The enforcement of socio-economic rights in South Africa. 

Abstract 

This article focuses on the transformation of socio-economic rights in South Africa’s  Constitution of 1996, particularly on their intersection with the environmental rights in section  24. Drawing the inference from the landmark cases such Grootboom and Mazibuko, it is argued  that environmental degradation undermines access to housing, health care, food, and water,  through their impediments to the fulfilment of socio-economic rights. This article suggests an  interpretative approach that considers the indivisibility of human rights and calls for judicial and  legislative action to shape environmental considerations in socio-economic rights enforcement. 

In S v Makwanyana, Mohammed J held that our constitution retains from the past only what is  defensible and represents a decisive break from that part of the past is disgracefully racist,  authoritarian, insular and repressive and a vigorous identification and of commitment to a  democratic universalistic, caring and aspirational egalitarian ethos, expressly articulated in the  constitution1.  

Introduction  

Socio-economic rights are recognized as human rights in several international human rights  documents. They are recognised in the 1948 Universal Declaration of Human Rights (UDHR)  and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Today they  are also protected in many other documents, including national constitutions, for instance South  African Constitution of 1996.

Human rights are usually divided into two groups of rights:  

• Civil and political rights include the rights to vote, a fair trial, freedom of speech,  movement, and assembly.  
• Socio-economic rights include the right to adequate housing, food, health care, education,  social security, and water. 

For decades, socio-economic rights have been treated differently from civil and political rights.  They have often been considered as second class rights not deserving of the status of human rights, while civil and political rights have always been seen as fundamental rights or first-class rights. The inclusion of socio-economic rights as justiciable rights in our national constitution,  particularly in the Bill of Rights, is a recent development. Although some guidance could be  obtained from other countries, it is necessary to obtain or rather inherit guidance from the  jurisprudence which has been developed on international level. The legal protection of socio economic rights, either way has its roots in international law2. 

Why is the enforcement of socio-economic rights important in the current  legal system? 

Socio-economic rights are the rights developed for leading a dignified and respected life of human  beings. These rights provide access to basic needs such as housing, health care services, education,  food, and water, especially for vulnerable and disadvantaged groups. Enforcement of these rights  ensures that they are active in shaping policy and service delivery. Through the struggles of human  rights activists, the international community is now paying more attention to socio-economic  rights3.  

To make socio-economic rights effective:  

• Countries need to ratify international agreements and make them a part of a national legal  system. 
• Countries need to give them strong protection in their national legal systems, including  recognizing them in the Bill of Rights as enforceable rights. 
• Countries need to develop and implement policies and laws to give effect to socio economic rights at national level4. 
• People must have access to strong remedies at national and international level if their socio economic rights are infringed. Despite not having ratified the ICESCR, South Africa has  emerged as a global exemplar by embedding socio-economic rights as legally enforceable  provisions within its Constitution. Its judiciary has consistently affirmed the justiciability of these rights, with a growing body of case law demonstrating their practical enforcement  in the courts. 

History and socio-economic rights in South Africa. 

Apartheid left a deep-rooted crisis of poverty and inequality in South Africa. For most people in  South Africa, apartheid dispossessed them of their land and housing. During the 1995 and 1996  drafting process of the final Constitution, the Constitutional Assembly conducted a wide reaching public engagement initiative to ensure that ordinary citizens could actively contribute to  shaping the nation’s supreme law. One of the key issues was whether socio-economic rights  should be included in the Bill of Rights, along with civil and political rights, as rights that can be  enforced by courts. Most political parties supported the inclusion of socio-economic rights in  some way in the Bill of Rights. Many civil society organizations, including human rights and  non-governmental organisations (NGOs), church groups, civics and trade unions, campaigned for  the full inclusion of socio-economic rights in the Bill of Rights. They argued that a constitution that did not recognize socio-economic rights would not truly belong to the millions of  disadvantaged people in South Africa. Their concern was also that without socio-economic  rights, the rich and powerful would use certain rights in the Bill of Rights, like the right to  property, to frustrate social transformation and a fairer distribution of resources in the country.  This campaign was successful, as we have seen, the current South African Constitution is one of  the fewer national constitutions to include a full range of socio-economic rights in its Bill of  Rights, and to give the courts the power to enforce these rights5.  

