Class notes
CON 202 Socio-Economic Rights Notes
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- CONSTITUTIONAL LAW
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- University Of The Western Cape (UWC)
Socio-Economic Rights notes for Con 202. * Essential!! * Contains vital info!!
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CHAPTER 12: SOCIO-ECONOMIC RIGHTSGeoffrey Allsop
1. WHAT ARE SOCIO-ECONOMIC RIGHTS?
The Constitution of the Republic of South Africa, 1996 (‘the Constitution’)
protects several socio-economic rights. Among others, it guarantees the right to
adequate housing (section 26(1)), food and water (section 27(1)(b)), social security
(section 27(1)(c)) and basic education (section 29(1)). Broadly speaking, socio-
economic rights can be defined as rights which entitle people to the material goods
necessary for them to live in conditions consistent with human dignity1 and reach their
full potential.2
Not every Bill of Rights protects socio-economic rights. In fact, many do not.3
Most only protect what is commonly referred to as ‘first generation’ or civil and political
rights – rights which broadly prohibit the state from interfering with basic individual
liberties.4 The Bill of Rights protects several civil and political rights such as freedom
of expression (section 16), to equality (section 9), free assembly (section 17) and
privacy (section 13). Civil and political rights are also often described as ‘negative
1 See Danie Brand ‘Introduction to Socio-Economic Rights in the South African Constitution’ in Danie
Brand & Christof Heyns (eds) Socio-Economic Rights in South Africa (2005) 1-2 and Soobramoney v
MEC Health KZN 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC) para 8. Dignity is also both a
constitutional value (section 1(a)) and right (section 10). How dignity influences socio-economic rights
interpretation is discussed below.
2See Government RSA v Grootboom [2000] ZACC 19. 2001 (1) SA 46; 2000 (11) BCLR 1169 (CC)
para 23.
3 For example, the United States Constitution protects no socio-economic rights. Whilst many
Scandinavian countries provide citizens with various material goods at state expense – such as free
education, healthcare and housing – these are legislative entitlements and not constitutional rights.
Theoretically, this means the right to these social goods could be taken away by any new government
that comes into power. See Etienne Mureinik ‘Beyond a Charter of Luxuries: Economic Rights in the
Constitution’ 8 SAJHR (1992) 464-5 and 468-9.
4 IainCurrie & Johan De Waal The Bill of Rights Handbook 6 ed (2014) 564. Mureinik ibid at 464 explains
that civil and political rights are often referred to as ‘first generation’ rights because they ‘were the first
rights to be recognised as fundamental’.
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,rights’ because their primary purpose is to restrict government power by imposing
duties on it ‘to not act in certain ways’.5 For example, the civil and political right to
equality imposes duties on the state to not treat people differently for morally arbitrary
reasons, while the right to privacy imposes duties on the state to not listen to the
private communication of anyone without their permission.6 By contrast, socio-
economic rights are often described as ‘second generation’ or ‘positive’ rights.7 This is
because socio-economic rights impose positive duties on the government to actively
do certain things. For example: to actively take steps towards providing people with
access to adequate housing, healthcare and an education or to prevent private third
parties from interfering with their existing enjoyment. 8 However, as is explained below,
there is an ongoing debate about whether there is such a wide distinction between
judicial enforcement of ‘negative’ civil and political rights versus ‘positive’ socio-
economic rights in practice.
The purpose of this chapter is to unpack the purpose, and importance, of socio-
economic rights and explain how they are interpreted and enforced by the courts. It
does this in five parts. First, it explains the two justiciability arguments against giving
the courts authority to enforce socio-economic rights, the connection between socio-
economic rights and transformative constitutionalism and why socio-economic rights
and civil and political rights are interdependent. Secondly, it explains the various
‘negative’ and ‘positive’ duties socio-economic rights impose on the state - and private
5Currie & De Waal ibid. However, as explained in chapter seven, section 8 of the Bill of Rights does
allow for constitutional rights to be enforced against private parties in certain circumstances. See 12.3(c)
below where the chapter considers the circumstances when socio-economic rights can bind both private
persons and the state.
6 However, the state can limit these rights, including socio-economic rights, if the limitation complies
with the two criteria for justification in section 36(1) of the Constitution. On the various difficulties with
applying the general limitation clause to socio-economic rights - as opposed to civil and political rights
- see Khosa v Minister Social Development [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR
569 (CC) para 83-4 and Kevin Illes ‘Limiting Socio-Economic Rights beyond the Internal Limitation
Clauses’ (2004) 20 SAJHR 448. The reason why it is difficult to apply the general limitation clause to
socio-economic rights will become clearer once the ‘reasonableness review’ test has been fully
explained at 12.4 below.
