Needs, Rights and Transformation: Adjudicating Social Rights

• Jurisdiction: South Africa
• Pages: 5-36
• Published date: 27 May 2019
• Citation: (2006) 17 Stell LR 5
• Date: 27 May 2019
• Author: Sandra Liebenberg

NEEDS, RIGHTS AND TRANSFORMATION:

ADJUDICATING SOCIAL RIGHTS

*

Sandra Liebenberg

BA LLB LLM

HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch

1 Introduction

One of the most contested issues in South Africa’s burge oning

jurisprudence on social rights relates to how the courts should enforce

the duties imposed by these rights. Debate has focused in particular on

the extent to which the courts should affirm an enforceable right to the

provision of basic needs by those who lack access to these needs. In the

South African context, this is a plight affecting a substantial portion of

our population, and must also be contextualised within the high degree of

inequality existing in our society.

1

This article explores the relationship between a jurisprudence of basic

needs and the transformative goals of the Constitution. The question that

interests me is whether a jurisprudence relating to the fulfilment of social

and economic needs can have transformative potential, and if so, under

what conditions. My aim is to examine how such a perspective can

inform the development of our socio-economic rights jurisprudence in a

way that supports a project of social transformation consistent with

constitutional values and rights.

In the first part of the paper I draw on the work of philosopher and

political theorist, prof. Nancy Fraser, to examine the concepts of social

justice and transformation which are foundational to South Africa’s

constitutional project. The second part of the paper examines the specific

implications of the adjudication of social rights for pursuing a broader

project of social transformation and justice. The final section analyses

and evaluates the transformative potential of South Africa’s evolving

jurisprudence on socio-economic rights in the light of the theoretical

underpinnings I have developed.

* This article formed the basis for my inaugural lecture delivered on 4 October 2005 at the Law Faculty

of the University of Stellenbosch. I would like to thank Professors Andre

´van der Walt and Lourens du

Plessis for encouraging me to reflect on the theoretical dimensions of social rights adjudication. In

particular, I would like to thank Jan Theron for his critical perspectives and valuable comments.

1

See Soobramoney v Minister of Health, KwaZulu-Natal 1997 12 BCLR 1696 (CC) par 8.

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(2006) 17 Stell LR 5

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2 Social Justice, Transformation and ‘‘Non-reformist Reform’’

2 1 Social justice in a transformative Constitution

The South African Constitution is widely described as a transformative

Constitution.

2

Unlike many classic liberal constitutions, its primary

concern is not to restrain State power, but to facilitate a fundamental

change in unjust political, economic and social relations in South Africa.

3

Thus the preamble of the Constitution proclaims that it was adopted ‘‘so

as to — [h]eal the divisions of the past and establish a society based on

democratic values, social justice and fundamental human rights’’. The

founding values of the Constitution refer to ‘‘the achieveme nt of

equality’’, ‘‘non-racism and non-sexism’’, and a system of democratic

governance that is accountable, responsive and open.

4

The commitment to social justice is central to the transformative goals

and processes of our Constitution, and must infuse the interpretation of

the Bill of Rights. In the Fourth Bram Fischer Memorial Lecture, the

Chief Justice, Dikgang Moseneke,

5

describes the important role of social

justice in constitutional adjudication:

‘‘[I]t is argued here that a creative jurisprudence of equality coupled with substantive

interpretation of the content of ‘socio-economic’ rights should restore social justice as a

premier foundational value of our constitutional democracy side by side, if not interactively

with, human dignity, equality, freedom, accountability, responsiveness and openness.’’

By arguing that a conception of social justice should inform our

interpretation of rights claims, I am aligning myself with critical legal

theorists who argue that it is necessary ‘‘to step outside of’’ rights

discourse in order to fill rights with legal and institutional meaning.

6

I

2

Karl Klare ‘‘Legal Culture and Transformative Constitutionalism’’ 1998 SAJHR 146. Klare describes

transformative constitutionalism as ‘a’ long-term project of constitutional enactment, interpretation,

and enforcement committed (not in isolation, of course, but in a historical context of conducive

political developments) to transforming a country’s political and social institutions and power

relationships in a democratic, participatory, and egalitarian direction’’ (150). See Albertyn & Goldblatt

‘‘Facing the Challenges of Transformation: Difficulties in the Development of an Indigenous

Jurisprudence of Equality’’ 1998 SAJHR 248 249; Van der Walt ‘‘Tentative Urgency: Sensitivity for the

Paradoxes of Stability and Change in the Social Transformation Decisions of the Constitutional

Court’’ 2001 16 SA Public Law 1; Botha ‘‘Metaphoric Reasoning and Transformative Constitu-

tionalism’’ 2003 TSAR 20; Moseneke ‘‘Transformative Adjudication’’ 2002 18 SAJHR 309.

