- 2001 (1) SA 46 (CC).
- See, generally, N Haysom ‘Constitutionalism, Majoritarian Democracy and Socio-Economic Rights’ (1992) 8 SAJHR 451; E Mureinik ‘Beyond a Charter of Luxuries: Economic Rights in the Constitution’ (1992) 8 SAJHR 464; D Davis ‘The Case Against the Inclusion of Socio-Economic Demands in a Bill of Rights Except as Directive Principles’ (1992) 8 SAJHR 475; B de Villiers ‘Social and Economic Rights’ in D Van Wyk, J Dugard, B De Villiers & D Davis Rights and Constitutionalism: the New South African Legal Order (1994) 599; S Liebenberg ‘The International Covenant on Economic, Social and Cultural Rights and its Implications for South Africa’ (1995) 11 SAJHR 359; P de Vos ‘The Economic and Social Rights of Children and South Africa's Constitution’ (1995) 10 SA Public Law 233; and P de Vos ‘Pious Wishes of Directly Enforceable Human Rights? Social and Economic Rights in South Africa's Constitution’ (1997) 13 SAJHR 67.
- 1998 (1) SA 765 (CC).
- All references to ‘the Constitution’ in this article are to the Constitution of the Republic of South Africa, Act 200 of 1996.
- Soobramoney (note 3 above) para 29.
- Such a view might find support in an analysis of the (remarkably forthright) Third Bram Fischer memorial lecture, delivered by the President of the Constitutional Court, Arthur Chaskalson in May 2000, just as the judges were sitting down to write the Grootboom decision. See A Chaskalson ‘The Third Bram Fischer Memorial Lecture: Human Dignity as a Foundational Value of Our Constitutional Order’ (2000) 16 SAJHR 193, 202–04.
- On substantive equality see C Albertyn & B Goldblatt ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 SAJHR 248, 255; L'Heureux-Dubé ‘Making a Difference: The Pursuit of Equality and a Compassionate Justice’ (1997) 13 SAJHR 335, 338–41; Pierre de Vos ‘Equality for All?: A Critical Analysis of the Equality Jurisprudence of the Constitutional Court’ (2000) 63 THRHR 62, 66–68.
- I am not contending that the decisions in the two cases reflect exactly the same view of social and economic rights. Clearly, the Grootboom judgment represents a far more nuanced understanding of social and economic rights. Instead, I argue that the underlying reasons for the Court's rejection of the applicant's claim in Soobramoney are the same as those which prompted the Court to find that an infringement of the right of access to housing had indeed occurred in the case of Grootboom.
- See K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 SAJHR 146, 155 and the references to him in Albertyn & Goldblatt (note 6 above); P de Vos ‘A Bridge Too Far? History as Context in the Interpretation of the South African Constitution’ (2001) 17 SAJHR 1.
- Klare (note 9 above) 155.
- Ibid 150.
- I am not claiming that the Court always uses a contextual approach when interpreting the provisions of the Constitution, or that it always uses it in the same manner (or even that the different judges understand and apply this approach in the same way). I do claim that the various judges of the Court often take care to sketch the textual as well as the political and social context within which the constitution operates, before proceeding to give an interpretation of the relevant provision of the Constitution. See S v Zuma 1995 (2) SA 642 (CC) para 15 (reference to R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321; S v Makwanyane 1995 (3) SA 391 (CC) para 266; President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) para 41 and Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) para 32 (quoting from Egan v Canada (1995) 29 CRR (2d) 79, 104–05). For a short review of contextual interpretation by the Constitutional Court see J De Waal, I Currie & G Erasmus The Bill of Rights Handbook 3 ed (2000) 126.
- Grootboom (note 1 above) para 22.
- For a detailed analysis of these duties see De Vos (note 2 above).
- See, for example, s 1(a) (equality must be achieved; human rights and freedoms must be advanced); s 9(2) (to promote the achievement of equality, certain measures may be taken), s 26 (the state must take reasonable steps in order to achieve the progressive realisation of the right of access to housing).
- Section 9(1).
- Section 9(3).
- I use the term ‘real’ equality not to suggest that we could ever create a society in which all people were perfectly equal in terms of talent, opportunities or goods and lived in equal dignity alongside each other. As I have argued above, the equality guarantee entails both a negative and a positive aspect. This requires a rejection of a formal ideal of equal treatment and an acceptance of the idea that the state should take steps in order to progressively bring into existence a society in which individuals would be able to realise their full potential as human beings. This idea of ‘real’ equality is thus related to the concept of ‘substantive equality’ that will be discussed below.
- Section 9(2).
- See, for example, Grootboom (note 1 above) para 25.
- See, for example, Zuma (note 12 above) para 15; Makwanyane (note 12 above) para 39 and para 264; Coetzee v Government of the Republic of South Africa 1995 (4) SA 631 (CC); Prinsloo (note 12 above) para 21; Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 126; Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development; Executive Council, KwaZulu-Natal v President of the Republic of South Africa 2000 (1) SA 661 (CC) para 44; Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC) para 35.
