Taking Poverty Seriously: The South African Constitutional Court and Socio-Economic Rights

• Jurisdiction: South Africa
• Pages: 664-682
• Date: 16 August 2019
• Author: Stuart Wilson
• Published date: 16 August 2019
• Citation: (2011) 22 Stell LR 664

664

TAKING POVERTY SERIOUSLY: THE SOUTH

AFRICAN CONSTITUTIONAL COURT AND

SOCIO-ECONOMIC RIGHTS

Stuart Wilson

MA LLB

Member of the Johannesburg Bar

Director of Litigation, Socio-Economic Rights Institute of South Africa (SERI)

Visiting Senior Fellow, Wits Law School

Jackie Dugard

BA (Hons) MPhil PhD LLM LLB

Executive Director, SERI

Visiting Senior Fellow, Wits Law School

1 Introduction

The Constitutional Court (“the Court”) has yet to develop a substantive

account of the positive obligations socio-economic rights place on the state. It

has suggested that it is pre cluded from doing so by the pa rticular formulation

of the separation of powers doctrine it has adopted in its later socio-e conomic

rights jur isprudence. Accordingly, in Mazib uko v City of Johann esburg,1 the

Court held that

“ordinarily it is institutionally inappropriate for a court to determine precisely what the achievement

of any particular social and economic right entails and what steps government should take to ensure

the progressive realisation of the right. This is a matter, in the rst place, for the legislature and

executive, the institutions of government best placed to investigate social conditions in the light of

available budgets and to determine what targets are achievable in relation to social and economic

rights. Indeed, it is desirable as a matter of democratic accountability that they should do so for it is

their programmes and promises that are subjected to democratic popular choice.”2

Consistent with the con straints identied above, the C ourt has adopted a

framework which mediates the interpretation of the state’s positive obligations

through t he prism of administ rative law. This interpretive move has resu lted

in a te st which requires policies giving effect to socio- economic rights to be

“reasonable” and to be implemented i n a procedurally fair manner.

In this article, we argue that this approach has not resulted in a jurispr udence

which responds adequately to the interests of the poor. It is true that the Court

regularly speaks, in general terms, of the need to adopt a transformative

adjudicative para digm.3 Yet, in the a rea of socio-economic rights, the Cour t

has chosen not to consider the full transformative potential of the role it might

1 2010 4 SA 1 (CC)

2 Para 60

3 The Cour t has repeatedly recognis ed the transform ative nat ure of the Cons titution See, for example,

Road Accide nt Fund v Mdeyi de2011 2 SA 26 (CC) para 125; H assam v Jacobs NO2009 5 SA 572 (CC)

para 28; Biow atch v Regist rar, Genetic R esources 200 9 6 SA 232 (CC) para 17; Bato Star Fishin g (Pty)

Ltd v Minister of Env ironmental Affair s 2004 4 SA 490 (CC) paras 73-74

(2011) 22 Stell LR 664

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have in elimi nating structu ral inequality and disadvantage. This is i ndicated

by the fact that it has instead turned away from what claimants say about their

lived experiences of poverty in favour of an abstract evaluation of the state’s

justications for its refusal to respond to t hem. W here l ived experiences

of poverty and structu ral disadvantage are considered, they are afforded

insufcient weight.

These interpretive moves construct poverty not as a prima facie

transgression of legal nor ms, but as a ba nal featu re of the social order,

which Judges are enjoi ned to “manage” rather than attempt to el iminate.

They h ave contributed to the de politicisation a nd domestication of poverty

within fundament ally unjust pre-existing patterns of resource distribution ,

social control and disempowerment.4 The intere sts poor people seek to

vindicat e thro ugh litig ation have not b een mea ningfully addresse d in the

Court’s socio-econom ic rights jurispr udence. It seems that t hese inter ests

are, for the moment, to be dened and enforce d throug h “democra tic popular

choice” and not t hrough adjud ication. Yet it is precisely in the supposedly

“democrat ic” arena that po or peoples’ claims for better access to social and

economic goods are mar ginalised and di minished. This i s achieved in no

small measure by bureaucratic processes w hich systemica lly exclude them

and a domina nt economic paradig m which tolerates high levels of str uctural

unemployment.5

We do not suggest that the Court can itself alter the balance of econom ic

forces that sustains st ructural disadvantage. We do, however, suggest that the

Court has underesti mated the i nstitutional role it can play in enabling poor

people to articulate a nd assert their entitlements to the basic social goo ds.6 In

order for the Court’s role in addressing povert y to move from the ameliorative

to the transformative, the Court must take much greater accou nt, within its

interpretive and adjudicative paradigm, of t he lived experience of poverty.

We agree with Sandra Liebenberg,7 when she says that t here is nothing in the

Constitution of the Republic of South A frica, 1996 (“the Con stitution”) or

the doctri ne of the separat ion of powers that precludes the Court from taking

account of the need s, purposes and values which must be served by socio-

economic rights.8 The Court can and must, we arg ue, develop a theory of

these needs and purp oses, by listening more closely to what poor litigants say

in their pape rs about how the social context of poverty a ffects their access to

socio-economic goods. L egal practitioners, too, must be prepare d to put time

4 See D Brand “The ‘Politics of Nee d Inte rpretation’ and the Adjudication of So cio-Economic Rights

Claims in South Afr ica” in AJ van der Walt (ed) Theories of Social and Economic Justic e (2005) 17 17-36;

T Madlingozi “G ood Victim, Bad Victi m: Apartheid’s Beneficia ries, Victims and t he Struggle for Social

Justice” i n W le Roux & K van Marle (eds) Law, Memory and th e Legacy of Ap artheid: Ten Years Af ter

AZAPO v Presi dent of South Afric a (2007) 107 107-126

5 H Marais South Afri ca: Pushed to the Limit: Th e Political Economy of C hange (2011) 126

6 See S Glopp en “ Courts and Social Transfor mation: An Analytic al Fr amework” in R Gargarella, P

Domingo & T Roux (eds) Courts a nd Social Transformati on in New Democracies: An Inst itutional Voice

for the Poor? (2006) 35 35-60

7 S Liebenberg Socio-E conomic Rights: Adjudi cation under a Transfor mative Constit ution (2010)

8 180

TAKING POVERTY SERIOUSLY665

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