Socio-Economic Rights In South Africa Research Articles

The Human Rights Response to the Global Impact of the COVID-19 Virus on Socio-economic Rights in South Africa

ABSTRACT The domestication of international human rights law, especially the constitutional status given to socio-economic rights in the Constitution 1996, seeks to eliminate decades of historical legacy of inequalities where issues of poverty, health, social security continue to be a challenge to the ordinary citizenry. However, the impact of human rights, which are highly regarded as a progressive tool in infusing the ‘rights lens’ in addressing the various challenges faced by the general populace has been left ‘swinging in the pendulum’ particularly in South Africa due to the advent of the novel COVID-19. This has deepened the social and structural inequalities that have a detrimental effect on the healthcare system and social security, particularly for women and children. Using desk review, the argument is linked to principles of accountability and is limited to the importance of human rights as a central response to the pandemic.

Are judicial monitoring institutions a legitimate remedy for addressing systemic socioeconomic rights violations?

Sections 26(2) and 27(2) of the Constitution of the Republic of South Africa, 1996 provide that the state must take reasonable legislative and other measures to ensure the progressive realisation of socio-economic rights including, housing and social security. The executive is generally responsible for the implementation of these rights. However, a core challenge in South Africa is that the executive is beset by chronic incapacity, especially at provincial and local government levels, which has hindered the realisation of socio-economic rights. This article investigates the increasingly intrusive orders by the judiciary to address this problem; these orders include, specifically, appointing bodies to manage service delivery by the executive. I will situate these mechanisms within the broader powers of the judiciary and provide a justification for them, under particular conditions, against criticisms of judicial overreach. In engaging with their legal justifiability, I will analyse recent South African case law as well as examples from India and Colombia so as to highlight that the South Africa judiciary is not unique in developing such mechanisms. In concluding, I identify the conditions under which the deployment of these mechanisms may be considered justifiable as well as their value in advancing the realisation of socio-economic rights in South Africa.

Revisiting the role of the judiciary in enforcing the state’s duty to provide access to the minimum core content of socio-economic rights in South Africa and Kenya

Although the realisation of the full scope of each socio-economic right is meant to be achieved progressively, Kenya and South Africa have an international obligation to immediately provide vulnerable persons with access to the minimum core of each of these rights. As revealed (again) by the COVID-19 pandemic, the two states are in violation of this obligation as millions of people in both countries are living in abject poverty, without access to the bare necessities. Attempts to enforce the government’s minimum core obligations have failed at least three times in South Africa, and the Court of Appeal in Kenya has hesitated to enforce these obligations. Relying on the doctrinal review of jurisprudence from both countries and international law, this article proposes that, in order to enforce the minimum core obligations without violating the separation of powers doctrine, the judiciary must be perceived to have a primary role and a secondary role. The primary role of the court must be to enforce meaningful engagement between the state and the rights bearers in determining the quantitative aspects of the minimum core content of each right. Once the state has developed this core content, the court can review its reasonableness by measuring it against the qualitative minimum standards imposed by the right. In circumstances of urgent need, where the state has failed to develop a reasonable quantitative minimum core content and rights bearers are in danger of suffering irreparable harm, the court should invoke its secondary role which entails setting the quantitative minimum core content to be provided by the state as a temporary measure.

Ensuring affordable electricity as a vital socio-economic right in South Africa

This article examines the socio-economic impacts and effects of unlawful electricity tariff increase in South Africa. Access to electricity is a vital socio-economic right in South Africa because of its intrinsic role in the fulfilment of other social economic rights. The availability and accessibility of electricity guarantees the success of many businesses and the survival of many households, particularly the rural poor. Eskom, a governmental parastatal, generates, transmits and distributes electricity for the people, and charges for these services are rendered based on the tariff approved by the National Energy Regulator of South Africa (NERSA). Recently, NERSA decided to approve tariff increase requested by Eskom which was against the Electricity Regulation Act 4 of 2006 and the Constitution of the Republic of South Africa 1996. This increase was contested and nullified in court. If this tariff increase had not been challenged in the court, it would have had a devastating impact on the well-being of the people, particularly the poor. Using literature relevant to socio-economic rights to modern energy, particularly electricity, this article accentuates that electricity is a basic socio-economic right in South Africa that must be accessible and affordable to all. It explains the importance of judicial intervention in ensuring that socio-economic rights are made available and accessible to the people. It points out that the court will not hesitate in using its judicial power to extend any opportunity which allows poor people to access and enjoy right to modern energy and electricity and other socio-economic rights in South Africa.

