Socio-economic rights and the South African Constitutional Court. Selected case law for a map of open problems

Soon after its approval (16 December 1996), the current South African Constitution was saluted as the birth certificate of a new Nation by the very chairman of the first democratically elected Constitutional Assembly that had drafted it. Self-proclaimed as “one, sovereign, democratic state”, the Republic of South Africa is now founded on values such as human dignity, equality, non-racialism, non-sexism, democracy and the rule of law (section 1). Striking a considerable change from a history of constitutional flexibility and parliamentary supremacy, the 1996 Constitution entrenches its supremacy (s. 2) by envisaging a complex revision procedure (s. 74) and a Constitutional Court as the apex court of the newly established system of judicial review. The Preamblepoints at the path to be followed: the Constitution should provide the framework to “heal the divisions of the past” and establish a society based on democracy, social justice and fundamental human rights. The transformative potential permeating the new South African constitutional course has been widely explored during the last twenty years. Significantly, in 1998, Karl Klaare’s seminal article identified the constitutionalisation of a justiciable Bill of Rights as the highlight of a comprehensive transformative process aiming at achieving a deep social change through the tools offered by the law and calling the judiciary, too, to play an active role in such a sensitive challenge. However, in spite of a general political agreement on the inclusion of a charter of fundamental rights, South Africa’s unique two-stage constitution-making process was characterised by a considerable debate over its contents and judicial enforceability. Not surprisingly, the main concerns were raised about the opportunity of constitutionalising socio-economic rights, the effectiveness of the provisions declaring them and the mechanisms that could ensure their justiciability. Political and scholarly opinions differed considerably. On the one side some stressed the interdependence between first and second generation rights and highlighted the relevance of constitutionalising at least a core set of immediately enforceable rights as the ground for the progressive realisation of the basic socio-economic needs and the enhancement of people’s participation to the young South African democracy. On the other side, different proposals advocated for a “softer” formulation of socio-economic rights as directive principles of state policy, underscoring the countermajoritarian effects of calling the judiciary to adjudicate on budgetary issues and possible legislative omissions. As a result of such ongoing debate, the 1993 Interim Constitution (IC) featured in its Chapter 3 only a very limited set of socio-economic rights –namely, workers’ rights and guarantees (s. 27), children’s rights to parental care, security, basic nutrition, health and social services and children’s protection from forced labour and exploitation (s. 30), the right to education in one’s own language (s. 31). Moreover, in addition to the transitional democratic institutional framework, it also provided a list of 34 Constitutional Principles (CPs, Schedule 4) that would serve as a platform for the drafting of the “Final” Constitution (FC) and a standard against which the Constitutional Court was to certify the compliance of the final Constitution. When the newly elected Constitutional Assembly resumed the drafting, the political equilibriums emerging from the 1994 general elections marked a decided shift towards a deeper commitment to the constitutionalisation of socio-economic rights. The text submitted for certification featured a more detailed set of entitlements. Section 26.1 proclaims “the right to have access to adequate housing”, while s. 26.3 prohibits that an eviction may take place in absence of a court order considering “all relevant circumstances”. Section 27 entrenches the right to have access to health care services, food and water, social security and social assistance, and prohibits refusal to provide emergency medical treatment. While s. 28 expands the list of core children’s rights already mentioned in s. 30 IC, s. 29 offers wider protection to education-related rights. However, with a clear reference to the language of international human rights law, both ss. 26.2 and 27.2 place on the State the obligation “to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of the rights to have access to adequate housing and health care. At the same time, in comparison with the IC, provisions on the application and binding force of the Bill of Rights shed a new light on the interpretation (and, above all, judicial enforcement) of socio-economic rights therein included. By declaring that the State must “respect, protect, promote and fulfil” all the rights enshrined in Chapter 2 (s. 7.2), the FC places both negative and positive duties among the State’s obligations, irrespective of the “traditional” construction that would univocally connect the first with civil/political rights and the latter with social and economic rights. Differently from its IC counterpart s. 7, s. 8 FC declares the binding force of the Bill of Rights towards the legislative, executive and judicial branch, and reminiscent of the German mittelbare Drittwirkung, states (s. 8.2) the direct horizontal applicability of the Bill of Rights besides the ordinary “vertical” application, whenever the nature of the right involved and the related obligations allow that. Moreover, ss. 39.2 and 39.3 pave the way to its indirect horizontal application: in line with the pre-1996 normative background and leading case Du Plessis v De Klerk, the Bill of Rights also stands as an “objective normative system” that must be respected and infused in the interpretation and development of existing legislation, common law or customary law. Section 39.1 specifically calls the judiciary to construe the Bill of Rights so as to “promote the values that underlie an open and democratic society based on human dignity, equality and freedom”. In performing this task, consideration of international law is prescribed and resort to foreign law encouraged. Finally, it is worth mentioning the generous standing provisions contained in s. 38 and allowing individual (or juristic) persons and associations who claim a breach or a threat to the rights included in the Bill to ask courts for appropriate relief. Plaintiffs are allowed to act either in their own interest or in the interest of a group or class of persons, as well as in the public interest. As expected, during the first certification process, “classic” objections were raised about the compliance of socio-economic rights with the constitutional principles attached to the IC. Since CP II compelled the drafters to entrench “universally accepted fundamental rights”, the FC should not have included socio-economic rights, as they were not unanimously considered as such. In addition to that, the inevitable budgetary consequences of socio-economic rights adjudication would have allegedly resulted in a breach of the principle of separation of powers envisaged in CP VI. The Court rejected both arguments. On the one hand, CP II did not exclude constitutional protection for rights other than those that are universally accepted as fundamental. On the other hand, protecting classic “negative” first-generation rights may entail budgetary consequences or impact on legislative policy exactly as socio-economic rights adjudication may require. Therefore, “[a]t the very minimum, socio-economic rights can be negatively protected from improper invasion” at least, with the same tools used for civil/political rights adjudication. Provisions on second generation rights were retained and included without changes in the second draft of the FC. Following a new certification judgement, the new South African Constitution came into force on 4 February 1997. Moving from the background sketched above, the next section of this paper will describe a set of prominent socio-economic rights decisions issued by the South African Constitutional Court, with the aim of presenting the main trends, problems, litigation and adjudication strategies that will be discussed in details in the closing section. The selected case law is exclusively focussed on the relationship between constitutional entitlements and State obligations, thus leaving aside all issues connected to the horizontal application of socio-economic rights... (segue)