Authored By: Siphelele Nyovane
University of Fort Hare
INTRODUCTION
The Constitution of the Republic of South Africa, 1996, provides a progressive and transformative legal framework that recognises a number of socio-economic rights in South Africa. These include the rights of access to adequate housing, health care services, sufficient food and water, and social security.1 These rights lie at the heart of South Africa’s effort to heal the deep wounds of its past and to build a more just and equal society. At the same time, they reflect the country’s commitment to upholding the values and principles found in international human rights law. In particular, these constitutional provisions resonate with Article 11 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which enshrines the right to an adequate standard of living, including adequate food, clothing, housing, and the continuous improvement of living conditions.2 Similarly, Article 25 of the Universal Declaration of Human Rights (UDHR) affirms that everyone has the right to a standard of living adequate for their health and well-being, including access to food, clothing, housing, medical care, and social services, as well as security in the event of unemployment, illness, disability, widowhood, old age, or other lack of livelihood.3
- South Africa’s Constitutional Framework for Socio-Economic Rights and UDHR
2.1 Normative Alignment with the ICESCR and UDHR
South Africa’s Constitution reflects a deliberate commitment to protecting socio-economic rights that are essential to living a life of dignity. In many respects, it not only aligns with the standards set out in the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and UDHR, but in some areas, it goes even further. In contrast to international instruments, which often recognise the right to an adequate standard of living as an absolute right, the South African Constitution does not expressly provide for such an absolute right.
However, components of this right, such as access to housing, health care, food, water, and social security are inferred from the Constitution, particularly section 26, which affirms the right of everyone to access adequate housing and places a duty on the state to take “reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of this right.4 Similarly, Section 27 guarantees access to health care services, sufficient food and water, and social security.5 Notably, section 28(1)(c) guarantees every child the right to basic nutrition, shelter, and basic health care services.
However, when interpreting these rights, South African courts are not only confined to domestic legislation because South Africa adopted a dualist system. Section 39(1)(b) of the Constitution expressly mandates that courts must consider international law when interpreting the Bill of Rights, specifically the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR) in hac re.
- Judicial Development of Socio-Economic Rights
South African courts have been instrumental in the interpretation and enforcement of socio economic rights, significantly contributing to the development of a constitutional jurisprudence that aligns with international human rights standards. In the case of Government of the Republic of South Africa v Grootboom and Others (CCT11/00) [2000] ZACC 19, the Constitutional Court affirmed the justiciability of socio-economic rights and established the “reasonableness” standard as the normative benchmark for assessing the adequacy of state measures. The Court emphasised that while the state is not constitutionally obligated to provide immediate access to housing upon demand, it is required to develop and implement a comprehensive and inclusive housing programme that reasonably addresses the needs of the most vulnerable. Notably, the Court referred to section 26 of the Constitution, which provides the right to adequate housing, citing article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and its General Comments, while illustrating the persuasive influence of international law on the domestic interpretation of socio-economic rights.
In Soobramoney v Minister of Health, KwaZulu-Natal (CCT32/97) [1997] ZACC 17, the Court extended the application of the reasonableness test to the domain of access to health care services pursuant to section 27(1)(a) of the Constitution. Upholding the decision of the provincial health authority to deny life-prolonging dialysis treatment to a terminally ill patient on the grounds of limited resources, the Court acknowledged the legitimacy of resource constraints in the allocation of public health services provided for in subsection 2 of the section. However, the court’s reasoning resonates with the ICESCR’s recognition that the realisation of socio-economic rights is subject to the availability of resources, provided that access to services is administered fairly and without discrimination.
Further affirmation of the state’s obligation to uphold the principle of equality in socio economic provisioning is evident in Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development (CCT 13/03, CCT 12/03) [2004] ZACC 11. In casu, the Constitutional Court struck down legislation that excluded permanent residents from accessing social grants, holding that such exclusion constituted unfair discrimination and was inconsistent with the Constitution’s commitment to equality and dignity. The Court’s reasoning was consistent with the ICESCR’s emphasis on non discrimination and the universality of socio-economic rights, inferring the right to an adequate standard of living in section 27(1)(c) of the Constitution, underscoring South Africa’s broader alignment with international human rights obligations. Specifically with article 25 of the UDHR.
- Conclusion
From the foregoing discussion, it becomes evident that South Africa aligns to a greater extent with international humanitarian law principles regarding the right to an adequate standard of living, and South Africa’s constitutional and legal framework provides a substantial alignment with international humanitarian law principles regarding the right to an adequate standard of living. Although the Constitution does not expressly provide for this right in absolute terms, it nonetheless gives protection to its core components that can be inferred, such as adequate housing, health care, food, water, and social security.
This normative alignment is reinforced through the jurisprudence of the Constitutional Court, which has consistently drawn on international instruments such as the ICESCR and UDHR to shape and develop the content of these rights. The application of the reasonableness standard in cases such as Grootboom, Soobramoney, and Khosa reflects the balancing of state capacity with the importance of protecting human dignity, while also demonstrating the judiciary’s commitment to aligning with international legal norms. Nonetheless, South Africa’s legal and constitutional posture, both in doctrine and jurisprudence, reflects a substantial commitment to the ideals embodied in international humanitarian law.
BIBLIOGRAPHY
Legislation & Constitutional Instruments
- Constitution of the Republic of South Africa, 1996.
Cases
- Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC). • Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC).
- Khosa and Others v Minister of Social Development; Mahlaule and Others v Minister of Social Development 2004 (6) SA 505 (CC).
International Instruments
- International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.
- Universal Declaration of Human Rights (adopted 10 December 1948, UNGA Res 217 A(III)).
UN Committee Documents
- UN Committee on Economic, Social and Cultural Rights, ‘General Comment No 3: The Nature of States Parties’ Obligations (Art 2(1))’ (1990) UN Doc E/1991/23.
- UN Committee on Economic, Social and Cultural Rights, ‘General Comment No 4: The Right to Adequate Housing (Art 11(1))’ (1991) UN Doc E/1992/23.
Journal articles
- Lilian Chenwi, ‘The Right to Adequate Housing in the African Regional Human Rights System: Convergence or Divergence between the African Commission and South African Approaches’ (2013) 13 African Human Rights Law Journal 366.
1 Constitution of the Republic of South Africa, 1996, ss 26–28.
2International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3, art 11.
3 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) art 25.
4 Constitution of the Republic of South Africa, 1996, s 26(1)– (2).
5ibid s 27(1)– (2).