The Relationship between Courts and the Other Arms of Government in Promoting and Protecting Socio-economic Rights in South Africa: What About Separation of Powers?


 The model of constitutional democracy which is envisaged in the 1996 text of the Constitution of the Republic of South Africa (the Constitution) has been described as promoting 'a thick' conception of democracy. It is concerned with the empowerment of all citizens to participate in decisions that are crucial to the outcome of their life choices. At its most basic promise, the Constitution promotes a model of participatory democracy, by creating a series of representative institutions and enabling participation in decision making, both inside and outside of these institutions. Expressed differently, the Constitution promotes both participation through regular elections and enshrines a principle of accountability in terms of which government can be held accountable for particular aspects of its policy, particularly those which fail to pass constitutional muster. That leads to the second component of the model which introduces a substantive set of guarantees to ensure participation. The idea is that various institutions of State should work to promote and to vindicate basis democratic principles which are directed to accountable control of decision making and substantive political equality between citizens.

Constitutional Basis for the Enforcement of ''Executive'' Policies that give effect to Socio-Economic Rights in South Africa

Although "executive" policies remain an important governance tool, there appears to be confusion on the status and possible basis for their judicial enforcement in South Africa. The aim of this article is to critically reflect on the status and possible constitutional basis for the enforceability of "executive" policies that give effect to socio-economic rights in South Africa. Based on the jurisprudence of courts and some examples of "executive" policies, this article demonstrates that the constitutional basis for the enforceability of "executive" policies could be located inter alia in the positive duties imposed on government by sections 24(b), 25(5), 26(2) and 27(2) of the Constitution to "take reasonable legislative and other measures" within the context of available resources to give effect to relevant rights. This article argues that these duties amount to a constitutional delegation of authority to the legislative and executive branches of government to concretise socio-economic rights. In addition, this article demonstrates that where "executive" policies give effect to socio-economic rights pursuant to powers delegated by enabling provisions in original legislation that covers the field of socio-economic rights, such policies may be perceived to have the force of law, thereby providing a legal basis for their judicial enforcement.

Constitutional Socio-Economic Rights and International Law: "You are not Alone"

Keynote speech delivered on 16 November 2012 at the Konrad-Adenauer Foundation and Faculty of Law (NWU, Potchefstroom Campus) 3rd Human Rights Indaba on The Role of International Law in Understanding and Applying the Socio-economic Rights in South Africa's Bill of Rights.

