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Mazibuko v City of Johannesburg - a jurisprudential setback 323
disagreement over the proper status of socio-economic rights. 17 Courts in
many countries, including South Africa, 18 as well as supra-national
tribunals such as the African Commission on Human and Peoples’ Rights,
have been quick to point out that there is a stark distinction between the
nature and character of civil and political rights on the one hand and socioeconomic
rights on the other. 19 Indeed, as the UN Committee on
Economic, Social and Cultural Rights (CESCR) has stated, it is shocking:
that states and the international community as whole continue to tolerate all
too often breaches of economic, social and cultural rights which, if they
occurred in relation to civil and political rights, would provoke expressions of
horror and outrage and would lead to concerted calls for immediate remedial
action. 20
In the context of South Africa, as McLean suggests in her paper, the
Constitutional Court
has not dealt with the adjudication of socio-economic rights in the same way
that it has treated civil and political rights. This is evidenced primarily
through the adoption of a lower standard of review, and deferential remedies.
The reasons for this deferential approach appear to be that the Court, despite
acknowledging the equal status of socio-economic rights, retains a number of
16
particularities and various historical, cultural and religious backgrounds must be borne in
mind, it is the duty of states, regardless of their political, economic and cultural systems, to
promote and protect all human rights and fundamental freedoms.’http://www.unhchr. ch/
huridocda/huridoca.nsf/(symbol)/a.conf.157.23.en (accessed 9 October 2009). In the
Grootboom case, Yacoob J highlighted the interconnectedness of all human rights in the
Constitution, holding that the ‘Constitution entrenches both civil and political rights and
social and economic rights. All the rights in our Bill of Rights are inter-related and mutually
supporting. There can be no doubt that human dignity, freedom and equality, the
foundational values of our society, are denied those who have no food, clothing or shelter.
Affording socio-economic rights to all people therefore enables them to the other rights
enshrined in chapter 2’ (para 23). Mokgoro J similarly held in the Khosa case that ‘[t]he
socio-economic rights in our Constitution are closely related to the founding values of human
dignity, equality and freedom’ and that ‘the proposition that rights are inter-related and are
all equally important, has immense human and practical significance in a society founded
on these values’ (para 40).
17 See H Steiner & P Alston International human rights in context: Law, politics, morals (2000)
237.
18
In the Certification of the Constitution of the Republic of South Africa 1996 4 SA 744 (CC)
(2nd Certification case), the Constitutional Court, using the International Covenant on
Economic, Social and Cultural Rights as a framework for reference with regard to the
guarantee of socio-economic rights under the Constitution, stated that these rights were
‘not fully enforceable immediately, each state party only binding itself “to the maximum
of its available resources” to “achieving progressively the full realisation of the rights
recognised in the present Covenant”’. In no way do we intend to denigrate the
importance of advancing and securing such rights. We merely point out that their nature
and enforceability differ materially from those of other rights (my emphasis).
19
In Purohit and Another v The Gambia (2003) AHRLR 96 (ACHPR 2003), the African
Commission on Human and Peoples’ Rights read into art 16 of the African Charter on
Human and Peoples’ Rights the obligation to take concrete and targeted steps
(progressively) to ensure the full realisation of the right to health.
20 UN Doc E/1993/22 Annex III para 5.