Essay: South Africa's Use of Constitutional Rights Adjudication to Remedy Persistent Economic Inequality

Abstract

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.