LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

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ABOUT THE AUTHOR Christopher Mbazira obtained his PhD from the University of the Western Cape and his LLM in Human Rights and Democratisation in Africa from the University of Pretoria. He currently teaches at the Faculty of Law, Makerere University in Uganda and also practises law as an advocate of the Uganda Courts of Judicature. He is also a research fellow with the Community Law Centre, University of the Western Cape and has done research and co-ordinated some projects for the Human Rights & Peace Centre, Faculty of Law, Makerere University. To my wife Sandrah and sons Benjamin and Solomon viii
CHAPTER 1 <strong>IN</strong>TRODUCTION The inclusion of economic, social and cultural rights (socio-economic rights) in the 1996 Constitution of South Africa (Constitution) 1 is aimed at advancing the socio-economic needs of the poor in order to uplift their human dignity. 2 The constitutional protection of these rights is an indication of the fact that the Constitution’s transformative agenda looks beyond merely guaranteeing abstract equality. There is a commitment to transform society, amongst others, from a society based on socio-economic deprivation to one based on equal distribution of resources. 3 This is evidence of a commitment to establish a society based on equality in all respects including socio-economic wellbeing. It was not until 1994 that South Africa adopted a bill of rights. Before this, human rights did not enjoy constitutional protection as justiciable rights. 4 The apartheid era was characterised by widespread socio-economic deprivation in all its forms. Even when provision was made for some socio-economic goods and services, these did not reach all the citizens because of the practices of racial discrimination. The white minority enjoyed access to better quality goods and services, while the black majority either had access to only poor quality services or did not have access to services at all. 5 1 Constitution of the Republic of South Africa, 1996. 2 S Liebenberg ‘South Africa’s evolving jurisprudence on socio-economic rights: An effective tool to challenging poverty?’ (2002) 2 Law, Democracy & Development 159 160. 3 See generally K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South African Journal on Human Rights 147; P Langa ‘Transformative constitutionalism’ (2006) 17 Stellenbosch Law Review 351 352; and AJ Van der Walt ‘A South African reading of Frank Michelman’s theory of social justice’ (2004) 19 SA Public Law 253 255. 4 This is with the exception of the homelands that had been created as independent states for the blacks. Most homelands had adopted their own constitutions with a bill of rights. Nevertheless, these bills protected only traditional civil and political rights. 5 N Steytler ‘Local government in South Africa: Entrenching decentralised government’ in N Steytler (ed) The place and role of local government in federal systems (2005) 183 184. 1
Page 1 and 2: LITIGATING SOCIO-ECONOMIC RIGHTS IN
Page 3 and 4: TABLE OF CONTENTS PREFACE ACKNOWLED
Page 5 and 6: PREFACE As an international LLM Stu
Page 7: ACKNOWLEDGMENTS I would like to exp
Page 11 and 12: Introduction 3 lay the foundation f
Page 13 and 14: Introduction 5 positive obligations
Page 15 and 16: Introduction 7 been very careful no
Page 17 and 18: Introduction 9 justice theory takes
Page 19 and 20: Introduction 11 jurisdictions. Many
Page 21 and 22: Introduction 13 placed on general w
Page 23 and 24: CHAPTER 2 THE LEGAL NATURE OF SOCIO
Page 25 and 26: Legal nature of socio-economic righ
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Legal nature of socio-economic righ
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54 Chapter 3 appropriate means. Sim
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56 Chapter 3 which he refers to as
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58 Chapter 3 dialysis treatment to
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60 Chapter 3 Though it is not withi
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62 Chapter 3 number of rights in IC
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64 Chapter 3 within the prevalent c
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66 Chapter 3 the state cannot affor
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68 Chapter 3 refusal to impose an a
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70 Chapter 3 cases in which the cou
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72 Chapter 3 enjoy all rights there
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74 Chapter 3 formalistic and abstra
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76 Chapter 3 behind the protection
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78 Chapter 3 been able to determine
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80 Chapter 3 27(1) are to have ‘a
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82 Chapter 3 by the political organ
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84 Chapter 3 The subsection must be
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86 Chapter 3 dealing with sections
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88 Chapter 3 arising from the exclu
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90 Chapter 3 justifiable in an open
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92 Chapter 3 The phrase ‘within a
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94 Chapter 3 increase the levels of
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96 Chapter 3 to withdraw from its r
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98 Chapter 3 The problem with the C
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100 Chapter 3 All that the courts w
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102 Chapter 3 justify its failure t
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104 Chapter 4 These theories of jus
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106 Chapter 4 perceives the law as
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108 Chapter 4 difference whether a
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110 Chapter 4 Traditionally, the vi
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112 Chapter 4 the wellbeing of all
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114 Chapter 4 that may be short of
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116 Chapter 4 the victim's needs sh
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118 Chapter 4 doing so appears to d
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120 Chapter 4 by its results. Those
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122 Chapter 4 government that bears
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124 Chapter 4 On the basis of the a
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126 Chapter 4 realise that concept.
