ACCESS TO SOCIAL SECURITY FOR NON-CITIZENS: AN INTERNATIONAL, SOUTH AFRICAN AND EUROPEAN VIEW

The South African Constitution is a transformative instrument supporting actionable socio-economic rights to achieve social justice—that is, justice in terms of the distribution of wealth, opportunities and privileges within society. Social justice is the recognition that all South Africans are fellow heirs, members of the same nation, sharing the same promises. South Africa is actively engaged in an agenda of reform to address the inherited and prevailing social and economic structures that perpetuate inequality. The nation’s commitment to transformation demands that the legal interpretative culture of judges align with the ‘constitutional interpretative intent’ expressed in the Bill of Rights, which is to respect, protect and promote the fulfilment of socio-economic rights and, in so doing, advance social justice through the application of the law. This article highlights how judicial passivity undermines the Constitution’s interpretative intent and jeopardises the transformation project for social justice. It argues that South African courts must apply interpretations that are constitutionally valid, and where multiple interpretations are possible, they must choose the interpretation that best promotes the spirit, purports and objects of the rights contained in the Bill of Rights. Further, the success of the transformative project depends on judges adopting a stewardship attitude—one that reflects a broader understanding of the constitutional enterprise as a whole. An attitude of judicial stewardship towards the transformation project is of critical importance for the generational progress of all South Africans, especially when a statute has been enacted to effect systemic and structural change within society. This article critically analyses South African courts’ interpretation of section 25 of the National Water Act to illustrate the implications of judicial passivity on the transformation project and the equitable distribution of resources.

Socioeconomic rights are very important in the South African context due to the history of apartheid and the high levels of poverty in South Africa. During apartheid, a large majority of South Africa’s population has not had access to basic socioeconomic rights. This changed in 1994 with the first democratic elections, the adoption of the new South African constitution in 1996 and the inclusion of a Bill of Rights. In this paper we discuss the development of and some of the objections to the inclusion of the Bill of Rights in the constitution of South Africa. Furthermore, we discuss the role of religion as an extra-judicial entity regarding the socioeconomic rights of South African citizens. Against this background, we report on the results of an empirical study among Grade 10 and Grade 11 learners in secondary schools in three provinces in South Africa. We explore the understanding of socioeconomic rights that is present among this sample of learners in South Africa and investigate the relationship between the socioeconomic attitudes and certain background and religious variables. Regarding the understanding of socioeconomic rights, we found that these learners agree or strongly agree with all the items on socioeconomic rights. Gender plays a role though, with females scoring significantly higher on some of the socioeconomic scales. Agreement with the critical function of religion in society and an intellectual critical interest in religion are positively related to all four socioeconomic scales. Other religious factors, such as belief in God and an openness towards interreligious pluralism, showed mixed relations with socioeconomic rights. In the last section we briefly discuss the significance of the empirical results for the situation in South Africa.

