>> Volume 6(2) (2002)

Editorial 2002 (2), pp 7-11

Author/s: The Editors

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The public finance implications of recent socia-economic rights judgments, pp 231-253

Author/s: Chetty, Kam

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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Implementation of Grootboom: Implications for the enforcement of socio-economic rights, pp 255-277

Author/s: Pillay, Kameshni

Kameshni Pillay argues that the Grootboom judgment had not (at the date of writing) resulted in a comprehensive national programme to provide accelerated access to land for people in desperate situations. This can be at least partially attributed to the fact that the order handed down by the Constitutional Court stopped short of compelling the state to take steps to rectify its housing programme. Grootboom, it is argued, demonstrates that if the judiciary does not adopt a robust approach by compelling the other branches of the state to meet their constitutional obligations, court orders will be ineffective in addressing unconstitutionality. The judiciary will therefore run the risk of failing in its own constitutional obligation. Although the mandatory orders handed down in Minister of Health v Treatment Action Campaign are an improvement, the Court declined to include a structural interdict because it found no reason to believe that the government would not execute its orders. The author argues that this stance was unjustified, given the facts of the case and the questionable implementation of the Grootboom judgment.

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Incomplete ruptures: The political economy of realising socio-economic rights in South Africa, pp 193-229

Author/s: Pieterse, Edgar and Van Donk, Mariam

Edgar Pieterse and Mirjam van Donk focus on the question whether the post-apartheid South African state has the organisational and political capability to ensure the progressive realisation of socio-economic rights. However, the issue of state capability cannot be delinked from civil society activism to use and expand the political space to advance the fulfilment of those rights. Reviewing these issues in the context of specific episodes in South Africa's transition, the paper concludes that there are serious limitations in state capability to articulate a coherent policy agenda on integrated development and translate it into a programme of implementation. It also concludes that few recent civil society campaigns have been able to combine effective mobilisation with the promotion of delivery of socio-economic rights.

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South Africa’s evolving jurisprudence on socio-economic rights: An effective tool in challenging poverty?, pp 159-191

Author/s: Liebenberg, Sandra

Sandra Liebenberg reviews the three leading judgments of the Constitutional Court on socio-economic rights: Soobramoney, Grootboom, and Minister of Health v TAC. The paper also seeks to identify key areas where the jurisprudence can be developed to make it more responsive to the needs of the poor. It argues that the Court's rejection of the notion of minimum core obligations will make it very difficult for individuals living in extreme poverty to use litigation to get immediate relief. There is also a danger that the state will fail to prioritise the basic needs of vulnerable groups without the Court affirming this constitutional obligation. The author concludes that while the Court has developed clear criteria for a reasonable government programme to realise socio-economic rights, it has limited the potential of these rights to contribute to a better quality of life for all.

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A critical assessment of land redistribution policy in the light of the Grootboom judgment, pp 297-319

Author/s: Lahiff, Edward and Rugege, Sam

Edward Lahiff and Sam Rugege look at the government's land redistribution programme which seeks to give effect to section 25(5) of the Constitution. Analysing the constitutional, legislative and policy framework for redistribution the authors consider (in light of the Grootboom judgment) whether the land redistribution programme is reasonable. Their key findings are that current land redistribution policy is not adequate to effect a fundamental transformation in land holding and that no specific provision has been made for people in desperate need. To achieve these objectives, the authors argue, a more interventionist approach is needed by the state, especially in proactively acquiring land in areas of high demand. New mechanisms will also be required to make land available more rapidly for large- and small-scale agriculture as well as for residential purposes.

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