7. Substantive Rights: Socio-Economic
Rights
Social and Economic Rights
One of the reasons the South African Constitution is considered transformative in nature
•
is because of its inclusion of a suite of justiciable social and economic rights. These rights
place corresponding positive (and negative) obligations upon the state to realise them
progressively and within available resources. Essentially, they frequently require the state
to spend money for the likes of building homes, providing social assistance and so on.
• For this reason, their justiciability often engages complex questions pertaining to the
separation of powers and the role of the courts’ in the often-vexed context of
governmental policy decisions.
Socio-economic rights:
• Rights to the conditions and resources necessary for the material well-being of people
(food, water, housing, health care, social assistance, education and a safe, clean
environment).
Legal nature of socio-economic rights:
• Instrumental in achieving fulfilment of other rights – this is what makes them unique, they
create the conditions necessary to achieve material well-being, require state to act
◦ Section 24: right to a safe and healthy environment – state required to protect this
◦ Section 25: right to property and related right not to be arbitrarily deprived
◦ Section 26: access to adequate housing
▪ Right to land v home: home is a place of personal shelter, intimate
◦ Section 27: right of access to adequate health services (TAC), food, water
(Mazibuko),
◦ Section 28: children’s rights
◦ Section 29: right of access to basic and further education
◦ Section 35(2)(e): conditions of detention for detained persons
NEGATIVE DUTIES:
• Right not to be deprived of something.
POSITIVE DUTY:
• State must do something.
, ◦ Section 26: State must take reasonable measures to realise right progressively.
Drafters recognising that resources are a practical constraint. Section 27 mirrors this,
they are both hybrid rights (positive and negative duties).
SUBSIDIARITY:
• Where legislation has been enacted to give effect to a constitutional right, litigants
cannot rely directly on the C right in question to review conduct or law that breaches that
right. They must use the remedies provided by the legislation in question. The C right is
only used as a guide for the interpretation of the legislation and as a basis for a possible
C challenge to the legislation giving effect to that right. Example- PEPUDA, PIE
Three different groups SE rights:
1. Qualified rights:
a. Access rights: rights that state that everyone has the right of access to a certain thing
but circumscribing the positive duties they impose on the state.
b. Positive duties:
• These rights are circumscribed first in that they only provide the right of ‘having
access’ to a particular social good.
• Second, the positive duties they impose on the state are described as duties to
take reasonable steps, within available resources, to achieve their progressive
realization.
◦ Examples are section 26(1) – right to have access adequate housing; and
section 27(1) – right to have access to healthcare services.
• Positive duties are explicitly described in s26(2) and s27(2) in a manner that limits
them, so that the state is required to take only reasonable legislative and other
measures, within available resource, to achieve their progressive realization.
c. Other qualified socioeconomic rights like in s24(b) which provides that everyone has
the right to have the environment protected; section 25(5) which provides that the state
must take reasonable legislative and other measures to foster conditions which enable
citizens to gain access to land on an equitable basis.
2. Unqualified rights:
a. Rights which are neither formulated as access rights nor subjected to the qualifications
of reasonableness, available resources or progressive realization.
b. S29(1)(a) – right of everyone to basic education; s28(1)(c) rights of children to basic
nutrition, shelter etc.
3. Rights which have corresponding negative obligations
for the state:
2
Rights
Social and Economic Rights
One of the reasons the South African Constitution is considered transformative in nature
•
is because of its inclusion of a suite of justiciable social and economic rights. These rights
place corresponding positive (and negative) obligations upon the state to realise them
progressively and within available resources. Essentially, they frequently require the state
to spend money for the likes of building homes, providing social assistance and so on.
• For this reason, their justiciability often engages complex questions pertaining to the
separation of powers and the role of the courts’ in the often-vexed context of
governmental policy decisions.
Socio-economic rights:
• Rights to the conditions and resources necessary for the material well-being of people
(food, water, housing, health care, social assistance, education and a safe, clean
environment).
Legal nature of socio-economic rights:
• Instrumental in achieving fulfilment of other rights – this is what makes them unique, they
create the conditions necessary to achieve material well-being, require state to act
◦ Section 24: right to a safe and healthy environment – state required to protect this
◦ Section 25: right to property and related right not to be arbitrarily deprived
◦ Section 26: access to adequate housing
▪ Right to land v home: home is a place of personal shelter, intimate
◦ Section 27: right of access to adequate health services (TAC), food, water
(Mazibuko),
◦ Section 28: children’s rights
◦ Section 29: right of access to basic and further education
◦ Section 35(2)(e): conditions of detention for detained persons
NEGATIVE DUTIES:
• Right not to be deprived of something.
POSITIVE DUTY:
• State must do something.
, ◦ Section 26: State must take reasonable measures to realise right progressively.
Drafters recognising that resources are a practical constraint. Section 27 mirrors this,
they are both hybrid rights (positive and negative duties).
SUBSIDIARITY:
• Where legislation has been enacted to give effect to a constitutional right, litigants
cannot rely directly on the C right in question to review conduct or law that breaches that
right. They must use the remedies provided by the legislation in question. The C right is
only used as a guide for the interpretation of the legislation and as a basis for a possible
C challenge to the legislation giving effect to that right. Example- PEPUDA, PIE
Three different groups SE rights:
1. Qualified rights:
a. Access rights: rights that state that everyone has the right of access to a certain thing
but circumscribing the positive duties they impose on the state.
b. Positive duties:
• These rights are circumscribed first in that they only provide the right of ‘having
access’ to a particular social good.
• Second, the positive duties they impose on the state are described as duties to
take reasonable steps, within available resources, to achieve their progressive
realization.
◦ Examples are section 26(1) – right to have access adequate housing; and
section 27(1) – right to have access to healthcare services.
• Positive duties are explicitly described in s26(2) and s27(2) in a manner that limits
them, so that the state is required to take only reasonable legislative and other
measures, within available resource, to achieve their progressive realization.
c. Other qualified socioeconomic rights like in s24(b) which provides that everyone has
the right to have the environment protected; section 25(5) which provides that the state
must take reasonable legislative and other measures to foster conditions which enable
citizens to gain access to land on an equitable basis.
2. Unqualified rights:
a. Rights which are neither formulated as access rights nor subjected to the qualifications
of reasonableness, available resources or progressive realization.
b. S29(1)(a) – right of everyone to basic education; s28(1)(c) rights of children to basic
nutrition, shelter etc.
3. Rights which have corresponding negative obligations
for the state:
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