Introduction In May 2000, South Africa's President, Thabo Mbeki, convened an international panel to consider the causes of and appropriate solutions to AIDS in the African context. Significantly, the panel included representatives from the so-called AIDS dissident community. The willingness of the President to entertain, if not unequivocally endorse, dissident science created an international stir. It resulted in the Durban Declaration, a petition of more than 5000 scientists in support of the 'orthodox' views of HIV, launched at the International AIDS Conference in July 2000. However, in October 2000, after several months of intense national and international media coverage on the issue, the President informed his party, the African National Congress (ANC), that he was withdrawing from public debate over the science of HIV/AIDS [1]. Moreover, the government announced that it would make the antiretroviral drug nevirapine available in pilot sites to prevent mother-to-child-transmission (MTCT) of HIV [2], thus meeting a long-standing demand from the AIDS community. It thus appeared as if the national impasse that had characterized much of 2000 was showing signs of ending. In this context, the mobilization of an alliance, led by the Treatment Action Campaign and the Congress of South African Trade Unions, in support of the South African government in its court battle with the pharmaceutical industry, gave the impression of a united front against AIDS. Government and activists jointly celebrated when, in the face of international and local disapproval, the Pharmaceutical Manufacturers Association withdrew its 3-year-old legal action in April 2001. [The court action was instituted against the Medicines and Related Substances Control Amendment Act (90) of 1997, specifically Section 15C, allowing for measures (compulsory licenses and parallel imports) that would allow government to procure essential drugs at cheaper prices.] However, the hopes that these events would put the AIDS response in South Africa on a new footing were premature. As the social and epidemiological crisis of AIDS unfolded, the political crisis surrounding AIDS intensified. During the course of 2001, the presidency's efforts to shape discourse on HIV were never far from the public space. Between February and May 2001, as the prices of antiretrovirals started falling and the generic manufacture of these drugs became a legal possibility, ANC Today, the web-based newspaper of the ANC, carried a series of articles about the dangers of antiretrovirals [3–6]. In September 2001, the President wrote a letter to the Minister of Health questioning mortality data (and therefore the magnitude of the HIV epidemic) [7]. Finally, reference to the dissident position emerged again in March 2002 when ANC leaders renewed the assetion that 'the hypothesis that HIV causes AIDS is an assumption, not a fact' [8]. Despite a promise of change, it was clear that the dimensions of earlier controversies (questioning the effects of drugs, the seriousness of the epidemic and the aetiology of the disease) were still at stake. In the meantime, the pre-occupation and fascination with the AIDS problem in South Africa has continued unabated in the scientific literature, locally as well as internationally (see for example [9–12]). But is what is happening in South Africa that exceptional [13]? The present paper analyses the factors underlying recent events in the field of AIDS in South Africa. It suggests first that the often stark reporting of the controversies around AIDS fails to represent what is in reality a nuanced and ambiguous policy environment. Second, the paper suggests that the positions of the state, while incomprehensible on the surface, are driven by a set of pre-occupations that are worth noting and opening up for greater international debate. Denial and beyond AIDS activist Zackie Achmat was echoing a commonly held view when he wrote that 'Mbeki epitomizes leadership in denial and his stand has fuelled government inaction' [14]. Denial is generally seen as an individual or collective inability to face an intolerable reality by pretending that it does not exist. It is portrayed as a problematic but common phase in coming to terms with HIV; a pathological moment in the personal or national psyche that has to be overcome if appropriate responses are to evolve [15,16]. The slogan 'breaking the silence' has become a kind of global leitmotiv in AIDS, suggesting that denial is a universal phenomenon. In the South African context, denial responds to two distinct logics: denial of reality, and denial of justice [17]. The rapidity of evolution and the force of the AIDS epidemic in South Africa, for which there are neither clear reasons nor simple solutions, are extremely difficult for anybody, whether state leader or lay person, to assimilate. In a denial of reality, leaders proclaim that the presence of AIDS is not true; meaning, it is not possible, so it is not. In addition, AIDS has emerged as a kind of everlasting affiliction precisely at the point when the end of apartheid should have brought a better life for all. This is a denial of justice: it is not normal; meaning, it is so, but it should not be. As one journalist put it 'how is it possible that, at the very moment we assume our victorious place as the leaders of a democracy we struggled for decades to bring about, we are presented with a dying populace, with a plague to which we have no answers?' [18]. The society is denied justice but is also itself denying justice. The government's brakes on the roll-out of nevirapine for MTCT have been fought on the basis of an unjustifiable denial of constitutionally entrenched social and economic rights. To suggest, however, that the essential character of the state's positions on AIDS is one of denial is not an adequate explanation. First, it is necessary to ask why the South African president, regarded as a credible African leader and a skilled diplomat capable of enormous discursive flexibility [19,20], should feel compelled to take such an awkward and unpopular stand on AIDS. In the face of massive condemnation and at enormous political risk, he has actively promoted an alternative reading of AIDS and its causes, questioning scientific facts and insisting on poverty as a factor in AIDS. This implies less a stance of silence than one of active defiance. Second, this stand has often been directly at odds with public policy on AIDS, which over the past few years has involved large and ever-increasing budgetary allocations and the implementation of programmes based on standard precepts for AIDS policy. It has thus been possible for the Director of the AIDS Program to play a leading role in the drawing up of normative frameworks such as the Abudja Declaration [21], and to say that she could insulate herself from 'the politics' and 'stay focused on delivery' [22]. It is also conceivable that, in the absence of intense political pressure from activists, MTCT prevention would have been decided and implemented in much the same way that many other health interventions have been in the post-apartheid era. Between the discourse and the policies of the South African state on AIDS lies a complex and sometimes contradictory set of motivations and processes, shaped in part by several years of controversy and contestation between various players over national AIDS policy, and in part by the longer history and experience of apartheid. MTCT as the focal point The AIDS policy process in South Africa has been characterized by disagreement and often overt conflict between political leaders and activists and researchers [23,24]. Despite their common origins in the political traditions of the anti-apartheid movement, a series of events in the AIDS field in the post-1994 period led to increasing alienation between these actors. The first was Sarafina II, an expensive AIDS musical commissioned by the Minister of Health in 1995 and openly criticized by the AIDS fraternity, in period when few were willing to challenge the new government. This was followed by over-hasty support by the government for virodene, a local AIDS 'treatment' discovery in 1997. Although eventually discredited, virodene was the subject of a media polemic between senior politicians (including Mbeki, Deputy-President at the time) and the scientific and medical community. Then, as the government launched the prevention-oriented Presidential Partnership Against AIDS in 1998, the activist community presented its own, treatment-oriented demands for the introduction of zidovudine for the prevention of MTCT. Arguments about the toxicity of zidovudine, including those made by dissident scientists, emerged at this point, with Mbeki (becoming President in 1999) increasingly intervening in public debates on AIDS and MTCT. Despite broad support from within the state bureaucracy for an MTCT programme, plans to initiate pilot sites during 1998 and 1999 were brought to an abrupt halt by political leaders (except in the Western Cape, a non-ANC aligned province, which instituted a zidovudine-based MTCT programme). Although HIV-infected infants account for less than 5% of total HIV infections in South Africa, and preventing these infections involves a relatively uncomplicated intervention, the issue of MTCT has assumed a political and symbolic importance way beyond its epidemiological and public health relevance. State resistance to MTCT can be seen as an ongoing attempt to establish and maintain its authority over the content and pace of AIDS policy. For activists, MTCT represents one of the first significant interventions, affordable and implementable on a large scale, targeted at people already infected with HIV. As a symbol of hope centred on children, MTCT has broad public appeal. The highly publicized story of Nkosi Johnson, the HIV-infected child who died at the age of 12 years in June 2001, exemplified the tragedy of HIV. MTCT also signals the entry of and the possibility of broader access to antiretrovirals in the public sector. Not insignificantly, a local research community involved in MTCT studies has provided the evidence and scientific legitimacy for a focus on MTCT [25,26]. Conflict and consensus Between May and November 2001, after ongoing pressure from a range of stakeholders and 9 months after first indicating its intentions, the government established 18 MTCT pilot sites (based on nevirapine) across the country, reaching about one-tenth of pregnant women using the public sector [27]. Further roll-out was to wait for 2 years of experience in the pilot sites. Frustrated at the slow pace of implementations of the MTCT programme, the Treatment Action Campaign and two other groups launched an application in the Pretoria High Court in August 2001, seeking to make nevirapine immediately