LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

18 Chapter 2
belong to all human beings. 13 Historically, human rights have been
conceived as a negative protection of the individual from the state. 14
The relationship between the state and its subjects has been viewed
from the perspective of the citizen being guaranteed negative
freedoms as derived from natural rights. 15 Natural rights are believed
to focus on individual freedom and autonomy from the state based on
the theory of individualism. 16 The state may not interfere with the
individual’s freedom and liberty. 17 Those who believe in this philosophy
restrict human rights to those norms that engender negative
obligations on the state. Opposition has been directed to socioeconomic
rights on the ground that they engender positive
obligations. 18
Negative and positive obligations for all categories
In remedial terms, it is important to understand whether an obligation
is either negative or positive. This is because, generally speaking,
negative violations call for negative remedies such as prohibitions,
while positive violations call for positive remedies such as mandatory
injunctions. It is also true that negative remedies are thought to be
less intrusive into the executive and legislative domain, while positive
remedies may be far more intrusive. Most courts in South Africa and
elsewhere have, for instance, had no problem granting negative or
prohibitory injunctions; yet they have been reluctant to issue positive
13 M Piechowiak ‘What are human rights? The concept of human rights and their
extra-legal justification’ in R Hanski & M Suksi (eds) An introduction to the
international protection of human rights: A textbook (1997) 3 5.
14 Locke submits that all individuals find themselves party to two social pacts:
pactum unionis and pactum subjectionis. The first is aimed at the establishment
of civil society, while the second constitutes a framework in terms of which
individuals agree that a government has a duty to protect the natural rights of
everyone. J Locke Two treaties of civil government (1967), as quoted by B de
Villiers ‘Social and economic rights’ in D van Wyk et al (eds) Rights and
constitutionalism: The new South African legal order (1995) 601.
15 K Raes ‘The philosophical basis of economic, social and cultural rights’ in P Van
der Auweraet et al (eds) Social, economic and cultural rights: An appraisal of
current European and international developments (2000) 48.
16 See generally C Macpherson The political theory of possessive individualism:
Hobbes to Locke (1967). He goes to great lengths to expose this philosophy and
criticises it for its focus on the individual to the exclusion of the society as a
whole.
17 See G Peces-Barba ‘Reflections on economic, social and cultural rights’ (1981) 2
Human Rights Law Journal 281 281-283.
18 This argument was also advanced in South Africa by the South African Law Reform
Commission. The Commission endorsed the position that civil and political rights
are negative while socio-economic rights are positive, which makes them hard to
enforce, a view which was supported by a number of legal scholars. See C Dlamini
‘The South African Law Commission’s Working Paper on group and human rights:
Towards a bill of rights for South Africa’ (1990) 5 SA Public Law 96. See also J
Didcott ‘Practical workings of a bill of rights’ in J Van der Westhuizen & H Viljoen
(eds) A bill of rights for South Africa (1988) 59-60, as quoted by the South African
Law Commission in its Interim Report on Group and Human Rights (August 1991)
Project 58 533.