LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

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14 Chapter 1 approach of the South Africa courts on the issue of remedies. Chapter four discusses the nature of the obligations engendered by the socioeconomic rights in the South African Constitution and the approach the courts have taken in interpreting these rights. The chapter makes suggestions regarding the manner in which the minimum core obligations approach should have been applied by the Constitutional Court and the reasonableness review approach made more effective. Chapter four sets out the philosophical basis of remedies, defined, amongst others, by the notions of corrective and distributive justice. It is argued that the kinds of remedies a court will deem appropriate are, among other factors, determined by the notion of justice which the court intends to promote. It is illustrated that corrective justice is individualistic, backward-looking, discreet and aimed at putting the victim in the position they were in before the violation. On the other hand, distributive justice has elements of communalism, is forwardlooking and produces remedies with a broader perspective. Chapter five illustrates the place of the South African courts with regard to the notions of justice described in chapter four. It is illustrated that the South African courts have inclined toward distributive justice as dictated by the socio-economic circumstances in which the Bill of Rights is enforced. The chapter illustrates the fact that the South African Constitution is itself encrusted with ethos of distributive justice as seen from the manner in which the socioeconomic rights provisions are crafted. These provisions define the rights and impose limitations that cut back on the potential to enjoy the rights as individual rights; the rights are more programmatic than immediately available to individuals. Chapter six discusses the structural interdict, whose emergence the author ascribes to the prominence of the notion of distributive justice. This chapter reviews the approach of the South African courts with regard to grant of the structural interdict, contrasting between the High Courts and the Constitutional Court. The biggest contribution of this chapter is its definition of a set of norms and principles that could guide the courts in determining when a structural interdict is appropriate.
CHAPTER 2 THE LEGAL NATURE OF SOCIO-ECONOMIC RIGHTS: ARE THEY CAPABLE OF JUDICIAL ENFORCEMENT? 2.1 Introduction The adoption of the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1 in 1966 encountered a number of obstacles. These related mainly to objections as regards the legal nature of socio-economic rights. A number of countries, mostly from the ‘West’, argued that these rights were incapable of legal enforcement because they are imprecise in nature and their realisation is dependent on resources. The rights were also perceived as engendering only positive obligations as opposed to the negative obligations engendered by civil and political rights. In contrast, countries, mainly from the ‘East’, argued for the legal protection of socio-economic rights. They looked up to these rights to guarantee people’s socio-economic development and for the protection of the basic needs of the poor such as shelter, food, clothing, access to medical care and work. 2 As a compromise position, ICESCR was adopted separately from the International Covenant on Civil and Political Rights (ICCPR). 3 This was in spite of earlier directions from the United Nations (UN) General Assembly (GA) that a single covenant incorporating both categories of rights be adopted. 4 The perceived distinction between the two categories of rights is also reflected in the manner in which their respective obligations are defined. The rights in ICESCR are to be realised progressively subject to the maximum of the available 1 International Covenant on Economic, Social and Cultural Rights, adopted by UN General Assembly Resolution 2200A (XXI) of 16 December 1966 at New York, entered into force on 3 January 1976. 2 See generally M Craven The International Covenant on Economic, Social and Cultural Rights: A perspective on its development (1998). 3 International Covenant on Civil and Political Rights, adopted by UN General Assembly Resolution 2200A (XXI) of 16 December 1966 at New York, entered into force on 23 March 1976. 4 See General Assembly Resolution 421 E (V), 14 December 1950, UN Doc A/1775 (1950). 15
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Page 3 and 4: TABLE OF CONTENTS PREFACE ACKNOWLED
Page 5 and 6: PREFACE As an international LLM Stu
Page 7 and 8: ACKNOWLEDGMENTS I would like to exp
Page 9 and 10: CHAPTER 1 INTRODUCTION The inclusio
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Page 13 and 14: Introduction 5 positive obligations
Page 15 and 16: Introduction 7 been very careful no
Page 17 and 18: Introduction 9 justice theory takes
Page 19 and 20: Introduction 11 jurisdictions. Many
Page 21: Introduction 13 placed on general w
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64 Chapter 3 within the prevalent c
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66 Chapter 3 the state cannot affor
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68 Chapter 3 refusal to impose an a
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70 Chapter 3 cases in which the cou
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72 Chapter 3 enjoy all rights there
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74 Chapter 3 formalistic and abstra
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76 Chapter 3 behind the protection
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78 Chapter 3 been able to determine
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80 Chapter 3 27(1) are to have ‘a
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82 Chapter 3 by the political organ
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84 Chapter 3 The subsection must be
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86 Chapter 3 dealing with sections
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88 Chapter 3 arising from the exclu
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90 Chapter 3 justifiable in an open
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92 Chapter 3 The phrase ‘within a
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94 Chapter 3 increase the levels of
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96 Chapter 3 to withdraw from its r
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98 Chapter 3 The problem with the C
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100 Chapter 3 All that the courts w
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102 Chapter 3 justify its failure t
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104 Chapter 4 These theories of jus
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106 Chapter 4 perceives the law as
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108 Chapter 4 difference whether a
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110 Chapter 4 Traditionally, the vi
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112 Chapter 4 the wellbeing of all
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114 Chapter 4 that may be short of
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116 Chapter 4 the victim's needs sh
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118 Chapter 4 doing so appears to d
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120 Chapter 4 by its results. Those
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122 Chapter 4 government that bears
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124 Chapter 4 On the basis of the a
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126 Chapter 4 realise that concept.
