Engaging with Social Rights: Procedure, Participation and Democracy in South Africa’s Second Wave

Engaging with Social Rights: Procedure, Participation and Democracy in South Africa’s Second Wave South Africa’s 1996 Constitution is renowned for its inclusion of an expansive range of social rights as justiciable entitlements in its Bill of Rights. This inclusion raises important questions regarding the role of these rights in advancing economic and social justice in constitutional democracies, and the distinctive role of courts and litigation in this enterprise. Over twenty years since the adoption of the Constitution, the South African Constitutional Court has developed sophisticated models of review and remedial techniques for the enforcement of social rights. This body of jurisprudence has given rise to a rich body of literature both within South Africa and internationally concerning the merits and demerits of the Court’s approach. A particular focus of these debates has been the Court’s adoption of a reasonableness model of review in respect of the positive duties imposed by sections 26 and 27 of the Constitution,1 and its reluctance to embrace alternative models grounded in a more substantive interpretation of these rights, for example, the minimum core concept.2 Through his sustained analysis and advocacy of a proceduralist approach to social rights adjudication in South Africa, Ray’s book adopts a different tack to the scholarship arguing for a more substantive approach. As such, this work represents a unique and important contribution to the debates on the judicial enforcement of social rights. In Chapter 3, Ray traces the origins of this approach in the Court’s early social rights decisions—the so-called first wave.3 This phase, according to Ray, is characterized by a Court reluctant to adopt a robust interpretative role in relation to the content of social rights, preferring instead a context-sensitive, incremental approach. He attributes this jurisprudential approach to the perennial justiciability concerns of democratic legitimacy, separation of powers, and institutional competence, arguing that the Court in this set of cases “generally calibrates its interventions to the strength of those concerns” (at 89). Contrary to certain scholarship, Ray does not view the “first wave” social rights cases such as Grootboom and TAC as illustrative of weak-form, dialogic review in which the Court enters into a sustained dialogue with the other branches of government to develop the substantive content of social rights (at 91). Instead, according to Ray, the Court conceives of its own role as secondary to that of government which bears the primary duty of instantiating social rights through adopting the necessary policies and programs (at 92). The Court’s role is to support government in genuine endeavors to give effect to social rights, and, where necessary, to nudge them to fulfill this obligation. It is thus extremely reluctant “to closely scrutinize or overturn policies or programs that reflect a genuine effort by the government to fulfil the social rights” (at 92). Where the Court does adopt a bolder interpretative and remedial stance, as exemplified in cases such as TAC, Khosa, Jaftha, it is usually able to frame its intervention in terms of giving proper effect to constitution-enforcing legislation or policy, or fulfilling a more traditional adjudicative role. The latter is achieved through techniques such as textual exegesis or applying manageable judicial standards such as equality and rationality. Ray supports Theunis Roux’s analysis4 that institutional-security and other external political factors help explain the Court’s cautious, incrementalist approach (at 93–101). However, Ray argues that where the facts of particular cases allow for the deployment of the interpretative strategies described above, its interventions will generally be stronger. These strategies allow the Court to deliver a limited, but nonetheless significant, number of pro-poor judgments while avoiding direct conflict with the political branches of government. Ray argues that this proceduralist approach emerges more fully in the so-called second-wave5 social rights judgments.6 The Constitutional Court’s much-debated water rights judgment in Mazibuko recast social rights in terms of providing primarily a set of procedural protections that facilitate participatory democracy rather than conferring substantive entitlements (at 4, 107). This proceduralist approach to social rights articulated in Mazibuko has manifested itself subsequently through two primary adjudicative techniques. The first is the strong procedural control which the Court has asserted in cases involving the eviction of people from their homes—termed “the evictions model” by Ray. This entails the Court enforcing the principles laid down in Grootboom through interpreting Constitution-enforcing legislation in ways that delay eviction until alternative accommodation is made available; and expanding the procedural powers of the courts in eviction cases to obtain information about housing planning and resources in ways that could be used as leverage in favor of broader policy changes (at 7, 233–237). The second proceduralist technique is the meaningful engagement doctrine which has featured both as a factor in determining whether organs of state have acted reasonably in relation to social rights7 as well as a remedial device.8 Ray describes the emergence of these techniques in a finely grained analysis of the second-wave cases in Chapters 5 and 6. He identifies three major patterns in the Court’s approach: “(1) avoiding abstract interpretations applicable across cases; (2) creatively developing new, and expanding existing, procedural rights and remedies; and (3) managing individual cases to reach rights-protective outcomes without identifying a clear constitutional (or even statutory) basis for those outcomes” (at 188). In Chapter 7 he explores the implications of these patterns, arguing that they reflect a continuation of the justiciability concerns raised in the first wave cases, but also the emergence of a more explicit framing of social rights in terms of deepening democracy accountability. The Court avoids articulating the substance of social rights but does not necessarily retreat into deference, particularly in enforcing procedural duties and remedies. While acknowledging the view of critics that a more substantive approach is possible even within the existing review model,9 he prefers an expansion of the proceduralist approach of the second wave jurisprudence. He argues that this approach creates tools for social rights advocates to pursue rights-protective outcomes without necessarily relying on the emergence of a more robust substantive jurisprudence (at 191). Parallels are drawn between the normatively weak but procedurally strong approach of the Constitutional Court and theories of democratic experimentalism as well as Katherine Young’s conception of “a catalytic court.”10 These approaches allow the courts to manage institutional-legitimacy and institutional-competence concerns while still maintaining a robust institutional role in enforcing social rights. In the final part of the book (Chapters 8–10) Ray explores the potential of an expanded participatory approach, termed “democratic engagement,” in advancing social change in South Africa. He argues that the structured engagement orders pioneered by the Constitutional Court in eviction cases have the potential to expand from an initial focus on individual cases into engagement related to systemic housing policy and budgetary processes. The leverage acquired by poor communities and their advocates when government institutions are obliged to engage meaningfully with them can be gradually expanded to encompass broader institutional reforms. Ray finds support for his thesis that expanded