What’s the use of socio-economic rights in a constitution? – Taking a look at the South African experience

Abstract

In the past, socio-economic rights have rarely been the subject matter of constitutional law. The Constitution of the Republic of South Africa has radically changed this. Not only does it feature a number of provisions guaranteeing enforceable socio-economic rights - such as the rights to have access to housing, health care, water and social security -, the country's Constitutional Court has also taken up the task of providing these rights with a workable methodology for judicial review. The article will review the historical developments that led to the inclusion of socio-economic rights in the post-apartheid Constitution for South Africa, the normative structure of the relevant provisions and their interpretation by the Constitutional Court. Three landmark rulings have marked the South African socio-economic rights jurisprudence: Soobra-money, Grootboom and Treatment Action Campaign. A brief outline of these cases will serve as a basis for an assessment of the achievements as well as the drawbacks of this jurisprudence. It will be shown that while the methodology developed by the Constitutional Court is praiseworthy for its innovative force in rendering socio-economic rights justiciable, it is not entirely beyond reproach. The so-called "test of reasonableness" is at the heart of the Court's approach to socio-economic rights and is footed in the limitations set by the Constitution for the positive obligations resulting from socio-economic rights. Unequivocally dismissing concerns about the non-justiciability of these rights, the Court uses the "test of reasonableness" to strike a balance between the doctrine of separation of powers and the constitutionally mandated review of governmental conduct in drafting social policy and legislation. It will be shown that in doing so, it has developed a practical set of criteria for reasonableness review. It has also let itself be inspired by international human rights law without however assuming all of its concepts in relation to economic, social and cultural rights. Finally, given the long-lasting lack of jurisprudence on the enforceability of socio-economic rights before Soobra-money & Co., the burgeoning jurisprudence of the Constitutional Court has invited extensive comparative analysis on the subject matter of the constitutional protection of socio-economic rights. [ABSTRACT FROM AUTHOR]