accessible in the public sector outside of pilot sites 'if the doctor or attending nurse feels this is necessary' [28] and 'demanding that the government institute a comprehensive programme across the country to reduce mother-to-child HIV transmission' [28]. This legal action set in motion a new period of conflict ultimately leading to a resolution, in April 2002, in which the national Cabinet gave the go-ahead to roll-out MTCT and to widen the use of antiretrovirals [29]. These struggles (presented chronologically in Table 1) were significant for a number of reasons.Table 1: Chronology of events initiated by various actors around mother-to-child-transmission (MTCT) in 2001 and 2002.Seen as a whole, the positions of the ANC, the president and the executive suggest considerable ambiguity towards MTCT. Echoing the general 'two steps forward-one step back' dynamic of AIDS policy in the recent era, at several points statements in support of MTCT were made and policy processes set in motion for a roll-out, only to be contradicted shortly afterwards. For example, in February 2002, on the occasion of the opening of parliament, the President announced increased spending for AIDS, including for the expansion of the MTCT progamme. This was seen by 'the general community of media and analysts … as a turning point' in which 'Mbeki had done a Muhammed Ali shuffle, deftly moving out of the corner of the lingering debate about his views on Aids' [35]. The official position had evolved from open denial of scientific facts to more subtle concerns with public health infrastructure. However, soon after, things appeared to go back to square one, when the Minister of Health countered an initiative by the Gauteng Province to roll-out MTCT and was supported by the ANC, which not only called a halt to further roll-outs, but once again opened the debates on the cause of HIV [36]. Then, just 1 month later in another major turn-around, Cabinet issued its wide-ranging statement on AIDS [29] in which, among others, it committed the government to respecting the court rulings on nevirapine, preparing an MTCT prevention roll-out plan as a matter of urgency and making antiretroviral drugs available as post-exposure prophylaxis to rape survivors. Furthermore, Thabo Mbeki formally distanced himself from the dissident scientists [37]. As the issue of MTCT began to threaten the legitimacy of the government, inside and outside South Africa, these seemingly contradictory positions appeared to be manifestations of intense contestation within the state. Not only were increasingly strong views being expressed on the issue within the ANC (including by the former president Nelson Mandela, the ANC's health desk and other ANC ministers in the cabinet), but HIV was at the centre of interactions with the parties and groupings in alliance with the ANC (the trade union federation the Congress of South African Trade Unions, the Communist Party and the Inkhatha Freedom Party). Using their autonomy in a quasi-federal system, two provincial governments began MTCT roll-outs despite national disapproval. These internal pressure and the external court process eventually led to the consensus outlined by the Cabinet in April 2002. Conflict as a resource The events around MTCT, relayed on a blow-by-blow basis to the nation and the world by avid media scrutiny, have had a number of political consequences that may ultimately reveal themselves as resources for democracy. There has been a striking degree of public criticism of executive decision-making on the part of all players, within and outside the state. A tendency towards 'solidarity' politics in the ruling class where 'party members in good standing are defended against criticism by outsiders even though they may have broken the moral code of the national community at state level' [38] has been challenged, and the right of social movements outside the formal political alliances of the ANC to participate in the AIDS policy process asserted. Apart from its impact on political practice, the MTCT issue has brought the judiciary into play in meeting the needs of the poor. The Treatment Action Campaign court application in August 2001 was based on the right to health care contained in the Bill of Rights in the new South African Constitution. This right forms part of a broader set of social and economic rights for which the state is required to take 'reasonable legislative and other measures within its available resources, to achieve the progressive realization of each of these rights' [39]. The eventual ruling by the Constitutional Court is seen as setting a precedent in clarifying the extent to which it can intervene in executive decision-making on social policy. On the contrary, despite a series of judgments against it, the executive has shown its repsect for the independence of the judiciary by rapidly countering a suggestion (made on one occasion by the Minister of Health) that one of the court rulings on nevirapine would not be heeded, and by repeatedly reiterating its intention to implement the decisions of the courts. If the political battles have created confusion in the minds of ordinary citizens and delayed necessary action, the effects on AIDS may not all be negative. The intense coverage of the issues has brought AIDS to the centre of national consciousness, and the growing link being made between HIV and broader socio-economic rights can only benefit the society's ability to deal with it in the long term. However, in the discourse around AIDS and in the frequent reference to issues of race, promiscuity and conspiracy, lies a set of unresolved tensions that are likely to resurface. Race and conspiracy As with ill-health generally, AIDS in South Africa is a highly unequal phenomenon, reflecting the gradients of racial advantage under apartheid [40]. Openly racist interpretations of the AIDS epidemic that were common in the apartheid era [41,42] now continue in deeply held stereotypes of African sexuality as violent and uncontrolled [43]. Intellectuals such as Frantz Fanon [44] have pointed out that such assumptions allow the West to create a self-image and identity of purity against the 'degenerate other' of Africa. Mbeki was no doubt referring to this, in his speech to (largely black) university students in October 2001, when he said: 'Convinced that we are but natural-born, promiscuous carriers of germs, unique in the world, they proclaim that our continent is doomed to an inevitable mortal end because of our unconquerable devotion to the sin of lust' [45]. Racism in AIDS is just one part of the daily reality faced by black people in South Africa. Eight years after the political transition, South Africa remains one of the most unequal societies in the world [46]. While the de-racialization of the state and civil service has permitted the rapid growth of a black middle class, social and economic privilege is still heavily concentrated in the hands of the white population [47]. A focus on AIDS through the lens of racial experience thus forms part of a general shift in the national political language from the Mandela era of reconciliation, to the Mbeki era in which widening social inequalities have to be both explained and confronted [20]. In Africa, discourses of persecution and conspiracy linked to AIDS, whether by the pharmaceutical industry, medical researchers or Westerners, have not been unusual, where they have been dismissed as a kind of post-colonial complex without factual grounding [48]. However, in the case of South Africa, not far back in people's memories is a long tradition of racial public health that included many attempts, for example, to control African fertility, both legally [49] and illegally. The Truth and Reconciliation Commission hearings revealed a covert Chemical and Biological Warfare Program intended to eliminate black leaders and to create infertility among black people [50]. It should not, therefore, come as a surprise that the experience of AIDS is interpreted in the light of past suspicion. The position of the President can thus be seen as an attitude of defiance towards official scientific knowledge, a deliberate act to challenge established truths of AIDS, whether biological or social, and an identification with those on the margins, whether of science or society. Such heterodoxy takes place often on behalf of Africa and within the framework of the ideological model of African Renaissance, emphasizing the necessity for the black continent to find its own solutions to its own problems [51]. This was the context of the Presidential AIDS Advisory Panel and its key question: 'Why is AIDS heterosexually transmitted in sub-Saharan Africa, while it is largely homosexually transmitted in the Western world?' [52]. Although this could be taken as a desire to assert a distance between 'African' sexuality and 'Western' homosexuality [16], the direction of inquiry is guided by another of the terms of reference in which panelists were asked to consider 'Prevention of HIV/AIDS, particularly in the light of poverty, the prevalence of co-existing diseases and infrastructural realities in developing countries'. AIDS in Africa is thus located in a specific social and economic reality, than in the of both is a resistance to the of African and the desire to alternative for the very often in the of These pre-occupations point to an international silence in AIDS research on the reasons for the of the epidemic in Africa, and for its in Africa. The of HIV in South Africa a series of HIV beyond a degree of we have of the reasons for the A by African with and HIV prevalence that could not account for epidemiological the reality is that AIDS in Africa is still with a of and a by the global of a rights discourse in such as the International Partnership Against AIDS in Africa and the of AIDS held in 2001. These reduce the problem to the of and reduce the response to This is in the view that the to control AIDS in from governments to own the problem of AIDS and to implement internationally is a of the social, economic and of the which could not only the reasons for the of AIDS in Africa and the large within the but also to suggest appropriate Such responses are likely to African for the epidemic in a context of local and global a better by AIDS activists in the past few In the case of South Africa, more than a of racial overt has the of the through economic of social and of and While in the earlier years of the epidemic there were at a of AIDS in Africa as points out has been is an that biological and social data into an of the social context of HIV in In other a social that on both social and the field of inequalities research in public health from the reality of Africa and from the of Thabo Mbeki, these may themselves be seen as a denial of justice.