opportunities for participation have the potential to advance pro-poor policies in the literature on democratic experimentalism,11 participatory democracy,12 and Charles’s Epp’s model of “legalized accountability.”13 Common to all these models is an understanding that “bureaucratic failures often result from democratic deficits” (at 276). Opening up these processes to consistent and structured participation by outside stakeholders not only deepens democracy but improves policy outcomes by making these processes more transparent, accountable, and accessible (at 277). Epp describes how, over the longer term, court cases imposing liability on institutions (or exposing them to the risk of liability) opened them to the influence of outside activist and professional organizations. This leads to changes in bureaucratic practices and culture, rendering them more responsive to legal norms. Ray draws on these three theories to support his argument that, under the right conditions, the judicial enforcement of social rights is most likely to be effective when the courts set in motion processes for direct engagement between organs of state and outside stakeholders. He argues that this adjudicative approach is preferable to one in which a court intervenes directly to impose specific reform requirements (at 278, 359). Ray does not evade the pitfalls of a participatory model of court-supported social change such as the risk that broader social inequalities will skew engagement processes in favor of the interests of more powerful parties. He argues that this risk can be averted or mitigated through structuring engagement processes fairly; facilitating a “power-balancing” role by civil society organizations; and ensuring that poor communities have access to the resources, coordination, and information required to participate meaningfully (at 319–322). He also recognizes the danger of courts retreating into a thin representative model of democratic enforcement (as arguably occurred in the Mazibuko and Joe Slovo decisions). Here Ray acknowledges that the South African Court will generally be unwilling to assume a more interventionist stance—even in the proceduralist sense he advocates—where litigants seek to mount a direct challenge to “large-scale programmes designed to fulfil (rather than evade) social rights” (at 327). The Court is more willing to assert a stronger procedural role in lower-stakes, smaller-scale cases that involve deliberate deprivation of existing access to services. However, even in this limited context, Ray argues that social rights advocates can use the courts’ interventions in individual cases as a springboard to push for more substantive participation rights in broader institutional processes related to the litigation without asking the courts to intervene directly in these larger processes (at 328). In the final chapter, Ray situates his democratic engagement model within broader debates around the role of law in promoting social change. This model shares with both realist and constructivist accounts an appreciation of the political constraints within which courts operate. However, he argues that reliance on “macroeconomic” indicators of change associated with “neorealist” accounts of rights14 defines the goals of social rights too narrowly (at 331). Instead he endorses constructivist arguments which focus on the “micro-level changes” in bureaucratic structures and decision-making processes which rights-based strategies such as litigation can stimulate (at 331). He describes how the democratic engagement model avoids usurping legislative and executive decision- making functions, while stimulating incremental changes in state institutions and processes, particularly at the local government level. He goes on to argue that the necessary non- governmental and legal support structures exist in South Africa to pursue this kind of incremental change where litigation is used selectively as part of a broader program for social change.15 One element in Epp’s legalized-accountability model which Ray believes may be missing in the South African context is a group of pro-reform government insiders with strong connections to outside stakeholders. However, even in this respect, Ray observes that the broader mobilization around the TAC case for antiretroviral treatment for those living with HIV/AIDS garnered the support of some health department officials (at 362). Ray argues that the current political context in South Africa is conducive to an expanded judicial role in the enforcement of social rights. These include a growing awareness within ANC (African National Congress) circles of the impact of inadequate service delivery at local levels on their broader electoral support, internal fractures within the ANC, and growing popular disaffection with the lack of broad redistribution and trans formation. Whereas Theunis Roux views these shifts as potentially facilitating a more substantive approach by the courts to interpreting social rights,16 Ray views them as more likely to support his expanded democratic engagement model of adjudication focused specifically on local government (at 365–366). The sustained focus on the political and social processes through which social rights litigation and adjudication stimulate pro-poor reforms is one of this book’s major achievements. This account is grounded in a comprehensive analysis of South African social rights litigation and the legislative, policy, and broader political environment in which it is embedded. Ray marshals persuasive arguments for his democratic engagement model of social rights adjudication and practice. Procedural and participatory models of enforcing social rights relieve the pressures of institutional legitimacy and competence on the judiciary. At the same time, they open up space for poor people and their organizations to have a direct voice in decision-making that impacts on their social rights. Through taking advantage of these participatory spaces, impoverished communities and social rights advocates can negotiate for the institutional and policy reforms that advance their interests. Ray is convinced that a stronger procedural role by the South African courts will be more effective in advancing pro-poor social policies than the strong substantive interpretative role advocated by a number of scholars. Though persuasive in many respects, Ray’s proceduralist approach to the adjudication of social rights raises a number of questions. For the purposes of this review, I will confine myself to four issues. First, as a purely descriptive matter, Ray, in my view, understates the extent to which the South African courts’ social rights jurisprudence incorporates a number of substantive principles. In its Grootboom, TAC, and Khosa judgments, the Court identified a number of procedural and substantive factors for assessing the reasonableness of legislative and policy measures. A significant substantive factor is that state policy must provide short-term relief for those in urgent socio-economic need.17 This factor—grounded in the value of human dignity18 —was the basis for Grootboom’s ratio that a housing policy that failed to incorporate an emergency housing program for homeless people infringed section 26 of the Constitution. This element of the reasonableness assessment has been pivotal in the development of the progressive evictions jurisprudence of the Constitutional Court, particularly the requirement that alternative accommodation must be provided to those who face homelessness as a result of their eviction from their homes. A further factor in a reasonableness review inquiry—grounded in the value of equality—is that social policy should not unreasonably exclude a particular social group from its ambit.19 Furthermore the Court has held that a reasonable government policy must be “capable of facilitating the realisation of the right.”20 