Using Constitutional Adjudication to Remedy Socio-Economic Injustice: Comparative Lessons from South Africa

8/8/2019 Using Constitutional Adjudication to Remedy Socio-Economic Injustice: Comparative Lessons from South Africa

1/36

13 UCLA JOURNALOF INTERNATIONAL LAW& FOREIGN AFFAIRS [1]

* * *

USING CONSTITUTIONAL ADJUDICATIONTO REMEDYSOCIO-ECONOMIC INJUSTICE:

COMPARATIVE LESSONFROM SOUTH AFRICA

Eric C. Christiansen*

I. INTRODUCTION

Advocates and scholars have long queried whether constitutionalprotection of socio-economic rights can advance the cause of social justice.Does inclusion of social welfare rights1 in the text of a constitution assist acountry in addressing the challenges of poverty and economic injustice?Can judicial enforcement of rights to housing, healthcare, education, andother welfare necessities advance substantive socio-economic equality inthe manner that traditional rights adjudication has advanced the related goalof civil and political equality?2 The purpose of this Article is to explore

* Associate Professor of Law, Golden Gate University School of Law, San Francisco,California; J.D., New York University School of Law, 2001; M.A., University of Chicago,1995. Ideas in this Article benefited significantly from discussion at the Conference onLaw, Poverty and Economic Inequality at Valparaiso University School of Law in April2008; my thanks to the organizer Penelope Andrews and the many participants. I alsobenefited from helpful comments from my colleagues Chester Chuang, Michele M.Benedetto and Rachel Van Cleave and received valuable aid from my research assistants,Rachael Crim, Rory Quintana and Steffanie Bevington.

1 There is no fixed list of those rights properly defined as socio-economic rights.For purposes of this Article, those rights include the set of rights in the South AfricanConstitution that are traditionally and consistently identified as socio-economic rights bycommentators, have been so identified by the South African Constitutional Court, or haveas their evident purpose the improvement of an individuals social welfare: housing,healthcare, and education, among others. Similarly, I use the adjectives social, "socialwelfare" and "socio-economic to describe the same rights; I have avoided terms such asred rights, second-generation rights, and positive rights as less helpful descriptors for

the same rights. The arguments presented in this Article are not dependent on a particularcollection of rights.

2 By using the term "substantive socio-economic equality" (and related terms, such as

"economic equality," socio-economic injustice," or "substantive equality"), I am notreferring to an imaginary, utopian perfect parity of means. Rather, I mean only to identifythe aspiration of a country to relative equality on socio-economic terms such that


2/36

2 REMEDYINGSOCIO-ECONOMIC INJUSTICE [Vol. 13, No.2]whether constitutional protection and court adjudication of social welfarerights are viable tools to address social injustice and remedy persistenteconomic inequality.

In examining these issues, the first decade of adjudication of socio-economic rights by the Constitutional Court of South Africa providesunique and remarkable comparative law insights. South Africa's post-apartheid Constitution includes among its enumerated rights a host ofprotections intended to remedy the economic injustices of the past. TheCourt has dealt effectively with claims of the non-justiciability of socialrights through a process of "differentiated incorporation," and hasaddressed specific social rights, most notably, housing and healthcare, inmultiple cases. South Africa's affirmative jurisprudence ofsocio-economic rights enforceability is a novel andimportant contribution to the struggle against povertyand

an invaluable experiment into courts capacity to advance social justice.But is the South African approach a model other

nations can follow, and is it successful enough that othercountries should adopt it? As this Article discusses, theapproach is adaptable to local conditions and thuspotentially exportable to other nations, but the actualadvancement of social welfare has been incomplete andirregular. The South African Constitutional Court has enforcedsocio-economic rights infrequently and in a less expansive manner thancivil and political rights. There are reasonable justifications for this andhistorical analogies caution against immodest expectations, but there are

also genuine reasons for disappointment. What does the slow pace of socio-economic advancement tell us about the value of constitutional protection ofsuch rights in South Africa and elsewhere? This Article will use thespecific South African experience to evaluate the general capacity ofconstitutionally-enforced social welfare rights to advance socio-economicequality.

Part II addresses two preliminary questions: why examineconstitutional social welfare rights as a potentially new solution when theyhave existed for many generations; and, why look primarily to South Africafor guidance? Part III summarizes and evaluates South Africa's relevantpost-apartheid jurisprudence, focusing upon the novel concept of

participation in society is unhindered by such factors. I presume that, at a minimum,inclusion of enforceable socio-economic rights presupposes a constitutional requirementfor governmental action to address structural factors, both public and private, thatcontribute to endemic poverty. However, achievement of "equality" in this sense must callfor more than mere equality of economic opportunity. Social rights go beyond merelynegative rights; they require more than only the removal of formal, state-sponsored barriersto participation in economic life and its benefits.


3/36

Fall 2008] REMEDYINGSOCIO-ECONOMIC INJUSTICE 3

differentiated incorporation, the exportable process by which South Africacountered claims against the justiciability of socio-economic rights.3

Finally, Part IV applies the lessons of the preceding Parts to the question of

whether the South African social rights provisions have served their goals.This assessment clarifies the reasonable expectations and potentialcontributions of constitutional social welfare rights in service of a nation'sgoal of remedying socio-economic injustice.

II. PROTECTING SOCIAL WELFARE RIGHTSIN SOUTH AFRICA: TWOPRELIMINARY QUESTIONS

In order to assess whether the South African social rightsjurisprudence offers an effective transnational tool to advance social justice,it is first necessary to examine two questions: (1) why examine social

welfare rights as a potentially new solution to the historic problem of socio-economic inequality? and, (2) why look primarily to South Africa forguidance? The answers to those questions are closely interrelated.

.1 Why is Constitutional Protection of Social Welfare Rightsa New Solution?

Social welfare rights are included in the text of most nationalconstitutions and their inclusion is not a recent phenomenon.4 Theyappeared in Western European constitutions following World War II, inEastern European Constitutions after the fall of the Berlin Wall and in post-

colonial constitutions in the years between and after those events.5

Butsocial welfare rights are infrequently enforced by courts. Indeed,constitutional law scholars have largely contended that social rights are non-

3 Background elements of this Article are examined in greater detail in two prior worksby the author: Eric. C. Christiansen,Adjudicating Non-Justiciable Rights: Socio-economicRights and the South African Constitutional Court, 38 COLUM. HUM. RTS. L. REV. 321(2007) (introducing "differentiated incorporation") [hereinafter Adjudicating Non-

Justiciable Rights]; and Eric C. Christiansen, Exporting South Africas Social RightsJurisprudence, 5 LOY. U. CHI. INTL L. REV. 29, 41-43 (2007) (advocating the possibility ofadoption by other countries) [hereinafterExporting Social Rights].

4 See Avi Ben-Bassat, Momi Dahan, Social Rights in the Constitution and in Practice,36 J. OF COMP. ECON. 103, 103-119 (2008), available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=407260 (surveying the inclusion of

constitutional commitments to social rights in 68 countries); Eric C. Christiansen, Surveyof Socio-economic Rights in National Constitutions: Healthcare, Education, SocialSecurity, Housing, Food and Water(December 2005) (unpublished manuscript, on file withauthor); Mary Ann Glendon,Rights in Twentieth-Century Constitutions, 59 U. CHI. L. REV.519, 527-28 (1992); see also Wojciech Sadurski, Post-Communist Charters of Rights in

Europe and the U.S. Bill of Rights , 65 LAW & CONTEMP. PROBS. 223 (2002).5See HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW

POLITICS MORALS 263- 358 (3d ed. 2008).


4/36

4 REMEDYINGSOCIO-ECONOMIC INJUSTICE [Vol. 13, No.2]justiciable.6 Enforcement of such rights by courts, they have asserted, iseither impossible or undesirable because of democratic legitimacy issuesand judicial competency issues.7

The claimed legitimacy issues are related to the classic counter-majoritarian difficulty of judicial review.8 How can decisions of anunelected branch of government overturn popular will as formulated by ademocratically-elected legislative body? In the context of social rightsadjudication, the traditional concerns about judicial review are exacerbatedby the inherent policy-based and financial nature of the decisions the courtswould have to make. A judgment that placed a positive duty upon orrequired significant funding from the state, rather than merely a cessation ofgovernment activity, intrudes upon more non-judicial concerns than just thesingle issue before the court. This is the basis for the flawed but commondescription of socio-economic rights as positive rights in contrast to

merely negative civil and political rights.9

Social rights are "positive"because they require affirmative actions and additional expenditures by thestate, such as establishing and funding schools, providing teachers andmaterials for universal primary education. In contrast, negative rightsmerely prohibit certain government actions, such as state-sponsoreddiscrimination in public schools. Only the latter sphere of "negative" rightsare typically viewed as appropriate for a court to enforce.