Reviewed by: Socio-Economic Rights: Adjudication Under a Transformative Constitution Elizabeth Brundige, Adjunct Professor and Associate Director Avon Global Center for Women & Justice (bio) and Sital Kalantry, Associate Clinical Professor of Law and Director of the Cornell International Human Rights Clinic (bio) Sandra Liebenberg , Socio-Economic Rights: Adjudication Under a Transformative Constitution (Juta & Co. Ltd., 2010), 541 pages, ISBN 9780702184802. I. Introduction The South African Constitution is heralded for the broad protections it affords social and economic rights. In Socio-Economic Rights: Adjudication under a Transformative Constitution, Professor Sandra Liebenberg offers a thoughtful examination of the socioeconomic rights jurisprudence developed by South African courts since the adoption of the country's current constitution fifteen years ago. In meticulous detail, she describes how the jurisprudence of the Constitutional Court and other South African courts has evolved in the area of socioeconomic rights. At the same time, she offers an incisive critique of this jurisprudence, identifying how it has too often been shaped by a narrow and formalistic conception of rights that overlooks their social justice purposes and reinforces deeply unequal social and economic relationships. Finally, Liebenberg offers suggestions for the future development of this jurisprudence in ways that would be more consonant with the transformative purposes of the South African Constitution.1 This nuanced and engaging account stands as a masterful reference work for scholars and legal practitioners interested in the development of South Africa's socioeconomic rights jurisprudence. At the same time, the very detail and comprehensiveness of the book's discussion of this jurisprudence tends, in some places, to overshadow Liebenberg's normative analysis. Additionally, it is not always readily apparent, particularly to readers who are not well-versed in South African case law, where the book's descriptive passages end and Liebenberg's prescriptions begin. However, the normative proposals that Liebenberg offers are both principled and practical, and they make an important contribution to global debates about how courts can and should give effect to social and economic rights. Among other things, Liebenberg points out the challenges that South African courts have encountered in deciding cases involving socioeconomic rights. South Africa's constitution is unique in its robust protection of a wide array of socioeconomic rights,2 express commitment to substantive equality and social justice,3 embrace [End Page 579] of international and foreign law,4 and horizontal application of rights to disputes between private parties.5 Nonetheless, courts around the world confront many of the same challenges South African courts have dealt with when they seek to enforce socioeconomic rights. We focus on three of the most salient problems and demonstrate how a court in another country (the New York Court of Appeals) has wrestled with and addressed these challenges. We also discuss Liebenberg's prescriptions for how courts should engage with these issues. First, courts have struggled with creating an appropriate framework to evaluate government policies (or lack of policies) with regard to socioeconomic rights. In adjudicating socioeconomic rights cases, courts must develop a vision of the appropriate approach the government should take. Courts are reluctant to do this for a host of reasons, including a belief that such work is inconsistent with the role of the judiciary. Second, if a court does determine that a government action or inaction violates the constitution, then it encounters difficulty in crafting appropriate remedies, in part because the appropriate remedies in these cases often impact many individuals and require potentially sweeping policy changes. Linked to both of these points is a set of challenges relating to the doctrine of separation of powers. When courts adjudicate cases that affect budgets or have wide-scale impact, they confront internal and external concerns about the decision's potential to impinge upon the authority of the legislative or executive branch of government. Courts in the United States, not generally known for their receptivity to socioeconomic rights, have addressed these challenges in the context of the right to education. Because the US national constitution does not guarantee socioeconomic rights, international scholars and practitioners rarely look to American jurisprudence when comparing approaches to socioeconomic rights adjudication. However, the constitutions of all US states but one include right-to-education provisions.6 This essay focuses on...