In other words, there must be a reasonable relationship between the means selected and the goal of realizing the relevant social right for all. While this factor has not played a prominent role in the jurisprudence to date, it invites scrutiny into how government policies interrelate with each other, and their overall impact on longer-term strategies for realizing social rights such as housing. Thus in Olivia Road, one department of the City of Johannesburg embarked on a strategy of using administrative notices “to vacate” in terms of legislation regulating building standards and safety to achieve the eviction of large numbers of residents from inner-city buildings, ostensibly on health and safety grounds. Account was not taken of the fact that those evicted would be rendered homeless as a result of this strategy. Justice Yacoob was highly critical of the city functioning in insulated silos with one department in a “bureaucratic maze” making decisions related to the long-term provision of housing in terms of section 26(2) of the Constitution, and another department making decisions which led to homelessness.21 This factor in the reasonableness inquiry thus provides a basis for challenging policies and practices which undermine the long-term term realization of social rights. Finally, in the context of its evolving education rights jurisprudence, the Constitutional Court, drawing largely on international law standards, has articulated a thick set of substantive objectives and values of the education rights entrenched in section 29 of the Constitution.22 Along with the textual formulation of basic education, the Court drew on its substantive account of the nature and significance of education rights to conclude that the fulfillment of the right to basic education is an “immediately realisable” right.23 The lower courts have drawn on this substantive interpretation of the right to education by the Constitutional Court to further flesh out the normative content and obligations imposed by sections 29 in areas such as textbook provision to schools, school furnishing, transport to school, and teacher post provisioning.24 These developments in housing and education rights unsettle Ray’s reading of a Court that is wedded to a primarily procedural approach to social rights, and unwilling to engage with the substantive dimensions of these rights. Granted the right to basic education is formulated without the internal qualifiers present in sections 26(2) and 27(2). However, as is the case with all rights where positive measures and resource allocations are required for their fulfillment, the adjudication of education rights also raises issues of democratic legitimacy and competence, polycent ricism, and the separation of powers. Education rights are not fundamentally different from other social rights. The jurisprudence in this area demonstrates that the South African courts do engage with substantive principles even where the traditional justiciability concerns of social rights are present. My second reservation concerns Ray’s privileging of a primarily proceduralist approach to the adjudication of social rights. I do not believe that a mainly proceduralist interpretation of social rights aligns well with the history and text of the South African Constitution. The former liberation movements, the ANC and PAC (Pan Africanist Congress), supported the inclusion of social rights in the Constitution as justiciable rights. The political impetus for this support came from a desire to see a tangible reflection of their commitment to redressing the socio-economic legacy of colonialism and apartheid in the new Bill of Rights. A key role was also played by a well-organized, multi-sectoral NGO (non-governmental organization) campaign which coalesced around the drafting of the 1996 Constitution. They argued that the inclusion of social rights in the Constitution as justiciable rights would provide a significant mechanism for disadvantaged groups to hold government and powerful private actors to account for neglecting their fundamental needs. While clearly cognizant of the need to guard against overly intrusive judicial interventions, all the political parties in the Constitutional Assembly understood that the judiciary would play a significant role in holding government accountable to the purposes and values underpinning social rights.25 Section 39 of the Constitution requires courts to adopt a value-infused interpretation of the Bill of Rights with particular reference to the values of human dignity, equality, and freedom.26 They are enjoined to consider international law and may consider foreign law in interpreting rights.27 The interpretative methodology expressly laid down in the constitutional text implies an open and transparent engagement by the judiciary with the meaning of foundational values in South Africa’s historical and social context along with relevant international and comparative sources.28 Ray is correct in his assessment that the Court is not willing to articulate a comprehensive normative account of social rights, illustrated most notably in its judgment of Mazibuko. My own reading, however, is that the Court has not consistently adopted a proceduralist approach and has at times applied the methodology of section 39 to infuse substantive elements in its interpretation of various constitutional rights. These elements create openings for normative evolution in future cases as well as legislative and policy advocacy by civil society organizations. Overall, the jurisprudence reveals a Court experimenting with a combination of procedural and substantive interpretation of social rights without necessarily following a con sistent interpretative methodology. This brings me to the third area of concern with Ray’s argument that the Court should continue exercising strong procedural authority without necessarily articulating the substantive basis for this authority. Arguably the very institutional legitimacy concerns which loom large in Ray’s account are aggravated when courts do not articulate a prin cipled basis for strong procedural interventions. On what basis does the Court impose extensive duties of engagement on the parties if this is not tied to a finding that the duties imposed by a constitutional right have been infringed? It seems more likely that the Court’s institutional authority will be enhanced by a clear, albeit incremental, articulation of the normative duties imposed by the relevant rights, and ordering meaningful engagement, where appropriate, to remedy the violations identified. In this way substantive and procedural approaches complement each other29 without the Court either abdicating its interpretive role, or usurping the role of the legislature and executive in selecting among a range of possible policy options for giving effect to social rights.30 Finally, I briefly consider Ray’s argument that his expanded engagement model is more likely than a substantive adjudicative approach to promote the kind of social changes envisaged by social rights. These are difficult claims to make or refute empirically owing to the large number of contextual variables at play. However, it is at least plausible that the articulation by courts of clear principles for interpreting social rights can have a similar catalyzing effect for the pursuit of social reforms by government and civil society actors as Ray’s procedural model. These broad principles would still leave ample space for engagement on specific policy choices but would indicate the substantive criteria against which progress should be measured.31 While a direct right to participate in government decision-making can certainly prompt social movements and civil society organizations to take advantage of the space created to press for reforms, they may also do so in response to the courts affirming the substantive entitlements of poor