LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

24 Chapter 2
The individual is part of a bigger social entity though he or she
enjoys some liberty to determine his or her fate. 44 Human rights,
whether civil and political or socio-economic, are aimed at creating
an environment in which individuals flourish and decide how they
want to live. Nevertheless, in doing this, human rights do not isolate
the individual from his society because such an environment can only
be created through collective effort. It is in line with this that the
notion of distributive justice, as discussed in chapter four, 45 becomes
relevant and useful in human rights litigation. In finding remedies for
the violation of human rights, a court basing its decision on
distributive justice will focus beyond the needs of the individual
victim. Consideration will also been given to the needs of other
individuals and to the needs of society as a whole.
2.2.3 Absolutism and resources limitations
Absolutism is the notion that a right is available to all human beings
on the ground of their humanity without any prerequisite conditions.
Socio-economic rights are said not to be absolute. Instead, their
realisation is subjected to conditions; unlike civil and political rights,
their realisation is dependent on resources. 46 Bossuyt goes as far as
submitting that civil and political rights can be realised immediately
because their realisation does not require resources; all the state has
to do is to abstain from infringing them. 47
This opinion, however, is misconceived. The implementation of
civil and political rights, just like the socio-economic rights, requires
44 According to Macpherson (n 16 above), society becomes a lot of free individuals
related to each other as proprietors of their own capacities and of what they have
acquired by their exercise. This notwithstanding, it consists of relations of
exchange between proprietors, and political society becomes a calculated device
for the maintenance of orderly relations of exchange. In the same line, Freeden
submits that a crucial dimension of human nature is its dependence on social,
historical and behavioural contexts and that this negative understanding of the
obligations adheres to a further assumption about human rights as axiomatic,
when it is merely optional. It presents individuals as self-determining, as best
capable of preserving their own interest, as indeed self-developing. This evokes a
theory of human nature as self-sufficient, independent and capable of rational
pursuit of enlightened self-interest. It encourages an overly formal and abstract
discussion of human rights. M Freeden ‘Human rights and welfare: A
communitarian view’ (1990) Ethics 490, as quoted by De Villiers (n 14 above) fn
21 603.
45 Sec 4.2.2.
46 See M Bossuyt ‘La distinction juridique entre les droits civil et politiques et les
droit economiques, sociaux et culturels’ (The legal distinction between civil and
political rights and economic, social and cultural rights) Revue des Droits de
l’Homme ((1975) 8 Human Rights Journal) 783.
47
M Bossuyt ‘International human rights systems: Strengths and weaknesses’ in K
Mahoney & P Mahoney (eds) Human rights in the twentieth century (1993) 52.