"Proportionality" is a contemporary heavy-weight concept which has been described as an element of a globalised international grammar and as a foundational element of global constitutionalism. The article firstly describes the elements of proportionality as they are generally understood in foreign systems, namely whether the limitation pursues a legitimate aim, whether the limitation is capable of achieving this aim, whether the act impairs the right as little as possible and the so-called balancing stage when it must be determined whether the achievement of the aim outweighs the limitation imposed. The German academic Alexy (Theorie der Grundrechte (1986)) developed what he called a mathematical weight formula to deal with the balancing stage. An overview is provided of how the elements of proportionality were dealt with in the text of the South African interim Constitution of 1994, the early jurisprudence of the Constitutional Court, and in the text of the final Constitution of 1996. Contemporary South African academic criticism of the use of the concept is also analysed. The article then endeavours to relate the elements of Alexy’s weight formula to both the elements of the South African general limitation clause in section 36 of the Constitution and to the appearance of such elements in the formulation of specific rights in the Bill of Rights. Although the levels of abstraction reached in the debates on the Alexy formula are so daunting that it is most unlikely that South African courts and practitioners will ever use it, certain valuable insights can be gained from it for the purposes of dealing with proportionality within the context of the limitation of rights in South Africa. Despite opposition from certain academics, proportionality is a prominent feature of the application of the limitation clauses in the South African Constitution. The elements of proportionality provides a useful tool for the application, within the context of the limitation of rights, of general and wide concepts such as "fairness", "reasonableness", "rationality", "public interest" and, somewhat surprisingly, also of the general concept "proportionality" as such. South Africa’s participation in the global recognition and application of this way of dealing with the limitation of rights is worthwhile.

