Abstract
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
Highlights
South Africa possesses an extensive array of legislation designed, inter alia, to afford certain rights and protections to women and other groups deemed to be disadvantaged, or at least to have been so in the past
The South Africa Law Commission maintained that socio-economic rights should not feature at all ‘because of their programmatic nature and the positive action that is required of the state in respect of them’
From the above arguments, that citizens have been duped into foregoing the provision of social goods in exchange for the specious right to access such goods if the state rearranges its priorities, and conducts its financial affairs so as to consider itself in a position to afford the goods in question
Summary
South Africa possesses an extensive array of legislation designed, inter alia, to afford certain rights and protections to women and other groups deemed to be disadvantaged, or at least to have been so in the past. As Booysen-Wolthers, Fourie and Botes (2006:605) point out, Gender imbalances have been an integral part of South Africa’s history, with women being subjected to a variety of patriarchies dating back to the pre-colonial era In recognition of this the African National Congress (ANC) in 1990 declared ‘women’s freedom from oppression’ as being ‘a central goal of the national liberation struggle’ (Erlank, 2005:195-6). Four of the set of eight socio-economic rights, for which the relevant government departments are required by the Constitution to submit ‘progress reports’ to the SAHRC (Gutto, 2001:244-5), will be discussed here in any detail. These are those rights relating to education; a healthy environment; food; and health care. Why not consign the problem to the disciplined implementation of government policy and leave it at that? Why should anything extra be needed? Is one to believe that constitutional provisions will induce a reluctant government to do what it has already decided, for reasons best known to itself, it will not do? These are a few of the questions implicit in the latter half of this paper
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