Sandra Liebenberg. Socio-Economic Rights. Adjudication under a Transformative Constitution

Abstract

Writing in 2001 shortly after the South African Constitutional Court decided the celebrated housing-rights case Grootboom, Cass Sunstein hailed the Court's decision as establishing novel and promising approach to judicial protection . . . for each person whose socio-economic needs are at risk. Sunstein referring to the Court's application of what it called reasonableness review to issue an order requiring future modification of the challenged housing policies rather than a direct injunction providing housing for the plaintiffs in Grootboom who were facing eviction. For Sunstein - who only eight years earlier had argued strongly against inclusion of social rights in the constitutions of developing East European democracies - the distinctive virtue of the Grootboom approach that it suggests that such rights can serve, not to preempt democratic deliberation, but to ensure democratic attention to important interests that might otherwise be neglected in ordinary debate. In a short response, Theunis Roux wrote that Grootboom's limited remedy was not extraordinary enough because the Court's failure to, at a minimum, oversee compliance with even the very general terms of its order (much less provide any direct relief to the plaintiffs) fell far short of the expectations of advocates for the poor in South Africa and South African constitutional law experts more generally.