Constitutional Court Case Study

1 Introduction

The Constitution of the Republic of South Africa, 1996 (“the Constitution”) directly concerns itself with the well-being of individuals by means of a comprehensive set of socio-economic rights enshrined in the Bill of Rights. Realising these rights as fully justiciable is thus crucial to guaranteeing a constitutional democracy and the core values of freedom, equality and dignity which it seeks to uphold. Although South Africa’s new constitutional order is still relatively young, it has seen considerable development concerning sections 26 and 27 of the Constitution.

The manner in which the Constitutional Court has granted remedies for the breach of these rights to housing, health care, food, water and social security thus far has proved that appropriate communication between the government, civil society and the courts is crucial in the systematic implementation of the Bill of Rights. However, what needs to be questioned is whether this has indeed contributed to a better quality of life for all. This research essay will thus examine how the Constitutional Court has approached remedies in jurisprudence concerning sections 26 and 27, particularly taking cognisance of the doctrine of separation of powers under a transformative constitution.

2 Adjudicating socio-economic rights

2 1 The role of the Constitutional Court under a transformative Constitution and the separation of powers doctrine

The Constitutional Court has a vital function in the achievement and enforcement of the transformative potential of socio-economic rights. In an analysis of South Africa’s evolving jurisprudence in this regard, Liebenberg identifies two elements to the role of the Court, namely that it has created the negative duty to respect these...

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...ty “to develop socio-economic rights jurisprudence which adequately accounts for the lived experience of poverty, and which requires state policy to face up to the realities of that experience,” and it is only through a bold engagement with those interests that the Court can fulfill its institutional potential. Merely because judicially enforcing socio-economic rights is difficult - as has been illustrated particularly in the foundational cases of Soobramoney, Grootboom, TAC and Khosa, and subsequently in Olivia, Mazibuko and Joe Slovo - does not mean that the task should be abdicated. If these tensions are approached pragmatically, courts will almost always be able to strike an appropriate balance between vigilance and defence, and in so doing, illustrate the transformative power of the Constitution and steadily contribute to a better life for all South Africans.