LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Legal nature of socio-economic rights 17
direction of the free market should be subjected to the discipline of
the Constitution. The market economy is based on state nonintervention
and endorses those aspects of human rights that protect
individuals against the state. Socio-economic rights are believed to
engender affirmative features, which makes them dangerous to the
market economy. 11 As will be seen later, it is in essence suggested
that civil and political rights are more legitimate and even consistent
with the functioning of the market economy.
In terms of the institutional competence dimension, the judiciary
is viewed as inappropriate to deal with the complex matters of social
justice. This dimension, among others, draws on concerns of
majoritarian democracy. Issues of social justice are viewed as matters
whose determination is within the jurisdiction of the representatives
of the people and not the unelected judges. 12
This chapter analyses the arguments that have been advanced on
the basis of the above objections. It is submitted in this chapter that
the objections to socio-economic rights as justiciable rights are based
on many wrong assumptions about these rights. These objections
overstate characteristics which have moreover been found not to be
exclusive to socio-economic rights. This chapter shows similarities
between civil and political rights and socio-economic rights. This
notwithstanding, the chapter also shows that there are certain
features that are more prominent with respect to socio-economic
rights and which impact on their implementation.
Furthermore, it is submitted in this chapter that the institutional
competence objections are based on a misconception of both
democracy and the separation of powers doctrine. The separation of
powers doctrine has evolved since its conception; it is not possible to
strictly apply the doctrine as initially conceived. And democracy
should be understood beyond the notion of majoritarian democracy.
2.2 Legitimacy-based objections
2.2.1 Human rights engender negative obligations
Human rights are believed to derive from the inherent nature of
human beings and, as fundamental freedoms, are universal and
11 Scott & Macklem (n 9 above) 23.
12 Scott & Macklem (n 9 above) 24. See also P De Vos ‘Pious wishes or directly
enforceable human rights?: Social and economic rights in South Africa's 1996
Constitution’ (1997) South African Journal on Human Rights 67 68.