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128 Chapter 4 ‘appropriate, just
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130 Chapter 4 It is at this point t
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132 Chapter 5 of the defendant too
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134 Chapter 5 enforcement of these
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136 Chapter 5 courts are constituti
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138 Chapter 5 rights have been viol
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140 Chapter 5 the law is ‘restora
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142 Chapter 5 unfit for cabin work,
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144 Chapter 5 measured by the yards
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146 Chapter 5 (defendant) to determ
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148 Chapter 5 has left open the pos
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150 Chapter 5 without the need for
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152 Chapter 5 demolishing their sha
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154 Chapter 5 and power to bring an
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156 Chapter 5 between the parties.
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158 Chapter 5 such as those where t
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160 Chapter 5 is in circumstances w
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162 Chapter 5 concluded that it was
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164 Chapter 5 because of the immens
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166 Chapter 6 Constitutional Court
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168 Chapter 6 actually committed or
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170 Chapter 6 unlawful conduct. In
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172 Chapter 6 is not prepared to ab
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174 Chapter 6 (d) that the applican
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176 Chapter 6 difficulties aired in
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178 Chapter 6 It is because of thes
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180 Chapter 6 which forced the cour
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182 Chapter 6 institutions whose re
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184 Chapter 6 acceptable to all the
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186 Chapter 6 down the normative st
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188 Chapter 6 Nonetheless, the open
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190 Chapter 6 because of the qualit
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192 Chapter 6 result in a relief ac
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194 Chapter 6 Nonetheless, it shoul
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196 Chapter 6 Nova Scotia. 154 The
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198 Chapter 6 Additionally, such co
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200 Chapter 6 dealing with … righ
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202 Chapter 6 Management and Treatm
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204 Chapter 6 the most appropriate
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206 Chapter 6 for the structural in
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208 Chapter 6 have not obtained the
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210 Chapter 6 further enabled the C
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212 Chapter 6 enforcement of the co
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214 Chapter 6 aimed at procuring th
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216 Chapter 6 spheres of government
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218 Chapter 6 independence in struc
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220 Chapter 6 6.6.4 Reasoned decisi
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222 Chapter 6 justified if the reme
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224 Chapter 6 This could be followe
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CHAPTER 7 CONCLUSION Although the S
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Conclusions and recommendations 229
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TABLE OF CASES African Commission o
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Table of cases 243 City Council of
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Table of cases 245 Permanent Secret
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Table of cases 247 Marbury v Madiso
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Table of international treaties and
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Bibliography 251 Brand, D & Heyns,
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Bibliography 253 Locke, J (1967) Tw
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Bibliography 255 Zakrzewski, R (200
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Bibliography 257 Rendering justice
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Bibliography 259 Sachs, A ‘The ju
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Bibliography 261 Corbett, M ‘Repr
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Bibliography 263 Gready, P & Kgalem
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Bibliography 265 Moore, B ‘Commun
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Bibliography 267 Schwarzschild, M
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Bibliography 269 Water Delivery in
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Bibliography 271 Garret, B Structur
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Bibliography 273 Kanyeihamba, G ‘
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LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

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