Adjudication of Social and Economic Rights in South Africa: Beyond the Rhetoric of Illegitimacy and Excessive Complexity

Except for the minority language educational rights guaranteed by section 23, the Canadian Charter of Rights and Freedoms does not recognize any social and economic rights. However, despite that exclusion, many academics, lawyers and other proponents of human rights have challenged socioeconomic inequities in courts. Sections 7 and 15 of the Charter, which respectively protects security and equality rights, have served as tools for the indirect recognition of fundamental social and economic rights, such as the right to health and the right to an adequate standard of living. Unfortunately, Canadian courts have been reluctant to recognize that sections 7 and 15 could be extended to the socioeconomic context and to interpret it as to give rise to positive obligations on the part of the State. Courts generally see social and economic rights as illegitimate based on the pressure exerted by these rights on the State budget. Judges also consider themselves incompetent to adjudicate complex socioeconomic issues. Social and economic rights are then considered as unjustifiable or unenforceable. The South African Constitution, as opposed to the Canadian Charter, protects some social and economic rights that are directly enforceable by courts. The South African Constitutional Court has developed an innovative and promising approach to the adjudication of those rights. In the Grootboom case (2000), the Court found that social and economic rights are justifiable and imposed a general obligation on the State, subject to the availability of resources, to take reasonable and adequate measures to fulfill the basic needs of South African citizens. The Court also found in the Treatment Action Campaign case (2002) that courts have a broad power to enforce social and economic rights if the State fails to do so. Courts can limit the remedy to a declaration of rights or, in appropriate circumstances, may order the State, through a mandatory relief or an injunction, to take positive steps to fulfill these rights and oblige it to report back to the court. By formulating a general obligation of reasonableness and in recognizing to the State the deference needed to choose the means to realize social and economic rights, the South African Constitutional Court approach reaches a balance between the different but essential roles of the courts and the legislator.