Sandra Liebenberg

The value of human dignity in interpreting socio-economic rights

Abstract There has been considerable criticism of the use of human dignity as a guiding value in the context of South Africas equality jurisprudence. What are the implications of the use of the value in socio-economic rights jurisprudence? Drawing on the work of Martha Nussbaum, the article links the value of human dignity to the material conditions necessary to enable people to develop and exercise their capabilities. Access to basic social services is crucial not only to peoples physical survival, but also to enable the development of their potential to shape their own lives and to be active agents in the shaping of our new society. Human dignity as a relational concept requires society to respect the equal worth of the poor by marshalling its resources to redress the conditions that perpetuate their marginalisation. This, in turn, requires a focus on the actual impact of the states actions or omissions on the life chances of disadvantaged groups, and a response that is proportionate to the seriousness of that impact. In constitutional adjudication, it requires that a high burden of justification is placed on the state in cases involving a deprivation of basic human needs. The article concludes by examining how the Constitutional Courts reasonableness review standard and remedial jurisprudence could be strengthened to accord greater value to this conception of human dignity.

The Right to Social Assistance: The Implications of Grootboom for Policy Reform in South Africa

ABSTRACT The 1996 South African Constitution recognises a right of access to social assistance for people who are unable to support themselves and their dependants. This article explores the implications of this right for social security policy development in the light of the principles established in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC). The deep structural problems of poverty and inequality in South Africa have created a crisis of immediate needs for large numbers of people. In this context, it is argued that the effective implementation of social assistance programmes combined with far-reaching measures to improve access to social assistance are necessary to give effect to s 27 of the 1996 Constitution and the values underpinning it.

The interrelationship between equality and socio-economic rights under South Africa's transformative constitution

Abstract This article develops the interrelationship between the equality and socio-economic rights in the Bill of Rights to enhance the responsiveness of our jurisprudence to the mutually reinforcing patterns of poverty and inequality in South Africa. We proceed from the principle that rights are interdependent and interconnected, and examine the implications of this for our evolving socio-economic rights and equality jurisprudence. We argue that such a reading accords with the mandate of the courts to promote the foundational constitutional values of human dignity, equality and freedom in their interpretation of the Bill of Rights, and advances the transformative goals of the Constitution. The article examines how equality jurisprudence should be developed so as to be more responsive to material disadvantage and the values protected by socio-economic rights. Thereafter, it examines how an equality perspective can enrich South Africa’s evolving jurisprudence on socio-economic rights. We demonstrate how the value of equality can be integrated within the model of reasonableness review developed by the Constitutional Court for evaluating positive socio-economic rights claims. Finally, some of the strategic implications of this interdependent reading of equality and socio-economic rights for developing a jurisprudence that facilitates the attainment of social and economic transformation in South Africa are considered.

Social citizenship—a precondition for meaningful democracy

SANDRA LIEBENBERG argues that womens full citizenship depends on accessing socio-economic rights. A systematic process of monitoring the implementation of these rights is critical to their realisation

Giving money to children: The State's constitutional obligations to provide child support grants to child headed households

One of the most tangible effects of the HIV epidemic is the growing number of orphans and the emergence in ever increasing amounts of households headed by children. These new family configurations pose a wide range of challenges to our society. Not least of these is the challenge to change laws that hamper these households from accessing desperately needed benefits. The state currently provides a child support grant (CSG) for children in need. This grant (R170 per month from 1 April 2004) is provided to the ‘primary care giver’ (PCG) of a child who is currently under the age of 11 years. Neither the Social Assistance Act nor the regulations promulgated under it set any age limit for the PCG. Effectively however such a person must be 16 years old as this is the age when an identity document is first provided and a PCG has to provide his or her identity document in applying for the grant. In practice the various offices of the Department of Social Development responsible for administering the CSG are treating applicants differently and some are even turning away those who are under the age of 21. This note argues that the exclusion of children living in child-headed households from the child support grant programme constitutes a violation of the Constitution. In particular the rights to equality and social security as well as children’s socio-economic rights are being breached. Before looking at each of these in turn the history of the CSG the context of child headed households (CHH) and the legal approach towards families will be discussed briefly. (excerpt)

Contested spaces: Housing rights and evictions law in post-apartheid South Africa:

The 1996 South African Constitution is renowned for entrenching a broad range of judicially enforceable socio-economic rights, including the right of everyone to have access to adequate housing and to be protected from arbitrary evictions in section 26. Although the South African Constitutional Court has issued a number of landmark housing rights decisions in recent years, an emphasis on spatial justice remains elusive in the jurisprudence and academic literature on section 26. This is despite the fact that spatial inequality continues to hold profound implications for South Africa’s urban poor. This article analyses the section 26 jurisprudence of the Constitutional Court in the context of the eviction of poor people from their homes in heavily populated urban areas to evaluate to what extent it contributes to the transformation of South Africa’s urban housing landscape by challenging spatial inequality and promoting integrated housing development. The evaluation of the jurisprudence suggests that addressing the spatial consequences of evictions and promoting integrated urban communities remains unfinished business for the development of evictions law in post-apartheid South Africa.

Developing the Law of Joinder in the Context of Evictions of People from their Homes

Abstract There are circumstances in which it is essential to join a party because of the interest that party has in the matter. The underlying principle is that interested parties should be afforded an opportunity to be heard in matters in which it has a direct and substantial interest. Applications for the eviction of unlawful occupiers from private land in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) has been framed in a particular manner since 2004 that created a ‘stalemate’ between the rights of private owners and the rights of unlawful occupiers. The only way to move beyond the stalemate is to join the municipality in whose jurisdiction the land falls. However, the high courts, in a series of six reported judgments, have not adopted a uniform approach in their reasoning for this joinder. They have relied on a combination of arguments founded on the cumulative force of the notice requirement in s 4(2) of PIE, the requirement to attempt mediation in s 7(1) of PIE, and finally, the constitutional and statutory obligations of municipalities. The overall impact of this reasoning is not convincing. This article revisits the legal framework that the Supreme Court of Appeal and the Constitutional Court have employed in the five judgments it handed down on the issue of joinder in PIE eviction cases. In so doing this article identities more clearly the constitutive requirements for necessary joinder within a constitutional matrix. The directness of the interest will be explored with reference to the statutory obligations that flow from the Housing Act 107 of 1997 and the Local Government: Municipal Systems Act 32 of 2000. The substantial nature of the interest will be explored with reference to the filing of reports flowing from the joinder

Participatory Approaches to Socio-Economic Rights Adjudication: Tentative Lessons from South African Evictions Law

This article explores the potential of participatory modes of adjudicating socio-economic rights to mitigate the democratic and distributive deficits of adjudication, particularly in the context of the structural reforms required to fulfil the positive duties imposed by these rights. It traces a particular application of a participatory model of adjudication through the doctrine and remedy of meaningful engagement which has emerged in the context of South African evictions law. The benefits of meaningful engagement in advancing direct participation by communities and organisations in the processes of socio-economic rights realisation are considered. However, attention is also drawn to the ways in which engagement orders can limit participatory systemic reforms that advance the normative goals of these rights. The article is intended as a contribution to the broader global debate on models of participatory adjudication in the context of socio-economic rights.