LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

PREFACE
As an international LLM Student, I was fascinated by the Bill of Rights
in the 1996 Constitution of South Africa. The inclusion in the Bill of
Rights of socio-economic rights as justiciable is one of the most
outstanding features of the instrument. More fascinating is the
position of the South African Constitutional Court and the approach it
has adopted in giving meaning to the rights in the Constitution and its
determination to ensure that the country breaks away from the legacy
of racial discrimination and unconstitutional governance. It is against
this background that I picked interest in studying the South Africa
constitutional system and jurisprudence in depth. When the time
came for me to register for my PhD at the University of the Western
Cape, the subject of remedies for socio-economic rights, widely
perceived as ineffective, stood out as a novel area of research. This
book is therefore deduced from my PhD thesis titled ‘Enforcing the
economic, social and cultural rights in the South African Constitution
as justiciable individual rights: The role of judicial remedies’
completed at the University of the Western Cape under the
supervision of Professor Pierre De Vos.
The Constitutional Court has handed down a number of novel
decisions in socio-economic rights cases. The Soobramoney,
Grootboom and Treatment Action Campaign cases all stand out.
These cases have heralded a new paradigm in looking at issues around
the realisation of socio-economic rights. As a matter of fact, however,
legal scholars adoring the socio-economic rights jurisprudence are
usually disappointed by the high levels of poverty prevalent in South
Africa. The perception immediately created is that the jurisprudence
is defective. Indeed, a number of academic scholars have criticised
the jurisprudence, mainly on the basis of the Constitutional Court’s
reluctance to apply the notion of minimum core obligations, but also
on the basis of the fact that the Court has issued very weak remedies.
In spite of the criticisms, there has not been any serious study of
the practical and philosophical factors which dictate the types and
impact of remedies the courts grant in socio-economic rights
litigation. My PhD research was directed at filling this gap, by
undertaking an in-depth study of the nature of the judicial remedies
issued in constitutional litigation in general, and socio-economic
rights litigation in particular. One of my conclusions is that we cannot
understand the nature of judicial remedies courts grant without
understanding the philosophical factors influencing these remedies
defined, amongst others, by the mode of justice to which the courts
are inclined. The choice of justice between corrective and
distributive justice is determined by the context in which legal
standards and norms are enforced. The South African context dictates
resort to distributive justice because of the high levels of poverty and
the immeasurable backlogs in this regard. This is in addition to the
pressures on the public purse. This explains why remedies for socioeconomic
rights litigation have avoided conferring individual rights on
v