- Ex parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC) para 7. See also Makwanyane (note 12 above) para 262; and Du Plessis (note 21 above) para 125.
- Soobramoney (note 3 above) para 8.
- Ibid.
- See Soobramoney (note 3 above) para 8; Azanian Peoples Organisation (AZAPO) v President of the Republic of South Africa 1996 (4) SA 671 (CC) para 43.
- C Scott ‘The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights’ (1989) 27 Osgoode Hall LJ 769–878; UN Economic and Social Council ‘Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights’ E/CN.4/1987/17 paras 2 and 3; ‘The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights' para 6, published in (1998) 20 Human Rights Quarterly 691. See also Memorandum of Panel of Constitutional Experts ‘The Meaning of “Progressive” (ss 25 and 26)’, dated 6 February 1996, where the ‘interrelationship and indivisibility’ of the different kinds of rights are accepted by the advisors to the drafters of the South African Constitution. See also De Vos (note 2 above) 70–71.
- Bernstein v Bester NO 1996 (2) SA 751 (CC) para 67; Mistry v Interim National Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC) para 16; and National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) 1537 para 31 (per Ackermann J) and para 114 (per Sachs J).
- At the same time, the interpretation of the civil and political rights — particularly the right to equality — will often require of courts to have regard to the nature and scope of the social and economic rights.
- As I shall argue below, this does not mean the achievement of this objective is the only consideration to be taken into account when delimiting the nature and scope of these rights. The way in which this objective is achieved is also important and often a right will be infringed because the manner in which the state or other relevant parties acted did not conform to the constitutionally prescribed limits placed on the conduct of the state or other relevant party.
- Hugo (note 12 above) para 41.
- In Harksen v Lane NO 1998 (1) SA 300 (CC) para 54, the Constitutional Court purported to set out the various stages of the equality clause enquiry. This ‘test’ has been severely criticised on a number of grounds. Regardless of the merits of such criticism, the ‘test’ is rather formalistic and is therefore not very helpful in coming to grips with the essence of the Constitutional Court's approach to equality.
- National Coalition (note 27 above) para 16.
- See C Albertyn & J Kentridge ‘Introducing the Right to Equality (1994) SAJHR 149, 152–53.
- See Albertyn & Goldblatt (note 6 above) 255–60; L'Heureux-Dubé (note 6 above) 338–41.
- Hugo (note 12 above) para 41.
- Ibid, where Goldstone J stated: ‘Each case… will require a careful and thorough understanding of the impact of the discriminatory action upon the paraticular people concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not. A classification which is unfair in one context may not necessarily be unfair in a different context.’
- Of course, not all action by the state or other relevant parties purportedly aimed at achieving the equality goals set out in the Constitution will be deemed to be acceptable. This is because the Constitution requires this goal to be achieved in a specific manner, namely through action that is not unfair, given the specific social and economic context. Thus, in City Council of Pretoria v Walker 1998 (2) SA 363 (CC) paras 73–81, the majority found that the Pretoria City Council's ‘policy’ of selective enforcement of debts constituted unfair discrimination, despite the fact that it formed part of the Council's attempt to address the imbalances of the past.
- Note 1 above.
- Ibid para 2–5.
- Ibid para 6.
- Ibid para 53, para 61–65.
- Ibid para 8, para 51.
- Ibid para 20. In the judgment in the Cape High Court (Grootboom v Oostenberg Municipality 2000 (3) BCLR 277 (C)) Davis J rejected the applicant's claim based on s 26, but concluded that the state's inaction constituted a breach of s 28(1)(c). The Constitutional Court overturned this ruling. It is beyond the scope of this article to deal with this aspect of the judgment.
- Ibid para 13.
- Ibid para 91.
- Ibid para 95.
- Ibid.
- Grootboom v Government of the Republic of South Africa (CCT Case 38/00, order made on 21 September 2000, unreported).
- Grootboom (note 1 above) para 1.
- Soobramoney (note 3 above) para 8 (quoted in Grootboom (note 1 above) para 25.
- Grootboom (note I above) para 23.
- Ibid paras 20 and 34.
- Ibid para 38.
- Ibid paras 88 and 89.
- Ibid para 93.
- Ibid paras 94–95.
- Ibid para 36.
- Ibid para 43.
- Ibid para 44.
- Ibid para 46.
- Ibid para 42.
- See generally Albertyn & Goldblatt (note 6 above).
- Note 37 above. For criticism of the judgment in the case see S Jagwanth ‘What is the Difference? Group Categorisation in Pretoria City Council v Walker’ (1999) 15 SAJHR 200.
- See note 31 above.
- Pretoria City Council v Walker (note 37 above) paras 76–81.
- Ibid para 48.
- Ibid para 113.
South African Journal on Human Rights
Volume 17, 2001 - Issue 2