Socio-Economic Rights in South Africa

Danie Brand, Christof Heyns

Description

This book is aimed at practicing lawyers, academics and other specialists interested in constitutional socio-economic rights, especially in South Africa. In most cases, South African as well as overseas authors worked together to write the different chapters. The authors were briefed to provide an overview and analysis of the available international and local legal materials on the various socioeconomic rights recognised in the South African Constitution, and to introduce readers to current legal issues regarding these rights. At a minimum, the contributions reflect the law as at the end of January 2004.Each of the contributions to the book was peer reviewed by an independent specialist prior to publication. Sandra Liebenberg reviewed the introduction chapter; Russel Wildeman the chapter on the right to education; André van der Walt the chapter on the right to housing; Karrisha Pillay the chapter on rights concerning health; Marie Ganier-Raymond the chapter on the right to food; Bronwen Morgan the chapter on the right to water; Nick de Villiers the chapter on the right to social security and assistance, and Michael Kidd the chapter on environmental rights.In addition to the authors and reviewers, thanks are due to the following people: Lizette Besaans did the cover layout and was responsible for the task of formatting the manuscript. Waruguru Kaguongo spent considerable time assisting with double checking references and getting the manuscript ready for publication. Tina Rossouw and Liana Viljoen, working with Shirley Schröder from the Oliver R Tambo Law Library of the University of Pretoria, compiled the indexes. Help was also provided by the doctoral students of the Centre for Human Rights. Denise Fourie did most of the proofreading. John Adolph, Lawrence Mashava, Karen Stefiszyn and Matseleng Lekoane provided research assistance. Isabeau de Meyer assisted with formatting the text. We also thank Gill Jacot-Guillarmod. The Norwegian Centre for Human Rights generously financed the project.This book builds on a series of publications on socio-economic rights edited by Gina Bekker and Lawrence Mashava, published by the Centre for Human Rights in 1999 and 2000. We also want to give recognition to the fact that some of the material published here was used in the Ten Years Review of Democratic Governance of the South African Human Rights Commission (2005).This book is the first to be published by the Pretoria University Law Press (PULP). The objective of PULP is to produce high quality legal texts, focusing specifically (although not exclusively) on issues of public international law in Africa. One of the main driving forces behind PULP is Frans Viljoen, who contributed greatly to the production of this book, as a model for future PULP publications. Nick Grové and Duard Kleyn created the space in which PULP could be established. Marie Ferreira, Faculty Manager of the Faculty of Law of the University of Pretoria, manages PULP. We thank Pieter van der Spuy for his assistance on intellectual property issues.About the editors:Danie Brand is Associate Professor at the University of PretoriaChristof Heyns is Professor of Human Rights Law, Co-director of the Institute for International and Comparative Law in Africa at the University of Pretoria and United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions.

Sujets

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

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2005
• Nombre de lectures: 5
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

edited by

Danie Brand and Christof Heyns

Faculty of Law

2005

University of Pretoria

Socio-economic rights in South Africa

Published by PULP (Pretoria University Law Press)

The Pretoria University Law Press (PULP) is a publisher based in Africa, launched and managed by the Centre for Human Rights and the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish, and increase access to, innovative, high- quality and peer-reviewed texts with a focus on human rights and other aspects of public international law especially in Africa. For more information on PULP see: www.chr.up.ac.za/pulp

To order, contact: Centre for Human Rights Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] Email: [e-mail] Website: www.chr.up.ac.za

Printed and bound by: ABC Press Cape Town

Cover illustration: “Duduza”, by Vusi Khumalo, used with permission of the artist and Murray Hofmeyer.

ISBN: 0-620-34086-X

© 2005 Copyright subsists in this work. It may be reproduced only with permission of the editors.

