LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Introduction 5
positive obligations, as opposed to the negative obligations
engendered by civil and political rights. 20 Socio-economic rights are
also perceived as vague and incapable of precise definition in terms
of the obligations they engender. 21 This is in addition to assertions
that they lack the essential characteristics of rights per se: They lack
universality and are not completely available on the basis of one being
a human being as their realisation is subject to a number of
conditions. 22 These conditions, it is argued, include realisation of the
rights progressively and subject to the available resources. 23
The most controversial objection to the judicial enforcement of
socio-economic rights, however, has been based on the doctrine of
separation of powers. It has been submitted that socio-economic
rights are by their nature ideologically loaded, and as a result
politicise constitutionalism and the judicial task. 24 It is argued that
the realisation of these rights involves making ideological choices,
which, amongst others, impact on the nature of a country’s economic
system. This is because these rights engender positive obligations and
have budgetary implications which require making political choices. 25
In contrast, civil and political rights are believed to be ideologically
neutral and do not therefore politicise constitutionalism. 26 Judicial
enforcement of socio-economic rights is also viewed as undemocratic
because the judges are unelected, yet they set aside the decisions of
20 See C Dlamini ‘The South African Law Commission’s working paper on group and
human rights: Towards a bill of rights for South Africa’ (1990) 5 SA Public Law 96;
J Didcott ‘Practical workings of a bill of rights’ in J Van der Westhuizen & H
Viljoen (eds) A bill of rights for South Africa (1988) 59-60.
21 See A Neier ‘Social and economic rights: A critique’ (2006) 13 Human Rights Brief
1 3.
22
See generally M Bossuyt ‘International human rights systems: Strengths and
weaknesses’ in K Mahoney & P Mahoney (eds) Human rights in the twentieth
century (1993); M Cranston ‘Human rights real and supposed’ in D Raphael (ed)
Political theory and rights of man (1967); and M Cranston What are human rights
(1973).
23 B Robertson ‘Economic, social and cultural rights: Time for a reappraisal’ New
Zealand Business Roundtable September 1997, first published in 1997 by New
Zealand Business Roundtable, Wellington, New Zealand, sourced at http://
www.nzbr.org.nz/documents/publications/publications-1997/nzbr-rights.doc.
htm (accessed 23 January 2005).
24 See N Haysom ‘Constitutionalism, majoritarian democracy and socio-economic
rights’ (1992) 8 South African Journal on Human Rights 451 456; D Horowitz The
courts and social policy (1977); and W Fletcher ‘The discretionary constitution:
Institutional remedies and judicial legitimacy’ (1982) Yale Law Journal 635.
25 L Lester & C O’Cinneide ‘The effective protection of socio-economic rights’ in J
Cottrell & Y Ghai (eds) Economic, social and cultural rights in practice: The role
of judges in implementing economic, social and cultural rights (2004) 17 20;
Horowitz (n 24 above) 18.
26
M Pieterse ‘Coming to terms with judicial enforcement of socio-economic rights’
(2004) 20 South African Journal on Human Rights 382 395.