Substantive equality after Grootboom: the emergence of social and economic context as a guiding value in equality jurisprudence

• Jurisdiction: South Africa
• Published date: 23 May 2019
• Date: 23 May 2019
• Pages: 52-69
• Citation: 2001 Acta Juridica 52
• Author: Pierre de Vos

Substantive equality after Grootboom: the

emergence of social and economic context as

a guiding value in equality jurisprudence

PIERRE DE VOS*

University of the Western Cape

‘The case brings home the harsh reality that the Constitution’s promise of

dignity and equality for all remains for many a distant dream.’

1

I INTRODUCTION

The Constitutional Court judgment in Government of the Republic of

South Africa and Others v Grootboom and Others

2

seems to differ sharply

in tone and content from the Court’s previous attempt at dealing with

social and economic rights. When the Constitutional Court was first

asked to deliberate on the scope and content of the right of access to

health care services, it declined to engage in any meaningful way with

the very difficult issues presented by the inclusion of social and eco-

nomic rights in the Constitution, stating that it would be slow to

interfere with any rational decision taken in good faith by the political

organs and medical authorities.

3

In Grootboom, however, the Court

showed a remarkable new commitment to finding ways of enforcing

the social and economic rights guaranteed in the Constitution, moving

away from its insistence on the mere rationality of state actions to a

standard of reasonableness. There are many possible explanations for

what, at first blush, seems like the Court’s dramatic departure. Yet, I

contend that at the heart of the Court’s approach to social and eco-

nomic rights – in both Soobramoney and Grootboom – lies a particular

understanding of the role of the Bill of Rights as a transformative

document aimed at addressing the deeply entrenched structural in-

equality in our society.

4

The difference in the tone and content of

the two judgments can, in my opinion, therefore be explained primar-

ily with reference to the distinct differences in the facts of the two

* B Com LLB LLM (Stellenbosch) LLM (Columbia) LLD (Western Cape); Associate

Professor, Faculty of Law, University of Western Cape.

1

Yacoob J in Government of the Republic of South Africa and Others v Grootboom and Others 2000

(11) BCLR 1169 (CC) 1175 at para 2.

2

Ibid.

3

See Soobramoney v Minister of Health, KwaZulu-Natal 1997 (12) BCLR 1696 (CC) at para 29.

4

I am not contending that the decisions in the two cases reflect the exact same view of social

and economic rights. Instead, I argue that the reasons why the Court shied away from any real

engagement of the issues in the Soobramoney case (ibid) and rejected the applicant’s claim, are the

same underlying reasons why it jumped at the opportunity to flesh out the conceptual nature of

social and economic rights in the Grootboom case (n 1).

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2001 Acta Juridica 52

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cases. In Soobramoney the applicant sought an order from the Court to

compel the KwaZulu-Natal health department to provide him with

access to dialysis treatment at a time when many poor people in that

province had little or no access to any form of even primary health

care services. In Grootboom the applicants – who were effectively

homeless – came to court to challenge the failure by the state to

take any action to deal with homelessness in the Western Cape. Given

the Court’s contextual approach to interpreting the Bill of Rights, it

becomes clear why it was indifferent to Mr Soobramoney’s claim,

while it went out of its way to address the concerns of Mrs Groot-

boom and her fellow applicants. Both decisions were, to my mind,

based on the Constitutional Court’s understanding of the inegalitarian

context within which it was called upon to interpret the social and

economic rights. In Grootboom Yacoob J admitted as much when he

stated:

‘The context in which the Bill of Rights is to be interpreted was described

by Chaskalson P in Soobramoney:

‘‘We are living in a society in which there are great disparities in wealth.

Millions of people are living in deplorable conditions in great poverty.

There is a high level of unemployment, inadequate social security, and

many do not have access to clean water or to adequate health services.

These conditions already existed when the Constitution was adopted and a

commitment to address them, and to transform our society into one in

which there will be human dignity, freedom and equality, lies at the heart

of our new constitutional order. For as long as these conditions continue to

exist that aspiration will have a hollow ring.’’ ’

5

Viewed thus, the Constitutional Court’s understanding of the scope

and content of social and economic rights is inextricably linked with

its conception of the right to equality in s 9 of the Constitution. The

Court sees the right to equality on the one hand and social and eco-

nomic rights on the other as symbiotically linked – the one set of

rights providing some of the context within which the other set could

be understood.

Such a claim might seem surprising. On the face of it, the Grootboom

case was not primarily concerned with the scope and content of

the right to equality guaranteed in s 9 of the Constitution. None of the

lawyers raised the right to equality and non-discrimination in their

various briefs and the issue was not raised during the oral arguments

in court. Indeed, at first glance the groundbreaking decision is notable

not for anything the Court might have said about the nature and scope

of s 9 of the Constitution, but rather for confirming that the social and

economic rights contained in the Constitution were justiciable and for

devising a standard that courts can use to determine whether the state

5

Grootboom (n 1) para 25, quoting from Soobramoney (n 3) para 8.

53

SUBSTANTIVE EQUALITY AFTER GROOTBOOM

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