Judicial competency issues focus on problems related to the viabilityof courts as fora and the appropriateness of adjudication as a means fordetermining social welfare entitlements. These alleged failings

6

See Cecile Fabre, Constitutionalising Social Rights, 6 J. POL. PHIL. 263, 263 (1998);Etiene Mureinik,Beyond a Charter of Luxuries: Economic Rights in the Constitution , 8 S.AFR. J. ON HUM. RTS. 464, 464 (1992); Dennis Davis, The Case Against Inclusion of Socio-economic Demands in a Bill of Rights except as Directive Principles, 8 S. AFR. J. ON HUM.RTS. 475, 475; Mark Tushnet, Social Welfare and the Forms of Judicial Review, 82 TEX. L.REV. 1895, 1895-96 (2004).

7Id.8 The classic formulation of judicial review's counter-majoritarian difficulty is from

ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OFPOLITICS 16-23 (2nd ed. 1986). The theory has also been expressly applied to socio-economic rights. See e.g., Reynaud N. Daniels & Jason Brickhill, The Counter-Majoritarian Difficulty and the South African Constitutional Court, 25 PENN ST. INTL L.REV. 371 (2006).

9 This distinction has been largely, and correctly, rejected. See Cecile Fabre,

Constitutionalising Social Rights, 6 J. POL. PHIL. 263 (1998); STEPHEN HOLMES & CASSSUNSTEIN, THE COSTOF RIGHTS: WHY LIBERTY DEPENDS ON TAXES (1999); CASS SUNSTEIN, THESECOND BILLOF RIGHTS: ROOSEVELT'S UNFINISHED REVOLUTIONAND WHY WE NEED IT NOW MORETHAN EVER (2005);see also Craig Scott & Patrick Macklem, Constitutional Ropes of Sandor Justiciable Guarantees? Social Rights in a New South African Constitution , 141 U. PA.L. REV. 1, 48-71 (1992) (rejecting the negative-positive distinction because the generalnotion of rights connotes positive and negative duties equally).


5/36


include procedural limitations, especially concerns about thesuitability of any particular plaintiff to represent the generalclass of affected persons; informational problems, including

the absence of the specialized, unbiased fact-findingavailable in a legislative setting; and remedy-relateddifficulties, particularly where the limited range of judicialremedies would be inadequate or politically inappropriate.10

Underlying these arguments against justiciability was an even moreinsurmountable issue: social rights had never been adjudicated in anaffirmative and systematic way by a national court.11 Historically, the mostpersuasive argument against comprehensive social rights adjudication wasits radical novelty. The numerous justifications for opposition to judicialenforcement were routinely proposed without a single significant counter-example as evidence to refute them.12 Since there was no viable example of

adjudication, critics were able to argue that adoption of such inherentlyunenforceable rights would warp the constitutional separation of powers,weaken respect for the rule of law, bankrupt the nation, or lead to someother disaster.13 Of course, such arguments ignored the harm caused tonations, their people, their government's legitimacy and the rule of law byunaddressed socio-economic injustice.

As a consequence, individual nations traditionally resolve the debateabout constitutional socio-economic rights through one of only threeconstitutional options:14 1) exclusion from the constitutional text (rejectingsuch rights altogether on the basis of non-justiciability arguments);15 2)

10 This organization draws upon Adjudicating Non-Justiciable Rights, supra note 3,at349-53.

11 HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAWPOLITICS MORALS 313-58 (3d ed. 2008) (considering arguments for and against adjudicationof economic and social rights and looking at differences in how such rights are enforced inIndia, South Africa, the United States, and in European countries).

12 Id.13 See, e.g., Cass R. Sunstein, Against Positive Rights, in WESTERN RIGHTS? POST-

COMMUNIST APPLICATION 225, 22532 (Andrs Saj ed., 1996) (arguing against the inclusionof socio-economic rights in the new post-communist constitutions of Eastern Europe).

14 Eric C. Christiansen, Survey of Socio-economic Rights in National Constitutions: Healthcare, Education, Social Security, Housing, Food and Water (December 2005)(unpublished manuscript, on file with author). A different three-part division is presentedby Mark Tushnet in Social Welfare Rights and the Forms of Judicial Review, 82 TEX. L.REV. 1895, 1897, 1898-1909 (2004) ("enumerating them but making themnonjusticiable, making them justiciable but allowing the courts to find aconstitutional violation only if the legislature has quite dramaticallydeparted from what the constitution requires, and by making themenforceable to the same degree that traditional civil liberties and civilrights are").

15 See, e.g., Cass R. Sunstein, Against Positive Rights, in WESTERN RIGHTS? POST-


6/36

6 REMEDYINGSOCIO-ECONOMIC INJUSTICE [Vol. 13, No.2]inclusion as a special category of unenforceable rights (typically incountries with little or no genuine judicial review);16 or 3) inclusion as meredirective principles for policy-making (including such rights only as

judicially unenforceable policy statements).17 Even where such rightshave been expressly included in constitutional text, theserights have been enforced to a very limited degree.18 Hence,constitutional enforcement of social rights is a new tool to combat socialinjustice because it is a tool that has previously been unavailable to courtsor available but unused.

South Africa's post-apartheid Constitution introduced a fourthapproach to the problem of constitutional recognition of socio-economicrights. South Africa, evidently more concerned with the need to address theradical inequality of the apartheid period than about theoretical harms to therule of law, adopted extensive social welfare provisions in its Constitution,

determined that these rights are enforceable by courts, and adjudicatedclaims based on the Constitution's social welfare rights. It is only as aconsequence of this South African constitutional adjudication that the long-missing counter-example exists to refute the dire predictions of social rights

COMMUNIST APPLICATION 225 (Andrs Saj ed., 1996).16 Mark Tushnet, Social Welfare Rights and the Forms of Judicial Review, 82 TEX. L.

REV. 1895, 1898-1902 (2004).17 See, e.g., INDIA CONST. art. 37 (The provisions contained in this Part shall not be

enforceable by any court, but the principles therein laid down are nevertheless fundamentalin the governance of the country and it shall be the duty of the State to apply theseprinciples in making laws.).

18

For example, in the United States, although social welfare rights are enshrined inmany state constitutions, they are not generally enforced. See Sarah Ramsey & DaanBraveman, Let Them Starve: Government's Obligation to Children in Poverty , 68 TEMP.L. REV. 1607, 1628 (1995) (discussing the state courts' reliance on highly deferentialfederal standards in interpreting distinctive state constitutional welfare clauses); HelenHershkoff, Rights and Freedoms under the State Constitution: A New Deal for Welfare

Rights, 13 TOURO L. REV. 631, 640 (1997) (finding that although the New York courts willoccasionally review questions of exclusion, it takes a hands-off approach to questions ofadequacy, on the view that these involve choices best left to the electoral process).Similarly, the Irish Constitution enumerates a list of social welfare rights, but exemptsthem from judicial enforcement. IR. CONST., 1937, art. 45, 1 (The principles of socialpolicy set forth in this Article are intended for the general guidance The application ofthose principles . . . shall not be cognisable by any Court under any of the provisions of thisConstitution.). The Indian Constitution includes a list of social welfare rights under theheading "Directive Principles of State Policy," but also makes those rights judiciallyunenforceable. See INDIA CONST. pt. IV, art. 37. However, India is a rare case where theSupreme Court has made some advances in terms of socio-economic rights, even thoughthey are not explicitly enforceable rights under the Indian Constitution. See, e.g., OlgaTellis v. Bombay Municipal Corporation, (1985) 2 S.C.R. Supl. 51 (holding that the rightto life and liberty included the directive principle right to livelihood and thereby requiringthat pavement dwellers be provided with alternative accommodation before eviction).


7/36


opponents. South Africa, alone among modern constitutional democracies,has used the tool of constitutional social rights in a manner that permitsevaluation of the capacity of courts to advance socio-economic justice

through such adjudication.

.2 Why South Africa?

South Africa is uniquely situated to provide insight and permitassessment of the possibility of courts advancing social justice. Socialwelfare provisions were enumerated in the 1994 Interim Constitution andexpanded in the 1997 Constitution.19 In theIn Re: Certification case andother early cases, the Court directly addressed traditional non-justiciabilityarguments and ruled that social rights were enforceable.20 Since it beganhearing cases in 1995,21 the courts of South Africa have heardand

affirmatively ruled onnumerous challenges to laws and governmentalpolicies and actions that allegedly violated the social welfare provisions ofthe Constitution.

