LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 79
The Constitutional Court has emphasised that the rights in the
Constitution must be understood in their contextual setting.
According to the Court, this requires consideration of chapter two
(the Bill of Rights) and the Constitution as a whole. 115 In respect of
the right of access to adequate housing, the Court has held that
section 26 must be understood in its context; the first subsection
confers a general right of access to adequate housing and the second
subsection establishes and delimits the scope of the positive
obligations to realise that right. 116 The Constitutional Court has also
held that subsections (1) and (2) are related and must be read
together. It is not very clear what the Court means by the subsections
being read together. What is clear from the Court’s approach,
however, is that it concentrates its interpretation efforts on
subsection (2). This explains why in the TAC case, the Court dismissed
the submissions of the amici to the effect that section 27 should be
read as establishing two self-standing and independent rights: one an
obligation to give effect to the sections 26(1) and 27(1) rights; the
other a limited obligation to do so progressively through ‘reasonable
legislative and other measures, within its available resources’. 117
The Constitutional Court held that the two subsections cannot be
separated from each other; a reference to ‘the right’ in subsection (2)
is clearly also a reference to the subsection (1) right. 118 The Court
thus concluded that section 27(1) of the Constitution did not give rise
to a self-standing and independent positive right enforceable
irrespective of the considerations mentioned in section 27(2).
Accordingly, sections 27(1) and 27(2) must be read together as
defining the scope of the positive rights that everyone has and the
corresponding obligations on the state to ‘respect, protect, promote
and fulfil’ such rights — that the rights conferred by sections 26(1) and
115 Grootboom case (n 16 above) para 22.
116 Para 21.
117
Para 29. The amici argued that the right to health care in sec 27(1)(a) is one of
the rights in the Bill of Rights and accordingly attracts the duties imposed on the
state by sec 7(2) and that there is nothing in sec 27(2) to suggest that the duties
it imposes replace any of the duties imposed on the state by sect 7(2). The amici
went on to submit that, to give meaningful content to the constitutional right of
every person to have access to the goods and services described in sec 27(1),
there must be some concomitant duty on the state to make those goods and
services accessible to ‘everyone’. According to the amici, sec 27(2) does not do so
because it is a ‘macro’ duty and not one that obliges the state to make the goods
and services accessible to every person or any particular person. It accordingly
cannot be exhaustive of the positive duties imposed on the state. See Submissions
of the Community Law Centre and the Institute for Democracy in South Africa
(IDASA) in Minister of Health and Others v Treatment Action Campaign and
Others, sourced at http://www.communitylawcentre.org.za/ ser/docs_2002/
TAC_MTCT_Case_Heads_of_Arguments.doc (accessed 22 February 2006) paras 15-
27.
118 Para 30.