people such as the right not to be left homeless. Focusing only on the procedural dimensions of social rights casts them adrift from their substantive moorings, and leaves stakeholders without direction-giving markers for navigating and charting progress. At the current political juncture in South Africa, claims are made from a number of quarters that the Constitution was an “elite pact” and constitutes an impediment to fundamental transformation and redistribution of resources.32 Many of these claims are either populist rhetoric or a strategy to divert attention from governance failures and corruption. However, in a context of deeply entrenched patterns of poverty and inequality,33 they have struck a chord, especially among South Africa’s youth. Brian Ray’s book is a fine account of the potential of procedural models of social rights adjudication to support marginalized groups in their struggles to access the material bases of a decent life. While this model has much to offer, it seems particularly important in the current environment to reinvigorate the substantive promise of social rights and the ethically grounded politics of redress and redistribution that inspired their inclusion in the Constitution. Footnotes 1 These sections entrench the so-called qualified social rights of everyone to have access to housing, health care services, food, water, and social security. The state’s duty in terms of these provisions is “to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each the rights.” 2 For a critique of the Court’s failure to adopt a minimum core approach, seeDavid Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (2007). 3 Consisting of Soobramoney v. Minister of Health, KwaZulu-Natal, 1998 (1) SA 765 (CC); Government of the Republic of South Africa v. Grootboom, 2001 (1) SA 46 (CC); Minister of Health v. Treatment Action Campaign (no. 2), 2002 (5) SA 721 (CC); and Khosa v Minister of Social Development; Mahlaule v. Minister of Social Development, 2004 (6) SA 505 (CC); Port-Elizabeth Municipality v. Various Occupiers, 2005 (1) SA 217 (CC); Jaftha v Schoeman, Van Rooyen v. Stoltz, 2005 (2) SA 140 (CC); President of Republic of South Africa v. Modderklip Boerdery (Pty) Ltd, 2005 (5) SA 3 (CC). 4 Theunis Roux, The Politics of Principle, the First South African Constitutional Court, 1995–2005 (2013). 5 This characterization of the “two waves” of socio-economic rights decision-making is borrowed from Stuart Wilson & Jackie Dugard Constitutional Jurisprudence: The First and Second Waves, inSocio-Economic Rights in South Africa: Symbols or Substance? 35 (Malcolm Langford et al. eds., 2014). 6 Key judgments of the “second wave” are: Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v. City of Johannesburg, 2008 (3) SA 208 (CC); Residents of Joe Slovo Community, Western Cape v. Thubelisha Homes, 2010 (3) SA 454 (CC); Abahlali Basemjondolo Movement SA v. Premier, KwaZulu-Natal, 2010 (2) BCLR 99 (CC); Joseph v. City of Johannesburg, 2010 (4) SA 55 (CC); Mazibuko v. City of Johannesburg, 2010 (4) SA 1 (CC); Nokotyana v. Ekurhuleni Metropolitan Municipality, 2010 (4) BCLR; City of Johannesburg v. Blue Moonlight Properties 39 (Pty) Ltd, 2012 (2) SA 104 (CC); Maphango v. Aengus Lifestyle Properties (Pty) Ltd, 2012 (3) SA 531 (CC). 7 In Olivia Road, 2008 (3) SA 208, the Constitutional Court derived the requirement of meaningful engagement with those facing eviction from their homes from, among others, the duty of the state to act reasonably in terms of section 26(2) of the Constitution in decisions impacting upon housing rights (¶¶ 17–18). 8 See, e.g., the remedial orders in Joe Slovo, 2010 (3) SA 454, and Pheko v. Ekurhuleni Metropolitan Municipality, 2012 (2) SA 598 (CC). 9 See, e.g., Sandra Liebenberg, Socio-Economic Rights: Adjudication Under a Transformative Constitution 163 – 213 (2010). 10 Katherine Young, Constituting Economic and Social Rights ch. 5 (2012). 11 Michael Dorf & Charles Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267 (1998); Charles Sabel & William Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 Harv. L. Rev. 1016 (2004). 12 Michael Goodhart, ed., Democratic Imperatives: Innovations in Rights, Participation and Economic Citizenship (Report of the Task Force on Democracy, Economic Security and Social Justice in a Volatile World, American Political Science Association) (2012); Archon Fung & Erik Olin Wright, Deepening Democracy: Innovations in Empowered Participatory Governance, 29 Pol. & Soc’y 5 (2001). 13 Charles Epp, Making Rights Real: Activists, Bureaucrats and the Creation of the Legalistic State (2010). 14 Ray refers in this context to Ran Hirschl, From Comparative Constitutional Law to Comparative Constitutional Studies, 11 Int’l J. Const. L. 1, 9 (2013); and Ran Hirschl & Evan Rosevear Constitutional Law Meets Comparative Politics: Socio-Economic Rights and Political Realities, inThe Legal Protection of Human Rights: Skeptical Essays 220 (Tom Campbell et al. eds., 2011). 15 In this regard, Ray also draws on the factors which Gauri and Brink identify as necessary for social rights to affect policy development and implementation: Varun Gauri & Daniel Brinks, Introduction, inCourting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World 1 (Varun Gauri & Daniel Brinks eds., 2010). 16 Roux, supra note 4, at 392–396. 17 Grootboom, 2001 (1) SA 46, ¶¶ 44, 64, 68, 99; TAC, 2002 (5) SA 721, ¶ 78 18 Grootboom, 2001 (1) SA 46, ¶ 83. 19 Khosa, 2004 (6) SA 505, ¶¶ 49, 82; TAC, 2002 (5) SA 721, ¶¶ 67–73; Mazibuko, 2010 (4) SA 1, ¶ 67. 20 Grootboom, 2001 (1) SA 46, ¶ 41. 21 Olivia Road, 2008 (3) SA 208, ¶ 44. 22 Governing Body of the Juma Musjid Primary School v. Essay N.O., 2011 (8) BCLR 761 (CC) ¶¶ 36–44. 23 Id. ¶ 37. 24 Section 27 v. Minister of Education, 2013 (2) SA 40 (GNP); Minister of Basic Education v. Basic Education for All, [2016] 1 All SA 369 (SCA); Madzodzo v. Minister of Basic Education, 2014 (3) SA 441 (ECM); Tripartite Steering Committee v. Minister of Basic Education, 2015 (5) SA 107 (ECG); Centre for Child Law v. Minister of Basic Education, [2012] 4 All SA 35 (ECG). For an analysis of this jurisprudence, see Faranaaz Veriava, The Limpopo Textbook Litigation: A Case Study into the Possibilities of a Transformative Constitutionalism, 32(2) S. Afr. J. Hum Rts. 321 (2016). 25 For my account of this history, seeLiebenberg, supra note 9, ch. 1. 26 Const. § 39(1)(a). 27 Const. §§ 39(1)(b), 39(1)(c). 28 On the roles of values, historical and social context and international law in interpreting the social rights in the Constitution, see, e.g., Grootboom, 2001 (1) SA 46, ¶¶ 23, 25, 26–33, and 45. See also recent judgment of the Constitutional Court in Daniels v. Scribante, 2017 (4) SA 341. 29 For a positive empirical assessment of a combined substantive and procedural model of social rights enforcement by the Colombian Constitutional Court, see César Rodríguez-Garavito, Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic rights in Latin American, 89(7) Tex. L. Rev. 1669 (2011). 30 Young,supra note 10, at 134–139. 31 See, e.g., the seven broad criteria identified by the UN Committee on Economic, Social and Cultural Rights for assessing the adequacy of housing: General Comment No. 4 (Sixth session, 1991), U.N. Doc. E/1992/23 The Right to Adequate Housing (art 11(1) of the International Covenant on Economic, Social and Cultural Rights), ¶¶ 8(a)–8(g). 32 See, e.g., Luyolo Mkentane, Forum Calls for SA to Ditch Constitution. Independent Online (IOL) (January 25, 2017), available athttps://www.iol.co.za/news/politics/forum-calls-for-sa-to-ditch-constitution-7498118 33 Statistics South Africa, Poverty Trends in South Africa: An Examination of Absolute Poverty Between 2006 and 2015 (2017). © The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Journal of Constitutional Law Oxford University Press

Engaging with Social Rights: Procedure, Participation and Democracy in South Africa’s Second Wave