19 Conflict between the ruling white minority government and theANC resulted in a two-stage constitutional drafting process with a newly-formed Constitutional Court enforcing the parties' negotiatedagreement. The first stage involved drafting a preliminary Constitution(the 1994 Interim Constitution), holding fully democratic elections andsetting up a new Parliament that would choose a new president. Thesecond stage gave the task of crafting the final constitution (the 1997

Constitution) to the newly elected Parliament and Senate in their role asthe Constitutional Assembly. Two safeguards linked the two stages ofthe process: a set of thirty-four inviolable constitutional principles(known as the Thirty-four Principles) established by the initialnegotiating parties to constrict the subsequent, final constitution and aconstitutional court appointed under the Interim Constitution with thetask of certifying that the final Constitution did not violate any of the

Thirty-four Principles. ALLISTER SPARKS, TOMORROW IS ANOTHER COUNTRY: THE INSIDESTORY OF SOUTH AFRICA'S ROAD TO CHANGE 129 (1995); PATTI WALDMEIR, ANATOMY OF AMIRACLE 194-95 (1997); Albie Sachs, South Africa's Unconstitutional Constitution, 41 ST.LOUIS U. L.J. 1249, 1255 (1997); Jeremy Sarkin,Innovations in the Interim and 1996 South

African Constitutions , THE REV. 57 (June 1998).20 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the

Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) paras. 1-19, 76-78 (S.Afr.), available at http://www.constitutionalcourt.org.za/Archimages/2396.PDF [hereinafter

In re: Certification of the South African Constitution]. This and all Constitutional Courtdecisions are available at the official website of the Constitutional Court,http://www.constitutionalcourt.org.za .

21 The first case heard by the Court was on February 15, 1995. State v. Makwanyane1995 (6) BCLR 665 (CC) (S. Afr.) (declaring the death penalty to be inconsistent with theConstitution), available athttp://www.constitutionalcourt.org.za/Archimages/2353.PDF


8/36

8 REMEDYINGSOCIO-ECONOMIC INJUSTICE [Vol. 13, No.2]

Alone among nations, South Africa has adjudicated a sufficientnumber of cases to evidence a comprehensive jurisprudence. The judiciaryhas used traditional court procedures within the structure of its regular

judicial system to enforce socio-economic rights through readilyrecognizable processes. The current South African jurisprudence is a directrefutation of the traditional claims of dire consequences from judicialenforcement of socio-economic protections. Indeed, the Court has beencriticized far more for the excessive restraint it has shown than for judicialover-reaching.22 Of course, active enforcement of rights is different fromsuccessful judicial advancement of social justice, but it is certainly athreshold requirement.

A. Enumeration of Rights to Social Welfare

As with everything in the South African Constitution-makingprocess, inclusion of social welfare rights must be understood in historicalcontext: generally, the end of apartheid, and, specifically, the constitutionalnegotiations in the early 1990s between the African National Congress(ANC) and the white-minority ruling government.

The impetus, if not necessity, to include social welfare rights inSouth Africa's first democratic constitution was a result of the role socio-economic oppression played within the larger context of apartheid's systemof political and social subjugation.23 As ANC negotiator Kader Asmalstated in the debates about the constitutional text, [t]he struggle forliberation in South Africa . . . has always been a struggle for freedom from

hunger, poverty, landlessness, and homelessness. Our Bill of Rights mustreflect . . . the multidimensional and all-encompassing nature of the struggle

22 For criticism of the South African Constitutional Courts socio-economic rights

jurisprudence,see David Bilchitz, Towards a Reasonable Approach to the Minimum Core:Laying the Foundations for Future Socioeconomic Rights Jurisprudence, 19 S. AFR. J.HUM. RTS. 1 (2003) (criticizing the jurisprudential foundations the Constitutional Court insocio-economic rights cases); Theunis Roux, Understanding Grootboom-A Response toCass R. Sunstein, 12 CONST. Q. 41 (2002) (arguing that Grootboom does not adequatelyexplain the extent to which the government must prioritize the needs of the poor andfinding that the Courts remedy was deficient); Dennis Davis, Socio-Economic Rights inSouth Africa: The Record After Ten Years, 2 NEW ZEALAND J. OF PUB. AND INTL L. 47 (2004)(the author, a Cape High Court judge, disapproving of the Court's judgments for excessivedeference to government). But see Mark S. Kende, The South African ConstitutionalCourt's Construction of Socio-economic Rights: A Response to Critics, 19 CONN. J. INT'L L.617, 624 (2004) (finding many of the criticisms of the Court to be unwarranted).

23 Apartheid dictated a policy of separation with only the pretense of equality,theoretically guided by the development needs of the inferior races but in fact effecting atremendous socio-economic advantage to whites. See FRANK WELSH, A HISTORY OF SOUTHAFRICA 414-99 (2000).


9/36


for liberation.24

Starting with the Freedom Charter, the original anti-apartheidmanifesto crafted in 1955, social welfare was inextricably linked to the goal

of post-apartheid liberation.25

The early constitutional proposals and publicstatements reflected the interrelated nature of political equality and socialwelfare. By the time the formal negotiations began regarding the provisionsof the post-apartheid constitution, the goal to include socio-economic rightswas a consistent ANC position.26 Opposition to inclusion of social welfarerights in the formal constitutional drafting process came from the apartheidgovernment represented by the National Party. For the National Party,inclusion of social welfare rights threatened the system of white andAfrikaner socio-economic privilege that existed under apartheid.27

Because of the strength of the ruling government's bargainingposition, only very limited social welfare rights, such as basic education and

minimum welfare for children, were included in the 1994 InterimConstitution.28 However, when the ANC achieved political dominance

24 3 Debates of the Constitutional Assembly, Rep. of S. Afr. 122-23 (1996).25 On socio-economic topics, the Freedom Charter declared:

Education shall be free, compulsory, universal and equal for all children . . . . Allpeople shall have the right to . . . be decently housed, and to bring up theirfamilies in comfort and security . . . [N]o-one shall go hungry; [and] Free medicalcare and hospitalisation shall be provided for all, with special care for mothersand young children . . .

Freedom Charter, Congress of the People, June 26, 1955, African National CongressHistorical Document Archive, http://www.anc.org.za/ancdocs/history/charter.html (lastvisited Jan. 13, 2007).

26

In 1992, the ANC produced Ready to Govern, which identified the ANCs clearintention to include affirmative provisions related to socio-economic rights:The Bill of Rights will affirm the right of all persons to have access to basiceducational, health and welfare services. It will establish principles andmechanisms to ensure that there is an enforceable and expanding minimum floor ofentitlements for all, in the areas of education, health and welfare. It will commit thecourts to take into account the need to reduce malnutrition, unemployment andhomelessness when making any decisions . . . . Special agencies linked to Parliamentand the courts should be set up so as to ensure that national, regional and localauthorities apply appropriate shares of their budgets to achieving these rights, takinginto account the problems of limited resources and affordability.

African National Congress, Ready to Govern: ANC policy guidelines for a democraticSouth Africa adopted at the National Conference (1992), available athttp://www.anc.org.za/ancdocs/history/readyto. html.

27 See FRANK WELSH, A HISTORY OF SOUTH AFRICA 463-99 (2000) (describing how thesystem of apartheid preserved socio-economic privilege for white South Africans,especially Afrikaners); see also LOURENSDU PLESSIS & HUGH CORDER, UNDERSTANDING SOUTHAFRICA'S TRANSITIONAL BILLOF RIGHTS 32 (1994) (stating that the ruling white minority partyfeared dramatic change in the economic status quo).

28 S. AFR. (INTERIM) CONST. 1993, ch.3:


10/36

10 REMEDYINGSOCIO-ECONOMIC INJUSTICE [Vol. 13, No.2]through the popular elections in April 1994, its representatives in theConstitutional Assembly were able to include a panoply of social welfareprotections in the draft of the final Constitution. The final Constitution,29

passed by the requisite majority of the Assembly and signed by PresidentNelson Mandela on December 10, 1996, included extensive socio-economicrights.30 The Constitution eventually went into effect on February 4, 1997.31

However, before the final Constitution could come in to force, all ofits provisions had to be certified by the Constitutional Court as compliant

32 EducationEvery person shall have the right-(a) to basic education and to equal access to educational institutions;(b) to instruction in the language of his or her choice where this is reasonably

practicable; and(c) to establish, where practicable, educational institutions based on a common culture,

language or religion, provided that there shall be no discrimination on the ground ofrace.

30 Children(1) Every child shall have the right-(a) to a name and nationality as from birth;(b) to parental care;(c) to security, basic nutrition and basic health and social services;(d) not to be subject to neglect or abuse; and(e) not to be subject to exploitative labour practices nor to be required or permitted to

perform work which is hazardous or harmful to his or her education, health or well-being.(2) Every child who is in detention shall, in addition to the rights which he or she has

in terms of section 25, have the right to be detained under conditions and to be treated in a

manner that takes account of his or her age.(3) For the purpose of this section a child shall mean a person under the age of 18years and in all matters concerning such child his or her best interest shall beparamount.29 At the time of the constitutional drafting process in South Africa the two versions of

the constitution were known at the Interim Constitution (the constitution that ended the party-based negotiations, ended apartheid, and allowed democratic elections in SouthAfrica in 1994) and the Final Constitution (based on and subject to limits in the InterimConstitution but formally drafted by the Constitutional Assembly in the two yearsfollowing the April 1994 elections). SeeEx parte Chairperson of the Constitutional

Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 (4)SA 744 (CC) paras. 1-21 (S. Afr.), available at http://www.constitutionalcourt.org.za/Archimages/3796.PDF.

30

S. AFR. CONST. 1996, ch. 2. The core social rights included in the South African Billof Rights include:

26 Housing(1) Everyone has the right to have access to adequate housing.(2) The state must take reasonable legislative and other measures,within its available resources, to achieve the progressive realisation ofthis right.