Body 

Legal Framework 

Section 1 (a) of the constitution outlines that the Republic of South Africa is one sovereign  democratic state founded on, amongst others, human dignity, the achievement of equality and the  advancement of human rights and freedoms6. Section 2 of the constitution requires the state to fulfill its obligations7. Section 7 (2) of the constitution imposes a duty on the state to respect,  protect, promote and fulfill the rights in the Bill of Rights8.  

Section 7 establishes that the rights in the Bill of Rights imposes a combination of negative and  positive duties on the state. The duty to respect requires the State to refrain from law or conduct  that directly or indirectly interferes with people’s enjoyment of socio-economic rights, for  instance, refraining from arbitrary forced evictions of people from their homes9. The duty to  protect places a duty on the state to take legislative and other measures, including the provision  of effective remedies, to protect vulnerable groups against violations of their rights by more  powerful private parties, such as landlords, banks and insurance companies. The duty to promote  is sometimes regarded as a dimension of the duty to fulfil socio-economic rights. It embraces  awareness-raising and educational measures concerning the rights, e.g. on the available  mechanism for accessing the rights. The duty to fulfil these obligations requires the state to take  positive measures to ensure that those people who currently lack access to the rights gain access  to them10. The United Nations Committee on Economic, Social and Cultural Rights has  Identified two aspects of the duty to fulfil. The first is a duty to enable and assist communities to  gain access to socio-economic rights. This would include, for example, adopting enabling  policies and legislation that facilitate and regulate access to the various goods socio-economic  rights are designed to deliver. The second is a duty to provide these various goods directly  whenever an individual or group is enabled, for reasons beyond their control, to gain access to  the right through the means at their disposal. The second duty to fulfil is therefore directed at  groups in most vulnerable situations11.  

The socio-economic rights found in the Bill of Rights follow three main drafting styles. The first  category of rights entrenches the right of everyone to have access to adequate housing, health  care services, including reproductive health care, sufficient food and water, and social security12.  In respect of these rights the state is explicitly required to take reasonable legislative measures, within its available resources, to achieve each of these rights. This category can be described as  qualified socio-economic rights13.  

The second category outlined in section 29(1) of the constitution entrenches a set of basic rights  consisting of children’s socio-economic rights, the right of everyone to basic education,  including adult basic education, and the socio-economic rights of detained persons, including  sentenced prisoners. These rights are not qualified by reference to reasonable measures,  progressive realization or resource constraints14.  

The third category of rights is articulated in section 26(3) and 27(3) of the constitution. Section  26(3) provides that no one may be evicted from their home or have their home demolished  without an order of court made after considering all the relevant circumstances. It goes on to  state that no legislation may permit arbitrary eviction15.  

Judicial Interpretation 

In Government of the Republic of South Africa v Grootboom case it was noted that the  constitution obliges the state to act positively to improve the situations of the hundreds of  thousands of people living in the poor conditions throughout the country16. The court held that  the state must provide access to adequate housing, health care services, sufficient food and water,  and social security for those unable to support themselves and their dependents17. The court  emphasized that all the rights in the Bill of Rights are inter-related and mutually support one  another. Realising socio-economic rights enables people to enjoy the other rights in the Bill of  Rights and is the key to the advancement of race and gender equality and the evolution of a  society in which men and women are equally able to achieve their full potential18. The court  further held that human dignity, freedom and equality are denied to those people without food,  clothing or shelters. The right to access adequate housing can thus not be viewed in isolation.  

The state must also foster conditions that enable citizens to gain more access to land on an  equitable basis19.  

In Soobramony v Minister of Health, the applicant was denied an admission at Addington  Hospital because he did not qualify for admission, and the hospital has a severe shortage of  dialysis machines and trained nursing staff. Mr Soobramoney applied to the court alleging that  he had a right to receive renal dialysis treatment from the hospital in terms of section 27(3)  which provides that no one may be refused emergency medical treatment, and section 11 of the  1996 Constitution which guarantees everyone the right to life. His application was dismissed by  the court of first instance20.  