The Bill of Rights contained within South Africa’s Constitution features a number of ‘socio- economic rights’. Although these rights are justiciable they are subject to various limitations. They generally entail a positive onus on the part of the state to provide some good – not immediately, but ‘progressively’. Women have a direct interest in the realization of these rights and, where given effect to, they should exert a positive developmental impact. Some authorities are, however, of the opinion that socio-economic rights are not really enforceable. This article contends that the provision of social goods, by the state, should be the concomitant of the disciplined implementation of policy. Delivery should not therefore be contingent upon the legalistic vagaries of the human rights environment.Keywords: Socio-economic rights; justiciability; Bill of Rights; development; South African Constitution; womenDisciplines: Development Studies;Human Rights; Gender Studies; Political Science

Human life, as with all animal and plant life on the planet, is dependant upon fresh water. Water is not only needed to grow food, generate power and run industries, but it is also needed as a basic part of human life. Human dependency upon water is evident through history, which illustrates that human settlements have been closely linked to the availability and supply of fresh water.
 Access to the limited water resources in South Africa has been historically dominated by those with access to land and economic power, as a result of which the majority of South Africans have struggled to secure the right to water. Apartheid era legislation governing water did not discriminate directly on the grounds of race, but the racial imbalance in ownership of land resulted in the disproportionate denial to black people of the right to water. Beyond racial categorisations, the rural and poor urban populations were traditionally especially vulnerable in terms of the access to the right. 
 The enactment of the Constitution of the Republic of South Africa 1996, brought the South African legal system into a new era, by including a bill of fundamental human rights (Bill of Rights). The Bill of Rights makes provision for limited socio-economic rights. Besides making provision for these human rights, the Constitution also makes provision for the establishment of state institutions supporting constitutional democracy. 
 The Constitution has been in operation since May 1996. At this stage, it is important to take stock and measure the success of the implementation of these socio-economic rights. This assessment is important in more ways than one, especially in the light of the fact that many lawyers argued strongly against 1/2
 the inclusion of the second and third generation of human rights in a Bill of Rights. The argument was that these rights are not enforceable in a court of law and that they would create unnecessary expectations of food, shelter, health, water and the like; and that a clear distinction should be made between first generation and other rights, as well as the relationship of these rights to one another.
 It should be noted that there are many lawyers and non-lawyers who maintained that in order to confront poverty, brought about by the legacy of apartheid, the socio-economic rights should be included in a Bill of Rights. The inclusion of section 27 of the 1996 Constitution has granted each South African the right to have access to sufficient food and water and has resulted in the rare opportunity for South Africa to reform its water laws completely. It has resulted in the enactment of the Water Services Act 108 of 1997 and the National Water Act 36 of 1998.
 In this paper the difference between first and second generation rights will be discussed. The justiciability of socio-economic rights also warrants an explanation before the constitutional implications related to water are briefly examined. Then the right to water in international and comparative law will be discussed, followed by a consideration of the South African approach to water and finally, a few concluding remarks will be made.

The 2011 decision by the Constitutional Court (CC) in Governing Body of the Juma Musjid Primary School and others v Essay NO and others, which dealt with the right to basic education in the context of an application for the authorisation of the effective eviction of a public school conducted on private property, provides us with telling insight about the possible scope and content of the right to basic education guaranteed in section 29(1) of the South African Constitution (Constitution). More than 16 years after the enactment of the CC has not had an opportunity to provide clarity on the scope and content of the right to basic education. Although the CC did not (and was not required to) provide full clarity on this issue in the Juma Musjid case, Justice Nkabinde provided pointers to assist with understanding the scope and content of the right to basic education guaranteed in section 29(1) (a) of the Bill of Rights, affirming that the right - unlike some of the other socio-economic rights - is immediately realisable. The CC confirmed that because there is no internal limitation in section 29 (1) (a) requiring access to the right, that the right be progressively realised within available resources subject to reasonable legislative measures, the right to a basic education in section 29 (1) (a) may be limited only in terms of a law of general application which is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Indeed, while all socio-economic rights in the Constitution provide for negative and positive obligations, the right to education is unique in that it includes the right to basic education, which unlike the right to housing and the right to water has no internal qualifiers. That recognition of the fundamental difference between the obligations engendered by section 29 (1) (a) and the obligation engendered by other social and economic rights protected in the Constitution forms the basis of the analysis in this article. In this article the author advances the argument that basic education is not only an unqualified human right but that section 29 imposes an obligation on the state to provide a minimum core of that right to everyone. It must be conceded that the CC has indeed previously stated that the international law concept that social and economic rights place a minimum core obligation on the state cannot be uncritically imported into South African constitutional law and that, at best, it can be used to assist the CC to determine whether or not the state had acted reasonably. However, the contention in this paper is that the recognition by the court judgment in the Juma Musjid case of the unique formulation of section 29 (1) (a) when compared and contrasted with other socio-economic rights already interpreted by the CC, should consequently lead the CC to accept that the minimum core concept applies to the interpretation of section 29 and section 29 (1) (a) which is that the right to basic education should be regarded as the minimum core standard of the right to education in South Africa.