11/36

Fall 2008] REMEDYING SOCIO-ECONOMIC INJUSTICE11

with the 1993 negotiated agreements.32 Inclusion of social rights wascontested during this process. Opponents argued that such rights wereinherently non-justiciable, were not universally recognized fundamental

rights (as required by the negotiated agreement), and that inclusion of suchrights violated the constitutionally-mandated separation of powers.33 All ofthese arguments were rejected in the 1996 Constitutional Court decisionInRe: Certification of the South African Constitution .34 As a result, the coresocial welfare rights of access to adequate housing, healthcare, food, water,social security, and education were expressly included in the final, certified

27 Health care, food, water and social security(1) Everyone has the right to have access to

(a) health care services, including reproductive health care;(b) sufficient food and water; and

(c) social security, including, if they are unable to support and theirdependants, appropriate social assistance.(2) The state must take reasonable legislative and other measures, within its

available resources, to achieve the progressive realisation of each of theserights.(3) No one may be refused emergency medical treatment.

29 Education(1) Everyone has the right

(a) to a basic education, including adult basic education; and(b) to further education, which the state, through reasonable measures,

must make progressively available and accessible.Additional socio-economic rights can be found in the South African Constitution in ch. 2,

23 (labor relations), 25 (property rights and land reform), 28 (childrens rights to, interalia, basic nutrition, shelter, basic health care services and social services), and 35(detainees rights to, inter alia, adequate accommodation, nutrition, reading material andmedical treatment).

31 See Const. Ct. of S. Afr., http://www.constitutionalcourt.org.za (official website)(follow Constitution hyperlink to The certification process); In re: Certification of theSouth African Constitution,supra note [18], at paras. 6-14.

32 The proposed final Constitution had to be certified by the Court to ensure that noneof its provisions conflicted with the Thirty-four Principles in the Interim Constitution. SeeS. AFR. (Interim) CONST. 1993, sched. 4. The initial review by the Constitutional Courtfound that we ultimately come to the conclusion that the [proposed text] cannot becertified as it stands because there are several respects in which there has been non-compliance with the [Thirty-four Principles], but also noted that, in general and inrespect of the overwhelming majority of its provisions, the [Constitutional Assembly] hasattained [its] goal. Ex Parte Chairperson of the Constitutional Assembly: In reCertification of the South African Constitution,supra note [18], at para. 31. Certification ofthe subsequently amended text was granted by the full court inEx parte Chairperson of theConstitutional Assembly: In re Certification of the amended text of the Const. of the Rep. of

S. Afr. 1996, 1997 (2) SA 97 (CC), at para. 205 (S. Afr.).33 The opposition groups included the South African Institute for Race Relations (an

organization supporting economic liberalism), the Free Market Foundation, and the


12/36

12 REMEDYINGSOCIO-ECONOMIC INJUSTICE [Vol. 13, No.2]text of the South African Constitution.35

The right of access to adequate housing presents the typical textualformulation of such rights; the declaration of the right is accompanied by

textual limitations related to available resources and progressiverealization. Section 26 provides that:

(1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and othermeasures, within its available resources, to achieve theprogressive realisation of this right.36

The issue of inclusion was settled affirmatively in the final proposedtext of the Constitution and in theIn Re Certification decision, andthe issue of justiciability was addressed in the Court's earliest cases.

What remained for the Court was to craft a coherent jurisprudence ofsocial welfare rights in actual cases.

B. Social Rights Case Law

The Court has addressed the Constitution's social rights provisionsin numerous cases, but the core of its substantive jurisprudence hastypically been identified from three fundamental cases: Soobramoney,Grootboom, and Treatment Action Campaign (TAC).37 These initialcases established how the Court will evaluate constitutional claims undersocio-economic rights, with more recent cases expanding and clarifying the

Gauteng Association of Chambers of Commerce and Industry. SeeIn re: Certification ofthe South African Constitution,supra note [18], at paras. 76-78; Sandra Liebenberg, South

Africa's Evolving Jurisprudence on Socio-Economic Rights, 6 LAW DEMOCRACY & DEV. 159,at *1, n.11 (2002), available athttp:// www.communitylawcentre.org.za/Projects/Socio-EconomicRights/research/socio-economic-rights_jurisprudence/evolving_jurisprudence.pdf. For a report of some of the Court'sdiscussion of the certification question as it relates to socio-economic rights, see THE POST-APARTHEID CONSTITUTIONS: PERSPECTIVE ON SOUTH AFRICA'S BASIC LAW 408-09 (PenelopeAndrews et al. eds., 2001).

34In re: Certification of the South African Constitution,supra note [18], at paras. 77-78.

35Id.36 S. AFR. CONST. 1996, ch. 2, 26.37 These core cases are discussed infra. Other important cases includePresident of the

Republic of South Africa and Others v. Modderklip Boerdery (Pty) Ltd and Others, 2004CCT 20/04 (right to housing); Minister of Public Works and Others vs. Kyalami Ridge

Environmental Association and Others, 2001 (7) BCLR 652 (CC) (right to housing, right toproperty, rights of ownership);Khosa v. Minister of Soc. Dev., 2004 (6) SA 505 (CC) (S.Afr.) (right of access to social security).


13/36


full capacity of courts as remedial bodies in the area of socio-economicinjustice.38

In Soobramoney, the Constitutional Court faced a challenge to an

established hospital policy prioritizing access to dialysis treatments. 39 Aterminally ill patient excluded by the policy from life-sustaining treatmentsued under Section 27, the right of access to healthcare, and otherprovisions. The Court affirmed the judicial enforceability of social rightsbut held that neither the right of access to healthcare nor the right toemergency medical treatment required the Court to overturn the otherwisereasonable medical decisions of doctors and administrators faced withlimited financial resources.40

The Grootboom case addressed the right to housing for squatters inan informal settlement outside Capetown.41 Ms. Irene Grootboom, alongwith 510 children and 389 other adults, made a claim under Section 26, the

right of access to adequate housing, and Section 28, the rights of children,seeking provision of adequate housing for adults and children pendingpermanent accommodation.42 The Court concluded that governmentalhousing programs violated the Constitution by failing to develop andimplement a comprehensive and coordinated programme to advance aconstitutional right, particularly programs that failed to address the housingneeds of people with no access to land, no roof over theirheads, and who were living in intolerable conditions or crisissituations.43 The order issued by the Court required the government toremedy the program's failings, and assigned the Human RightsCommission, an independent national body, to monitor and report on the

status of the changes.44

In the TACcase, the Court declared unconstitutional a governmentprogram that restricted distribution of medication that dramaticallydecreased the likelihood of mother-to-child transmission ofHumanImmunodeficiency Virus (HIV).45 The Court ordered the

38See discussion ofBerea Township,supra text accompanying notes [46-48].39 Thiagraj Soobramoney v. Minister of Health, KwaZulu-Natal, 1998 (1) SA 765

(CC) (S. Afr.), http://www.constitutionalcourt.org.za/Archimages/1198.PDF [HereinafterSoobramoney].

40 See Soobramoney,supra note [37],at para. 36.41Govt of Republic of S. Afr. v. Grootboom 2001 (1) SA 46 (CC) para. 7 (S. Afr.),

available at http://www.constitutionalcourt.org.za/Archimages/2798.PDF [HereinafterGrootboom].

42Id. at paras. 7-13.43Id. at para. 99.44Id.at paras. 97-99.45Minister of Health v. Treatment Action Campaign (No. 2) 2002 (5) SA 721 (CC) (S.

Afr.), available at http://www.constitutionalcourt.org.za/Archimages/2378.PDF[hereinafterTAC].


14/36

14 REMEDYINGSOCIO-ECONOMIC INJUSTICE [Vol. 13, No.2]government to implement within its available resources a comprehensiveand coordinated programme to address HIV transmission issues.46 It alsoruled that the government must: devise a program that includes reasonable

measures for counseling and testing pregnant women for HIV, immediatelyremove the restrictions that prevented the medication from being distributedwidely, and permit and facilitate the use of such medication for thepurpose of reducing the transmission of HIV.47

In addition to these core judgments, the Constitutional Court veryrecently decided Occupiers of 51 Olivia Road Berea Township v. City ofJohannesburg, a case that may have even more practical effect.48 Theplaintiffs sought to halt otherwise legal government evictions of peopleresiding in unsafe buildings in Johannesburg. The Court held that thecomprehensive program requirement announced in Grootboom and TACmust include a meaningful process of engagement with the affected

community.49

Berea Township further limited the government's capacity toevict legal and illegal residents unless a good faith negotiation andconsultation process had occurred and allowance had been made for thehomelessness that could result from the action.50

In general, these and other social rights cases51 affirm that, althoughthe obligations imposed on the state . . . are dependent upon the resourcesavailable for such purposes,52 the Court will require creation of a broadpolicy-based program with particular attention paid to those who are mostvulnerable.53 The Court will also require implementation that includes allreasonable steps necessary to initiate and sustain a successful program to

46Id. at para. 135.47Id. at para. 135.48Occupiers of 51 Olivia Road Berea Township and 197 Main Street Johannesburg

v. City of Johannesburg and Others(No. CCT 24/07) (2008) ZACC 1 (S. Afr.)(2008), available athttp://www.constitutionalcourt.org.za/Archimages/11581.02.08.PDF[hereinafter Berea Township].

