Professor Sustein stated in his paper Social and Economic Rights? Lessons from South Africa that South African’s constitution is the world’s leading example of a transformative constitution. He states that ‘If is it opt to describe the South African Constitution in these terms, this is because the document is designed to ensure that future governments do not fall prey to anything like the evils of the apartheid era… the creation of socio-economic rights is best understood in this light.’ The principles laid down by the Constitution Court for the interpretation of socio-economic rights in the landmark decisions of Grootboom, Soobramoney and Minister of Health v Treatment Act Campaign were used as basis for assessing progress and obstacles in the implementations of these rights.
In this essay I shall discuss, criticise and evaluate the implementation and enforcement of socio-economic rights taking into consideration relevant cases and writing of academics on socio-economic rights in South Africa. Lastly, I shall look at social-economic rights inequality and the solution.
WHAT IS THE PURPOSE OF SOCIO-ECONOMIC RIGHTS?
Professor Sustein argues that the purpose and aim of socio-economic rights is to prevent the ‘recurrence of apartheid-like evils and overcome the legacy of apartheid.’ In other words Sustein’s argument is that socio-economic rights aim is to bring about change, not to maintain the status quo. Roux on the one hand argues that ‘perhaps more plausibly it could be said that the current South African Constitution is designed to prevent recurrence of totalitarian...the inclusion of justiciable socio-economic rights were seen as integral to that enterprise.’ Both Roux and Sustein are correct, the purpose of socio-economic rights is to transform our society into one that is based on human dignity. These have been implemented in our Constitution to help government to transform. The best way to describe the purpose of socio-economic rights is the quote by Geoff Buddender ‘ Socio-economic rights are not only about fighting government, but also about government fighting for people.’
IMPLEMENTATION OF SOCIO-ECONOMIC RIGHTS
Liebenberg states that countries such as Hungary and Lithuania follow the South African model by including socio-economic rights in their Constitution and allowing them to be enforced by the courts.
Sustein comments that critics of socio-economic rights have argued that these rights are beyond judicial capacities. He contends that the courts lack the tools to enforce such guarantees. He questions whether a court is supposed to oversee the full range of government programs, to ensure that the state is placing emphasis on the right areas? His argument is that ‘perhaps such rights should be included, but on the explicit understanding that the legislature, and not the courts’
The Grootboom case has undisputedly as commented by Sustein, marked impact on the development of South African constitutional jurisprudence on the enforcement of socio-economic rights. The judge Yacoob J held that while the justiciablitity of socio-economic rights was beyond question, the issue to be grappled with was how to enforce these rights in any given context.’ He says that effective implementation requires at least adequate budgetary support by national government… and such planning will require proper cooperation between the different spheres of government. In the TAC case the court said that courts may feel constrained by the need to accord an appropriate degree of deference to political branches of government to give orders which are not robust enough to achieve a tangible effect… this was seen in the Groton case where the Court stopped short of using mandatory order placing the state on desperate and intolerable situations.In essence what the court is trying to say is that the Court runs the risk of failing in its obligation to respect, protect and promote and...
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