SUBSTANTIVE REASONABLESS REVIEW IN THE CONTEXT OF SOCIO-ECONOMIC by hcj

VIEWS: 5 PAGES: 25

									                     SANDRA LIEBENBERG
UNIVERSITY OF STELLENBOSCH LAW FACULTY,
                            SOUTH AFRICA
                       sliebenb@sun.ac.za
 Denial of dignity, freedom and equality
 Deep socio-economic disparities, deprivation and
  underdevelopment
 Unequal access to social services and resources structured
  along lines of race, class, gender, disability.
 Legacy of steep income-inequality (SA one of the highest
  gini-indexes in the World (World Fact Book, 2009)
 Poverty concentrated in former Bantustan regions, informal
  settlements and historically black townships
 High unemployment
   Impacts of poverty profound
     Spiral of poverty over generations;
     Deepening of other axes of disadvantage – race, gender,
        disability
       Undermining of ability to participate as equals in various
        aspects of society – inability to influence policies
       Substantial obstacles to organisation and mobilisation
       Physical and psychological exhaustion, depression, lack of
        self-worth
       Hopelessness
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   “We…adopt this Constitution…so as to –
      Heal the divisions of the past and establish a society
      based on democratic values, social justice and
      fundamental human rights…
      Improve the quality of life of all citizens and free the
      potential of each person.” [Extracts: Preamble]
   Founding constitutional values:
     Human dignity, the achievement of equality and the
      advancement of human rights and freedoms
     Non-racism and non-sexism
     Accountability, responsiveness and openness [s 1]
   Civil and Political Rights e.g. right to vote, freedom of
    expression, freedom of association, right to equality
    and non-discrimination
   Economic, Social and Cultural Rights e.g. the rights of
    access to adequate housing, protection against
    arbitrary evictions, access to health care, good, water
    and social security, educational rights, socio-economic
    rights of children
   Environmental Rights
   Right to Just Administrative Action
   Right of Access to Information
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   Former President Nelson Mandela

     “A simple vote, without food, shelter and health care is to
     use first generation rights as a smokescreen to obscure the
     deep underlying forces which dehumanise people. It is to
     create an appearance of equality and justice, while by
     implication socio-economic inequality is entrenched. We do
     not want freedom without bread, nor do we want bread
     without freedom. We must provide for all the fundamental
     rights and freedoms associated with a democratic society”




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   All organs of State:
     s 7(2): The State must ‘respect, protect, promote and fulfil’ the
      rights in the Bill of Rights
     Ss 26(2) & 27(2): State must take ‘reasonable’ legislation and
      other measures to achieve the progressive realisation of socio-
      economic rights within its available resources
     Adoption of comprehensive, co-ordinated, accessible and
      transparent social policies, legislation, budgetary measures
     Efficient, effective and honest governance and administration:
      administrative justice (s 33); s 195 (e): ‘People’s needs must be
      responded to, and the public must be encouraged to participate
      in decision-making’
   Non-state actors (ss 8(2) and (3), s 39(2) of
    Constitution)
     Contractual relations: landlord-tenant; banks-mortgagees;
      medical aid schemes
     Property relations: landowner – occupiers / farm-workers
      and dwellers
     Family relations: gender equality, support of defendants,
      care for elderly, children (with appropriate State
      assistance for disadvantaged and impoverished groups)
     Civil society: research, monitor, educate, agitate, advocate
      and, if necessary, litigate to protect socio-economic rights.
“The demobilising of civil society was one of the ‘biggest
mistakes’ made post 1994. As Minister for the RDP I was part
of that grave mistake, because in saying we had a legitimate
government and that the government was there to deliver
on the goals of the RDP; that the government would deliver
houses, schools, hospitals, clinics, jobs and just about
everything else the new South Africa needed, our own
people became bystanders in the process. And that was
when the real engine of our struggle for freedom came to a
grinding halt… . “
J Naidoo ‘South Africa today: From freedom to transformation:
Deepening the voice of the people’ Harold Wolpe Memorial Lecture,
November 2010.
“Sharing responsibility for the problems and consequences
of poverty equally as a community represents the extent to
which wealthier members of the community view the
minimal well-being of the poor as connected with their
personal well-being and the well-being of the community as
a whole. In other words, decisions about the allocation of
public benefits represent the extent to which poor people
are treated as equal members of society.”

Justice Yvonne Mokgoro in Khosa v Minister of Social Development;
Mahlauli v Minister of Social Decelopment 2004 ZACC, para 74.
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   Chapter 9 Institutions:
     SA Human Rights
        Commission
       Commission for Gender
        Equality
       Commission for the
        Promotion and Protection
        of the Rights of Cultural,
        Religious and Linguistic
        Communities
       Public Protector
       Auditor-General

     Investigate, educate,
        monitor, report and
        recommend e.g. s 184(3)
        mandate of SAHRC.
   All the courts have critical role in interpreting and enforcing
    fundamental rights and ensuring that state institutions
    function according to the Constitution.

