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336 Chapter 19
access the justice system, their lack of rights-awareness, and their
scepticism over or distrust of judicial or political processes. 14
Accordingly, the voices of the most vulnerable beneficiaries of
socio-economic rights often become audible only if expressed through
social movements. By placing pressure on political institutions and by
strategic use of the justice system, such movements can at once
implore and enable the accommodation of beneficiaries’ needs and
experiences in ‘top-down’ articulations of rights. 15 However, given
that social movements are primarily agenda-driven, and are unequally
distributed across issues and interest groups, their unmediated
prominence in processes of dialogic translation runs the risk of
distorting the terms of the dialogue, by placing undue emphasis on
particular agendas. 16
Academic scholars, in turn, contribute to the dialogue over
constitutional meaning by making researched and thoroughlytheorised
interpretations of socio-economic rights accessible to both
‘top-down’ translators such as legislatures and courts and ‘bottomup’
translation efforts by individual rights-bearers or social
movements. 17 However, scholars are as equally prone to distorted
perspectives as social movements. They are often far removed from
the ‘real’ experiences of material deprivation and institutional
translation that form the crux of the dialogue. 18
Finally and, for purposes of this reply, most importantly, is the
dual role of courts as translators of and translation venues for socioeconomic
rights. Provided that courts are accessible, the adjudication
process provides virtually the only space within which all, or most of,
the other contributory voices to the dialogue over the meaning of
socio-economic rights can simultaneously be present and heard.
Indeed, a prime advantage of the courtroom as venue for dialogic
deliberation over the meaning of socio-economic rights is that the
14 See S Gloppen ‘Social rights litigation as transformation: South African
perspectives’ in P Jones & K Stokke (eds) Democratising development: The
politics of socio-economic rights in South Africa (2005) 153 158-159.
15 See T Madlingozi ‘Post-apartheid social movements and the quest for the elusive
“new” South Africa’ (2007) 34 Journal of Law & Society 77 81, 89 and 91. On the
articulation of needs by social movements on behalf of socially vulnerable
plaintiffs in South Africa, see M Heywood ‘Preventing mother-to-child HIV
transmission in South Africa: Background, strategies and outcomes of the
Treatment Action Campaign case against the Minister of Health’ (2003) 19 South
African Journal on Human Rights 278 147.
16
Madlingozi (n 15 above) 92 and 94-95. For a related concern, see A Sachs ‘The
judicial enforcement of socio-economic rights: The Grootboom case’ in Jones &
Stokke (n 14 above) 131 149-150.
17
See S Liebenberg ‘Socio-economic rights under a transformative constitution: The
role of the academic community and NGOs’ (2007) 8(1) Economic and Social
Rights Review 3 7-8.
18
See generally T Madlingozi ‘Legal academics and progressive politics in South
Africa: Moving beyond the ivory tower’ (Nov 2006) 2 Pulp Fictions 5.