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Abstract

South Africa’s 1996 Constitution is renowned for its inclusion of an expansive range of social rights as justiciable entitlements in its Bill of Rights. This inclusion raises important questions regarding the role of these rights in advancing economic and social justice in constitutional democracies, and the distinctive role of courts and litigation in this enterprise. Over twenty years since the adoption of the Constitution, the South African Constitutional Court has developed sophisticated models of review and remedial techniques for the enforcement of social rights. This body of jurisprudence has given rise to a rich body of literature both within South Africa and internationally concerning the merits and demerits of the Court’s approach. A particular focus of these debates has been the Court’s adoption of a reasonableness model of review in respect of the positive duties imposed by sections 26 and 27 of the Constitution,1 and its reluctance to embrace alternative models grounded in a more substantive interpretation of these rights, for example, the minimum core concept.2 Through his sustained analysis and advocacy of a proceduralist approach to social rights adjudication in South Africa, Ray’s book adopts a different tack to the scholarship arguing for a more substantive approach. As such, this work represents a unique and important contribution to the debates on the judicial enforcement of social rights. In Chapter 3, Ray traces the origins of this approach in the Court’s early social rights decisions—the so-called first wave.3 This phase, according to Ray, is characterized by a Court reluctant to adopt a robust interpretative role in relation to the content of social rights, preferring instead a context-sensitive, incremental approach. He attributes this jurisprudential approach to the perennial justiciability concerns of democratic legitimacy, separation of powers, and institutional competence, arguing that the Court in this set of cases “generally calibrates its interventions to the strength of those concerns” (at 89). Contrary to certain scholarship, Ray does not view the “first wave” social rights cases such as Grootboom and TAC as illustrative of weak-form, dialogic review in which the Court enters into a sustained dialogue with the other branches of government to develop the substantive content of social rights (at 91). Instead, according to Ray, the Court conceives of its own role as secondary to that of government which bears the primary duty of instantiating social rights through adopting the necessary policies and programs (at 92). The Court’s role is to support government in genuine endeavors to give effect to social rights, and, where necessary, to nudge them to fulfill this obligation. It is thus extremely reluctant “to closely scrutinize or overturn policies or programs that reflect a genuine effort by the government to fulfil the social rights” (at 92). Where the Court does adopt a bolder interpretative and remedial stance, as exemplified in cases such as TAC, Khosa, Jaftha, it is usually able to frame its intervention in terms of giving proper effect to constitution-enforcing legislation or policy, or fulfilling a more traditional adjudicative role. The latter is achieved through techniques such as textual exegesis or applying manageable judicial standards such as equality and rationality. Ray supports Theunis Roux’s analysis4 that institutional-security and other external political factors help explain the Court’s cautious, incrementalist approach (at 93–101). However, Ray argues that where the facts of particular cases allow for the deployment of the interpretative strategies described above, its interventions will generally be stronger. These strategies allow the Court to deliver a limited, but nonetheless significant, number of pro-poor judgments while avoiding direct conflict with the political branches of government. Ray argues that this proceduralist approach emerges more fully in the so-called second-wave5 social rights judgments.6 The Constitutional Court’s much-debated water rights judgment in Mazibuko recast social rights in terms of providing primarily a set of procedural protections that facilitate participatory democracy rather than conferring substantive entitlements (at 4, 107). This proceduralist approach to social rights articulated in Mazibuko has manifested itself subsequently through two primary adjudicative techniques. The first is the strong procedural control which the Court has asserted in cases involving the eviction of people from their homes—termed “the evictions model” by Ray. This entails the Court enforcing the principles laid down in Grootboom through interpreting Constitution-enforcing legislation in ways that delay eviction until alternative accommodation is made available; and expanding the procedural powers of the courts in eviction cases to obtain information about housing planning and resources in ways that could be used as leverage in favor of broader policy changes (at 7, 233–237). The second proceduralist technique is the meaningful engagement doctrine which has featured both as a factor in determining whether organs of state have acted reasonably in relation to social rights7 as well as a remedial device.8 Ray describes the emergence of these techniques in a finely grained analysis of the second-wave cases in Chapters 5 and 6. He identifies three major patterns in the Court’s approach: “(1) avoiding abstract interpretations applicable across cases; (2) creatively developing new, and expanding existing, procedural rights and remedies; and (3) managing individual cases to reach rights-protective outcomes without identifying a clear constitutional (or even statutory) basis for those outcomes” (at 188). In Chapter 7 he explores the implications of these patterns, arguing that they reflect a continuation of the justiciability concerns raised in the first wave cases, but also the emergence of a more explicit framing of social rights in terms of deepening democracy accountability. The Court avoids articulating the substance of social rights but does not necessarily retreat into deference, particularly in enforcing procedural duties and remedies. While acknowledging the view of critics that a more substantive approach is possible even within the existing review model,9 he prefers an expansion of the proceduralist approach of the second wave jurisprudence. He argues that this approach creates tools for social rights advocates to pursue rights-protective outcomes without necessarily relying on the emergence of a more robust substantive jurisprudence (at 191). Parallels are drawn between the normatively weak but procedurally strong approach of the Constitutional Court and theories of democratic experimentalism as well as Katherine Young’s conception of “a catalytic court.”10 These approaches allow the courts to manage institutional-legitimacy and institutional-competence concerns while still maintaining a robust institutional role in enforcing social rights. In the final part of the book (Chapters 8–10) Ray explores the potential of an expanded participatory approach, termed “democratic engagement,” in advancing social change in South Africa. He argues that the structured engagement orders pioneered by the Constitutional Court in eviction cases have the potential to expand from an initial focus on individual cases into engagement related to systemic housing policy and budgetary processes. The leverage acquired by poor communities and their advocates when government institutions are obliged to engage meaningfully with them can be gradually expanded to encompass broader institutional reforms. Ray finds support for his thesis that expanded opportunities for participation have the potential to advance pro-poor policies in the