3

SvMakwanyane 1995 6 BCLR 665 (CC) par 262 (per Mahomed J); Bato Star Fishing (Pty) Ltd v

Minister of Environmental Affairs and Tourism 2004 7 BCLR 687 (CC); Minister of Finance v Van

Heerden 2004 11 BCLR 1125 (CC); Rates Action Group v City of Cape Town 2004 12 BCLR 1328 (C)

par 100.

4

S1.

5

2002 SAJHR 309 314. See also Investigating Directorate: Serious Economic Offences v Hyundai Motor

Distributors (Pty) Ltd 2000 10 BCLR 1079 (CC) par 21; Government of the Republic of South Africa v

Grootboom 2000 11 BCLR 1169 (CC) par 1; Bel Porto School Governing Body v Premier, Western Cape

2002 9 BCLR 891 par 6; Minister of Finance v Van Heerden 2004 11 BCLR 1125 (CC) par 25; President

of RSA v Moddderklip Boerdery (Pty) Ltd 2005 8 BCLR 786 (CC) par 55.

6

Thus Klare ‘‘Legal Theory and Democratic Reconstruction: Reflections on 1989’’ 1991 25 UBC Law

Review 69 101 argues: ‘‘One must appeal to more concrete and therefore more controversial analyses of

the relevant social and institutional contexts than rights discourse offers; and one must develop and

elaborate conceptions of and intuitions about human freedom and self-determination by reference to

which one seeks to assess rights claims and resolve rights conflicts.’’

6 STELL LR 2006 1

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turn now to consider one theory of social justice and transformation that

I believe can assist in evaluating and developing our jurisprudence on

socio-economic rights.

2 2 Social justice as ‘‘participatory parity’’

Notions of social justice are of course highly contested in a pluralist

society. Any theory of social justice that is to do real work in interpreting

and adjudicating constitutional claims must be compatible with a

diversity of opinions regarding the good life. This is a pre-requisite in a

constitutional dispensation such as our own that takes seriously the equal

autonomy and moral worth of human beings.

7

At the same time, it must

supply sufficiently determinative criteria for adjudicating concrete cases.

Finally, it must be consonant with the values and ethos of the

Constitution.

Fraser

8

develops a theory of social justice based on the principle of

participatory parity. This principle recognises the right of all to

participate and interact with each other as peers in social life. As such

it is compatible with a plurality of different views of the good and ethical

disagreements. At the same time, she develops specific criteria for

assessing whether institutional arrangements accord people ‘‘the status of

full partners in social interaction’’.

9

Formal notions of equality are

rejected as insufficient. Instead, her theory focuses on the substantive

requirements to ensure that everyone has access to ‘‘the institutional

prerequisites of participatory parity’’, particularly the economic resources

and the social standing needed to participate on a par with others.

10

Fraser identifies two major obstacles to social justice conceived in

terms of promoting greater parity of participation in social life and

overcoming institutional patterns of subordination of different classes

and groups. The first, misrecognition, entails a form of status

subordination ‘‘in which institutionalized patterns of cultural value

impede parity of participation for some’’.

11

This involves systemic forms

of discrimination and disadvantaging of certain groups on grounds such

as race, gender and sexual orientation. Examples are marriage laws that

exclude same-sex partnerships, social-welfare policies that stigmatise

single mothers as sexually irresponsible scroungers, and policing practices

7

The recognition of the equal moral worth of people requires respect for difference and a diversity of

views and lifestyles: Prince v President, Cape Law Society 2002 2 SA 794 (CC): ‘‘The protection of

diversity is the hallmark of a free and open society. It is the recognition of the inherent dignity of all

human beings. Freedom is an indispensable ingredient of human dignity.’’ (per Ngcobo J par 49).

8

Justice Interruptus: Critical Reflections on the ‘‘Postsocialist’’ Condition (1997); ‘‘Rethinking

Recognition’’ 2000 3 New Left Review 107; Social Justice in the Age of Identity Politics: Redistribution,

Recognition and Participation in Fraser & Honneth Redistribution or Recognition? A Political-

Philosophical Exchange (2003).

9

Fraser Redistribution 229.

10

Participatory parity is described as constituting ‘‘a radical democratic interpretation of equal autonomy.

Far more demanding than standard liberal interpretations, this principle is not only deontological but

also substantive.’’ See Fraser Redistribution 229.

11

Fraser Redistribution 87.

NEEDS, RIGHTS AND TRANSFORMATION 7

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