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198 Chapter 7
3.1 ‘Progressive realisation’ and animal rights
Certain of the rights in the South African Constitution contain what is
often referred to as ‘internal limitations’. This means that the rights can be
limited by reference to the factors contained in the very provision giving
expression to the right concerned without initially having to justify that
limitation in terms of the general limitation clause. In relation to the socioeconomic
rights in the Constitution, for instance, this internal limitation
clause requires the state to take ‘reasonable legislative and other measures,
within its available resources to achieve the progressive realisation of these
rights’. 77 The Constitutional Court has given meaning to each of the
qualifications contained in this clause: For present purposes, I wish to
focus on the notion of progressive realisation.
This concept was introduced initially in the International Covenant
on Economic, Social and Cultural Rights and has been developed by the UN
General Committee on Economic, Social and Cultural Rights. 78 This
notion involves recognising that the full realisation of these rights may
not be possible at a particular point in time: Yet, it nevertheless imposes
an ‘obligation to move as expeditiously and effectively as possible towards
that goal’. 79 It also requires that deliberately retrogressive measures
generally not be taken and that they be carefully justified if they become
necessary. 80 This obligation has also been linked to a minimum core
obligation to ensure the satisfaction of minimum essential levels of each
right. 81 Thus, in the context of socio-economic rights, it may not be possible
to provide everyone with a decent house immediately, but the government
may nevertheless be obliged to ensure that individuals at least have shelter
from the elements in the interim. 82 The notion of progressive realisation
was thus developed in the context of a scarcity of resources and the
recognition that fully realising these rights will only be possible over time.
It was designed also to ensure that such rights remain meaningful whilst
recognising the pragmatic difficulties of ensuring their full and immediate
implementation.
The purposes and content given to the notion of ‘progressive
realisation’ suggest that it may be an important interpretive tool to use in
developing South African jurisprudence surrounding animal rights and
understanding the limitations thereof. Importantly, there will be some
differences in the way the concept is applied in this context. In relation to
77 Sec 27(2), eg, contains this internal limitation.
78
See art 2 of the Covenant (n 29 above). It is also included in secs 26(2) and 27(2) of the
South African Constitution.
79 General Comment 3 of the United Nations Committee on Economic, Social and
Cultural Rights, http://www.unhchr.ch/tbs/doc.nsf/0/94bdbaf59b43a424c12563ed00
52b664?Opendocument para 9.
80 As above.
81
General Comment 3 (n 79 above) para 10.
82 See Bilchitz (n 39 above) 193 - 194.