Interpretation of Socio-economic Rights PDF

STUDY THEME 13 THE INTERPRETATION OF SOCIO-ECONOMIC RIGHTS MS. NEL 1. INTRODUCTION Examples of socio-economic rights: • The right to Education – Section 29 • The right to Food – Section 27(1), 28(1)(c) and 35(2)(e) • The right to Health – Section 27(1), 28(1) and 35 • The right to Land – Se...

STUDY THEME 13 THE INTERPRETATION OF SOCIO-ECONOMIC RIGHTS MS. NEL 1. INTRODUCTION Examples of socio-economic rights: • The right to Education – Section 29 • The right to Food – Section 27(1), 28(1)(c) and 35(2)(e) • The right to Health – Section 27(1), 28(1) and 35 • The right to Land – Section 25 • The right to Water – Section 27(1)(b) • Environmental rights – Section 24 • The right to Social Security – Section 27(1)(c) and 28(1)(c) • The right to Housing – Section 26, 28(1)(c) and 35(2)(e) 1. INTRODUCTION What are socio-economic rights? • The entitlements to those conditions and resources necessary for the material wellbeing of all people. • This includes a wide range of rights that are hotly debated on whether or not they are rights in the first place. • Specially important in the South African case due to the disparity between the ‘haves’ and the ‘have-nots’ in society due to our country’s racist and exclusionary history. • This history has created disparities in: o Education infrastructure; o Health infrastructure; o Water infrastructure; o Electricity. 1. INTRODUCTION The Preamble of the Constitution states that one of the aims of the adoption of the Constitution is to improve the quality of life and free the potential of each person. Klare characterises the Constitution as ‘social, redistributive, caring, positive, at least partly horizontal, participatory, multicultural, and self-conscious about its transformative role and mission’. Kriegler J states that ‘Our Constitution aims at establishing freedom and equality in a grossly disparate society …’. The recognition of socio-economic rights stems from the acknowledgement that without food, water, health care, education and social security, human beings cannot survive. The inclusion of socio-economic rights as justiciable rights in the South African Bill of Rights makes the redress of poverty a matter of fundamental constitutional concern. 2. OBJECTIONS RAISED AGAINST THE INCLUSION OF SOCIO-ECONOMIC RIGHTS Arguments have been made that these rights are not “universally accepted fundamental rights”. • They argue that these decisions are hard to leave to the discretion for courts to deicide • The debate is political as well as legal. • The nature of these rights extends beyond the scope that are currently considered in our present discussion. Some say that these rights are inconsistent with the separation of powers doctrine. • Judicial deference has emerged as a part of this discourse wherein courts defer answering certain questions and leaves them within the hands of the state to decide to not undermine the separation of powers. Others believe that these rights are not justiciable. 3. DUTIES OF THE STATE TO RESPECT, PROMOTE AND FULFIL SOCIO-ECONOMIC RIGHTS Section 7(2) of the Constitution establishes that the rights in the Bill of Rights impose a combination of negative and positive duties on the State: • The “duty to respect” requires the State to refrain from law or conduct that directly or indirectly interferes with people’s enjoyment of socio-economic rights, for instance, refraining from arbitrary forced evictions of people from their homes; • The “duty to protect” places a duty on the state to take legislative and other measures to protect the vulnerable group against violations of their rights by more powerful private parties; • The “duty to promote” embraces awareness-rising and educational measures for accessing the rights; • The “duty to fulfil” requires the state to take positive measures to ensure that those persons who currently lack access to the rights gain access to them. 4. PROGRESSIVE REALISATION OF SOCIO AND ECONOMIC RIGHTS The state must move towards the realisation of socio-economic rights; The state does not have a right to suspend efforts to ensure the full realisation of socio-economic rights; The state has an obligation to begin to take full steps to fulfil its obligation to realise the rights; Realisation of the rights requires an effective utilisation of available resources; NB! Such realisation is not dependant on the increase in resources. 5. JUSTICIABLE RIGHTS It is constitutionally acceptable for a court to assess the progressive realisation of economic rights, which would require the actions of several mechanisms in concert. Because the responsibility of constructing and enforcing laws belongs to the legislative and the executive branches, respectively, judicial enforcement of economic rights might be misconstrued as a denigration of the checks and balances system. On the other hand, judicial review necessitates that courts evaluate the consistency of legislation and government action with constitutional ideals, aspirations, and obligations. Ensuring the human rights of individuals to shelter, food, and basic economic stability, foundational to the to the realisation of their human dignity, is well within those constitutional bounds. 