literature on democratic experimentalism,11 participatory democracy,12 and Charles’s Epp’s model of “legalized accountability.”13 Common to all these models is an understanding that “bureaucratic failures often result from democratic deficits” (at 276). Opening up these processes to consistent and structured participation by outside stakeholders not only deepens democracy but improves policy outcomes by making these processes more transparent, accountable, and accessible (at 277). Epp describes how, over the longer term, court cases imposing liability on institutions (or exposing them to the risk of liability) opened them to the influence of outside activist and professional organizations. This leads to changes in bureaucratic practices and culture, rendering them more responsive to legal norms. Ray draws on these three theories to support his argument that, under the right conditions, the judicial enforcement of social rights is most likely to be effective when the courts set in motion processes for direct engagement between organs of state and outside stakeholders. He argues that this adjudicative approach is preferable to one in which a court intervenes directly to impose specific reform requirements (at 278, 359). Ray does not evade the pitfalls of a participatory model of court-supported social change such as the risk that broader social inequalities will skew engagement processes in favor of the interests of more powerful parties. He argues that this risk can be averted or mitigated through structuring engagement processes fairly; facilitating a “power-balancing” role by civil society organizations; and ensuring that poor communities have access to the resources, coordination, and information required to participate meaningfully (at 319–322). He also recognizes the danger of courts retreating into a thin representative model of democratic enforcement (as arguably occurred in the Mazibuko and Joe Slovo decisions). Here Ray acknowledges that the South African Court will generally be unwilling to assume a more interventionist stance—even in the proceduralist sense he advocates—where litigants seek to mount a direct challenge to “large-scale programmes designed to fulfil (rather than evade) social rights” (at 327). The Court is more willing to assert a stronger procedural role in lower-stakes, smaller-scale cases that involve deliberate deprivation of existing access to services. However, even in this limited context, Ray argues that social rights advocates can use the courts’ interventions in individual cases as a springboard to push for more substantive participation rights in broader institutional processes related to the litigation without asking the courts to intervene directly in these larger processes (at 328). In the final chapter, Ray situates his democratic engagement model within broader debates around the role of law in promoting social change. This model shares with both realist and constructivist accounts an appreciation of the political constraints within which courts operate. However, he argues that reliance on “macroeconomic” indicators of change associated with “neorealist” accounts of rights14 defines the goals of social rights too narrowly (at 331). Instead he endorses constructivist arguments which focus on the “micro-level changes” in bureaucratic structures and decision-making processes which rights-based strategies such as litigation can stimulate (at 331). He describes how the democratic engagement model avoids usurping legislative and executive decision- making functions, while stimulating incremental changes in state institutions and processes, particularly at the local government level. He goes on to argue that the necessary non- governmental and legal support structures exist in South Africa to pursue this kind of incremental change where litigation is used selectively as part of a broader program for social change.15 One element in Epp’s legalized-accountability model which Ray believes may be missing in the South African context is a group of pro-reform government insiders with strong connections to outside stakeholders. However, even in this respect, Ray observes that the broader mobilization around the TAC case for antiretroviral treatment for those living with HIV/AIDS garnered the support of some health department officials (at 362). Ray argues that the current political context in South Africa is conducive to an expanded judicial role in the enforcement of social rights. These include a growing awareness within ANC (African National Congress) circles of the impact of inadequate service delivery at local levels on their broader electoral support, internal fractures within the ANC, and growing popular disaffection with the lack of broad redistribution and trans formation. Whereas Theunis Roux views these shifts as potentially facilitating a more substantive approach by the courts to interpreting social rights,16 Ray views them as more likely to support his expanded democratic engagement model of adjudication focused specifically on local government (at 365–366). The sustained focus on the political and social processes through which social rights litigation and adjudication stimulate pro-poor reforms is one of this book’s major achievements. This account is grounded in a comprehensive analysis of South African social rights litigation and the legislative, policy, and broader political environment in which it is embedded. Ray marshals persuasive arguments for his democratic engagement model of social rights adjudication and practice. Procedural and participatory models of enforcing social rights relieve the pressures of institutional legitimacy and competence on the judiciary. At the same time, they open up space for poor people and their organizations to have a direct voice in decision-making that impacts on their social rights. Through taking advantage of these participatory spaces, impoverished communities and social rights advocates can negotiate for the institutional and policy reforms that advance their interests. Ray is convinced that a stronger procedural role by the South African courts will be more effective in advancing pro-poor social policies than the strong substantive interpretative role advocated by a number of scholars. Though persuasive in many respects, Ray’s proceduralist approach to the adjudication of social rights raises a number of questions. For the purposes of this review, I will confine myself to four issues. First, as a purely descriptive matter, Ray, in my view, understates the extent to which the South African courts’ social rights jurisprudence incorporates a number of substantive principles. In its Grootboom, TAC, and Khosa judgments, the Court identified a number of procedural and substantive factors for assessing the reasonableness of legislative and policy measures. A significant substantive factor is that state policy must provide short-term relief for those in urgent socio-economic need.17 This factor—grounded in the value of human dignity18 —was the basis for Grootboom’s ratio that a housing policy that failed to incorporate an emergency housing program for homeless people infringed section 26 of the Constitution. This element of the reasonableness assessment has been pivotal in the development of the progressive evictions jurisprudence of the Constitutional Court, particularly the requirement that alternative accommodation must be provided to those who face homelessness as a result of their eviction from their homes. A further factor in a reasonableness review inquiry—grounded in the value of equality—is that social policy should not unreasonably exclude a particular social group from its ambit.19 Furthermore the Court has held that a reasonable government policy must be “capable of facilitating the realisation of the right.”20 In other words, there must be a reasonable relationship between the means selected and the