LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

50 Chapter 2
intervene at any stage of the proceedings. 175 The Rules also allow for
the participation as amici curiae ‘any person interested in any matter
before the Court’. 176 The involvement of a number of parties in the
litigation will bring into perspective interests which the main parties
have not considered. This will put the Court in a position to make
decisions that do not adversely affect such other interests. This does
not, however, mean that all interests will be brought to light; 177
rather it plays a very important minimising role and may provoke
inquiry into the impact of the decision on interests not directly
implicated.
2.4 Conclusion
Though this chapter grounds the objections to socio-economic rights
on legal notions, in South Africa these objections have also had
political dimensions. The divergence has been between those that
advocate for limited state powers; this would only call for state noninterference.
Those who support this philosophy discouraged the
inclusion of socio-economic rights in the South African Constitution.
On the other hand, those who believed in the philosophy of extensive
state power saw great relevance of socio-economic rights. 178
However, contemporary problems and needs have led to a
redefinition of the role of the modern state. New social and economic
demands and the interaction of the people and the state in this sphere
call for a more active state. 179 This is only made effective if the state
is placed under a justiciable and legal obligation to do so through
recognition of socio-economic rights. Excluding socio-economic rights
from the Constitution would exclude the interests they protect from
175 Rules of the Constitutional Court, promulgated under Government Notice R1675
in Government Gazette 25726 of 31 October 2003 (Rules of Court) rule 8(1).
176
Rules of Court (n 175 above) rule 10. This rule has been used mainly by public
interest groups, human rights advocates and academic research institutions in
order to promote the interests of marginalised groups and to suggest
interpretations of the human rights provisions in the Constitution. Examples of
such groups in socio-economic rights litigation include the Legal Resource Centre,
the Treatment Action Campaign and the Community Law Centre at the University
of the Western Cape. For a discussion of the impact of such interventions, see M
Heywood ‘Shaping, making and breaking the law in the campaign for National
HIV/AIDS treatment plan’ in Peris & Kristian (n 79 above) 181.
177
Though the judge must be certain that the full range of interests is represented,
he or she should not fail in his or her duty to protect a right simply because every
affected individual cannot meaningfully be represented. See Fiss (n 143 above)
40.
178 De Villiers (n 14 above) 599. The National Party was bent towards avoiding an
activist and interventionist state.
179
De Villiers (n 14 above) 599. Cappelletti argued that to exclude social rights from
a bill of rights would be to stop history at the time of laissez faire and to forget
that the modern state has greatly enlarged its reach and responsibilities into the
economy and the welfare of people. M Capelletti ‘The future of legal education.
A comparative perspective’ (1992) 8 South African Journal on Human Rights 10.