Pretoria University Law Press (PULP)

PULP is an open-access publisher based at the Centre for Human Rights, University of Pretoria

Constitutional Deference, Courts and Socio-Economic Rights in South Africa

Constitutional Deference, Courts and Socio-Economic Rights in South Africa
by Kirsty McLean
2009
ISBN: 978-0-9814124-8-1
Pages: viii 246
Print version: Available
Electronic version: Free PDF available

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About the publication

The inclusion of justiciable socio-economic rights in the 1996 South African Constitution raises a number of concerns for the South African Judiciary. At the heart of these difficulties is the tension between giving full effect to these rights, and the appropriate role of the courts in a constitutional democracy in the determination of social and economic policy. In this book, Dr Kirsty McLean grapples with this question, developing a concept of constitutional deference to interrogate the approach of the South African courts and provide a framework in which a normative framework can be developed and criticised.

“As we set out on the journey to develop a progressive jurisprudence of social and economic rights, it seems to me that we should accept that it is unlikely that we will achieve consensus on the proper role for courts in this field. Like other areas of constitutional adjudication, our understanding of the proper role of courts will depend on deep and contested questions of political and moral philosophy. The contestation that will inevitably persist, therefore, makes it all the more important that contributions to the debate are clear and principled. This book is both.”
- Kate O’Regan, Former Justice of the Constitutional Court of South Africa

About the editor:

Kirsty McLean was called to the Bar in Johannesburg in December 2008. Her areas of practice include general commercial law; public law; constitutional law; administrative law; pension fund law; labour law; unlawful competition and competition law.


Table of Contents

ACKNOWLEDGMENTS
FOREWORD

INTRODUCTION
1 The creation of the United Nations and the International Bill of Rights
2 Domestic protection of socio-economic rights
3 The South African debate
4 The South African Constitution

  1. COMPARATIVE PERSPECTIVES ON DEFERENCE
    1 Introduction
    2 Canadian approaches to deference
    2.1 The Canadian Charter of Rights and Freedoms
    2.2 Democratic dialogue
    2.3 Case law
    2.4 Themes in Canadian approaches to deference
    3 The United Kingdom
    3.1 The Human Rights Act
    3.2 Standard of review
    3.3 Case law
    3.4 Themes in the United Kingdom’s approach to deference
    4 Conclusion
  2. CONSTITUTIONAL DEFERENCE
    1 Introduction
    2 Deconstructing deference
    2.1 Principles of democracy
    2.2 Institutional competence
    2.3 The nature of the subject matter
    3 The South African courts’ approach to deference
    4 Conclusion
  3. OBJECTIONS TO SOCIO-ECONOMIC RIGHTS
    1 Introduction
    2 Challenges posed to socio-economic rights as constitutional rights
    2.1 Historical origin
    2.2 Socio-economic rights as ‘rights’
    2.2.1 Universality
    2.2.2 Fundamentality
    2.2.3 Immediate realisation and positive obligations
    2.2.3.1 Positive and negative rights
    2.2.3.2 Resource constraints
    2.2.4 Specificity and lack of remedies
    3 Challenges posed by socio-economic rights for judicial review
    3.1 Separation of powers
    3.2 Justiciability
    3.3 Democratic deficit
    3.3.1 Policy and budgetary decisions
    3.3.2 Politicisation of the judiciary
    3.4 Institutional competence
    4 Conclusion
  4. ADJUDICATION OF SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA
    1 Introduction
    2 Justiciability
    3 Overview of the case law
    3.1 The right to healthcare and emergency medical treatment
    3.1.1 Emergency medical treatment
    3.1.2 Reasonableness
    3.1.3 Deference and separation of powers
    3.1.4 Negative and positive rights
    3.2 The right to adequate housing
    3.2.1 Children’s rights to shelter
    3.2.2 International law and the right to housing
    3.2.3 Reasonableness
    3.2.4 Meaningful engagement
    3.3 The right to social welfare
    3.3.1 Reasonableness expanded
    3.3.2 Budgetary considerations
    3.3.3 Equality and socio-economic rights
    4 Conclusion
  5. THE INTERPRETATION AND ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS
    1 Introduction
    2 The test for constitutionality
    2.1 The reasonableness test
    2.2 The relationship between parts (1) and (2) of the internally-limited right
    3 The content of socio-economic rights
    3.1 Minimum core interpretation
    3.2 Engaging the content of the right
    4 The role of budgetary limitations in interpretation
    4.1 The scope of the right
    4.1.1 Internally-limited rights
    4.1.2 Unqualified rights
    4.2 Reasonableness of the state’s measures
    4.2.1 The duty to take reasonable measures
    4.2.2 Within available resources
    5 Remedies
    6 Conclusion

CONCLUSION
1 Political and economic context
1.1 Transitional democracy
1.2 Shifts in macro-economic policy
2 The role of the courts in South Africa’s democracy
2.1 The balance of powers between the three branches of state
2.2 Separation of powers in South Africa
3 The South African courts’ approach to socio-economic rights
4 Future developments
BIBLIOGRAPHY
TABLE OF AUTHORITIES
SUBJECT INDEX


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