   Constitutional Court is the highest court in constitutional
    matters.

   Interpretation must promote the values of human dignity,
    equality and freedom, take into SA’s particular history and
    context, international law, and, where relevant, the lessons
    and ‘best practices’ of other democratic countries (s 39)
Relevant programme must be–
   capable of facilitating the realisation of the right;
   comprehensive, coherent, coordinated;
   balanced and flexible and make appropriate provision for
    short, medium and long-term needs;
   both reasonably conceived and implemented;
   transparent, and its contents must be made known
    effectively to the public;
   appropriate human & financial resources must be made
    available for the programme;
   provide relatively short-term relief for those whose situation
    is desperate and urgent.
   A statistical advance in the realisation of the rights is not
    enough – ‘everyone must be treated with care and concern’
Grootboom and Treatment Action Campaign cases
   Balancing and reconciling ownership rights and the
    housing rights of those in desperate need of
    accommodation
   Principles of ‘respectful good neighbourliness’ – spirit of
    ubuntu (PE Municipality, paras 37 & 43)
   Alternative dispute resolution procedures such as
    mediation
   Principle of ‘meaningful engagement’ between
    authorities and communities facing eviction (Occupiers
    of 51 Olivia Rd v City of JHB)
   State must create proactive mechanisms for facilitating
    meaningful engagement – ‘skilled and sensitive council
    workers’
Socio-economic rights litigation has directly or indirectly
resulted in the adoption or extension of important social
programmes in favour of marginalised and
disadvantaged groups
 An emergency housing programme (Grootboom);
 A programme to prevent MTCT of HIV and general
  anti-retroviral programme (TAC);
 The extension of social grants to permanent residents
  (Khosa)
 Substantive and procedural protections for people
  facing evictions from their homes (Jaftha, PE
  Municipality, Olivia Road & other cases)
 Settlement of the ‘mud
  schools’ case brought by LRC
  in the former Transkei:
  Consent order: Government
  to spend over R75 million in
  improving facilities and
  infrastructure of 7 schools
  schools.
 Possibility of intervention by
  national government in
  running of E Cape Education
  Department (Section 100 of
  Constitution )

   Bomvini Village near Libode
   Range of legislation and policy adopted which explicitly
    seeks to give effect to the rights in the sphere of
    housing, health care, water laws reform
   Education rights - legislature has sought to define the
    right to basic education, and in response to research
    and advocacy around school fees as a barrier to access
    has introduced policy reforms (‘fee free’ schools)
 Separation of powers: Courts unwilling to define precisely what
  government must deliver and how they must go about it – will
  only intervene if government action or inaction is unreasonable
  according to the criteria set out above.
 Strategic question as to which constitutional institution to engage
  with and at what stage: community education and mobilisation,
  media, parliament, government, human rights commission, courts
   Many constitutional rights, including socio-economic rights
    entitle poor people to demand that their voices be heard in
    decisions which have a critical impact on their welfare.
   They enhance the accountability and responsiveness of
    government and powerful private actors to the socio-
    economic needs of the poor.
   Significant potential to deepen democratic culture in South
    Africa.




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   Working towards a legal system that
    is more compassionate and
    responsive to the realities and needs
    of impoverished communities.


              Sub-Projects                               Main activities
                                                             Research
       Transformative property law
            André van der Walt                Postgraduate degrees (LLM and LLD) and
   Land reform and security of tenure
              Juanita Pienaar                           specialised training
Constitutional and statutory interpretation
            Lourens du Plessis                  Community outreach and litigation
          Socio-economic rights                        Legal Aid Clinic
             Sandy Liebenberg
          Administrative justice                    Seminar and Conferences:
                Geo Quinot                    Law and Poverty Colloquium: 29 – 31 May
           Equality and redress                               20111
               Ockie Dupper
  Consolidating & deepening democracy         http://www.sun.ac.za/lawandpoverty
                Henk Botha                       Project Manger: Gustav Muller
   Thanks to the following persons and organisations for photos used in
    this presentation:
     The Centre for Applied Legal Studies (Wits) and Beth Goldblatt
      (black & white photos of people living in poverty in and around
      Johannesburg)
     The Treatment Action Campaign website (participants in TAC
      marches)
     Prof Lourens du Plessis, Stellenbosch University: Photos of
      Constitutional Court
     Mr Jean Du Plessis, COHRE (photos of litigants and supports
      during the recent Constitutional Court hearing in City of JHB v
      Various Occupiers)
     Mud schools in former Transkei:
      http://www.timeslive.co.za/local/article631676.ece/6846
     http://www.algoafm.co.za/newsarticle.asp?NewsID=207257
     Photos of gathering water: www.developmentagenda.com;
      www.polity.org.za

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