Opening Pandora’s box : a legal analysis of the right to food in South Africa

• Author: Bright Nkrumah
• DOI: 10.10520/EJC-17a5f4ac82
• Published date: 20 August 2019
• Date: 20 August 2019
• Record Number: dejure_v52_n2_a3
• Pages: 47-64

Opening Pandora’s box: a legal analysis of the right to food in South Africa 47

Opening Pandora’s box: a legal analysis of

the right to food in South Africa

Bright Nkrumah

Mphil Dphil

Research Fellow of the School of Social Sciences, University of KwaZulu Natal

SUMMARY

The right to food (RTF) is a popular concept in South Africa. Its inclusion in

the 1996 Constitution raised the hopes and promised a better life for

many. By enshrining a broad spectrum of (civil/political and economic/

social) rights, the Constitution symbolised a commitment and a bold

statement by the state to promote the fundamental rights of every

individual. Nonetheless, after two decades since its adoption, the lofty

ideals of the Constitution remain a pipe dream to many (who continue to

face abject poverty, endemic hunger and malnutrition). It is clear that

although the RTF under sections 27 and 28 is noble in purpose; its

operationalisation has been fraught with several legal hurdles. To

overcome these challenges, this article outlines some recommendations

on how human rights activists and legal practitioners can overcome

assertion often advanced against the realisation of this right. As such, there

is a need to provide policy options and legal clarity on how to enforce the

RTF. To this end, the paper provides claims which could be submitted

before a court or domestic human rights bodies on why government must

momentarily adopt reasonable steps to fulfil its obligation under section

27(1)(b).

1Introduction

The main motivation for the inclusion of the concept of the right to food

(RTF) in the 1996 Constitution by South Africa’s democratically elected

government, was the failure of its predecessor (the apartheid regime) to

respond appropriately to the prevalence of food poverty (inability to

produce or afford food) which plagued many black South Africans.1 In

documenting the food insecurity situation of the majority of South

Africans during the apartheid regime, Dugard succinctly avows that:

[a] vast web of statutes and subordinate legislation confine the African to his

tribal homeland and release him only in the interest of the agricultural and

industrial advancement of the white community. When he visits a ‘white

area’ as a migrant labourer he does so on sufferance, shackled by the chains

of legislation and administrative decision.2

1 The Preamble of the Constitution of the Republic of South Africa Act 108 of

1996 (the 1996 Constitution) states that “through our freely elected

representative, adopt this Constitution as the supreme law of the Republic

so as to improve the quality of life of all citizens and free the potential of

each person”.

2 Dugard Human Rights and the South African Legal Order (1978) 73.

How to cite: Nkrumah ‘Opening Pandora’s box: a legal analysis of the right to food in South Africa’ 2019 De

Jure Law Journal 47-64

http://dx.doi.org/10.17159/2225-7160/2019/v52a3

48 2019 De Jure Law Journal

It was against this backdrop that Nelson Mandela avowed that:

[a] simple vote, without food, shelter and health care is to use first generation

rights as a smokescreen to obscure the deep underlying forces which

dehumanize people. It is to create an appearance of equality and justice,

which by implication socioeconomic inequality is entrenched. We do not

want freedom without bread, nor do we want bread without freedom. We

must provide for all the fundamental rights and freedoms associated with a

democratic society.3

The 1996 Constitution, thus, provides for an unprecedented RTF for

everyone, regardless of race, religion or sex. Section 27(1)(b) of the

Constitution specifically provides that everyone has the right to have

access to sufficient food, while section 28(1)(c) of the Constitution

guarantees the right of every child “basic nutrition”.4 These provisions

make the RTF undeniably justiciable. For even though section 27(1)(b) of

the Constitution is watered down by subsection 2 (which entreats the

state to fulfil its obligation based on available resources), there is no

clawback clause limiting the enjoyment of section 28(1)(c) of the

Constitution.5 Section 27(2) of the Constitution further imposes an

obligation on the state to adopt positive measures to ensure that

everyone has adequate access to food. Positive measures simply refers

to the framing and operationalisation of suitable polices to enhance the

fulfilment of a specific right.6 Besides the Constitution, food right is

informed by a rich international law jurisprudence,7 and Constitutional

Court decisions, which have demonstrated an inclination to give

economic and social rights substance.8 Moreover, various pieces of

sectoral legislation, related in one way or another to RTF, have also been

enacted.9

Nonetheless, in stark contrast to these gains are a series of setbacks,

which militate against the meaningful realisation of the RTF. The slow

pace of land reform coupled with poor implementation of RTF related

interventions, including poor (and inadequate) provision of social

security grants imply that millions of South Africans are still confronted

3 Mandela “Address: On the Occasion of the ANC’s Bill of Rights Conference”

in A Bill of Rights for a Democratic South Africa: Papers and Report of a

Conference Convened by the ANC Constitutional Committee (May 1991)

12. Own emphasis.

4 Unless otherwise stated, the Constitution refers to the Constitution of the

Republic of South Africa.

5 Constitution ss 27 & 28.

6 Nkrumah Mobilizing for the realisation of the right to food in South Africa

(Dphil Thesis 2017 UP) 38.

7Social and Economic Rights Action Centre and Another v Nigeria (2001)

ACHPR 60.

8Minister of Health v Treatment Action Campaign 2002 10 BCLR 1033 (CC).

9 DSD “National Food Emergency Scheme” 2013 http://www.dsd.gov.za/

index2.php?option=com_docman&task=doc_view&gid=%20%0B515&I

temid=39 (last accessed 2019-04-08); DAFF “Integrated Food Security

Strategy” 2019 https://www.daff.gov.za/daffweb3/Programme/Integrated-

food-Security-and-Nutrition-Programme (last accessed 2019-04-08).