This commentary describes and analyses the decision of the Constitutional Court of South Africa in Minister of Health and Others v Treatment Action Campaign and Others where the South African government was found to have violated the right of access to health care under the Constitution. Section 27(1) guarantees everyone the right of access to health care services. Section 27(2) imposes on the state a duty to take reasonable measures within its available resources to achieve the progressive realisation of this right. To the extent that government was unreasonably delaying access to patently affordable life-saving therapy for the prevention of mother-to-child transmission of HIV to a class of persons that was largely vulnerable and indigent, it is submitted that the case was correctly decided. However, there is little doubt that the decision, and in particular the prescriptive nature of the remedy granted by the Court and its budgetary implications, do no sit easily with a traditional notion of separation of powers between the judiciary on the one hand, and the executive and Parliament on the other. At the same time, it must be accepted that the remedy and its budgetary implications are an inevitable consequence of the inclusion of justiciable socio-economic rights in the Bill of Rights. The principles that were applied by the Court in determining the case were largely drawn from jurisprudence developed by organs under treaty bodies, and in particular the Committee on Economic, Social and Cultural Rights.

Globalisation requires ever closer co-operation between legal professionals hailing from different national jurisdictions. This interactive global environment has fostered growing international training and mobility among legal practitioners and the internationalisation of legal education. Increasing numbers of law students get trained in other countries as part of their undergraduate degrees or even come to foreign shores to obtain law degrees. Many students hailing from other African countries study towardsLLBdegrees at South African universities. Major commercial law firms ensure that they can offer in-house expertise on major foreign legal systems and co-operate with partner firms in other parts of the globe. The General Agreement on Trade in Services (GATS), to which South Africa is a party, is a multilateral agreement focusing on the liberalisation of trade in services amongst member countries. Services under the GATS system include legal services. The commitments made by South Africa under this agreement require that South Africa allows foreign legal practitioners to establish a commercial presence or be transferred to South Africa. The Bill of Rights entrenched in Chapter 2 of the South African Constitution guarantees fundamental rights including the right to equality and freedom of trade, occupation and profession. With the coming into force of the new Legal Practice Act 28 of 2014, which provides a legislative framework for regulating the affairs of legal practitioners, including their admission and enrolment, it is necessary to assess the extent to which the Act complies with the GATS rules and the South African Constitution. This paper examines the new Legal Practice Act 28 of 2014, and examines whether the Act addresses the conflicts that have always existed between the regulation of the legal profession and the admission of legal practitioners in South Africa with South Africa's commitments under the GATS system. Using the doctrinal legal method, it analyses and evaluates the rules governing the admission of foreign attorneys in South Africa from two perspectives. First, it considers them in the light of the international law obligations of the country and second it evaluates whether or not they comply with the South African Constitution, and more specifically with the Bill of Rights entrenched in the South African Constitution. While the new legislation may assist in ensuring the compliance of South Africa with the relevant GATS rules, it will depend on the regulations which still have to be promulgated to what extent the new legal framework will achieve the full compliance of South Africa with all relevant GATS rules. The paper concludes with recommendations for the reform of the Legal Practice Act. It argues that while the requirement to be a South African permanent resident in order to qualify for admission as an attorney may be justifiable in terms of GATS and in terms of South African constitutional law, it is not in South Africa's best interest to retain it. Consequently, the paper calls for the repeal of the permanent residence requirement for admission as an attorney in the county.

This chapter examines the extent to which the transformative goals in the constitution of South Africa have been capable of being meaningfully realised through enforcement by the judiciary since the shift from parliamentary sovereignty to constitutional supremacy, together with the establishment of the Constitutional Court, in 1994. Although the South African experience is often cited as support for the proposition that a constitution with an entrenched and justiciable Bill of Rights can play a major role in egalitarian social transformation, there are many limitations to the extent to which this can be realised through judicial rights discourse. Because of its explicit transformation objectives, it is primarily in the context of the role that the South African constitution in general and the Bill of Rights in particular has played in achieving a transformative social justice in South Africa that the South African experience is most usefully analysed. In particular, this chapter ascertains the extent to which the judiciary (and in particular the Constitutional Court), now the avowed guardian of the Constitution, has contributed to the meaningful change that democracy in South Africa has promised. This chapter also discusses the principles of constitutional interpretation, equality, and socioeconomic rights.