Abbreviated table of contents

Full table of contents Foreword Contributors

One/ Introduction to socio-economic rights in the South African Constitution Danie Brand

Two/ The right to education Faranaaz Veriava and Fons Coomans

Three/ The right to housing Pierre de Vos

Four/ Rights concerning health Charles Ngwena and Rebecca Cook

Five/ The right to food Danie Brand

Six/ The right to water Anton Kok and Malcolm Langford

Seven/ The right to social security and assistance Linda Jansen van Rensburg and Lucie Lamarche

Eight/ Environmental rights Loretta A Feris and Dire Tladi

Table of cases

Table of statutes

Table of international instruments

Other international documents

Subject index

Bibliography

iii

v xi xiii

1

57

85

107

153

191

209

249

267 274 283 288 292 298

Foreword Contributors

Full table of contents

One/ Introduction to socio-economic rights in South Africa

1 2

2.1 2.2

3 3.1 3.2

4

3.3

4.1

4.2

4.3

Introduction Textual basis: The rights and related provisions The rights The interpretation of socio-economic rights 2.2.1 Section 39(1) – The role of international and foreign law 2.2.2 Section 7(2) – Duties Processes of translation Translation through legislation Translation through executive and administrative action Translation through adjudication 3.3.1 Modes of adjudication: Sections 8 and 39(2) 3.3.2 Constraint in the adjudication of socio-economic rights claims Results of translation: Concrete legal duties and entitlements The duty to respect socio-economic rights 4.1.1 Refraining from interfering with the existing exercise of socio-economic rights 4.1.2 Mitigating the impact of interferences in the exercise of socio-economic rights 4.1.3 Refraining from impairing access to socio-economic rights The duty to protect socio-economic rights 4.2.1 Legislative and executive measures 4.2.2 The judiciary The duty to fulfil socio-economic rights 4.3.1 Background 4.3.2 Reasonableness review 4.3.3 Remedies

v

xi xiii

1

1 3 3 6

6 9 12 12

16 17 18

20

30 30

30

33

36 37 37 38 42 42 43 54

Two/ The right to education

1 2 3 3.1

3.2 3.3

3.4

4 4.1 4.2 5

Introduction International law South African law The right to basic education 3.1.1 Availability 3.1.2 Accessibility 3.1.3 Acceptability 3.1.4 Adaptability The right to further and higher education The right to instruction in the official language of one’s choice The right to establish private educational institutions Other provisions in the Bill of Rights The principle of equality and equal access Freedom of choice Conclusion

Three/ The right to housing

1 2

2.1 2.2

3 3.1 3.2

3.3

3.4 3.5

Introduction Interpreting the right to housing Rights must be interpreted contextually The role of international law in interpreting the right to housing International and South African law Introduction Negative obligations on the state and other role-players to respect the right to housing 3.2.1 General principles 3.2.2 Evictions and South African law 3.2.3 Evictions and international law Positive obligations 3.3.1 Reasonable legislative and other measures 3.3.2 Progressive realisation of the right 3.3.3 Resource constraints Minimum core obligations International law and the concept of ‘adequate’ housing 3.5.1 Legal security of tenure 3.5.2 Availability of services, materials and infrastructure 3.5.3 Affordable housing 3.5.4 Habitable housing 3.5.5 Accessible housing

vi

57

57 58 59 61 66 67 71 73 74

77

79 81 81 81 82

85

85 87 88

89 92 92

92 92 93 96 98 99 99 100 101

102 102

102 103 103 103

4 4.1 4.2 5

3.5.6 Location 3.5.7 Culturally adequate housing Housing-related protection of vulnerable groups Children’s right to shelter Prisoners’ rights to adequate accommodation Conclusion

Four/ Rights concerning health

1 2 3

3.1 3.2

3.3 3.4 3.5 3.6 4 4.1 4.2 4.3

4.4 4.5 5

Introduction International law State obligations in international law The Universal Declaration of Human Rights The International Covenant on Economic, Social and Cultural Rights Interpreting the right to health under human rights treaties other than CESCR Ensuring equality in fact Possible limitations on rights Monitoring compliance South African law Introduction A legacy of gross inequality Transformation through section 27 of the Constitution Other reforms that impact on the right of access to health care services Impeding factors Conclusion

