The enforcement of socio-economic rights

Rj De Beer,S Vettori

doi:10.4314/pelj.v10i3.43399

Abstract

In recent years the South African legislature has made a very bold attempt to improve the socio-economic conditions of citizens. Amongst others, the Social Assistance Act 59 of 1992 provides for monthly payments to citizens under certain prescribed conditions. In situations where other legislation does not provide a remedy for those unable to care for themselves the Constitution provides for justiciable socio-economic rights. Unfortunately legislative rights alone have proved insufficient and all too frequently the constitutional values and aspirations of human dignity and equality have had a ‘hollow ring’. The most obvious reason for this failure of delivery on the part of the government is of course a shortage of financial resources. Another reason has been a simple disregard for the terms of legislation and court orders by organs of the state and state employees. The authors are of the view that in order to avoid such a dire result, the courts, given their broadly framed constitutional powers, should be adventurous in crafting means to ensure that their orders are properly implemented and adhered to. This article explores the role that courts can play in ensuring proper implementation of both the terms of social security legislation as well as the implementation of court orders with reference to well-fare judgments in the Eastern-Cape.

Highlights

The shameful fact that the majority of South Africa’s population lives in abject poverty is well documented.1. Poverty on such a large scale has been described at worst as the main cause and at best as a major contributing factor to a multitude of serious social problems such as the high rate of violent crime, the high rate of illiteracy, the high incidence of HIV/Aids and unemployment
Poverty is to blame for jeopardising the very fabric of South African society and the security of the South African population
It is no small wonder that the main objective of the Constitution of the Republic of South Africa, 1996 has been described as the alleviation of poverty

Summary

Introduction

The shameful fact that the majority of South Africa’s population lives in abject poverty is well documented. Poverty on such a large scale has been described at worst as the main cause and at best as a major contributing factor to a multitude of serious social problems such as the high rate of violent crime, the high rate of illiteracy, the high incidence of HIV/Aids and unemployment. Froneman J has identified various reasons for non-compliance of court orders by the Department of Social Welfare in the Eastern Cape: The province’s response to the individual cases falls into three broad categories In one category it objected to payment on the grounds that the judgments were wrongly granted and should be rescinded. The well known cases of Government of the Republic of South Africa v Grootboom, Minister of Health v Treatment Action Campaign (TAC) and more recently EN and Others v The Government of the Republic of South Africa and Others (EN case) demonstrate a disregard for court orders on an even larger scale In these cases the state was found to have breached its constitutional obligations to provide certain socio-economic rights in terms of the Constitution to certain groups of people. Reported judgments more clearly demonstrate a will on the part of the judiciary to fashion innovative remedies in order to prevent this. What follows is an examination of what the courts have done and what they possibly can do, to ensure compliance with the terms of their orders and what steps can be taken when faced with non-compliance of orders

What powers do the courts have to create novel remedies?

The structural interdict

Contempt of court

Delictual damages

Conclusion