Marian Jacobs: pioneer of child health in South Africa

Advocates and scholars have long queried whether or not express constitutional rights protection could advance the cause of socio-economic equality in the manner that it has advanced the related goal of civil and political equality. In this regard, the first decade of adjudication of socio-economic rights by the Constitutional Court of South Africa has been a rare and notable experiment into the capacity of courts to advance social justice. South Africa's post-apartheid Constitution included among its enumerated rights a host of protections intended to remedy the economic injustices of the past. The Court has dealt effectively with claims of the non-justiciability of social rights (though a process of differentiated incorporation, adaptable to other nations) and has addressed specific social rights-most notably, housing and healthcare-in multiple cases. Unquestionably, South Africa's affirmative jurisprudence of socio-economic rights enforceability is a novel and potentially fruitful contribution to the struggle against poverty. But even if the South African court has demonstrated that social rights adjudication is possible, has it demonstrated that adjudication can remedy economic inequality? The Court's success has been uneven; enforcing socio-economic rights infrequently and in a less expansive manner that civil and political rights. There are reasonable justifications for this and historical analogies caution against immodest expectations, but there are similarly genuine reasons for disappointment. Moreover, what does the slow pace of economic advancement in South Africa tell us about the value of constitutional protection of such rights? This brief essay reviews the South African experience to evaluate the capacity of socio-economic constitutional rights to advance substantive equality.

At the time of South Africa’s transition to a constitutional democracy in 1994 the African National Congress (ANC) government inherited a deeply divided racially-based social welfare service system. Accordingly, the first priority of the newly elected government was to develop social policies to address the inequalities resulting from the apartheid period and to redirect resources to previously disadvantaged groups, especially black South Africans, since the white community had been the main beneficiaries of specialised professional services and institutional care (Bozalek, 1999; Follentine, 2004; Orner, 2003; Sevenhuijsen, Bozalek, Gouws & Minnaar-McDonald, 2003a; Republic of South Africa, 1997). The ANC’s election manifesto, its Reconstruction and Development (RDP) policy, had committed the government to a number of strategies to meet people’s basic needs and to alleviate poverty and inequality, among them were employment creation; a living wage for all citizens; the democratisation of state structures; housing provision; and land redistribution (Republic of South Africa, 1994). The Constitution reinforced these commitments in its recognition of socio-economic rights, including the rights to adequate housing, health care, food, water, education and social security. The Human Rights Commission and other independent bodies, such as the Gender Commission, were set up by the Constitution to monitor human rights violations. There were expectations that social services would deliver on the social and economic rights outlined in the South African Constitution (1996) within the available resource constraints (Republic of South Africa, 2006).

It is a well-known fact that the legal systems of South Africa and Namibia, or rather the former South West Africa, were rather identical until the advent of independence of the latter on 21 March 1990. This note thus deals with aspects of the development of insolvency law in South Africa and Namibia since Namibia became independent. What is also important is the fact that both Namibia and South Africa adopted a constitution that is based on a Bill of Rights (see the Constitution of the Republic of Namibia of 1990 and the South African Constitution of 1996). Some developments in insolvency law based on these features are therefore also considered in this note. As indicated, upon independence Namibia retained significant portions of South African law including its legislation. Owing to the shared background of Roman-Dutch-law and English-law influences, both Namibia and South Africa can still be classified as having mixed legal systems. Like South Africa, Namibian insolvency law is not contained in one single statute although it is still largely regulated by the South African inherited Insolvency Act 24 of 1936 (hereinafter “the Insolvency Act”), which deals first and foremost with the sequestration of individuals and related matters. Namibia also inherited the South African Companies Act 61 of 1973 but the South African Close Corporations Act 69 of 1984 was largely adopted as the Close Corporation Act 26 of 1988 that came into operation on 25 July 1994. These pieces of legislation, amongst others, deal with the liquidation or winding-up of companies and close corporations respectively. Apart from these statutory enactments, precedents and common-law principles also apply in the absence of specific statutory provisions. The Insolvency Act of 1936, however, remains the principal source of both South African and Namibian insolvency law and the other enactments render certain provisions of the Insolvency Act applicable. At present and as far as the principles are still comparable, precedents set by South African and Namibian courts remain relevant in both jurisdictions. In order to align some of the terminology with structures and developments in Namibia, the 1936 Insolvency Act was amended in a number of respects by the Namibian Insolvency Amendment Act 12 of 2005. The wording of the Insolvency Act was also thereby amended to make it gender-friendly. However, when dealing with either system it is important to ascertain to what extent statutes that applied in both jurisdictions have been adopted, subsequently amended and/or replaced. The Namibian government has for instance introduced a new Companies Act 28 of 2004 that is bound to replace the South African-based Companies Act of 1973. Although a new insolvency statute is not in the pipeline in Namibia, an amendment act to the 1936 Insolvency Act has been published during 2005 (the 2004 Companies Act was assented to on 19 December 2004 but it will only come into operation once so proclaimed). In South Africa a new Companies Act 71 of 2008 has been introduced but it is also still due to come into operation. New insolvency legislation that will unify the insolvency of individuals and companies is on the table in South Africa but it is not clear when this process will come to fruition. Another general feature is that judgments of the South African and Namibian high courts are clearly still influential in both jurisdictions but as amendments and separate legal developments will deviate from the former common norm, judgments will clearly have to be treated with circumspect in future. In the absence of a comprehensive textbook dealing with the Namibian version of insolvency law, South African textbooks will remain of some use to that jurisdictions but also subject to the same qualifications expressed above.