5. JUSTICIABLE RIGHTS Due to their unelected status, the role and expanse of the courts is constantly in question. But it is this status that insulates judges from the public, enabling them to protect individuals and groups while exercising objectivity. There is an institutional bias toward preserving the public good over individual rights because the latter creates a risk that may conflict with a public interest, a risk that public officials want to minimise. Whereas public officials may base decisions off public approval, insulated judges are distanced from public sentiments and can remain consistent in their values and decisions. These factors establish the credibility needed to exercise powerful judicial review. 6. CASE LAW 1) Soobramoney v Minister of Health, Kwazulu Natal 1998 (1) SA 765 (CC). 2) Grootboom v Oostenberg Municipality 2000 (3) BCLR 227. 3) Minister of Health v Treatment Action Campaign “TAC” 2002 (5) SA 703. 4) Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) (8 October 2009). 6.1 SOOBRAMONEY – HEALTH The applicant was an unemployed male in the final stages of chronic renal failure and sought a court order directing a provincial hospital to provide him ongoing dialysis and for an interdict against the provincial Minister of Health from refusing the applicant admission to the renal unit at a provincial hospital. Without the above treatment the applicant would die as he could not afford to obtain the treatment from a private hospital/clinic. Mr Soobramoney applied to the Durban High Court claiming that he had a right to receive renal dialysis treatment from the hospital in terms of section 27(3) (which provides that no-one may be refused emergency medical treatment) and section 11 (the right to life) of the 1996 Constitution. The application was dismissed. On appeal the Constitutional Court held that the right not to be refused emergency medical treatment meant that a person who suffers a sudden catastrophe which calls for immediate medical attention should not be denied ambulance or other emergency services which are available and should not be turned away from a hospital which is able to provide the necessary treatment. Mr Soobramoney suffers from chronic renal failure and will require dialysis treatment two to three times a week to keep him alive. The Court decided that this was not an emergency which called for immediate remedial treatment. 6.1 SOOBRAMONEY – HEALTH The Court held that if treatment had to be provided to Mr Soobramoney it would also have to be provided to all others in a similar position and the resources available to Addington Hospital could not accommodate the demand. Furthermore, the cost of providing renal dialysis twice a week to a single patient is R60 000 per annum and to expand the programme to cover everyone who requires renal dialysis would make substantial inroads into the health budget and prejudice other obligations which the state has to meet. The Court went on to consider whether Mr Soobramoney ought to receive dialysis treatment at a state hospital in accordance with the provisions of the Constitution which entitle everyone to have access to health care services provided by the state (section 27). The Court noted that the state has a constitutional obligation within its available resources to provide health care, as well as sufficient food and water and social security. The Court held that the responsibility for making the difficult decisions of fixing the health budget and deciding upon the priorities that needed to be met lay with political organs and the medical authorities and added that the Court would be slow to interfere with such decisions if they were rational and taken in good faith. The Court concluded that it had not been shown that the state’s failure to provide renal dialysis facilities for all persons suffering from chronic renal failure constitutes a breach of its constitutional obligations. 6.2 GROOTBOOM – HOUSING/SHELTER This case raises the state’s obligations under section 26 of the Constitution, which gives everyone the right of access to adequate housing, and section 28(1)(c), which affords children the right to shelter. It concerns questions about the enforceability of social and economic rights. Concerned a group of adults and children who moved onto private land from an informal settlement owing to appalling conditions; They were evicted from the private land and camped on a sports field in the area; They applied to the Cape Town High Court on an urgent basis for an order against all three spheres of government to be provided with temporary shelter or housing until they obtained permanent accommodation. 6.2 GROOTBOOM – HOUSING/SHELTER The Cape of Good Hope High Court found that the children and, through them, their parents were entitled to shelter under section 28(1)(c) and ordered the national and provincial governments as well as the Cape Metropolitan Council and the Oostenberg Municipality, immediately to provide them with tents, portable latrines and a regular supply of water by way of minimal shelter. After the case had been started in the High Court, an Accelerated Managed Land Settlement Programme had been introduced by the Cape Metropolitan Council to fulfil this need. This programme needs to be effectively implemented. The Court stressed that the judgment should not be understood as approving any practice of land invasion for the purpose of coercing a state structure into providing housing on a preferential basis to those who participate in any exercise of this kind. The Court issued a declaratory order which required the state to devise and implement a programme that included measures to provide relief for those desperate people who had not been catered for in the state programme applicable in the Cape Metropolitan area before the Accelerated Managed Land Settlement Programme had been introduced. 