Realising Socio-Economic Rights in An Unequal Society

• Citation: (2024) 35 Stell LR 1
• DOI: https://doi.org/10.47348/SLR/2024/i1a1
• Published date: 06 February 2025
• Pages: 1-20
• Author: Kollapen, J.
• Date: 06 February 2025

https://doi.org/10.47348/SLR/2024/i1a1

1

REALISING SOCIO-ECONOMIC RIGHTS IN AN

UNEQUAL SOCIETY

Jody Kollapen

Justice of the Constitutional Court of South Africa*

Abstract

The colonial and apartheid systems created widespread poverty and

inequality which, in tandem with each other, shaped the lives of millions of

our people. The Constitution of the Republic of South Africa, 1996, beyond

recognising this legacy, contains a clear and unconditional commitment

to fundamentally changing it. This contribution explores the achievements

and challenges in redressing poverty and inequality, two key elements of

the legacy of apartheid, which continues to plague South African society

30 years after the rst democratic elections. It focuses on the relationship

between equality and socio-economic rights, and the evolving constitutional

jurisprudence on these rights. It proceeds to examine the implications of the

chasm between the public and private spheres of our society in redressing

the inequalities in our society, raising the question of redistributive justice.

Thereafter this contribution examines the role of the courts in addressing

poverty and inequality. It identies the important role that context-sensitive

adjudication can play, while also highlighting the institutional constraints of

the judiciary. The contribution concludes by exploring the reasonableness

model of review for adjudicating socio-economic rights claims. It identies the

features of reasonableness review that enable courts to promote government

accountability for socio-economic rights realisation while respecting the

separation of powers doctrine. The paper concludes that while courts have

a vital role to play, addressing poverty and inequality is ultimately a joint

responsibility shared by the people of this country.

Keywords: Socio-economic rights; substantive equality; reasonableness

review; role of courts; transformative adjudication

* This contribution is based on a lecture delivered on the occasion of the SU Faculty of Law and

the HF Oppenheimer Chair ’s Annual Human Rights Lecture, which was held in a hybrid format

at the SU Law Faculty on 19 March 2024. The Faculty and the Chair acknowledge with gratitude

the sponsorship of the Annual Human Rights Lecture by Webber Wentzel.

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2 STELLENBOSCH LAW REVIEW 2024 1

https://doi.org/10.47348/SLR/2024/i1a1

1 Introduction

On 29 May 2024, we held our seventh democratic elections and, by all

accounts, a review of the results, and listening to ordinary people relate their

experience of democracy, it was a watershed one. It came, as most things

in our country seem to do, at an important time in our trajectory as a young

democracy. In many respects, the election was already important as, for the

rst time, independent candidates contested seats in the National Assembly.1

The South Africa that reected on and celebrated 30 years of its democratic

life was always meant to be, required to be and, indeed, chose to be, different

from the society we said we would leave behind. It was to be different in

its character, in its content and in its outcomes. Although the transition to

democracy was a negotiated one in which compromises were made, the idea

of a new society, one radically different from the one we fought against,

was the ideal we all cherished. Even in the euphoria that swept through

South Africa during the early nineties, we were mindful that it would take

time, require hard work and be the cause of some pain and anguish. In all

of this, however, there was the expectation of change that hung in the air

and that we hoped would shape the consciousness of the new society that

came into being. We hoped that we had learnt hard and bitter lessons from

the past and that we would turn our backs decisively and purposefully on that

past. Today, 30 years later, we continue to debate how far we have come in

that process.

Apartheid was evidenced by its peculiar and persistent brutality and

its callous disregard for humanity; democracy, by contrast, would express

a compassionate and human face. As apartheid entrenched a political,

economic, social and personal system based on exclusion and privilege,

democracy would herald a society based on inclusion and equality in our

diversity. And, as apartheid deliberately sought to entrench inequality and

poverty overwhelmingly on the basis of race, democracy would bring with

it the commitment to achieve substantive equality and the solemn promise

of a better life.

These aspirations nd expression in the Preamble to our Constitution

of the Republic of South Africa, 1996 (“the Constitution”), its founding

provisions and in its various chapters, particularly in Chapter 2, which is the

Bill of Rights. The commitment to social justice, the idea that South Africa

belongs to all who live in it, and the commitment to improve the quality of

life and free the potential of each person all compellingly capture the spirit

of our struggle and the vision for the future.

1 This is pursuant to the judgment of the Constitutional Court in New Nation Movement v President

of the RSA 2020 6 SA 257 (CC).

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