LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

60 Chapter 3
Though it is not within the scope of this book, it is important to
note that the Court has also been criticised for its approach to the
children’s rights in section 28(1)(c). As can be deduced from the
express terms of this section, the rights it proclaims are not subject
to the internal limitations as those enlisted in sections 26(2) and
27(2). However, the Constitutional Court in the Grootboom case held
that the children’s socio-economic rights are no different from the
rights of everyone else in sections 26 and 27, which are subject to
internal limitations. It held further that prioritising children’s rights
as immediate would produce anomalous results as children would be
used as stepping stones for adults who would otherwise not qualify for
the rights. This is because the obligation to provide for the socioeconomic
needs of children falls in the first place on their parents.
According to the Court, at best, section 28(1)(c) only obligates the
state to provide immediately for those children who have been
removed from the care of their parents. This reading of the
Constitutional Court is problematic; it avoids giving the children’s
rights any meaningful substantive content. One would endorse the
view that section 28(1)(c) is an express manifestation of the minimum
core obligations and is intended to ensure that children are provided
for without delay. However, as is seen in the next sub-section, the
rejection of the minimum core approach by the Court would make it
difficult for the Court to endorse this reasoning. 36
36
See S Liebenberg, ‘The interpretation of socio-economic rights’ in S Woolman et
al (eds) Constitutional law of South Africa (2005) 33-1 33-48; C Scott & P Alston
‘Adjudicating constitutional priorities in a transitional context: A comment on
Soobramoney’s legacy and Grootboom’s promise’ (2000) 16 South African Journal
on Human Rights 206; G van Bueren ‘Alleviating poverty through the
Constitutional Court’ (1999) 15 South African Journal on Human Rights 57; P de
Vos ‘The economic and social rights of children in South Africa’s transitional
Constitution’ (1995) 2 SA Public Law 233; P de Vos ‘Pious wishes or directly
enforceable rights?: Social and economic rights in South Africa’s 1996
Constitution’ (1997) South African Journal on Human Rights 67 88; B Bekink & D
Brand ‘Children’s constitutional rights’ in J Davel (ed) Introduction to child law in
South Africa (2000) 169; and J Sloth-Nielsen ‘Too little? Too late? The implications
of the Grootboom case for state response to child headed households’ (2003) 1
Law, Democracy and Development 113. Though in the TAC case the Constitutional
Court softens its stance by holding that the state bears an obligation to care for
children even when they are under the care of their parents, when the parents
are unable to care for them, the Court does not go as far as accepting that the
children’s rights are immediate and a manifestation of the minimum core
obligations. See C Mbazira & J Sloth-Nielsen ‘Incy-wincey spider went climbing up
again ... (Re)-assessing children's socio-economic rights and section 28(1)(c) of
the Constitution’ paper presented at Conference on Law and Transformative
Justice in Post-Apartheid South Africa, 4 to 6 October 2006, hosted by the Nelson
R Mandela School of Law, University of Fort Hare.