49Id.atpara. 1650Id. at paras. 20-22.51See, e.g.,Jaftha v. Schoeman 2004 (2) SA 140 (CC) (S. Afr.) (concluding a lack of

judicial oversight for a debt-related forced home sale was an unconstitutional violation ofSection 26); Khosa v. Minister of Soc. Dev. 2004 (6) SA 505 (CC) (S. Afr.) (finding thatdenial of social welfare benefits to non-citizen permanent residents was unreasonable andviolated the rights to both equality and social security). For a summary discussion of themost judgments (including lower court judgments) related to socio-economic rights, seeThe Socio-Economic Rights Project of the Community Law Centre's Case Reviews,available athttp://www.communitylawcentre.org.za/Projects/Socio-Economic-Rights/case-reviews-1/south-african-cases.

52Soobramoney,supra note 39, at para. 11 (Ngcobo dissent).53Grootboom,supra note 41, at para. 67.


15/36


advance the asserted right,54 including "meaningful engagement" with thosewhose social welfare rights are most impacted.55

C. Court-Imposed Limits

However, this portrayal of the Courts jurisprudence tells only onepart of the story. In addition to the relatively affirmative elements of thejurisprudence described above, there are also a host of self-imposed limitsin the Court's rulings. The most obvious examples are the Court'savoidance of individual remedies, its unwillingness to recognize unqualifiedtextual rights, and its rejection of a minimum core standard for socialwelfare entitlements.

The Court has granted an individual remedy in just a single, ratheratypical case,56 and has otherwise refrained from issuing orders directly

benefiting the parties bringing claims. In theNjongi case, the Courtaddressed indefensible bureaucratic action against Ms. Deliwe MurielNjongi, a destitute disabled woman who lost her only source of incomewhen the Department of Welfare for the Eastern Cape denied continuationof her disability grant, apparently at random and without notice.57 In itsruling, the Court rejected the Department's statute of limitations defensebecause the state's decision to claim the defense failed to take into accountMs. Njongi's poverty and other circumstances.58Njongi is an exceptionalcase, however, as is evident in the Court's use of particularly stronglanguage to describe the state action as grossly insulting, absurd, anddevoid of all humanity.59

Far more typical of the Court's remedies is Grootboom, where theCourt declared the Western Cape's housing program unconstitutional butissued an order that brought no immediate or direct relief to IreneGrootboom or the other plaintiffs.60 Typically, the Court has focused on

54Grootboom,supra note 41, at para. 67.55Berea Township,supra note [46], at para. 18.56Njongi v. Member of the Executive Council, Department of Welfare, Eastern Cape ,

(No. CCT 37/07) (2008) ZACC 4 (S. Afr.) (2008), available athttp://www.constitutionalcourt.org.za/Archimages/11953.PDF[Hereinafter Njongi].

57Id. at para. 3-27.58Id. at para. 80-92.59Id. at para. 85-90.60 See Grootboom, supra note [38], at para. 99. See Kameshni Pillay, Implementing

Grootboom,: Supervision Needed, 3 ESR REV. 11 (2002), available at http://www.escr-net.org/usr_doc/Kameshni_Pillay_-_Implementing_Grootboom.doc; see also, Lucie White, AfricanLawyers Harness Human Rights to Face Down Global Poverty, 60 ME. L.REV. 165, 170-71 (2008) (describing Ms. Grootboom's post-trial


16/36

16 REMEDYINGSOCIO-ECONOMIC INJUSTICE [Vol. 13, No.2]dissatisfaction with governmental programs or governmental action; placingthe burden upon the government to improve its programs, generally withoutreference to the parties who advanced the claims to the Court. The Court's

remedial orders essentially tell the government to do better, rather thanensuring any immediate improvement for the complainant.

Additionally, the Court has ignored the textual distinctiveness of theunlimited rights in the Constitution; rights without an internal limitationsclause related to progressive realization and available resources.61 Forexample, the Court has treated the unqualified textual rights to minimalsocial services for children as if they granted no greater protections thanother social welfare provisions.62 Similarly despite the use of ensuredminimum social welfare entitlements in international law, the Court hasrejected the adoption of such minimum core standards,.63

These judicially-imposed limits have been the basis for some of the

strong criticism of the Court's jurisprudence.64

The result is that evenwithout clear constitutional guidance, the Court at present has chosen asomewhat cautious middle position for its jurisprudence, encompassinglegislative deference, a reasonableness standard, and rejection of any formof unrestricted enforcement. While such jurisprudence is far moredefensible against the arguments of those opposed to social rightsenforcement, it is notably less satisfying to those who expected enforcementof social welfare rights to dramatically advance social justice in post-apartheid South Africa.

frustration).61 The internal limitations clause (so-called to distinguish it from the Chapter 36

Limitations Clause, which applies to all rights in the Bill of Rights) is present in nearly allof the social welfare rights in the Constitution. For example, in the provisions regardinghousing, it states: The state must take reasonable legislative and other measures, withinits available resources, to achieve the progressive realisation of this right. S. AFR. CONST.1996, ch. 2, 26(2).

62Grootboom,supra note [38], at para. 74.63 Minimum core analysis, used by the United Nations International Committee on

Economic, Social, and Cultural Rights (ICESCR), in its non-binding general commentsand concluding observations on nation reports under the ICESCR, attempts to ensure thesatisfaction of, at the very least, minimum essential levels of each of the rights by stateparties to the ICESCR. U.N. Off. of the High Comm'r for Hum. Rts., Comm. on Econ.,Soc., and Cultural Rights, General Comment 3: The Nature of States Parties Obligations, 10, U.N. Doc. E/1991/23 (Dec. 14, 1990). See Sandra Liebenberg, The Interpretation ofSocio-Economic Rights, in 2 CONSTITUTIONAL LAWOF SOUTH AFRICA 33.2(a), n.3 (MatthewChaskalson et al. eds., 2d ed. 2004) 33.5(e) (providing a discussion about the Court'srejection of minimum core obligations analysis and a review of the critiques of thatposition).

64 These self-imposed limits are also evidence of the process of differentiatedincorporation as discussed in Part III infra. See Dennis Davis, Socio-Economic Rights inSouth Africa: The Record After Ten Years, 2 NEW ZEALAND J. OF PUB. AND INTL L. 47 (2004).


17/36


III. EXPORTINGTHE SOUTH AFRICAN SOCIAL RIGHTS MODEL

An obvious pre-condition for constitutional enforcement of socialwelfare rights was a judicial response to the varied and dominant non-justiciability arguments. The arguments that constitutional protection ofsocio-economic rights would be harmful to a nation had to be confronted,assessed, and addressed. Because of the unique approach of the SouthAfrican Constitutional Court, South Africa not only justified its ownaffirmative jurisprudence but it also created a model for other nationswishing to judicially enforce social rights. Because of South Africa, anadditional viable option is available for such nations other than exclusion ofsuch rights, unenforceable inclusion, or inclusion as mere directiveprinciples.65 South Africa offers a fourth alternative: inclusion with

enforceability through differentiated incorporation.

1. The Question of Exportability

The South African social rights jurisprudence can beoffered up as a model for other countries to adopt oremulate only if it is exportable, that is, if it is capable ofapplication outside the particular milieu of South Africa.This is an important issue because the inclusion of socio-economic protections in the Constitution was a result of theunique history of South Africa. For most South Africans, an

end to apartheid required an end to the radical economicdisparity of the past; political equality was both an end initself and a means to equality of access, advantage, andopportunity.66 To the extent the radical socio-economicinequality of apartheid resulted in inclusion of enumeratedsocial rights in the final South African Constitution, it couldbe argued that such rights cannot be effectively exported tocountries with a different history.

It is true that historical need and popular expectationsapplied substantial pressure on the drafters of theConstitution. However, that is the nature of constitutional

65 See discussionsupra p. [4], text accompanying fn.s [12-15].66 3 DEBATES OF THE CONSTITUTIONAL ASSEMBLY, Rep. of S. Afr., 122-23 (1996) (ANC

member Kader Asmal said, The struggle for liberation in South Africa was not only astruggle for the right to vote, to move, to marry, or to love. It has always been a struggle forfreedom from hunger, poverty, landlessness, and homelessness.); Soobramoney, supranote [36], para. 8.


18/36

18 REMEDYINGSOCIO-ECONOMIC INJUSTICE [Vol. 13, No.2]drafting processes generally, not just in South Africa. Thereis no reason to assume similar pressures for improved socio-economic conditions will not be, or have not been, frequent

motivations for political change through constitutionalprocesses in many countries. But there is every reason tobelieve that constitutional drafting procedures which resultin enumerated and ostensibly enforceable social rights aremotivated by very similar popular, political, or moralconcerns.67 Similar constitutional commitments may growout of distinctive histories.

