The South African Constitutional Court has issued internationally significant decisions abolishing the death penalty, legalizing same-sex marriage, and ruling that their Constitution’s socio-economic rights provision are enforceable rather than aspirational. The socio-economic rulings are among the first of their kind internationally with some exceptions (for example, India and Columbia). Yet the Constitutional Court has recently reached a troubling third stage in its socio-economic cases. This will be the first of three posts explaining what has transpired.
The first stage was embodied in decisions such as Republic of South Africa v. Grootboom, 2001 (1) SA 46 (CC), where the Court found that the national government violated Section 26 of the Constitution’s guarantee of access to housing, because the government acted unreasonably in having no policy to shelter the homeless. While honoring the right, the Court left the remedy to the government because of separation of powers and other concerns. The Court went a step further in Minister of Health v. Treatment Action Campaign, 2002 (5) SA 721 (CC) by ordering the government to provide a drug, to pregnant women with AIDS, that would prevent transmission of the disease to their babies. The Court said the government’s refusal was unreasonable in light of Section 27’s guarantee of the right to access health care. Cass Sunstein has argued that both cases adopted an “administrative law” model of deference to the government, in terms of the reasonableness test. The government, however, must also take action to progressively realize the right. These cases refused, though, to impose “minimum core” obligations on the government because the Court said that would be too rigid, especially in light of scarce resources and other factors. South African scholars have generally criticized the decisions for not adopting a minimum core, though I have written extensively about why that criticism is mistaken as have others. Interestingly, former Constitutional Court Justice Richard Goldstone recently stated that “future litigants are open to raise the (minimum core) issue on the basis of an adequate factual record in the trial court.” Gauri, Brinks, Eds., “Courting Social Justice” xii (Cambridge 2008) The next post will discuss the second stage of the Court’s decisions.