Five/ The right to food

1 2

2.1 2.2

3 3.1 3.2

4

Introduction International law Sources Content 2.2.1 The content of the right to food: Availability, accessibility, adequacy 2.2.2 Duties South African law Content Legal duties 3.2.1 The duty to respect the right to food 3.2.2 The duty to protect the right to food 3.2.3 The duty to promote and fulfil the right to food Conclusion

vii

103 103 104 104 105 106

107

107 108 111 111

112

120 121 122 124 125 125 127

131

143 149 150

153

153 154 154 157

157 159 161 161 163 165 170

178 189

Six/ The right to water

1 2

2.1 2.2 2.3 3 3.1

3.2 3.3 4 5

Introduction International, regional and comparable national law International law Regional law Comparable national law South African law Recognition of the right in section 27 3.1.1 ‘Sufficient’ 3.1.2 ‘Access’ 3.1.3 Obligations of the state Interrelationship with other rights General guidelines Basic sanitation Conclusion

Seven/ The right to social security and assistance

1 2

3 3.1

3.2 3.3 4 4.1 4.2

5 5.1 5.2

Introduction Social security, social assistance and social protection International law United Nations binding instruments 3.1.1 The International Covenant on Economic, Social and Cultural Rights 3.1.2 Convention on the Rights of the Child 3.1.3 Convention on the Elimination of All Forms of Discrimination Against Women 3.1.4 Convention on the Elimination of All Forms of Racial Discrimination 3.1.5 Treaties on the protection of refugees and stateless persons International Labour Organisation instruments United Nations non-binding instruments Regional law The African Charter on Human and Peoples’ Rights The African Charter on the Rights and Welfare of the Child South African law Introduction The constitutional scope of the right to social security 5.2.1 The wording of section 27(1)(c) 5.2.2 Underpinning values and aims of social

viii

191

191

192 192 195 197 197 197 197 200 202 206 207 208 208

209

209

209 213 213

213 217

221

222

223 225 229 231 231

232 233 233

234 234

6

security rights 5.2.3 The duty to respect, protect, promote and fulfil Conclusion

Eight/ Environmental rights

1 2

3 4 5 6

Introduction Conceptual debates on human rights and the environment International law Regional systems South African law Conclusion

Table of cases

Table of statutes

Table of international instruments

Other international documents

Subject index

Bibliography

ix

235

238 247

249

249

250 255 256 257 264

267 274 283 288 292 298

Foreword

This book is aimed at practicing lawyers, academics and other specialists interested in constitutional socio-economic rights, especially in South Africa. In most cases, South African as well as overseas authors worked together to write the different chapters. The authors were briefed to provide an overview and analysis of the available international and local legal materials on the various socio- economic rights recognised in the South African Constitution, and to introduce readers to current legal issues regarding these rights. At a minimum, the contributions reflect the law as at the end of January 2004.

Each of the contributions to the book was peer reviewed by an independent specialist prior to publication. Sandra Liebenberg reviewed the introduction chapter; Russel Wildeman the chapter on the right to education; André van der Walt the chapter on the right to housing; Karrisha Pillay the chapter on rights concerning health; Marie Ganier-Raymond the chapter on the right to food; Bronwen Morgan the chapter on the right to water; Nick de Villiers the chapter on the right to social security and assistance, and Michael Kidd the chapter on environmental rights.

In addition to the authors and reviewers, thanks are due to the following people: Lizette Besaans did the cover layout and was responsible for the task of formatting the manuscript. Waruguru Kaguongo spent considerable time assisting with double checking references and getting the manuscript ready for publication. Tina Rossouw and Liana Viljoen, working with Shirley Schröder from the Oliver R Tambo Law Library of the University of Pretoria, compiled the indexes. Help was also provided by the doctoral students of the Centre for Human Rights. Denise Fourie did most of the proofreading. John Adolph, Lawrence Mashava, Karen Stefiszyn and Matseleng Lekoane provided research assistance. Isabeau de Meyer assisted with formatting the text. We also thank Gill Jacot-Guillarmod. The Norwegian Centre for Human Rights generously financed the project.

This book builds on a series of publications on socio-economic rights edited by Gina Bekker and Lawrence Mashava, published by the Centre for Human Rights in 1999 and 2000. We also want to give recognition to the fact that some of the material published here was used in theTen Years Review of Democratic Governanceof the South African Human Rights Commission (2005).

This book is the first to be published by the Pretoria University Law Press (PULP). The objective of PULP is to produce high quality legal texts, focusing specifically (although not exclusively) on issues of

xi