As described in detail below, the unique but adaptablemanner in which the South African Constitutional Courtssocial rights jurisprudence accommodated classic non-justiciability arguments gives rise to an exportable model of

social rights enforcement.

2. Differentiated Incorporation

In order to craft its socio-economic rights jurisprudence, the SouthAfrican Constitutional Court needed to determine how a judicial body couldbest interpret and enforce such rights. This assessment required the Courtto confront the long-standing arguments against the justiciability of socio-economic rights. The Court implicitly and explicitly evaluated the varioustheoretical arguments against social rights adjudication, disregarded theconcerns that were inapt under its unique Constitution and history, and then

crafted a jurisprudence that accounted for and incorporated the survivingcriticisms in its enforcement.68

This model is differentiated incorporation because it differentiatesbetween valid and invalid critiques of social rights adjudication and thenincorporates the legitimate concerns into a jurisprudence that differs frompolitical rights jurisprudence only as necessary to accommodate thesurviving concerns. The result is an exportable model for social rightsadjudication: a country-specific jurisprudence that accommodates validjusticiability concerns through domestically-appropriate processes.69 Eachstep of this process must be tailored to the particularcountry by its courts. While a similar collection of theoretical

opposing arguments will generally be considered at the start

67 Mark Tushnet, Some Skepticism about Normative ConstitutionalAdvice, 49 WM. & MARY L. REV. 1473, 1478 (2008).

68 The concept of differentiated incorporation was first presented by the author inanother Article;see,Adjudicating Non-Justiciable Rights, supra note [3], at 377-84.

69Exporting Social Rights,supra note [3], at 41-43.


19/36


of the differentiation stage, there will inevitably be concernsor emphases unique to the adopting country, derivative ofits particular history or legal culture. The judiciary must

examine each non-justiciability argument in relation to itsown constitutional text and culture. Issues that will impactthis analysis include the constitutions text (especially theclaimed social rights provisions), the approach to rightsadjudication generally, separation of power issues,federalism issues (where applicable), legal culture, thecapability and credibility of the judiciary, procedural issuesthat impact the courts capacity to solicit information, andthe breadth and flexibility of the courts remedial powers.

This discussion of a foreign nation's adoption of differentiatedincorporation focuses on the South African model for determination of an

appropriate jurisprudence, rather than on South African textual rights andcase law. The model is exportable because the courts of other nations canexplicitly follow the process implicit in the South African ConstitutionalCourts approach. A different court interpreting a new constitution or anewly-amended constitution that includes social welfare rights asenforceable provisions can evaluate the range of historical argumentsagainst adjudication of socio-economic rights, discard those arguments thatare invalid or inapt in that country's particular constitutional culture andthen craft a social rights jurisprudence that expressly addresses theremaining, legitimate concerns.

IV. CONSTITUTIONAL RIGHTS ENFORCEMENTASA TOOLFOR SOCIAL JUSTICE

While the process of differentiated incorporation may allow courtsto enforce socio-economic rights in a useful and appropriate manner, it doesnot speak to the capacity of such adjudication to rectify social injustice.Have the South African courts contributed to positive social change? Areview of changing socio-economic conditions in South Africa highlightsthe need to ask a nuanced question about judicial contributions; thusensuring expectations are modest and consistent with the role of judges.The South African experience will then help identify reasonableexpectations of courts generally when they adjudicate social welfare rights.

The result is an initial list of ways in which constitutional adjudication maybe used to advance social justice.

1. The Constitutional Meaning of Persistent Socio-economic Inequality


20/36


Any evaluation of the aptitude of South African courts to advancesocial justice must account for the current socio-economic situation in thecountry. South Africa remains troubled by substantial poverty and

inadequate social welfare protection. Inclusion of constitutional rightsrelated to housing, healthcare, education, and other social necessities hasnot resulted in a nation that satisfies all of its citizens' social welfare needs.The disparity between protecting socio-economic rights and adequatelyproviding social welfare must be explored. Is the gulf between theConstitutions promise and the peoples needs remedied or lessened by theenforcement of enumerated social welfare rights?

A. The Necessity of Assessment

Why is it necessary to closely evaluate the capacity of constitutional

rights enforcement to advance social justice? Is it not enough that it mightwork? In the absence of other new and promising solutions to the problemof persistent economic inequality, should advocates not pursue allreasonable means? Although there is some merit to that argument, tworelevant pieces of conventional wisdom seem self-evidently true and arguefor a careful analysis. First, court enforcement of social welfare rightscannot be sufficient alone to accomplish substantial realization of a sociallyjust society. Second, prioritizing adjudication to the detriment of politicalaction and popular organizing works against the ultimate goal of socialtransformation. These insights counsel for a cautious, or at least, informed,approach to a judicially-focused strategy for social change.

i.Institutional insufficiency.The first point of conventional wisdom highlights the institutional

weaknesses of the judiciary. At a practical level the courts need thebureaucracy of the state to implement any significant change. At atheoretical level, a court's role as interpreter of the laws cannot possiblyinclude sufficient power to effectuate significant social change in theabsence of, or in opposition to, the other branches of government.70 Nearlyall rights-based court orders are effectuated through the political branches;purely pragmatic reasons require such a system. Establishing effectivebureaucratic responses requires specialized knowledge of systems of

delivery, related and impacted services, and local conditions. It alsorequires a capacity to effectively and promptly investigate relevant issues

70 Obviously, few social welfare issues are likely to reach the courtswhere the other branches are in agreement with the courts' opinion.Presumably, those concerns would be addressed by legislation orpolicies that serve those concerns.


21/36


and resolve newly arising challenges. The nuanced approach necessary tosuccessfully address social welfare and craft systems to meet such needsexceeds the capability of judges.71

Moreover, judicial rulings and the limited array of court remediesare an inefficient way to address governmental disinterest or opposition tosocial welfare concerns. Courts do not have the tools to force an obdurategovernment to comply with their will in a constitutional democracy; onlythe electorate possesses such power. In addition, changing public opinionin order to apply pressure to governments is also not a strength of courts.72

This is true even in the context of South Africa, which possesses aseparation of powers scheme that strongly empowers the judiciary inrelation to the other branches.73

ii. Prioritizing strategies for social change.

Litigation is a resource- and labor-intensive undertaking and itscapacity for social transformation is weakest when the court acts at oddswith popular opinion.74 Furthermore, litigation does not occurspontaneously nor do courts act of their own volition. Necessarily, if courtsenforce social welfare rights, they do so in response to claims brought byextra-judicial parties.75 As a consequence, social justice advocates and

71 It should not be surprising that this concern about competency mirrors one of thejusticiability concerns that survived the differentiated incorporation process. Differentiatedincorporation highlights the legitimate limits on the judicial role as much as it discards theillegitimate ones. Seesupra, Part [II.X.X].72 Gerald N. Rosenberg, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL

CHANGE? (1991) (arguing that judicial capacity for social change islimited). For a variety of critical responses to the Hollow Hope thesis,see generally, LEVERAGINGTHE LAW: USINGTHE COURTSTO ACHIEVE SOCIAL CHANGE(David A. Schultz ed. 1998). See also, Thomas R. Marshall, AmericanPublic Opinion and the Rehnquist Court, JUDICATURE 177 (Nov.-Dec. 2005)(using surveys to demonstrate a general convergence of public opinionand Supreme Court rulings).

73 Eric C. Christiansen, Essay: An Appropriately Activist Court: South AfricanConstitutional Court Rights Jurisprudence, 1995-2001, 30-34 (unpublished manuscript, onfile with the author) [hereinafter An Appropriately Activist Court]. And, there is reason tobelieve these institutional weaknesses are appropriate. If courts had the capacity to remedya problem as enormous and important as social welfare without the other braches ofgovernment, this would be juristocracy in an immediate and indefensible way.

74Rosenberg,supra note.75Standing to bring claims is very broad in South Africa but disputes may not

be initiated by a judge sua sponte. An Appropriately Activist Court,supra note, at

8-10. S. AFR. CON., ch. 2, sec. 38:

Anyone listed in this section has the right to approach acompetent court, alleging that a right in the Bill of Rightshas been infringed or threatened, and the court may grant


22/36

22 REMEDYINGSOCIO-ECONOMIC INJUSTICE [Vol. 13, No.2]affected individuals must weigh the various mechanisms for seeking thedesired change. In a world of limited time and resources, that evaluationmust ask whether an investment in impact litigation and judicial remedies is

worth the loss of time and energy which might otherwise be devoted to non-adjudicatory strategies. Seeking judicial enforcement requires resources,and those resources would perhaps be more beneficially invested in populareducation, democratic pressure, cause-based organizing, or other methodsof activism for changes to law and policy.76

Litigation has a particularly strong potential to detract from popularmovements for social change where the courts do not grant direct relief tothe plaintiff. In South Africa, even if an individual plaintiff prevails, theirneeds are not directly served by going to court and are only indirectly andimperfectly served by the typical remedy: an order to a government entity toreform an inadequate social welfare program. With less direct motivation

for plaintiffs, there is a greater likelihood that claims will be brought bypublic interest groups, which might otherwise be engaged in popularorganizing to encourage government action.