7 Mureinik op cit note 3.
8 See 12.3(b) below where the difference between ‘negative’ and ‘positive’ duties is explained.
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,parties - and how to determine the content of these duties by interpreting socio-
economic rights. Thirdly, it unpacks the ‘reasonableness review’ test the courts use to
determine whether the state has complied with its positive duties to progressively
realise and provide a socio-economic right. Finally, it discusses some of the legal
remedies a court can order when someone successfully establishes a negative or
positive duty imposed by a socio-economic right that has been violated.
2. JUSTICIABILITY OF SOCIO-ECONOMIC RIGHTS AND THEIR
CONNECTION TO TRANSFORMATIVE CONSTITUTIONALISM
Before explaining how the courts interpret and enforce socio-economic rights,
it is necessary to consider two fundamental things. First, how, and why, the separation
of powers influences how strictly (or leniently) the courts will adjudicate socio-
economic rights in practice. Secondly, why socio-economic rights are intrinsically
connected to transformative constitutionalism and how they are also interdependent
with civil and political rights.
(a) Justiciability: the separation of powers and polycentricity
arguments against judicial enforcement of socio-economic rights
The separation of powers broadly refers to the division of state power between three
separate branches of government: (a) the legislature; (b) the executive; and (c) the
judiciary.9 While the Constitution does not expressly provide for the separation of
powers, the Constitutional Court (‘CC’) has confirmed it is ‘implicit’ in the Constitution.10
There is also no universal model of the separation of powers, how it works may differ
from one country to the next.11 It is also not absolute because there can sometimes be
9 See Sanele Sibanda & Sebastian Seedorf ‘Separation of Powers’ in Stuart Woolman & Michael Bishop
(eds) Constitutional Law of South Africa 2 ed 2013 (Revision Service 5) 12:3. It is important not to
confuse the three branches of government (judiciary, legislature and executive) with the three spheres
of government (national, provincial and local).
10 See Certification of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 26; 1996 (4)
SA 744 (CC); 1996 (10) BCLR 1253 (CC) para 109-113 and South African Association of Personal
Injury Lawyers v Heath [2000] ZACC 22; 2001 (1) SA 883; 2001 (1) BCLR 77 (CC) para 21-2.
11 See De Lange v Smuts NO [1998] ZACC 6; 1998 (3) SA 785; 1998 (7) BCLR 779 (CC) para 60.
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, legitimate overlaps between the powers, functions and personnel in each branch.12 At
its most basic, the separation of powers doctrine proposes two reasons why it is
necessary to divide state power into three separate parts:
• Protection of human rights: to ensure no single branch becomes too powerful
because - if it does - that branch may become unaccountable and abuse its powers
to violate fundamental human rights.13 The separation of powers tries to prevent
such abuses by creating a system where each branch holds the other accountable
for the exercise of their power through a system of ‘checks and balances’.14
• Government efficiency: to ensure that the people best suited to perform the role,
functions and tasks of each branch are allocated to it.15 In other words: to ensure
those best suited to formulate and execute government policy are in the executive,
those best suited to formulate and enact laws are in the legislature and those best
suited to decide legal disputes are in the judiciary.16
Two important differences between the judiciary and the other branches affect
how the courts interpret and enforce socio-economic rights. First, judges are not
elected by the people; they are appointed by the President on recommendation of the
12For instance: there is an overlap between the persons in the executive and legislature because
section 93(3)(a) of the Constitution requires the President to select the Deputy President from among
the Members of the National Assembly (‘the legislature’) while section 93(3)(b) requires that all cabinet
members, save for two, must also be members of the National Assembly. Also see Kolbatschenko v
King NO 2001 (4) SA 336 (C) where a judge exercised ‘administrative action’ – something usually done
by the executive branch.
13Sanele Sibanda ‘Basic Concepts of Constitutional Law’ in Pierre de Vos & Warren Freedman (eds)
South African Constitutional Law in Context (2014) 60.
14See Doctors for Life International v Speaker of the National Assembly 2006 (12) BCLR 1399 (CC);
2006 (6) SA 416 (CC) para 38 and Glenister v President RSA 2011 (3) SA 347 (CC); 2011 (7) BCLR
651 (CC) para 39.
15 Sibanda op cit note 13 at 61. Sibanda also notes that the idea that different people should be allocated
to different branches to ensure government efficiency is also often traced back to Montesquieu The
Spirt of the Laws (1748).
16Ibid. However, whether the ‘best people’ always end up in these different branches in reality is
debatable.
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