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Update on South African Socio-Economic Rights Jurisprudence

In recent years, there has been concern that the South African Constitutional Court has been retreating from its innovative socio-economics rights cases. In the most infamous case, Mazibuko, the Court in 2010 was very deferential towards the government in upholding a new problematic water distribution policy for some poor residential communities. Yet last December, the Court issued four strong victories for plaintiffs in socio-economic rights cases.

The most significant decision is undoubtedly Blue Moonlight Properties,, where the Constitutional Court rejected a municipality's assertions that it lacked the resources to assist a group of "sqatters" who were in danger of being evicted. This decision was extraordinary because the Court upheld a lower court opinion that rigorously examined municipal budget reports. The reports actually contained representations about a budget surplus. Even some of the Constitutional Court's earlier promising decisions stopped short of stating that the judiciary could be so aggressive in its review, when it came to the issue of resources, for separation of powers reasons. Thus the predictions of some commentators that the Court has lost its transformative credentials are being tempered. This is ironic in light of the South African government's recent efforts to supposedly examine whether the Court has been hindering transformation, discussed in Tom Ginsburg's March 3 post here.

Mark Kende

1 comment:

  1. The continuance in a path committed with the transformational Idea adopted by Constitution is certainly, something to be applauded/ but the most important feature of the decision seems to be a strict observation of the justification as an important element in providing legitimacy to the Court`s rule. In the Brazilian experience in enforcement by Supreme Court of socioeconomic rights; one can find rulings that assert also a State’s duty to provide housing to people in risk areas, or in other needing situation – but in these decisions, the argumentation relies only in the central idea of preserving human dignity, which do not sound enough to overcome the separation of powers objection.
    The major risk in such kind of rulings is the lost of a macro-vision of the problem. The Brazilian experience demonstrates that even though the intention in the Judiciary may be the enforcement of the socioeconomic rights constitutionally provided; micro-justice could lead to subversion to the egalitarian discourse that justifies the whole idea of fundamental rights.


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