goal of realizing the relevant social right for all. While this factor has not played a prominent role in the jurisprudence to date, it invites scrutiny into how government policies interrelate with each other, and their overall impact on longer-term strategies for realizing social rights such as housing. Thus in Olivia Road, one department of the City of Johannesburg embarked on a strategy of using administrative notices “to vacate” in terms of legislation regulating building standards and safety to achieve the eviction of large numbers of residents from inner-city buildings, ostensibly on health and safety grounds. Account was not taken of the fact that those evicted would be rendered homeless as a result of this strategy. Justice Yacoob was highly critical of the city functioning in insulated silos with one department in a “bureaucratic maze” making decisions related to the long-term provision of housing in terms of section 26(2) of the Constitution, and another department making decisions which led to homelessness.21 This factor in the reasonableness inquiry thus provides a basis for challenging policies and practices which undermine the long-term term realization of social rights. Finally, in the context of its evolving education rights jurisprudence, the Constitutional Court, drawing largely on international law standards, has articulated a thick set of substantive objectives and values of the education rights entrenched in section 29 of the Constitution.22 Along with the textual formulation of basic education, the Court drew on its substantive account of the nature and significance of education rights to conclude that the fulfillment of the right to basic education is an “immediately realisable” right.23 The lower courts have drawn on this substantive interpretation of the right to education by the Constitutional Court to further flesh out the normative content and obligations imposed by sections 29 in areas such as textbook provision to schools, school furnishing, transport to school, and teacher post provisioning.24 These developments in housing and education rights unsettle Ray’s reading of a Court that is wedded to a primarily procedural approach to social rights, and unwilling to engage with the substantive dimensions of these rights. Granted the right to basic education is formulated without the internal qualifiers present in sections 26(2) and 27(2). However, as is the case with all rights where positive measures and resource allocations are required for their fulfillment, the adjudication of education rights also raises issues of democratic legitimacy and competence, polycent ricism, and the separation of powers. Education rights are not fundamentally different from other social rights. The jurisprudence in this area demonstrates that the South African courts do engage with substantive principles even where the traditional justiciability concerns of social rights are present. My second reservation concerns Ray’s privileging of a primarily proceduralist approach to the adjudication of social rights. I do not believe that a mainly proceduralist interpretation of social rights aligns well with the history and text of the South African Constitution. The former liberation movements, the ANC and PAC (Pan Africanist Congress), supported the inclusion of social rights in the Constitution as justiciable rights. The political impetus for this support came from a desire to see a tangible reflection of their commitment to redressing the socio-economic legacy of colonialism and apartheid in the new Bill of Rights. A key role was also played by a well-organized, multi-sectoral NGO (non-governmental organization) campaign which coalesced around the drafting of the 1996 Constitution. They argued that the inclusion of social rights in the Constitution as justiciable rights would provide a significant mechanism for disadvantaged groups to hold government and powerful private actors to account for neglecting their fundamental needs. While clearly cognizant of the need to guard against overly intrusive judicial interventions, all the political parties in the Constitutional Assembly understood that the judiciary would play a significant role in holding government accountable to the purposes and values underpinning social rights.25 Section 39 of the Constitution requires courts to adopt a value-infused interpretation of the Bill of Rights with particular reference to the values of human dignity, equality, and freedom.26 They are enjoined to consider international law and may consider foreign law in interpreting rights.27 The interpretative methodology expressly laid down in the constitutional text implies an open and transparent engagement by the judiciary with the meaning of foundational values in South Africa’s historical and social context along with relevant international and comparative sources.28 Ray is correct in his assessment that the Court is not willing to articulate a comprehensive normative account of social rights, illustrated most notably in its judgment of Mazibuko. My own reading, however, is that the Court has not consistently adopted a proceduralist approach and has at times applied the methodology of section 39 to infuse substantive elements in its interpretation of various constitutional rights. These elements create openings for normative evolution in future cases as well as legislative and policy advocacy by civil society organizations. Overall, the jurisprudence reveals a Court experimenting with a combination of procedural and substantive interpretation of social rights without necessarily following a con sistent interpretative methodology. This brings me to the third area of concern with Ray’s argument that the Court should continue exercising strong procedural authority without necessarily articulating the substantive basis for this authority. Arguably the very institutional legitimacy concerns which loom large in Ray’s account are aggravated when courts do not articulate a prin cipled basis for strong procedural interventions. On what basis does the Court impose extensive duties of engagement on the parties if this is not tied to a finding that the duties imposed by a constitutional right have been infringed? It seems more likely that the Court’s institutional authority will be enhanced by a clear, albeit incremental, articulation of the normative duties imposed by the relevant rights, and ordering meaningful engagement, where appropriate, to remedy the violations identified. In this way substantive and procedural approaches complement each other29 without the Court either abdicating its interpretive role, or usurping the role of the legislature and executive in selecting among a range of possible policy options for giving effect to social rights.30 Finally, I briefly consider Ray’s argument that his expanded engagement model is more likely than a substantive adjudicative approach to promote the kind of social changes envisaged by social rights. These are difficult claims to make or refute empirically owing to the large number of contextual variables at play. However, it is at least plausible that the articulation by courts of clear principles for interpreting social rights can have a similar catalyzing effect for the pursuit of social reforms by government and civil society actors as Ray’s procedural model. These broad principles would still leave ample space for engagement on specific policy choices but would indicate the substantive criteria against which progress should be measured.31 While a direct right to participate in government decision-making can certainly prompt social movements and civil society organizations to take advantage of the space created to press for reforms, they may also do so in response to the courts affirming the substantive entitlements of poor people such as the right not to be left homeless. Focusing only on the procedural dimensions