A jurisprudential analysis of the enforceability of socio-economic rights in South Africa: a constitutional discourse

4.2.3.3.1 The Internal Limitation of Reasonable Legislative and other Measures

The state is required to enact laws that will enable the fulfillment of the rights encapsulated in Chapter 2 of the 1996 Constitution. According to the Committee on ESCR, reasonable legislative means to take steps towards the realisation of the goals set in the Covenant but within a reasonably short period. In short, state parties must enact law immediately for the realisation of the rights. Moreover, the Committee on ESCR views legislation as an indispensable mechanism to promote socio-economic rights¹⁶⁵. The court in Government of the Republic of South Africa v Grootboom¹⁶⁶ affirms that this interpretation is indeed correct and corresponds to the provision of the

163 See White Paper on Reconstruction and Development (1994) Government Gazette No.16085, Vol.353,

Cape Town.

164 De Vos 1997 SAJHR 93.

165 The UN Committee on ESCR General Comment N03 2009 HYPERLINK

http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+Comment+3 4 June.

166 2001 (1) SA 46 (CC).

1996 Constitution. However, legislation is not the only way to realise socio-economic rights. Sections 26(2) and 27(2) of the 1996 Constitution provide for other measures to fulfill socio-economic rights.

According to De Vos, the state may in addition to legislation adopt some administrative, economic, social, and education measures. The state may also establish some action programs and appropriate bodies and set procedures for the implementation of government policies to promote and fulfill the rights¹⁶⁷. Furthermore, the state has the duty to provide for judicial remedies to enable the enforceability of the rights. In the words of the Committee on ESCR, among other measures which may be adopted in addition to legislation is the provision for judicial remedies. In this regard, the 1996 Constitution mandates the court to declare invalid any law inconsistent with its spirit and purport to the extent of its inconsistency¹⁶⁸.

4.2.3.3.2 The Internal Limitation to Achieve the Progressive Realisation of the Rights

According to the Committee on ESCR¹⁶⁹, the concept of progressive realisation of the right acknowledges the fact that the full realisation of socio-economic rights may not be generally achieved within a short period. It is further stated that this should not be construed as depriving the content of the state duty to promote socio-economic rights. Rather the concept of progressive realisation is a flexible devise reflecting the realities of the world. The Committee on ESCR concluded that the phrase should be read in the light of the overall objective or the raison d'être of the Covenant which is to establish an obligation on the state to respect the full realisation of the rights. The court in the

167 De Vos 1997 SAJHR 95. The Committee on ESCR in its General Comment N03 on the nature of states

parties obligations also states that «other measures which may also be considered appropriate? for the purpose of article 2(1) include, but not limited to administrative, financial, educational and social measures.».

168 Section 172 of the 1996 Constitution provides that: «(1) When deciding a constitutional mater within its

power, a court (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect».

169 The UN Committee on ESCR General Comment N03 2009 HYPERLINK

http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+Comment+3 4 June.

Government of the Republic of South Africa v Grootboom concurred with this interpretation and held that the reasoning of the Committee is in harmony with the spirit of the 1996 Constitution. It concluded that «there is no reason not to accept that it bears the same meaning in the Constitution as in the document from which it was so clearly derived»¹⁷⁰.