6.3 TAC – HEALTH Involved a challenge to the limited nature of the measures introduced by the state to prevent mother-to-child transmission of HIV; The case started as an application in the High Court in Pretoria on 21 August 2001. The applicants were a number of associations and members of civil society concerned with the treatment of people with HIV/AIDS and with the prevention of new infections; Government, as part of a formidable array of responses to the pandemic, devised a programme to deal with mother-to-child transmission of HIV at birth and identified nevirapine as its drug of choice for this purpose. The programme imposes restrictions on the availability of nevirapine in the public health sector. The applicants contended that these restrictions are unreasonable when measured against the Constitution, which commands the state and all its organs to give effect to the rights guaranteed by the Bill of Rights; At issue here is the right given to everyone to have access to public health care services and the right of children to be afforded special protection. The second main issue also arises out of the provisions of sections 27 and 28 of the Constitution. It is whether government is constitutionally obliged and had to be ordered forthwith to plan and implement an effective, comprehensive and progressive programme for the prevention of mother-to-child transmission of HIV throughout the country. 6.3 TAC – HEALTH The Court has made substantial additional funds available for the treatment of HIV, including the reduction of mother-to-child transmission. The total budget to be spent mainly through the Departments of Health, Social Development and Education was R350 million in 2001/2. It has been increased to R1 billion in the current financial year and will go up to R1,8 billion in 2004/5. This means that the budgetary constraints referred to in the affidavits are no longer an impediment. With the additional funds that are now to be available, it should be possible to address any problems of financial incapacity that might previously have existed. In the present case we have identified aspects of government policy that are inconsistent with the Constitution. The decision not to make nevirapine available at hospitals and clinics other than the research and training sites is central to the entire policy. Once that restriction is removed, government will be able to devise and implement a more comprehensive policy that will give access to health care services to HIVpositive mothers and their new born children, and will include the administration of nevirapine where that is appropriate. The policy as reformulated must meet the constitutional requirement of providing reasonable measures within available resources for the progressive realisation of the rights of such women and new born children. 6.4 MAZIBUKO – WATER The Constitutional Court delivered a judgment in a case concerning the right of access to water entrenched in section 27 of the Constitution, which provides that everyone has the right to “sufficient water”. The case considers the lawfulness of Operation Gcin’amanzi, a project the City of Johannesburg piloted in Phiri in early 2004 to address the severe problem of water losses and non-payment for water services in Soweto. This project involved re-laying water pipes to improve water supply and reduce water losses, and installing pre-paid meters to charge consumers for use of water in excess of the 6 kilolitre per household monthly free basic water allowance. The Constitutional Court held that the obligation placed on government by section 27 is an obligation to take reasonable legislative and other measures to seek the progressive realisation of the right. In relation to the Free Basic Water policy, therefore, the question is whether it is a reasonable policy. The Court notes that it is implicit in the concept of progressive realisation that it will take time before everyone has access to sufficient water. 6.4 MAZIBUKO – WATER The Court concluded, in contrast to the High Court and the Supreme Court of Appeal, that it is not appropriate for a court to give a quantified content to what constitutes “sufficient water” because this is a matter best addressed in the first place by the government. The national government has adopted regulations which stipulate that a basic water supply constitutes 25 litres per person daily; or 6 kilolitres per household monthly (upon which the City’s Free Basic Water policy is based). The Court concluded that it cannot be said that it is unreasonable for the City not to have supplied more, particularly given that, even on the applicants’ case, 80% of the households in the City will receive adequate water under the present policy. The Court noted that 100 000 households within Johannesburg still lack access to the most basic water supply, that is a tap within 200m of their household; The Court affirmed the democratic value of litigation on social and economic rights. It noted that the applicants’ case required the City to account comprehensively for the policies it has adopted and establish that they are reasonable. During the litigation, and perhaps because of it, the City has repeatedly reviewed and revised its policies to ensure that they do promote the progressive achievement of the right of access to sufficient water.