Editorial

The first issue of 2013 contains fifteen contributions dealing with a potpourri of themes. The first contribution is an oratio presented by the retired Dean of the Faculty of Law of the NWU and former editor of PER, Francois Venter, during his exodus in October 2012. He gave his presentation in his mother tongue, Afrikaans, and asks the question if one may assume that being a professor entails belonging to a profession, in other words, an academic profession. The second oratio was a keynote speech delivered by Torsten Stein, the Director of the Institute of European Studies and holder of the chair for European law and European Public Law at Saarland University, Germany. He delivered his speech during November 2012 at the 3rdHuman Rights Indaba on The Role of International Law in Understanding and Applying the Socio-economic Rights in South Africa's Bill of Rights, which was held by the Faculty of Law (NWU, Potchefstroom Campus) in collaboration with the Konrad-Adenauer Foundation. He shared some thoughts about the nature, development and implementation of socio-economic rights within an international and European setting. The next nine articles make up the bulk of this issue. The first one is by Babatunde Fagbayibo, who gives an analytical overview of the common problems affecting supranational attempts in Africa. He argues that Africa's efforts to solidify its unity should be geared towards building on the experiences of past and present experiments at the sub-regional level. Samantha Goosen discusses the very thorny issue of battered women and the elements of self-defence if she has to stand trial for killing her husband. Recent developments in the area of pro bono legal services are the heart of Dave Holness' article. He focuses on legal service delivery for the indigent by attorneys in private practice acting pro bono in civil rather than criminal matters. Henk Kloppers discusses the very topical issue of corporate social responsibility. He gives an overview of the social and ethics committee created in terms of the Companies Act 71 of 2008 as a potential driver of corporate social responsibility. The always newsworthy theme of HIV/AIDS and the question of whether to disclose or not to disclose one's status forms the focal point of Andra le Roux-Kemp's contribution. Chucks Okpaluba gives an overview of South African and Commonwealth decisions dealing with the issue of reasonable and probable cause in the law of malicious prosecution. The never-ending problem of language diversity once again comes to the fore in the article by Loot Pretorius. He asks the question if the recently adopted Use of Official Languages Act 12 of 2012 complies with the normative instructions of the Constitution of the Republic of South Africa, 1996. In his second essay on the Child Justice Act 75 of 2008, Stephan Terblanche deals with a number of procedural issues related to the sentencing of child offenders. The last article, which is by Bonnie Venter, deals with the ethical question of whether the payment of kidney donors could be regarded as constitutionally acceptable or not. In the first of five notes, Nqobizwe Ngema asks if the African custom of theleka (the withholding of a wife by her father or guardian from her husband to coerce him to pay the outstanding lobolo) has an impact on the custody of children in the context of the best interest of the child. The central question Phazha Ngandwe asks is how states can discharge their duties and obligations vis-à-vis their nationals without perpetuating the bottlenecks to and the stigma that attaches to migration and thereby upsetting the international and regional integration objectives of the free movement of people. Mzukisi Njotini's note discusses the adequacy of South Africa's measures designed to protect critical information infrastructures. In the second last note, Anthea Wagener considers the practice of South African motor-vehicle insurers of using gender as a rating variable to classify risks into certain classes, thereby determining insurance premiums, and asks if this practice boils down to unfair discrimination. The final note by Anri Botes deals with the history of labour hire in our neighbouring country, Namibia.
 

Disability, human rights and the limits of humanitarianism

Contents: Introduction: protesting 'the hardest hit': disability activism and the limits of human rights and humanitarianism, Michael Gill and Cathy J. Schlund-Vials The promise of human rights for disabled people and the reality of neoliberalism, Mark Sherry The new humanitarianism: neoliberalism, poverty, and the creation of disability, Maria Berghs Media, disability, and human rights, Armineh Soorenian Volunteering as tribute: disability, globalization and The Hunger Games, Anna Mae Duane Structural and cultural rights in Australian disability employment policy, Sarah Parker Harris, Randall Owen and Karen R. Fisher Disability in humanitarian emergencies in India: towards an inclusive approach, Vanmala Hiranandani Monitoring disability: the question of the 'human' in human rights projects, Tanya Titchkosky The specter of vulnerability and disabled bodies in protest, Eunjung Kim Persons with disabilities in international humanitarian law - paternalism, protectionism or rights?, Janet E. Lord United Nations policy and the intersex community, Ethan Levine HIV/AIDS, disability and socio-economic rights in South Africa, Lydia Apon Strehlau The overrepresentation of Black children in special education and the human right to education, Jennifer Bronson 'Becoming disabled': towards the political anatomy of the body, Nirmala Erevelles Index.

Constitutional Basis for the Enforcement of ''Executive'' Policies that give effect to Socio-economic Rights in South Africa

Although "executive" policies remain an important governance tool, there appears to be confusion on the status and possible basis for their judicial enforcement in South Africa. The aim of this article is to critically reflect on the status and possible constitutional basis for the enforceability of "executive" policies that give effect to socio-economic rights in South Africa. Based on the jurisprudence of courts and some examples of "executive" policies, this article demonstrates that the constitutional basis for the enforceability of "executive" policies could be located inter alia in the positive duties imposed on government by sections 24(b), 25(5), 26(2) and 27(2) of the Constitution to "take reasonable legislative and other measures" within the context of available resources to give effect to relevant rights. This article argues that these duties amount to a constitutional delegation of authority to the legislative and executive branches of government to concretise socio-economic rights. In addition, this article demonstrates that where "executive" policies give effect to socio-economic rights pursuant to powers delegated by enabling provisions in original legislation that covers the field of socio-economic rights, such policies may be perceived to have the force of law, thereby providing a legal basis for their judicial enforcement.Keywords: Constitution, socio-economic rights, positive duties, delegation of authority, executive policies and judicial enforcement.

