Interpreting and Limiting the Basic Socio-Economic Rights of Children in Cases Where They Overlap with the Socioeconomic Rights of Others

Abstract

Section 28(1)(c) of the South African Constitution provides that ‘every child has the right to basic nutrition, shelter, basic health care services, and social services’. It has been argued that in the absence of an internal limitation, these basic socio-economic rights of children place a direct and immediate duty on the state to provide children with basic social services. Current jurisprudence has not directly dealt with the issue whether children who are under parental care have a direct entitlement to these rights. However, the Constitutional Court indirectly dealt with the matter in its Grootboom decision, approaching it from the perspective of everyone’s rights. Does this mean that s 28(1)(c) is also subject to the internal limitations as set out in ss 26(2) and 27(2) of the Constitution in cases where both children and their parents are involved, with the effect that the state is only required to take reasonable measures progressively within available resources? This article investigates the approach of the Constitutional Court in the interpretation and limitation of the basic socio-economic rights of children under parental care and suggests an approach that is based on the substantive content of children’s socio-economic rights by applying the two-stage approach of constitutional analysis of the Bill of Rights. In the first stage of analysis the courts should give substantive content to these rights. In doing so, the court should be guided by the values and the transformative aims of the Constitution and by international law. In the second stage of analysis the general limitation clause as opposed to the internal limitations in ss 26 and 27 should be employed. The general limitation clause calls for a full-blown proportionality test and it would therefore be more difficult for the state to justify the limitation. A proportionality analysis will further allow for a higher degree of scrutiny to be applied in the case of the realisation of the duties imposed by s 28(1)(c), because children are vulnerable beneficiaries.