Additionally, judicial action is relatively insecure; it is subject tolegislative revision, constitutional amendment, and executive inaction.Change through judicial fiat without popular support may be fleeting,ineffective, or merely symbolic. Even successful plaintiffs may have beenbetter served by a broad-based political strategy that prioritized promptaction for social change. Because courts cannot inaugurate a just society ontheir own and there are opportunity costs associated with any litigationstrategy, assessment of the potential transformative capacity of

constitutional social rights adjudication is critical.

B. Assessment: Has Social Welfare Improved in South Africa?

South Africa possesses enumerated social welfare rights, previouslyconsidered unadvisable, and viable, affirmative judicial enforcement of

appropriate relief, including a declaration of rights. Thepersons who may approach a court are -a. anyone acting in their own interest;b. anyone acting on behalf of another person who cannot act

in their own name;c. anyone acting as a member of, or in the interest of, a

group or class of persons;d. anyone acting in the public interest; ande. an association acting in the interest of its members.

76 There is a great deal of literature about the relative merits andinterrelationship between legal and non-legal avenues for change. See,e.g., LEVERAGINGTHE LAW, supra note.


23/36


social rights, previously considered impossible. But does the South Africanmodel advance social justice? Is life better for those South Africans whoexperienced wide-ranging, government-sponsored socio-economic injustice

during the apartheid regime? If constitutional adjudication can help addresssocio-economic inequality, a nation with enforceable provisions shouldevidence improved social welfare conditions. Presumably, if social welfarehas not improved for the people such rights were meant to protect, therewould be little impetus for other nations to adopt a system of constitutionalprotections. If improvement has happened (or if an otherwise inevitableworsening of socio-economic conditions has been inhibited), then it isnecessary to ask a follow-up question: what role did enumerated socialrights play in that advancement? Hence, any viable assessment of socialwelfare adjudication should allow, first, evaluation of post-apartheid socio-economic developments and second, evaluation of whether constitutional

provisions contributed to the improvements.Assessing the success of the Courts jurisprudence on both levels is

challenging but clearly necessary. One gauge of social welfaredevelopments generally is overall improvement in the substantive areasenumerated in South African social rights provisions, such as housing,education, healthcare, since the enactment of the Constitution.77 Initially,one should examine the satisfaction of core socio-economic requirements,especially for the poorest South Africans. This inquiry is consistent withthe values of the post-apartheid Constitution and with the focus of the rightsprotected in the South African Bill of Rights. Satisfaction of minimumsubsistence needs for very poor persons also represents a particular concern

of the Constitutional Court.78

Unfortunately, it is challenging to answer even this relatively

straightforward inquiry. In attempting to find reliable socio-economic data,the normal difficultiesespecially when researching conditions amongpersons at or below the poverty lineare dramatically compounded by theunreliability, and occasionally the outright falsity, of apartheid-erastatistics.79 Nevertheless, some helpful statistics are available and relatively

77 Only a few social rights were included in the Interim Constitution; most socio-economic rights were added into the Final Constitution. Seesupra notes [26 and 28]; S.AFR. (Interim) CONST. 1993, ch. 3; S. AFR. CONST. 1996, ch. 2.

78 Grootboom, supra note [38], at para. 44 (A society must seek to ensure that the

basic necessities of life are provided to all if it is to be a society based on human dignity,freedom and equality. To be reasonable, measures cannot leave out of account the degreeand extent of the denial of the right they endeavour to realise. Those whose needs are themost urgent and whose ability to enjoy all rights therefore is most in peril, must not beignored by the measures aimed at achieving realisation of the right.).

79 See Jeremy Seekings, Poverty and Inequality after Apartheid, paper prepared for

the Centre for Social Science Research (CSSR), University of Cape Town (September


24/36

24 REMEDYINGSOCIO-ECONOMIC INJUSTICE [Vol. 13, No.2]trustworthy.

Housing: Between the end of apartheid and August 2007, the SouthAfrican government spent approximately 44 billion Rand (US $ 5.7

billion) on services related to housing, including construction of 2.4million new houses.80 By 2006, 9.6% of households were receivinggovernment housing subsidies.81 Furthermore, by the end of the2006-07 fiscal year, 93% of the land restitution claims (arising fromapartheid-era displacement policies) had been settled, withapplicants returned to their land or receiving compensation for it.82

Access to basic services: Significant progress has been made withregard to water, sanitation, and electricity access. Household wateraccess increased from 59% to 86% between 1994 and 2007;sanitation service availability improved from 50% to 71% in thesame time period. Electrification of 3.5 million homes occurred

since apartheid ended and the government recently initiated a freeelectricity allotment for poor South Africans.83

Education: As of 2006, attendance rates for students aged 7-15 were97.7%.84 Overcrowding in schools and the number of inadequatefacilities have both decreased significantly since the end ofapartheid.85 Additionally, reported literacy rates have improved

2007), available at http://www.sarpn.org.za/documents/d0003024/index.php (stating thatthe apartheid state never collected data on poverty among African people); Daniel F. Neff,Subjective Well-Being, Poverty and Ethnicity in South Africa: Insights from an Exploratory

Analysis, 80 SOC. INDICATORS RESEARCH 313 (2006) (stating that during apartheid rule,official statistics did not cover the whole of South Africa). Even the South African

government has lamented this difficulty. See Gov't Commc'n and Info. Sys., Rep.of S. Afr., Toward 10 Years of Freedom: Progress in the First Decade,Challenges in the Second 2 (2004), available at http://www.gcis.gov.za/docs/publications/10tab.pdf

80 SOUTH AFRICA YEARBOOK 2007/08 (Delien Burger, ed.,), p. vi (Overview),available athttp://www.gcis.gov.za/docs/publications/yearbook/index.html.

81Statistics South Africa, General Household Survey, Statistical Release P0318 (July2007), pp. iii-vi, available at http://www.statssa.gov.za/publications/P0318/P0318July2006.pdf. [Hereinafter 2007General Household Survey]. Statistics South Africa was created in 1999 by the SouthAfrican parliament in order to advance the planning, production, analysis, documentation,storage, dissemination and use of official and other statistics. Statistics Act, No. 6 of1999, G 19957, s. 2 (Apr. 21, 1999).

82

SOUTH AFRICA YEARBOOKsupra note, at p. vi.83Id. at p. vii.842007 General Household Survey,supra note [79], pp. iii-vi.85SOUTH AFRICA YEARBOOK, supra note at p. vii (Progress between 1996 and 2006

include the following: the number of overcrowded schools dropped from 51% to 24%; thenumber of schools with electricity increased from 11,174 to 20,713; schools without accessto water decreased from 8,823 to 3,152 in 2006; and schools without toilets decreased from


25/36


since the end of apartheid: up by 1.2% for adults (to 82.4%) and upby 5.4% for children (to 93.9%).86

Health: Between the end of apartheid and mid-2007, eleven new

hospitals and 1,600 clinics had either been built or upgraded,according to government reports.87 Moreover, healthcare is now freefor children under six years of age, people with disabilities, pregnantwomen, and new mothers.88 Satisfaction with healthcare services isalso high; nearly 85% satisfaction for public healthcare services andjust over 95% for private providers.89

But such relatively good news must be viewed in the context of theremaining statistics about social welfare in South Africa. Even with theimprovements above, the South African government's 2007 GeneralHousehold Survey shows that many people in South Africa still live in

poverty and disadvantage: 14.5% of households live in informal structures;10-12% of persons aged 20 years and above still have no formaleducation;90 only 13.7% of the population is covered by a formal medicalaid scheme;91and the unemployment rate was 28.6% in 2006.92 Statisticsfrom sources outside South Africa also tend to show extreme poverty.93

3,265 to 1,532.)86 Brett Moore, et al., South Africa 8 (Globalization and Education

report), available athttp://globalizationandeducation.ed.uiuc.edu/Students%20Projects/GSEB/2007/ SOUTH_AFRICA.pdf.

87SOUTH AFRICA YEARBOOK2007/08,supra note, at p. vii.88Id.892007 General Household Survey,supra note [79], at p. iv.90Id.91Id.92 2007 General Household Survey, supra note [79], at pp. xx. Accord Central

Intelligence Agency, The World Factbook- South Africa, (July 2008), available athttps://www.cia.gov/library/publications/the-world-factbook/geos/sf.html (last visited July7, 2008) (Unemployment rate in 2007 is 24.3%); World Bank, Country Brief- SouthAfrica, (March 2008), available athttp://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/AFRICAEXT/SOUTHAFRICAEXTN/0,,menuPK:368086~pagePK:141132~piPK:141107~theSitePK:368057,00.html (last visited July 7, 2008) (28.4%unemployment rate).

