LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

South Africa: Distributive or corrective justice 133
the rights. Obligations of this nature compel government to provide
goods and services directed at all members of society or groups of
people and not at specific individuals.
It would do little to advance the developmental objectives of the
Constitution if the full spectrum of rights of an individual or groups of
individuals is met while the rest of the community suffers. It also
makes it difficult, if not impossible, to sustain such levels of services
for the individual or the community. Consider the right of access to
water, 9 for instance. It requires the government to put in place water
services provision systems that are accessible to everyone. 10 The right
of access to health care services is not different. 11 Hospitals and other
health care facilities have to be established for the benefit of all.
It is especially in respect of socio-economic rights that the
transformative nature of the Constitution has been underscored. The
1996 Constitution is perceived as an instrument to transform South
African society, among others, from a society based on socioeconomic
deprivation to one based on equal distribution of
resources. 12 The provision of services that were so drastically skewed
by the apartheid system is therefore considered to be central to the
transformative project of the Constitution. 13 However, the
enforcement of socio-economic rights has generated much
controversy arising from arguments about the need to maintain the
separation of powers. This is in addition to questioning the
institutional competence of the courts to enforce these rights. 14
However, even when socio-economic rights are accepted as
justiciable, there is always the question of whether they should be
enforced as conferring individual benefits or as conferring group
benefits. 15 In the Constitution itself, most socio-economic rights are
crafted as individual rights, thus ‘everyone has the right to …’ 16 and
‘every child has the right to …’ 17 Nonetheless, the question remains
whether the prevailing social and economic context allows for the
9
Sec 27(1) of the Constitution.
10 See the Water Services Act 108 of 1997. See also C Mbazira ‘Privatisation and the
right of access to sufficient water in South Africa: The case of Lukhanji and
Amahlati’ in J de Visser & C Mbazira (eds) Water delivery: Public or private (2006)
57-85.
11 n 9 above.
12
See generally K Klare ‘Legal culture and transformative constitutionalism’ (1998)
14 South African Journal on Human Rights 147.
13 P Langa ‘Transformative constitutionalism’ (2006) 17 Stellenbosch Law Review
351 352.
14 See ch 2 sec 2.3 for a detailed discussion of separation of powers and institutional
competence concerns.
15
K Roach ‘Crafting remedies for violations of economic, social and cultural rights’
in J Squires et al (eds) The road to a remedy: Current issues in the litigation of
economic, social and cultural rights (2005) 111.
16
Secs 26(1) & 27(1).
17 Sec 28(1)(c) of the Constitution.