LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

4 Chapter 1
Although the Constitutional Court has been praised for confirming
the justiciability of socio-economic rights, 14 it has also been
admonished for issuing remedies that are incapable of translating
these rights into individual entitlements. 15 The Constitutional Court
has also been criticised for its failure to develop a jurisprudence
which is pro-poor. 16 To support these submissions, the case of
Government of the Republic of South Africa v Grootboom and
Others 17 has often been used as a point of reference. Many
commentators are of the view that, even though the Grootboom
community litigated successfully, their socio-economic condition has
not improved dramatically. 18 The Constitutional Court has been
admonished for its failure to exercise supervisory jurisdiction in order
to ensure that the government carries out the judicial orders handed
down against it. 19 It is criticisms of this nature that prompted this
research.
This book is intended to examine, in depth, the foundations upon
which the selection of judicial remedies is based. The author uses
these foundations to critique the approach of the courts as regards
remedy selection and enforcement mechanisms in socio-economic
rights litigation. However, note is taken of the fact that finding
effective judicial remedies for the violation of socio-economic rights
is also influenced by deeper problems relating to their justiciability.
Socio-economic rights are perceived by some as engendering only
14 Yigen (n 10 above) 21; Liebenberg (n 2 above) 177-178.
15 See D Bilchitz ‘Towards a reasonable approach to the minimum core: Laying the
foundations for future socio-economic rights jurisprudence’ (2003) 19 South
African Journal on Human Rights 1; T Roux ‘Understanding Grootboom – A
response to Cass Sunstein’ (2002) Constitutional Forum 41 42; D Bilchitz ‘Giving
socio-economic rights teeth: The minimum core and its importance’ (2002) 119
South African Law Journal 484 485; S Liebenberg ‘Violations of socio-economic
rights: The role of the South African Human Rights Commission’ in P Andrews & S
Ellman (eds) The post-apartheid constitutions: Perspectives on South Africa’s
basic law (2001) 405 419; and M Pieterse ‘Resuscitating socio-economic rights:
Constitutional entitlement to health services’ (2006) 22 South African Journal on
Human Rights 473 483.
16 See M Swart ‘Left out in the cold? Grafting constitutional remedies for the
poorest of the poor’ (2005) 21 South African Journal on Human Rights 215 and S
Liebenberg ‘Basic rights claims: How responsive is “reasonableness review”?’
(2005) 5 ESR Review 7.
17
2000 11 BCLR 1169 (CC); 2001 1 SA 46 (CC). For a detailed discussion of this case,
see ch 3 sec 3.2.
18 See K Pillay ‘Implementation of Grootboom: Implications for the enforcement of
socio-economic rights’ (2002) 2 Law, Democracy & Development 225; Swart (n 16
above); and D Davis ‘Adjudicating the socio-economic rights in the South African
Constitution: Towards “deference lite”?’ (2006) 22 South African Journal on
Human Rights 301.
19 See D Davis ‘Socio-economic rights in South Africa: The record of the
Constitutional Court after ten years’ (2004) 5 ESR Review 3, Davis (n 18 above); M
Heywood ‘Contempt or compliance? The TAC case after the Constitutional Court
judgment’ (2003) 4 ESR Review 7; Bilchitz (n 15 above); and Swart (n 16 above).