Law, Democracy
& Development
Law, Democracy
& Development
JOURNAL OF THE FACULTY OF LAW | UNIVERSITY OF THE WESTERN CAPE | ISSN: 2077-4907JOURNAL OF THE FACULTY OF LAW, UWC | ISSN: 2077-4907
Author/s: Liebenberg, Sandra
Author/s: Brand, Danie
Danie Brand considers the application of certain of the principles enunciated in recent Constitutional Court jurisprudence on socio-economic rights to policies aimed at the realisation of the right to food. On the basis of a review of current policies, the author concludes that government's current response to food insecurity is potentially unconstitutional because it does not constitute a comprehensive response to the needs of a large number of people in South Africa. The author suggests the introduction of a basic income grant, or the extension of existing social security grants, as possible ways to address the problem of food insecurity.
Author/s: De Visser, Jaap; Cottle, Edward; and Mettler, Johann
The article assesses the implications of the Grootboom judgment on the right of access to water. The free basic water policy intends six free kilolitres of water per household per month to be funded from the equitable share and internal cross-subsidies. No additional funds are available for the provision of free water. This creates serious problems in rural communities that do not have sufficient high volume users to ensure cross-subsidisation. For most urban working class households six kilolitres of water is insufficient. Legislation dealing with water tariffs calls for a balance between cost recovery and access to basic services. The 'reasonableness' of this principle can be disputed in the light of high unemployment and poverty rates. A recent judgment confirms the principle that disconnection is a prima facie breach of the right of access to water. The onus is on the state to justify the disconnection. Human dignity is placed at the centre of the test of whether state action is reasonable, and being deprived of a basic supply of water strips people of their dignity.
Author/s: Pillay, Karrisha
The article examines the definition of health care services and proposes criteria that expand the concept beyond the narrow biomedical model to a holistic model. Discussing the Court's understanding of reasonableness in the Grootboom and TAC judgments, the author concludes that in addition to these general criteria, the concept must be informed by important health-specific elements. In this regard she extrapolates guiding principles from both the international and domestic context that should inform the standard against which to measure access to health care services in South Africa. The author further assesses the extent to which both the theoretical framework for realising health care rights and its implementation meet the criteria laid down in the Grootboom and TAC cases and relevant international law. Finally, she identifies challenges in realising health care rights and proposes strategies for both government and civil society to advance the goal of quality health care services for all.
Author/s: De Vos, Pierre
The article highlights the public health and social emergency facing South Africa due to the fact that an estimated six million of its 40 million citizens are HIV-positive. The state response to this crisis has been criticised from many quarters. In the light of Minister of Health v TAC it is argued that the right of access to health care services places a duty on the state to provide anti-retroviral drugs to medical personnel exposed to the virus, rape survivors and HIV-positive pregnant mothers and their newborn babies. The author also finds that, although there is no constitutional duty on the state to provide free access to anti-retroviral treatment to all who need it, the state does have a duty to take reasonable steps to lower the prices of anti-retroviral drugs. Pointing out that there are several legally appropriate avenues open for achieving this, he concludes that the state's failure to explore any of these avenues is unreasonable and falls foul of the duties set out in section 27 of the Constitution.
Author/s: Sloth-Nielsen, Julia
The article begins with an overview of the socio-economic context surrounding child-headed households and then discusses the constitutional obligations that rest on the state vis-a-vis children growing up in these settings. Considering the scope of the state's obligation where the parents of children below the age of 18 are deceased or unable to render parental care as well as the emerging constitutional recognition of the right to family life, it is concluded that the state must ensure that children living in child-headed households are integrated into some form of family environment. Against this background the state's articulated policy on the situation of child-headed households is examined and its reasonableness is assessed. Noting various shortcoming in the policy, it is suggested that failure of the government's HIV/AlDS programmes to prioritise emergency relief would constitute a contravention of the Grootboom principles. The constitutional rights of children living in child-headed households are thus not adequately protected by the existing policy framework.
Author/s: Seleoane, Mandla
The author argues that the right to education is more strongly formulated in the Bill of Rights than the right to housing, which was at issue in the Grootboom case, so that policy implications for the right to education cannot be derived mechanically from the Grootboom judgment. Examining government policy documents on education, he concludes that the policies do not always take account of the way that different aspects of the right to education are formulated in the Bill of Rights. He also finds that existing policies do not fully satisfy the standard set out in Grootboom. The author highlights the fact that South Africa has ratified international instruments that require the provision of free basic/primary education. Noting various problems with the Department of Education's school fees policy, he concludes that there is little justification for departing from the internationally accepted standard of free primary education.
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