Human Rights

Human Rights

Question
The approach to socio-economic rights taken by the Constitution of the Republic of South Africa contradicts the argument that socio-economic rights are unenforceable.

Unfortunately cases decided by the South African Constitutional Court suggest that judicial enforcement may not be effective to protect the most vulnerable in society.
Discuss.
Essay instructions:
1-    Journals and Case Law Must be used in order to discuss this question. Journals can be found using numerous databases such as west Law and Lexis. In addition to

Text Books most can be found in Google books.
2-    The Death of Socio Economic Rights – Paul O’Connell.
•    CONSTITUTIONAL PERSPECTIVES ON THE ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS: RECENT SOUTH AFRICAN EXPERIENCES MARIUS OLIVIER.( ATTACHED AS ENFORCEMENT OF SER!).
•    Economic and social rights adjudication: developing principles of judicial restraint in South Africa and the United Kingdom: Anashri Pillay
•    Courts, variable standards of review and resource allocation: developing a model for the enforcement of social and economic rights Anashri Pillay
•    Equality and social rights: an exploration in light of the South African Constitution: Murray Wesson.
•    Dennis M. Davis, 2008,  ‘Socio-economic right: do they deliver the goods?
3-    I will copy my own Socio Economic rights in south Africa Notes Below.
•    A lot of cases must be discussed in the essay essential cases such as:
•     Soobramoney v. Minister of Health (Kwazulu-Natal) (1998) 1 SA 765 CC.
*Government of the Republic of South Africa v Grootboom and Others (2000)
*Minister of Health v Treatment Action Campaign (2005) 5 SA 721.
4- The essay must be fully referenced using OSCOLA Referencing with full footnotes (including the cases) and Bibliography page alphabetically.

NOTES:

South African constitution is transformative, promoting the ideals of SERs (see: Anashri Pillay, 2007, ‘Courts, variable standards of review and resource allocation:

developing a model for the enforcement of social and economic rights’, EHRLR, 616-636, p.619).
Constitution of the Republic of South Africa is available at:
http://www.gov.za/documents/constitution/index.html
‘…the South African constitution not only enumerates a range of protected socio-economic rights, but … it is ‘transformative’: it does not simply place limits on the

exercise of collective power but requires collective power to advance ideals of freedom, equality, dignity and social justice.’
Palmer, above p.40.
Confirmed by section 7, Constitution of the Republic of South Africa:
Section 7
This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human

dignity, equality and freedom.
The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
SERs referred to in SA Constitution include:
•    The right to have access to adequate housing (Art. 26).
•    The right to health care, food, water and social security (Art. 27).
•    The right to education (Art. 29).

SERS framed in positive terms, requiring allocation of available resources: also prohibitive (negative terms). Example: s.26, right to housing includes right not to be

evicted except in prescribed circumstances, and absolute prohibition on arbitrary eviction.
Cases from South Africa
Cases discussed in the lectures will be:
•    Soobramoney v. Minister of Health (Kwazulu-Natal) (1998) 1 SA 765 CC.
•    Government of the Republic of South Africa v Grootboom and Others (2000) (3) CCLR 277; summary at:
http://www.escr-net.org/caselaw/caselaw_show.htm?doc_id=401409
Minister of Health v Treatment Action Campaign (2005) 5 SA 721; summary at:
http://www.escr-net.org/caselaw/caselaw_show.htm?doc_id=403050
Inclusion of SERs in constitutional document means courts better able to engage with provisions: less concern about interfering in role of legislature.
South African courts use ‘reasonableness’ standard as compliance standard: cf. ‘minimum core obligation’ as suggested by the CommESCR.
Reasonableness approach may provide model for enforcement of SER:  allows various competing interests to be taken into account.
‘…reasonableness model is especially well suited to balancing the protection of rights with respect for democratic priority setting.’
Pillay, above, p.619.
Contrasting view: approach allows government too much discretion to make decisions.
‘The record of socio-economic rights litigation in South Africa during the first decade of constitutional democracy has been criticized on the ground that the

reasonableness model, initially developed in Grootboom, has generated a deferential approach that fails to provide an effective enforcement of social rights for

individuals and groups living in poverty. ‘
Dennis M. Davis, 2008,  ‘Socio-economic right: do they deliver the goods?’, IJCL, 687-711, p.706.
Further problems with reasonableness:
•    Requires balancing of interests, may deflect from consideration of rights.
•    Notion is vague and does not help determine the state’s obligations.
(Bilchitz, above, chpt.5).

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