LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Legal nature of socio-economic rights 21
The right to equality as guaranteed by section 9 also engenders
negative and positive obligations on the part of the state. The section
does not only impose a negative duty on the state not to discriminate
on the basis of the listed grounds, but also imposes positive
obligations. The state is required to promote the achievement of
equality by adopting ‘legislative and other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination’. 30 The effect of this provision is that it
compels the state to look beyond the notion of formal equality and to
embrace substantive equality, which cannot be achieved without
positive measures being undertaken. Substantive equality requires
the state to undertake positive measures to enable those who have
suffered discrimination in the past to surmount the obstacles that
hamper their enjoyment of the rights. This concept of equality
therefore also challenges the notion that human rights provide only
negative protection. 31
Nevertheless, one needs to concede that, by and large, the
fulfilment of socio-economic rights calls for more extensive state
action in comparison to civil and political rights. 32 This is what makes
judicial review of socio-economic rights far more difficult in
comparison to civil and political rights. As already noted, generally,
negative violations call for negative remedies and positive violations
for positive remedies. In the First Certification case, 33 the
Constitutional Court held that at ‘the very minimum, socio-economic
rights can be negatively protected from improper invasion’. 34 This
notwithstanding, in most cases, the state’s violation of socioeconomic
rights emerges from failure to take positive steps. 35 A socioeconomic
right violation can occur when the state engages in
prohibited acts, but in the majority of cases it is always the failure to
act that is under scrutiny. In contrast, in the majority of civil and
political rights cases, the state is taken to task to explain why its
action infringes a civil and political right. This should not be
understood to mean that civil and political rights litigation does not
challenge inaction. The issue is one of differences in degree, as is
illustrated by the examples of the right to heath care and the right to
liberty immediately below. 36
30
Sec 9(2).
31 S Fredman ‘Providing equality: Substantive equality and the positive duty to
provide’ (2005) 21 South African Journal on Human Rights 163 166.
32
De Vos (n 12 above) 71.
33 In re Certification of the Constitution of the Republic of South Africa 1996 10
BCLR 1253 (CC).
34
Para 77.
35 V Abramovich ‘Courses of action in economic, social and cultural rights:
Instruments and allies’ (2005) 2 SUR – International Journal on Human Rights 81-
216 183.
36 See Abramovich (n 35 above) 183.