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Refereed articles

The public finance implications of recent socia-economic rights judgments

With reference to the three main Constitutional Court judgments on socio-economic rights, Kam Chetty analyses the obligations placed on the government and highlights five key public finance issues that influence the realisation of socio-economic rights. The first acknowledges the difficulty of addressing socio-economic rights, particularly in the context of significant institutional and resource constraints.

The second issue explores the distinction between constitutional obligations qualified by resource constraints and unqualified socio-economic rights The third concerns the economic factors that underpin resource availability and the approach taken by the courts towards resource questions. Fourthly, the author derives a framework for assessing the reasonableness of policy from the above three judgments. Finally, the paper suggests a framework for assessing whether public expenditure cuts can be justified. In conclusion, he argues that an approach that relies exclusively on litigation is inadequate to foster the realisation of socio-economic rights; of critical importance is the need to develop effective monitoring mechanisms for the public finance dimensions of socio-economic rights.

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