The court decided that this was not an emergency which called for immediate remedial  treatment. The court further held that the right to be refused emergency medical treatment was  independent from the right to life and had to be interpreted in its context, such the context of the  availability of health services generally. The court highlighted the limitation of socio-economic  rights when weighed against available resources. This judgement entails that each court must  consider all the relevant circumstances when enforcing the socio-economic rights21. 

In Juma Musjid Primary School v Essay NO the Constitutional Court delt with a matter  concerning the right to a basic education where a private property owner sought to evict a public  school conducted on its property. It held that order had an impact on the learners’ right to basic education under section 29(1) of the Constitution and on the learners’ best interests under section  28 of the Constitution22. The court ruled that the Trustee had a constitutional duty to respect the  learners’ right to a basic education under section 29 of the Constitution, having regard to all the  circumstances of the case, including that obligation23. 

In Khosa v Minister of Social Development, the applicants argued that the citizenship  requirement infringed their Constitutional rights to equality, social security, and the rights of  children24. The majority judgement penned down by Makgoro J, held that the Constitution vests the right to social security in everyone and that permanent residents are bearers of this right. The  exclusion of permanent residents from the welfare scheme is not a reasonable way to achieve the  realization of the right to social security. Furthermore, the Court held that the exclusion of  permanent residents from the scheme id discriminatory and unfair and infringes the right to  equality25. 

Critical Analysis 

Challenges in law 

Sections 26 and 27 of the Constitution qualify socio-economic rights by requiring the state to  take reasonable legislative measures within available resources to achieve these rights. This  creates interpretative ambiguity because no one is appointed to decide whether the resources are  available, therefore this constitutes uncertainty/ambiguity.  

While the landmark cases such as Grootboom and Mazibuko have affirmed justiciability of  socio-economic rights, courts have been cautious not to contravene the separation of powers  doctrine, when interpreting the law.  

Implementation of socio-economic rights tends to be driven by individual cases rather than  proactive oversight. The lack of dedicated enforcement institution means that access to remedies  largely hinges on litigation, a process that is expensive and out of reach for many. 

Comparative analysis with foreign jurisdictions 

In India, socio-economic rights do not enjoy full justiciability under the conventional legal  framework, either way they are not completely beyond the reach of judicial enforcement.  

Economic and social rights or socio-economic rights include the right to access to food, water,  housing, healthcare, education and social security and what might approximate the basic goods  and services necessary to secure a dignified life. Although these socio-economic rights are like those of South Africa there is a minor difference regarding the enjoyment26. Under the Indian law  they are not fully enjoying justiciability while in South Africa they are fully enjoying justiciability. 

Section 21 of the Constitution of Kenya (2010) includes socio-economic rights and mandates the  state to oversee, respect, protect, promote and fulfil these rights27.  

Recent Developments 

National Health Insurance Bill was passed to enable more access to health care services,  especially to vulnerable groups28.  

BELA Bill, which is currently under review, is aimed at proposing stricter rules for the regulation  of school governance and language policies. Its purpose is to balance language used in schools,  especially in historically Afrikaans schools29. 

Public reaction 

The framework for constitutional democracy in South Africa assigns to the courts a pivotal role in  assuring effective protection and translation of the range of entrenched socio-economic rights into  material entitlements. This has enabled the courts in some instances to exercise considerable  authority that has significantly influenced policy to the extent that power relations between the  judiciary and the political arms of government have been threatened. 

Suggestions 

The state should establish dedicated socio-economic Rights Commission empowered to  investigate violations, monitor compliance and issue binding directives. This institution would  shift the focus from reactive court-based enforcement to a more proactive and accessible system  of rights protection.  

Role of Society 

Non-governmental organisations and community groups can empower residents by providing  training to track public service delivery, record instances of rights infringements, and report these  concerns to relevant oversight institutions.  

