Journal on Human RightsB de Villiers ‘Socio-economic rights in a new constitution: 475; Critical evaluation of recommendations of the South African Law Commission’ (1992) 3for South African Law Journal South African Law Commission 421; Interim Report on Group and Human Rights Project 58, August 1991; and South African Law CommissionFinal Report on Group and Human Rights58, Project October 1994. SeeIn re Certification of the Constitution of the Republic of South Africa, 1996 1996 10 BCLR 1253 (CC) (First Certificationcase). See K Yigen ‘Enforcing social justice: Economic and social rights in South Africa’ (2002) 4International Journal of Human RightsC Sunstein 13; Designing democracy: What constitutionsdoand M Tushnet ‘Enforcing socio- (2001); economic rights: Lessons from South Africa’ (2005) 6ESR Review2.

Introduction 3

lay the foundation for a democracy based on social justice and fundamental rights. The Preamble also includes a commitment to improve the quality of life of all citizens and to free the potential of 11 each person. To achieve these values, the Bill of Rights protects three categories of socio-economic rights: rights with internal limitations, rights without internal limitations and the negative 12 13 rights, respectively. As seen in chapter three, the obligations engendered by these rights have been interpreted as justiciable. It is especially in respect of the first category that the Constitutional Court has developed the reasonableness review approach in order to give relief to those whose rights have been violated.

The realisation of socio-economic rights means amelioration of the conditions of the poor and the beginning of a generation that is free from socio-economic need. In this context, litigants in socio- economic rights litigation expect their victories to be followed by immediate amelioration of their socio-economic conditions. However, this may sometimes not be the case; court victories may either be followed by very minimal improvements or no improvements at all. While this state of affairs may be blamed on the normative construction of the rights, it has also been blamed on the weaknesses of the remedies ordered by the courts in socio-economic rights litigation.

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InS v Mhkungu1995 7 BCLR 793, the Constitutional Court held that the Preamble was not a mere aspirational and throat-clearing exercise of little interpretational value. Instead, it connects up, reinforces and underlines the text which follows; it helps to establish the basic design of the Constitution and indicates its fundamental purpose (para 112). The first category of rights includes the right of everyone to have access to adequate housing (sec 26) and the right of everyone to have access to health care services, including reproductive health care, sufficient food and water and social security, including, if they are unable to support themselves and their dependents, appropriate social assistance (sec 27). What is common with these rights is that they are all subject to an internal limitation. By this limitation, the state is required ‘to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights’ (secs 26(2) & 27(2)). The second category of rights protects what have been crafted as basic rights not subject to any internal limitations. These include children’s rights to basic nutrition, shelter, basic health care services and social services (sec 28(1)(c)). They also include everyone’s right to basic education (sec 29(1)), including adult education, and the rights of detained persons to adequate accommodation, nutrition, reading materials and medical treatment (sec 35(2) (e)). The commonality with this category of rights is that their realisation is not subject to the state taking reasonable legislative and other measures within its available resources to progressively realise them. The third category, the prohibition rights, prescribes a number of prohibitions, which include everyone’s right not to be evicted from their home, or not to have their home demolished without an order of court made after considering all the relevant circumstances. Additional to this is the affirmation that no legislation may permit arbitrary evictions (sec 26(3)). The other right in this category is the prohibition of refusal of emergency medical treatment to anyone (sec 27(3)). Sec 3(2).