Constitutional Law 312:
Theme 1: Transformative Constitutionalism (TC)
Overview:
1. The concept of TC: what does this entail?
2. What does TC imply for human rights education, litigation and
adjudication?
Balancing enforcement of BOR by the courts, and respect for democracy.
Substantive legal reasoning: value driven reasoning.
Positive/negative state duties.
Vertical/Horizontal application.
Openness towards International and foreign law.
3. Criticisms of TC
Dawood v Minister of Home Affairs
Brief Facts:
● regarding foreign spouse, wanted to apply for permanent residence permit, could
only be awarded in the country if had a temporary residence permit or a work permit
→ otherwise had to apply from outside of the country → could only apply for a
temporary residence permit, Home Affairs had the competency to decide whether or
not to award – argued that this was administrative action which infringed on the
right of the spouses to cohabit → legislation can’t give the official an unbounded
discretion of whether or not to award a temporary permit (must be bounds on the
decision making powers, give guidelines)
● [NB for the residual function of human dignity]
- Dealt with sec 25(9)(b) of the Aliens Control Act – challenge to
constitutionality, wanted invalidation
- Concerned application for immigration permits – you must be outside of the
country for it to be granted → two exceptions (1) if you have a work permit;
(2) if spouse or children of a South African citizen have a temporary residence
permit → then you may be inside the country when applying for an
immigration permit
- This case concerned the spouses – the spouse applied for an immigration
permit, didn’t have a work permit, and didn’t have a temporary residence
permit either
,- No rules regarding the awarding of a temporary residence permit (as to
granting or extending of a temporary residence permit)
▪ Effect: if SA citizen married to foreign national who does not have a
work permit or a temporary residence permit, and applies for a
permanent residence permit, then the spouse must return to their
country of origin and apply from there for an immigration permit
- In most cases, the spouse must leave (the South African spouse can obviously
go with), with the other spouse remaining in SA and meaning that the
spouses would be split up
- Argument then was that sec 25(9)(b) which requires that a person be outside
of a country in order to apply for an immigration permit infringes on the right
of spouses to cohabit, and therefore infringes on the right to dignity
- Court had regard to the value of human dignity (secs 1, 2(1), 36 and 39) in
determining whether the spouses have a right of cohabitation → NB the value
of human dignity informs all rights
- Court had regard to the importance of married life, and how the value of
human dignity dictates what we understand of marriage and married life
▪ Marriage is to live together in a very intimate and personal
relationship, has a public dimension (we are social beings, and the
takes place in public)
▪ Institution of marriage is important:
● Important social institution
● Support and companionship
● Important for the rearing of children
● So the court considered how human dignity impacts on this
understanding
- Human dignity is an enforceable right
▪ But, that human dignity as a right has a residual function
▪ “where the value of human dignity is offended, the primary
constitutional breach occasioned may be a more specific right”
▪ There will be a more specific right to rely on when alleging violation
● E.g. right equality; right not to be treated in a cruel and
inhumane matter; right of child to parental care
- The right to cohabit is not a right in the Constitution
▪ Thus, no specific right to rely on in the Constitution
▪ Where there is no more specific right to rely on in the Constitution,
then you may rely on the right to human dignity (protects all other
rights)
▪ Thus, can rely on sec 10 for those who wish to enter into and sustain a
permanent, intimate relationship
- Legislation that has the effect of splitting up couples is an affront to the right
to cohabit and thus an affront to the right to human dignity
- The HC invalidated this section and the fee (which was in the regulations)
, - The invalidation of the fee (R10 000) was not addressed in the CC
▪ Invalidated by the HC (as well as the legislation)
▪ CC didn’t have to approve the fee invalidation (Regulations) – thus the
invalidation stands
● The CC only has to approve the invalidation of an Act of
Parliament, the invalidation of regulations may be done by the
HC without confirmation by the CC
Case 2: Government of the Republic of South Africa v Grootboom 2001
(1) (SA) 46 (CC)
NB: at this point, SA had signed the international Covenant on Social and Economic Rights
but not yet ratified it, which means it was only considered; was not binding on SA.
Facts:
The respondents were a group of people (parents and their children) living in
appalling conditions in an informal settlement in the Western Cape, who decided to
move out and illegally occupy private land.
They were on the waiting list for informal housing which was likely to take years.
They were evicted from the private land by the government in a manner
reminiscent of the apartheid-style evictions, and the applied to the HC for an order
requiring government to provide them with adequate basic shelter or housing until
they obtained permanent accommodation.
o The government was ordered to provide them with temporary
accommodation, and to mediate with the respondents.
o Apparently, no such mediation took place and the respondents allege that
the government failed to comply with its obligation to provide them with
temporary housing.
o Urgent application was bought to the HC and relief was granted:
respondents and appellants now appeal against that relief.
High Court:
In the High Court, the respondents applied for an order directing the government to
provide: adequate basic temporary shelter and basic nutrition, shelter, healthcare
and social services to those respondents who are children.
o These claims were based on s 26 and s 28 of the Constitution.
The HC stated that it could not be said that the government has not met its s 26
obligation to take reasonable legislative and other measures within its available
resources to achieve the progressive realization of the right to have access to
adequate housing.
o They were faced with a massive shortage in available housing and extreme
budgetary constraints.
o They had implemented a housing plan to maximize the available resources.
, The HC rejected the argument that the right of access to adequate housing in s 26
contained a minimum core entitlement to shelter in terms of which the state was
obliged to provide some form of shelter pending implementation of the program to
provide adequate housing.
o The parents bore the primary obligation to provide shelter for their
children, but s 28 imposed an obligation on the state to provide that shelter
if the parents could not.
Constitutional Court:
Human Rights Commission and Community Law Centre of the UWC applied to be
admitted as amicus curiae.
o The written argument on behalf of the amici sought to broaden the issues by
contending that all the respondents were entitled to shelter by the reason of
a minimum core obligation incurred by the state in terms of s 26.
o Children’s right to shelter had been included in s 28 to further cement the
right of children to this minimum core.
Must interpret a right in its context
o Textual context: consider chapter 2 and the Constitution as a whole; close
relationship between right of access to adequate housing and other socio-
economic rights.
o Social and historical context: e.g: right to be free from unfair discrimination
must be understood against our legacy of deep social inequality.
The relevant international law and its impact:
International law is valuable in interpreting s 26.
International Covenant on Economic, Social and Cultural Rights helps in
understanding the positive obligation on the state created by socio-economic
rights.
o Difference between Constitution and Covenant:
The Constitution provides for the right of access to adequate
housing, while the Covenant provides for the right to adequate
housing.
Covenant obliges the state to take appropriate steps to realise this
right, while the Constitution obliges the state to take reasonable
measures.
o The socio-economic rights in the Covenant contain a minimum core: to
ensure the satisfaction of, at the very least, minimum essential levels of each
of the rights.
o Minimum core obligation is determined generally by having regard to the
needs of the most vulnerable group that is entitled to the protection of the
rights in question.
o In this case, the court does not have sufficient information to determine
what would comprise the minimum core obligation in the context of our
Constitution.
E.G: the needs of people requiring access to adequate housing are
diverse: some need land, some need land and housing, others need
financial assistance.