Role of the Judiciary  

Courts should persist in interpreting socio-economic rights through the lenses of dignity, equality  and environmental sustainability, as demonstrated in landmark cases such as Mazibuko and  Grootboom, while showing a stronger readiness to employ structural interdicts and issue  supervisory orders.  

Conclusion 

The development of socio-economic rights in South Africa highlights a deep constitutional  dedication to human dignity, equality, and justice. Originating in international legal frameworks  and firmly established in the 1996 Constitution, these rights have evolved from aspirational goals  into legally enforceable claims by citizens. Crucial judgements like Grootboom, Soobramoney, 

Juma Musjid, and Khosa illustrate the critical role played by the judiciary in shaping and upholding  these rights, while also exposing the challenges arising from limited resources and institutional  shortcomings.

BIBLIOGRAPHY 

Books 

Khoza Sibonile, (2007), Socio-economic rights in South Africa: A resource book (2nd ed). Lienberg S, (2013) Constitutional Law of South Africa (2nd ed). 

Journals 

Manwendra Tiwari, Adjudication and Enforcement of Socio-economic rights under the Indian  Constitution (30 August 2017). 

Case laws 

S v Makwanyane 1995 ZACC 3; 1995 3 1995 SA 391 (CC); 1995 6 BCLR 665 (CC). Government of the Republic of South Africa v Grootboom (2001) 1 SA 46 (CC). 

Governing Body of the Juma Musjid Primary School v Essay NO. (2011) ZACC 13; 2011 8  BCLR (CC). 

Khosa and Others v Minister of Social Development and Others (2004) ZACC 2004 13; 6 SA 505  (CC) 

Legislation 

Constitution of the Republic of South Africa, 1996. 

The Constitution of Kenya, 2010. 

National Health Insurance Bill, 2024, Bill No. 20 of 2023, (16 May 2024), RSA. Basic Education Laws Amendment Bill, 2024, Bill No. 34 of 2024, (16 September 2024), RSA.

1 S v Makwanyane 1995 ZACC 3; 1995 3 1995 SA 391 (CC); 1995 6 BCLR 665 (CC).

2 Khoza Sibonile, (2007), page 21 of Socio-economic rights in South Africa: A resource book (2nd ed).

3Ibid. 

4Ibid. 

5 Khoza Sibonile, (2007), page 21 of Socio-economic rights in South Africa: A resource book (2nd ed).

6 Section 1(a) of the Constitution of the Republic of South Africa, 1996.

7 Section 2 of the Constitution of the Republic of South Africa,1996. 

8 Section 7(2) of the Constitution of the Republic of South Africa,1996. 

9 Lienberg S, (2013) Chapter 33 of the Constitutional Law of South Africa (2nd ed). 

10 Ibid. 

11 Ibid.  

12 Section 27 of the Constitution of the Republic of South Africa, 1996.

13 Lienberg S, (2013) Chapter 33 of the Constitutional Law of South Africa (2nd ed). 

14 Section 29(1) of the Constitution of the Republic of South Africa, 1996. 

15 Section 26(3) of the Constitution.  

16 Government of the Republic of South Africa v Grootboom (2001) 1 SA 46 (CC). 

17 Ibid. 

18 Ibid.

19 Ibid.  

20 Soobramoney v Minister of Health, KwaZulu-Natal 1998 1 SA 765 (CC). 

21 Ibid.  

22 Governing Body of the Juma Musjid Primary School v Essay NO. (2011) ZACC 13; 2011 8 BCLR (CC). 23 Ibid. 

24 Khosa and Others v Minister of Social Development and Others (2004) ZACC 2004 13; 6 SA 505 (CC).

25 Ibid.

26 Manwendra Tiwari, Adjudication and Enforcement of Socio-economic rights under the Indian Constitution (30  August 2017). 

27 Section 21 of the Constitution of Kenya, 2010. 

28 National Health Insurance Bill, 2024, Bill No. 20 of 2023, (16 May 2024), RSA. 

29 Basic Education Laws Amendment Bill, 2024, Bill No. 34 of 2024, (16 September 2024), RSA.