of social rights casts them adrift from their substantive moorings, and leaves stakeholders without direction-giving markers for navigating and charting progress. At the current political juncture in South Africa, claims are made from a number of quarters that the Constitution was an “elite pact” and constitutes an impediment to fundamental transformation and redistribution of resources.32 Many of these claims are either populist rhetoric or a strategy to divert attention from governance failures and corruption. However, in a context of deeply entrenched patterns of poverty and inequality,33 they have struck a chord, especially among South Africa’s youth. Brian Ray’s book is a fine account of the potential of procedural models of social rights adjudication to support marginalized groups in their struggles to access the material bases of a decent life. While this model has much to offer, it seems particularly important in the current environment to reinvigorate the substantive promise of social rights and the ethically grounded politics of redress and redistribution that inspired their inclusion in the Constitution. Footnotes 1 These sections entrench the so-called qualified social rights of everyone to have access to housing, health care services, food, water, and social security. The state’s duty in terms of these provisions is “to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each the rights.” 2 For a critique of the Court’s failure to adopt a minimum core approach, seeDavid Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (2007). 3 Consisting of Soobramoney v. Minister of Health, KwaZulu-Natal, 1998 (1) SA 765 (CC); Government of the Republic of South Africa v. Grootboom, 2001 (1) SA 46 (CC); Minister of Health v. Treatment Action Campaign (no. 2), 2002 (5) SA 721 (CC); and Khosa v Minister of Social Development; Mahlaule v. Minister of Social Development, 2004 (6) SA 505 (CC); Port-Elizabeth Municipality v. Various Occupiers, 2005 (1) SA 217 (CC); Jaftha v Schoeman, Van Rooyen v. Stoltz, 2005 (2) SA 140 (CC); President of Republic of South Africa v. Modderklip Boerdery (Pty) Ltd, 2005 (5) SA 3 (CC). 4 Theunis Roux, The Politics of Principle, the First South African Constitutional Court, 1995–2005 (2013). 5 This characterization of the “two waves” of socio-economic rights decision-making is borrowed from Stuart Wilson & Jackie Dugard Constitutional Jurisprudence: The First and Second Waves, inSocio-Economic Rights in South Africa: Symbols or Substance? 35 (Malcolm Langford et al. eds., 2014). 6 Key judgments of the “second wave” are: Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v. City of Johannesburg, 2008 (3) SA 208 (CC); Residents of Joe Slovo Community, Western Cape v. Thubelisha Homes, 2010 (3) SA 454 (CC); Abahlali Basemjondolo Movement SA v. Premier, KwaZulu-Natal, 2010 (2) BCLR 99 (CC); Joseph v. City of Johannesburg, 2010 (4) SA 55 (CC); Mazibuko v. City of Johannesburg, 2010 (4) SA 1 (CC); Nokotyana v. Ekurhuleni Metropolitan Municipality, 2010 (4) BCLR; City of Johannesburg v. Blue Moonlight Properties 39 (Pty) Ltd, 2012 (2) SA 104 (CC); Maphango v. Aengus Lifestyle Properties (Pty) Ltd, 2012 (3) SA 531 (CC). 7 In Olivia Road, 2008 (3) SA 208, the Constitutional Court derived the requirement of meaningful engagement with those facing eviction from their homes from, among others, the duty of the state to act reasonably in terms of section 26(2) of the Constitution in decisions impacting upon housing rights (¶¶ 17–18). 8 See, e.g., the remedial orders in Joe Slovo, 2010 (3) SA 454, and Pheko v. Ekurhuleni Metropolitan Municipality, 2012 (2) SA 598 (CC). 9 See, e.g., Sandra Liebenberg, Socio-Economic Rights: Adjudication Under a Transformative Constitution 163 – 213 (2010). 10 Katherine Young, Constituting Economic and Social Rights ch. 5 (2012). 11 Michael Dorf & Charles Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267 (1998); Charles Sabel & William Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 Harv. L. Rev. 1016 (2004). 12 Michael Goodhart, ed., Democratic Imperatives: Innovations in Rights, Participation and Economic Citizenship (Report of the Task Force on Democracy, Economic Security and Social Justice in a Volatile World, American Political Science Association) (2012); Archon Fung & Erik Olin Wright, Deepening Democracy: Innovations in Empowered Participatory Governance, 29 Pol. & Soc’y 5 (2001). 13 Charles Epp, Making Rights Real: Activists, Bureaucrats and the Creation of the Legalistic State (2010). 14 Ray refers in this context to Ran Hirschl, From Comparative Constitutional Law to Comparative Constitutional Studies, 11 Int’l J. Const. L. 1, 9 (2013); and Ran Hirschl & Evan Rosevear Constitutional Law Meets Comparative Politics: Socio-Economic Rights and Political Realities, inThe Legal Protection of Human Rights: Skeptical Essays 220 (Tom Campbell et al. eds., 2011). 15 In this regard, Ray also draws on the factors which Gauri and Brink identify as necessary for social rights to affect policy development and implementation: Varun Gauri & Daniel Brinks, Introduction, inCourting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World 1 (Varun Gauri & Daniel Brinks eds., 2010). 16 Roux, supra note 4, at 392–396. 17 Grootboom, 2001 (1) SA 46, ¶¶ 44, 64, 68, 99; TAC, 2002 (5) SA 721, ¶ 78 18 Grootboom, 2001 (1) SA 46, ¶ 83. 19 Khosa, 2004 (6) SA 505, ¶¶ 49, 82; TAC, 2002 (5) SA 721, ¶¶ 67–73; Mazibuko, 2010 (4) SA 1, ¶ 67. 20 Grootboom, 2001 (1) SA 46, ¶ 41. 21 Olivia Road, 2008 (3) SA 208, ¶ 44. 22 Governing Body of the Juma Musjid Primary School v. Essay N.O., 2011 (8) BCLR 761 (CC) ¶¶ 36–44. 23 Id. ¶ 37. 24 Section 27 v. Minister of Education, 2013 (2) SA 40 (GNP); Minister of Basic Education v. Basic Education for All, [2016] 1 All SA 369 (SCA); Madzodzo v. Minister of Basic Education, 2014 (3) SA 441 (ECM); Tripartite Steering Committee v. Minister of Basic Education, 2015 (5) SA 107 (ECG); Centre for Child Law v. Minister of Basic Education, [2012] 4 All SA 35 (ECG). For an analysis of this jurisprudence, see Faranaaz Veriava, The Limpopo Textbook Litigation: A Case Study into the Possibilities of a Transformative Constitutionalism, 32(2) S. Afr. J. Hum Rts. 321 (2016). 25 For my account of this history, seeLiebenberg, supra note 9, ch. 1. 26 Const. § 39(1)(a). 27 Const. §§ 39(1)(b), 39(1)(c). 28 On the roles of values, historical and social context and international law in interpreting the social rights in the Constitution, see, e.g., Grootboom, 2001 (1) SA 46, ¶¶ 23, 25, 26–33, and 45. See also recent judgment of the Constitutional Court in Daniels v. Scribante, 2017 (4) SA 341. 29 For a positive empirical assessment of a combined substantive and procedural model of social rights enforcement by the Colombian Constitutional Court, see César Rodríguez-Garavito, Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic rights in Latin American, 89(7) Tex. L. Rev. 1669 (2011). 30 Young,supra note 10, at 134–139. 31 See, e.g., the seven broad criteria identified by the UN Committee on Economic, Social and Cultural Rights for assessing the adequacy of housing: General Comment No. 4 (Sixth session, 1991), U.N. Doc. E/1992/23 The Right to Adequate Housing (art 11(1) of the International Covenant on Economic, Social and Cultural Rights), ¶¶ 8(a)–8(g). 32 See, e.g., Luyolo Mkentane, Forum Calls for SA to Ditch Constitution. Independent Online (IOL) (January 25, 2017), available athttps://www.iol.co.za/news/politics/forum-calls-for-sa-to-ditch-constitution-7498118 33 Statistics South Africa, Poverty Trends in South Africa: An Examination of Absolute Poverty Between 2006 and 2015 (2017). © The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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International Journal of Constitutional LawOxford University Press

Published: May 12, 2018

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