93 More than 43% of South Africans live below a poverty line of R3,000 (U.S $ 440) per year. Amnesty International Report 2008: State ofthe Worlds Human Rights-South Africa,http://thereport.amnesty.org/eng/regions/africa/south-africa (last visited

July 7, 2008). Fifty percent of the population lives in developing country conditions,compared with 13% of the population that lives in first world conditions. Additionally,over one-third of the children in South Africa suffer from chronic malnutrition. WorldBank, Country Brief- South Africa, http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/AFRICAEXT/SOUTHAFRICAEXTN/0,,menuPK:368086~pagePK:141132


26/36


Although progress has been made, it has undeniably been limited inscope. Available and reliable data show an increase in available housing,medical clinics, and school enrollment, but many people are still living with

unmet social welfare needs. The stark socio-economic legacy of apartheidwill haunt South Africa for many more decades.

However, while examination of socio-economic statistics mayanswer the question of whether socio-economic conditions have improved,it cannot resolve the more focused question regarding the role courts haveplayed in the improvement. The concern of this Article is an even moreelusive component of the overall assessment of success: to understand thecontribution of the Constitution and the Court's jurisprudence to theadvancement of social justice. Have the constitutional protections and courtenforcement supported positive socio-economic change?

C. Assessment: Contributions from Constitutional Protections?

In the absence of any improvement, it could be reasonably assertedthat the Court has failed in its appointed task.94 But where, as is the case inSouth Africa, there is some improvement, how can one evaluate the role ofconstitutional social welfare rights? It is impossible to compare the realSouth Africa with a hypothetical post-apartheid country withoutconstitutional social welfare rights. Any quantitative or otherwise precisedetermination is undeniably out of the question, as it would be if one wereassessing contributions to changes associated with civil and politicalrights.95 To proceed, one must consider carefully the kinds of change courts

are capable of and the limited scope of their powers. The effects of theSouth African judgments can then be considered as a specific example ofthe general capabilities of courts.96

~piPK:141107~theSitePK:368057,00.html (last visited July 7, 2008).94 We are spared the even more challenging task of assessing if the

constitutional provisions only mitigated otherwise worse conditions bythe evidence presented supra in Part [IV.A.2].

95 Of course, some intriguing attempts have been made atquantitative studies to demonstrate social welfare commitments, butthey cannot isolate causes. See, e.g., Avi Ben-Bassat & Momi Dahan, Social

Rights in the Constitution and in Practice, 36 J. OF COMP. ECON. 103 (2008), available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=407260 (surveying the inclusion ofconstitutional commitments to social rights in 68 countries).

96 This is not to assert that evaluation of the social benefit of individual judgments is

not possible. Although beyond the scope of this Article, an assessment of the pragmaticconsequences of Grootboom or TAC would at least reveal whether the South Africanjudiciary needs to reassess its individual rulings, and to question whether the courts shouldtake on a more participatory post-judgment role. The most obvious, and clearlyconstitutionally permissible, option would be the use of supervisory orders in connection


27/36


What is the appropriate approach to such an analysis? First, onemust adjust expectations: courts cannot inaugurate a socially just society ontheir own. Expectations should therefore be modest in scope.

This is particularly true at the earliest stage in thedevelopment of social rights adjudication. Institutionalreserve that might be thought of as excessive in later eras ismore justified in the first decade of adjudication and in theabsence of comparable models. It is reasonable to expect onlylimited contributions from courts, not full-scale change.

Second, expectations must be appropriate in kind aswell. One must identify the forms of judicial contribution that are realisticin light of courts structural and institutional limits. Indeed, the kind ofchange courts can facilitate will be different from thechange typically expected of popular movements; they will

follow adjudications strengths and reflect the unique natureof the judicial role. In the same way that differentiated incorporationshowed the courts defining their capacity to address social welfare cases ina manner consistent with their limited capabilities, the observer mustevaluate the contributions of courts with similarly realistic expectations.

Once observers adjust expectations in light of these insights, theyare better equipped to identify judicial contributions to socio-economicchange. Notably, a great deal of criticism may still beand in the SouthAfrican situation probably should beleveled at the political branches foran inadequate response to poverty.97 But this portion of this Articlequestions the effectiveness of constitutional rights and the jurisprudence of

the South African Constitutional Court as tools for combating socialinjustice. If one examines the South African case law lookingspecifically for the desired, modest social welfareimprovements permitted within institutional strictures, what has theCourt accomplished? If it is possible to identify any positivecontributions made by the South African courts, one mustthen ask if other nations courts could make similaradvances. If so, the result of such an inquiry would be oneset of potential judicial contributions to the struggle forsocial justice that could foreseeably be improved upon andexpanded over time.

with its judgments.97 See, e.g., British Broadcasting Corp., ANC Seeks to Calm War of

Words, available athttp://news.bbc.co.uk/2/hi/africa/4054273.stm (last visited July 28, 2008).


28/36


2. The Contributions of Constitutional Courts

The causes of social change are difficult to assess,

whether in the realm of civil and political rights orsubstantive socio-economic equality. This is as true of thecontributions from civil society as it is of those from courtsand constitutions. Even the most determined statisticianscould not definitively apportion credit or blame to one actoror feature among the many factors that influence socialwelfare. In light of this, one must ask several basicquestions regarding the courts behavior in order toevaluate their actions in the area of socio-economic rights:do they refrain from harm to the nation's financial stabilityor rule of law (the long-standing concern of all social rights

adjudication)?;98 do they use their particular institutionalstrengths to advance social welfare?; and, do they supportother elements of the struggle for social justice? Courtaction to advance social justice that complies with thesecriteria is most easily supported as appropriate and usefuljudicial involvement.

A. Evident Contributions of the South African Court

Ultimately, in what must be an incomplete assessment, it isreasonable to conclude that the South African Court has achieved clear

success in one area, modest successes in other areas, and additionalindeterminate positive effects.

At the very least, the Courts jurisprudence has been clearlysuccessful on a symbolic level. By hearing claims and evaluatinggovernment actions against the backdrop of constitutional social welfareprotections, the Court reminds South Africans of the vision of substantiveequality contained in their Constitution. As the Court has said, The factthat poverty and homelessness still plague many South Africans is a painfulreminder of the chasm that still needs to be bridged before the constitutionalideal to establish a society based on social justice and improved quality oflife for all citizens is fully achieved.99 As a reminder of pre-commitments

in the Constitution, the Court reminds South Africans of their promises tocreate a society based on democratic values, social justice

98 See supra note 13; Adjudicating Non-Justiciable Rights, supra note 3,at 342-53.

99President of RSA and Another v. Modderklip Boerdery (Pty) Ltd and Others, (8)

BCLR 786 (CC), 36 (S. Afr. 2005).


29/36


and fundamental human rights and to improve the qualityof life of all citizenspromises not yet kept by their electedofficials.100

Modest success has been evident in the Court's judgments in thespecific substantive social welfare disputes brought before it. In multiplecases, the Court has identified when the government has failedconstitutional requirements: inadequate programs and procedures related tohousing, as in Grootboom andBerea Township; healthcare, as in TAC;andgeneral social welfare services, as in Njongi. This can be consideredsuccessful because the Court has held the government accountable for thequality of its response to persistent economic inequality; but it is only apartial success. Official responses to Grootboom and TACasserted awillingness to comply with the Court's orders but implementation has beeninconsistent and incomplete.101 Some direct and effective changes have

been made, such as increased distribution of Nevirapine following TAC, andevictions prevented as a result of the order inBerea Township, but otherchange has been inexcusably slow.102 However, where there are post-judgment failings, the fault lies primarily with the government rather thanthe Court. Nevertheless, in evaluating the use of judicial remedies toeffectuate positive social change, one must conclude that the overalleffectiveness has been only moderate.103

The unknowable element of the success determination is the impactthe threat of judicial review has had in promoting social welfare legislationat a national and provincial level. Hopefully, the combination ofenumerated social rights with potential enforceability by an active judiciary

has effectively reinforced the government's earliest commitments to socialtransformation. Certainly, the potential for enforcement supports theadvocacy of civil society organizations, activists, and community members.This is particularly the case following the Court's ruling inBerea Township.The interpretation of the Constitution which requires government officialsto participate in meaningful engagement with affected communities, and

100 S. AFR. CONST. 1996, pmbl.101 Siri Gloppen, Social Rights Litigation as Transformation: A South African

Perspective (CMI Working Papers 2005) 16-17; available athttp://www.cmi.no/publications/2005/wp/wp2005-3.pdf.

102See, e.g.,Dennis Davis, Socio-Economic Rights in South Africa: The RecordAfter Ten Years, 2 NEW ZEALAND J. OF PUB. AND INTL L. 47, *6 and accompanying footnotes(2004) ("A right asserted successfully by litigants who then wait in vain for any tangiblebenefit to flow from the costly process of litigation soon becomes an illusory righthardlythe sort of right so essential to the long-term success of the constitutional project launchedbut a decade ago!").

103 Notably, compliance with the TAC decision was significantly better than

Grootboom. It is

Documents

Using Constitutional Adjudication to Remedy Socio-Economic Injustice: Comparative Lessons from South Africa