LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Legal nature of socio-economic rights 23
absolutism. 40 Human rights are said to be universal if they accrue to
every individual by virtue of their humanity rather than as a result of
their position or role in society. 41 Socio-economic rights are said to
accrue to classes of people and therefore lack universality.
Additionally, it is submitted that socio-economic rights are not
enjoyed by virtue of one’s humanity. Cranston describes socioeconomic
rights as ‘mere utopian aspirations’. On the other hand,
civil and political rights are said to be morally compelling; they belong
to a human being simply because he or she is human. 42
Cranston’s use of the notion of universality to discredit socioeconomic
rights, however, lacks merit. Both categories of rights have
elements that focus on the individual as the beneficiary, but they also
have elements that are intended to protect collective interests. A
number of civil and political rights are only meaningfully enjoyed in
groups. For instance, the freedoms of association and assembly
become useful only when exercised by a group. Furthermore, groups
of people can demand collective exercise of their civil and political
rights. Members of the media profession may through their
professional bodies demand respect for their freedom of speech.
Academics, scientists, politicians, minority groups and artists, too,
may make similar demands for freedoms of expression and
association. Additionally, even the so-called collective rights
empower the individual: Better health, freedom from hunger, and the
proceeds of employment all benefit the individual in as much as they
are also necessary for the promotion of societal cohesion.
Accordingly, ‘[a]lthough human rights are rights of individuals ... they
facilitate rational, non-violent change of existing communities by
means of exercising democratic rights’. 43
40
See M Cranston ‘Human rights real and supposed’ in D Raphael (ed) Political
theory and rights of man (1967).
41 Craven (n 2 above) 13.
42
M Cranston What are human rights (1973), as quoted by K Arambulo
Strengthening the supervision of the International Covenant on Economic, Social
and Cultural Rights: Theoretical and procedural aspects (1999) 58.
43
Raes (n 15 above) 44. Raes’s view can be likened to the African value-laden
concept of ‘ubuntu’ (discussed in detail in ch five section 5.2). This value views
an individual as part of a bigger whole, who cannot live in isolation from society.
It therefore calls for compassion, honesty, love and care in relationships between
individuals. Human rights in South Africa have been integrated with this concept.
See Sachs J in Dikoko v Mokhatla 2007 1 BCLR 1 (CC). The views expressed by
Orwin & Pangle are, therefore, misplaced. Orwin & Pangle argue that the
introduction of socio-economic rights carries with it a danger of moving human
rights away from the individual as the focal point. In their opinion, this will make
it possible for the justification of infringements upon the individual’s freedom in
the name of the common good. They argue that this will be detrimental to the
practical achievements of the established human rights tradition. C Orwin & T
Pangle ‘The philosophical foundation of human rights’ in M Plattner (ed) Human
rights in our time – Essays in memory of Victor Baras (1984) 16.