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128 Chapter 4 ‘appropriate, just
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130 Chapter 4 It is at this point t
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132 Chapter 5 of the defendant too
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134 Chapter 5 enforcement of these
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136 Chapter 5 courts are constituti
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138 Chapter 5 rights have been viol
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140 Chapter 5 the law is ‘restora
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142 Chapter 5 unfit for cabin work,
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144 Chapter 5 measured by the yards
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146 Chapter 5 (defendant) to determ
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148 Chapter 5 has left open the pos
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150 Chapter 5 without the need for
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152 Chapter 5 demolishing their sha
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154 Chapter 5 and power to bring an
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156 Chapter 5 between the parties.
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158 Chapter 5 such as those where t
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160 Chapter 5 is in circumstances w
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162 Chapter 5 concluded that it was
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164 Chapter 5 because of the immens
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166 Chapter 6 Constitutional Court
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168 Chapter 6 actually committed or
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170 Chapter 6 unlawful conduct. In
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172 Chapter 6 is not prepared to ab
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174 Chapter 6 (d) that the applican
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176 Chapter 6 difficulties aired in
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178 Chapter 6 It is because of thes
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180 Chapter 6 which forced the cour
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182 Chapter 6 institutions whose re
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184 Chapter 6 acceptable to all the
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186 Chapter 6 down the normative st
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188 Chapter 6 Nonetheless, the open
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190 Chapter 6 because of the qualit
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192 Chapter 6 result in a relief ac
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194 Chapter 6 Nonetheless, it shoul
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196 Chapter 6 Nova Scotia. 154 The
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198 Chapter 6 Additionally, such co
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200 Chapter 6 dealing with … righ
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202 Chapter 6 Management and Treatm
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204 Chapter 6 the most appropriate
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206 Chapter 6 for the structural in
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208 Chapter 6 have not obtained the
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210 Chapter 6 further enabled the C
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212 Chapter 6 enforcement of the co
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214 Chapter 6 aimed at procuring th
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216 Chapter 6 spheres of government
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218 Chapter 6 independence in struc
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220 Chapter 6 6.6.4 Reasoned decisi
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222 Chapter 6 justified if the reme
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224 Chapter 6 This could be followe
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CHAPTER 7 CONCLUSION Although the S
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Conclusions and recommendations 229
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TABLE OF CASES African Commission o
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Table of cases 243 City Council of
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Table of cases 245 Permanent Secret
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Table of cases 247 Marbury v Madiso
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Table of international treaties and
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Bibliography 251 Brand, D & Heyns,
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Bibliography 253 Locke, J (1967) Tw
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Bibliography 255 Zakrzewski, R (200
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Bibliography 257 Rendering justice
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Bibliography 259 Sachs, A ‘The ju
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Bibliography 261 Corbett, M ‘Repr
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Bibliography 263 Gready, P & Kgalem
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Bibliography 265 Moore, B ‘Commun
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Bibliography 267 Schwarzschild, M
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Bibliography 269 Water Delivery in
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Bibliography 271 Garret, B Structur
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Bibliography 273 Kanyeihamba, G ‘
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