Constitutional Basis for the Enforcement of ''Executive'' Policies that give effect to Socio-economic Rights in South Africa

Although "executive" policies remain an important governance tool, there appears to be confusion on the status and possible basis for their judicial enforcement in South Africa. The aim of this article is to critically reflect on the status and possible constitutional basis for the enforceability of "executive" policies that give effect to socio-economic rights in South Africa. Based on the jurisprudence of courts and some examples of "executive" policies, this article demonstrates that the constitutional basis for the enforceability of "executive" policies could be located inter alia in the positive duties imposed on government by sections 24(b), 25(5), 26(2) and 27(2) of the Constitution to "take reasonable legislative and other measures" within the context of available resources to give effect to relevant rights. This article argues that these duties amount to a constitutional delegation of authority to the legislative and executive branches of government to concretise socio-economic rights. In addition, this article demonstrates that where "executive" policies give effect to socio-economic rights pursuant to powers delegated by enabling provisions in original legislation that covers the field of socio-economic rights, such policies may be perceived to have the force of law, thereby providing a legal basis for their judicial enforcement.Keywords: Constitution, socio-economic rights, positive duties, delegation of authority, executive policies and judicial enforcement.

Constitutional Socio-Economic Rights and International Law: "You are not Alone"

The second oratio was a keynote speech delivered by Torsten Stein, the Director of the Institute of European Studies and holder of the chair for European law and European Public Law at Saarland University, Germany. He delivered his speech during November 2012 at the 3rd Human Rights Indaba on The Role of International Law in Understanding and Applying the Socio-economic Rights in South Africa's Bill of Rights, which was held by the Faculty of Law (NWU, Potchefstroom Campus) in collaboration with the Konrad-Adenauer Foundation. He shared some thoughts about the nature, development and implementation of socio-economic rights within an international and European setting. The next nine articles make up the bulk of this issue.

The Relationship between Courts and the Other Arms of Government in Promoting and Protecting Socio-economic Rights in South Africa: What About Separation of Powers?

first contribution is a keynote speech delivered by Judge Dennis Davis, a Judge of the High Court, Cape Town and Judge President of the Competition Appeal Court. His speech was delivered on 16 November 2012, at the 3rd Human Rights Indaba on The Role of International Law in Understanding and Applying the Socio-economic Rights in South Africa's Bill of Rights, co-hosted by the Konrad-Adenauer Foundation and the Faculty of Law of North-West University, Potchefstroom Campus. Judge Davis investigates the relationship between courts and the other arms of government in promoting and protecting socio-economic rights in South Africa and airs his views on the doctrine of the separation of powers.

Socio-economic Gains and Losses

The inclusion of socio-economic rights in South Africa’s transformative Constitution, it was felt, would make the Constitution relevant to the majority of South Africans, in particular the previously oppressed. Accordingly, the courts, the Constitutional Court in particular, have sought to translate these rights into concrete benefits that make a real difference for those for whom poverty is a lived reality, demonstrating that they are willing to enforce not just the negative prohibitions but also the positive duties imposed by socio-economic rights. Notwithstanding this, the extent to which the decisions of the Constitutional Court contribute to social change has been limited by a number of factors including inadequate implementation of court orders. This article illustrates that, though significant progress has been made, much still needs to be done to promote socio-economic transformation in the interests of the poor and disadvantaged.

Phiri, the plight of the poor and the perils of climate change: time to rethink environmental and socio-economic rights in South Africa?

