LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

10 Chapter 1
context demands that the rights be enforced in accordance with the
theory of distributive justice. 47 Criticisms based on corrective justice
by advocates of socio-economic rights may be self defeating because
they fail to appreciate the reality as presented by the socio-economic
context. 48 They demand redistribution of resources for the benefit of
all yet when it comes to remedies they insist on resources being used
maximally for the benefit of selected victims who are able to litigate.
1.2 Scope of this book
The study is based on the judicial enforcement of the socio-economic
rights protected in the South African 1996 Constitution. The socioeconomic
rights in this regard include the right to an environment that
is not harmful to health and wellbeing, 49 rights of access to land, 50
access to adequate housing, 51 access to health care services,
sufficient food and water, and social security. 52 This is in addition to
the children’s rights to basic nutrition, shelter, basic health care
services and social services, 53 and the right of everyone to
education. 54 This notwithstanding, reference is made to case law
dealing with civil and political rights. This is because some of the
principles that the courts have enunciated in these cases apply to all
constitutional litigation, including litigation in the area of socioeconomic
rights.
South Africa has been selected as the focus of this book because
of its extensive protection and judicial enforcement of socioeconomic
rights. However, in spite of such protection and
enforcement, the country still faces a number of challenges in the
alleviation of poverty through justiciable socio-economic rights. In
this respect, South Africa offers a number of lessons to be learnt not
only by other domestic jurisdictions but also by international human
rights bodies. Indeed, South Africa’s socio-economic rights
jurisprudence is being referred to in scholarly literature all over the
world and may soon be cited by domestic and international judicial
bodies. This means that, although the study is South African-based, it
is deemed relevant to international and many other domestic
47 Ch five sec 5.2.
48 It is contended in ch five sec 5.2 that the socio-economic rights context is
represented by the widespread poverty prevalent in South Africa. The majority of
South Africans are socio-economically deprived and cannot afford to meet such
basic needs as housing, food and health services. While there is a constitutional
commitment to eradicate this deprivation, the state is financially constrained and
cannot meet everyone’s needs immediately.
49 Sec 24.
50
Sec 25(5).
51 Sec 26.
52 Sec 27.
53
Sec 28(1)(c).
54 Sec 29.