LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

230 Chapter 7
the applicants have been unfairly excluded from socio-economic
benefits must be followed by provision of such benefits to them. This
may require an enhancement of the resources committed to the
programme under which the benefits are provided. 14
Nonetheless, it cannot be denied that in enforcing negative
obligations the budgetary consequences are more occasional than
when enforcing positive obligations. It is this that has makes
litigation-invoking positive obligations more controversial when
compared to enforcement of negative obligations. Enforcing positive
obligations is also perceived as giving the courts leeway to interfere
with functions reserved for the executive and legislative branches of
state, as discussed below. 15
Socio-economic rights also continue to be perceived as vague and
devoid of any normative content. 16 In normative terms, socioeconomic
rights have not been as developed as civil and political
rights. Socio-economic rights have been neglected and have not been
the subject of as much judicial interpretation as civil and political
rights. This has left the normative content of socio-economic rights
relatively undeveloped. However, continued recognition of socioeconomic
rights as justiciable is likely to lead to increased
clarification of the nature of the obligations they engender. 17 The
rights have been recognised as justiciable not only at the
international and regional levels, but also in several domestic
jurisdictions. 18 It is important, however, that courts involved in socioeconomic
rights litigation should not be complacent but should rather
strive to develop the normative content of these rights.
In developing the normative content of the rights courts should
use international jurisprudence, particularly the General Comments
of the ESCR Committee, as the starting point. The duties on the state
to respect, protect, promote and fulfil the rights provide a viable
mechanism for the clarification of the obligations engendered by the
rights. Yet this mechanism applies to both civil and political rights and
socio-economic rights and blurs the distinction between them.
14
See Khosa and Others v Minister of Social Development; Mahlaule and Another v
Minister of Social Development and Others 2004 6 BCLR 596 (CC) (Khosa case).
15 Sec 7.3.
16
See C Munoz ‘Stand up for your rights’ The Economist 22 March 2007. See also A
Neier ‘Social and economic rights: A critique’ (2006) 13 Human Rights Brief 1.
17 See P Alston ‘No right to complain about being poor: The need for an optional
protocol to the economic rights covenant’ in A Eide & J Helgesen (eds) The future
of human rights protection in a changing world: Fifty years since the four
freedoms address: Essays in honour of Torkel Opsahl (1991) 79.
18
See generally F Coomans (ed) Justiciability of economic and social rights:
Experiences from domestic systems (2006).