<section class="abstract"> South Africa is a water-stressed country where scarce water resources are unequally available to South Africans. It seems inevitable that climate change will in future severely affect the availability of water resources and the ecological and socio-economic aspects of water uses in the country. It is especially the poor, indigent and marginalized sectors of the population that have inadequate access to water and it is these people who would also be most severely affected by the impact of climate change on water resources. While South African constitutional and statutory provisions guarantee everyone access to sufficient water, an environmental right and other laws simultaneously aim to protect water resources. There is accordingly a very real possibility for sustainability conflicts to arise where difficult decisions have to be made with respect to providing people access to sufficient water on the one hand and protecting water resources for the benefit of present and future generations on the other. The latter conflict was recently illustrated in the Constitutional Court judgment of <em>Mazibuko v City of Johannesburg 2009 JDR 1030 (CC)</em>. For the first time, South Africa's highest Court was required to provide content to the constitutionally entrenched right of access to sufficient water. Against a general discussion of the state of water resources in South Africa, the predicted impact of climate change on these resources and the prevailing socio-economic conditions in the country, this article analyses the Court's decision in <em>Mazibuko</em> and argues that its restrictive interpretation of the right to access to water could be considered ecologically responsible and conducive to achieving inter-generational equity. </section>

Girls’ Socio-Economic Rights in South Africa

This article explores girls’ socio-economic rights fulfilment in South Africa. After setting out the international law context, the article turns to the lived reality of girls in this country through an examination of their rights to healthcare services, nutrition, social services and security, and shelter. The research indicates that whilst girls are babies and young children they enjoy relatively equal access with their male counterparts to socio-economic services made available to children by the state. However, during pre-puberty and adolescence girls face barriers in accessing their socio-economic rights. The challenges are linked to girls’ biological and economic vulnerability, the relationships of power and difficulties in the negotiation of sexual relationships, lack of access to reproductive health rights, and the expectations of girls being caregivers. The article concludes with a consideration of how solutions might be developed, together with girls, to assist them in the achievement of their socio-economic rights. It further recognises that girls belong to the broader groups of both women and children, and that solutions should reflect a relational approach to rights.

Relational Socio-Economic Rights

Notwithstanding the state-centeredness of most theories on socio-economic rights, the objects of these rights are often accessed privately, within and by way of relationships. Viewing socio-economic obligations as primarily enforceable against the state ignores the significant power of parties to private relationships to control the terms of access to essential goods and services. It also fails to hold them accountable for the manner in which this power is wielded. It is therefore necessary to develop a theory of horizontal application of socio-economic rights that recognises, assigns, enforces and enables observance of socio-economic obligations within private relationships. This article investigates relational access to socio-economic rights in South Africa, with the aim of identifying public law interventions, or changes to the private law landscape, that would assist vulnerable parties in dependency-producing relationships to access the objects of their socio-economic rights. It provides an overview of the different kinds of relationships that structure private access to socio-economic goods and services and considers factors that impact on the extent and quality of access to socio-economic rights within these relationships. Thereafter, it considers ways in which vulnerabilities associated with relational access to essential goods and services may be reduced. Finally, it argues for transcending the private/public dichotomy and warns against the privatisation of public welfare responsibility.

Enforcement of Socio-Economic Rights in South Africa: Strengthening the Reasonableness Approach

Enforcement of Socio-Economic Rights in South Africa: Strengthening the Reasonableness Approach

Monitoring the implementation of socio-economic rights in South Africa: Some lessons from the international community

The real test for commitment to human rights norms lies in the mechanisms that are put in place for their enforcement. In order to ensure that socio-economic rights do not end up as mere paper rights, the progress made in realising these rights must be closely monitored. Monitoring must be designed to give a detailed overview of the existing situation, The principal value of such an overview is to enable the people to determine how government has performed in respect of the implementation of human rights, including socio-economic rights.

The Right to Health Secured HIV/AIDS Medicine – Socio-Economic Rights in South Africa

Socio-economic rights are justiciable in South Africa. Landmark rulings from the country's Constitutional Court on the right to housing and the right to health care provide excellent examples of the fine balancing act courts must undertake when they apply this category of human rights. Otherwise, the important principle of separation of powers may be infringed upon. Very few other countries have courts that have been able or willing to accomplish this. Similar dilemmas and results may be found when courts apply administrative law.This would normally be in application of a test of reasonableness, as in Norwegian administrative law. However, in many cases only an application of socio-economic rights may accomplish the necessary results, as in the Nevirapine case where the right to health care secured a life saving drug for HIV positive pregnant mothers and their babies.