Grootboom : a paradigm of individual remedies versus reasonable programmes

• DOI: 10.10520/EJC153216
• Author: Christopher Mbazira
• Published date: 01 January 2011
• Pages: 60-80
• Date: 01 January 2011

Grootboom: A paradigm of individual

remedies versus reasonable

programmes

Christopher Mbazira

*

1 Introduction

The decision of the Constitutional Court (the Court) in the case of Government of the

Republic of South Africa versus Grootboom

1

was received as ground breaking by

human rights practitioners, scholars and advocates the world over. If it were possible

to assess the case in terms of new music releases, one would say that the

‘Grootboom album’ became an instant hit on the top of all music charts. The case

instantly established itself as a landmark, signifying the undeniable justiciability of

economic and social rights (socio-economic rights). Thus, the case became a

promise that the lives of South Africans living in crisis-like situations would be

changed for the better.

2

The Court’s reasonable programme review approach

instantly became the litmus test with which to determine whether government has

discharged its obligations to realise the various constitutionally protected economic,

socio-economic rights. Since then, the approach has dominated both academic and

judicial ‘dance halls’ as the tune to dance to when making deliberations on the

realisation of such socio-economic rights as health care,

3

water,

4

food,

5

and housing.

6

*

LLM (UP), PhD (UWC), Associate Professor and AG Deputy Dean (Postgraduate and Administration),

School of Law, Makerere University cmbazira@law.mak.ac.ug, bazzira@yahoo.co.uk. Research

Fellow, Community Law Centre, University of the Western Cape.

1

2000 11 BCLR 1169 (CC); 2001 1 SA 46 (CC)

2

Wickeri Grootboom’s legacy: Securing the right to access to adequate housing in South Africa?

Center for Human Rights and Global Justice, Working Paper, Economic, Social and Cultural Rights

Series no 4 (May 2004) 6.

3

See Minister of Health v T reatment Action Campaign 2002 5 SA 721 (CC); Bilchitz ‘Health’ in

Woolman et al (eds) Constitutional law of South Africa (2005) (2

nd

ed) 56A-i.

4

Mazibuko v City of Johannesburg 2010 3 BCLR 239 (CC); 2010 4 SA 1 (CC).

5

The Grootboom case is cited by the Food and Agriculture Organization in the Right to Food

Guidelines, see FAO Right to food guidelines: Information papers and case-studies (2006).

6

Wickeri (n 2).

Grootboom: A paradigm of individual remedies versus reasonable programmes 61

However, alongside the praises, the Grootboom judgment was also subjected

to a number of negative critiques, directed especially to the Court’s rejection of the

minimum core obligations approach,

7

in addition to critiques on the Court’s

approach to the issue of remedies. The biggest criticism that has been levied at

the case and other socio-economic rights cases that immediately followed it is the

failure of the courts to guarantee remedies that assure poor litigants individualised

goods and services. Indeed, the death of Mrs Irene Grootboom in a shack

attracted highly publicised criticism to the effect that the Constitution meant very

little to the poor.

8

In his web blog, Pierre de Vos described Mrs Irene Grootboom

as a true revolutionary who had put her trust in the law, the courts and politicians

to help her to get access to a house. De Vos concludes, however, that true

revolutionaries often die young, penniless and homeless.

9

Commenting on the remedial approach of the Court, one scholar has stated

that despite the cogent statements of the Court concerning the justiciability of the

rights, effective remedies for their enforcement remain jurisprudentially elusive

and problematic.

10

Early critics focused on the structural interdict, condemning the

Court for its reluctance to use this form of relief.

11

With recent decisions showing

use of the remedy, are these criticisms still valid? What explains the Court’s

change of approach toward willingness to order a structural interdict?

Being a ten year retrospect of the Grootboom case, this paper undertakes a

chronological exploration and critique of the courts’ approach to the subject of

remedies. An assessment reveals that the approach of the courts, and particularly

the Constitutional Court, has been a mixture of successes and failures. South

Africa stands out as an example of the challenges of finding appropriate relief for

proclaimed socio-economic rights violations. This is against a background of a

perceived constitutional imperative to uphold the doctrine of separation of powers.

At the same time, the approach of the courts is a reminder of how pragmatic and

dynamic courts need to be when dealing with constitutional remedies. The

Constitutional Court’s refusal to grant a structural interdict in both the Grootboom

7

See Bilchitz ‘Giving socio-economic rights teeth: The minimum core and its importance’ (2002) 118

SALJ 484; ‘The right to health care services and the minimum core: Disentangling the principled and

pragmatic strands’ (2006) ESR Review 2; ‘Towards a reasonable approach to the minimum core:

Laying the foundations for future socio-economic rights jurisprudence’ (2003) 19 SALJ 1.

8

See Mail & Guardian ‘Grootboom dies homelesss and penniless’ 2008-08-08.

9

‘Irene Grootboom died, homeless, forgotten, no C-class Mercedes in sight’ available at http://

constitutionallyspeaking.co.za/irene-grootboom-died-homeless-forgotten-no-c-class-mercedes-in-sight/

(accessed 2010-12-08).

10

Choma ‘Constitutional enforcement of socio-economic rights: South African case study’ (2009) 6

US-China LR 46.

11

See Heywood ‘Preventing mother-to-child HIV transmission in South Africa: Background strategies

and outcomes of the Treatment Action Campaign case against the Minister of Health’ (2003) 19

SAJHR 278; and Swart ‘Left out in the cold? Crafting constitutional remedies for the poorest of the

poor’ (2005) 21 SAJHR 215.