Document Type

Article

Disciplines

International Law

Abstract

The new South African Constitution has received praise and international attention.' It provides numerous socio-economic rights which have been held to be judicially enforceable by the South African Constitutional Court, such as the right to housing2 and the right to health care.' The Constitutional Court, therefore, has done exactly what the U.S. Supreme Court has said courts cannot and should not do - enforce socio-economic rights.

American scholars typically criticize judicially enforceable socio-economic rights as infringing on separation of powers and taxing judicial competency.- I have argued elsewhere that this criticism is incorrect,6 as have other scholars, perhaps most notably Harvard's Frank Michelman.' This paper, however, addresses a different criticism. Several South African scholars argue that the Constitutional Court's decisions do not go far enough in clearly defining the substance of the rights and in enforcing the rights vigorously. They argue that the Court's omissions will allow the South African government to delay implementation of these rights and hinder society's transformation from the legacy of Apartheid.

For the most part, I believe these critics are incorrect. The unelected Court is taking a substantial risk by treating these rights as justiciable. The Court's circumspection avoids an escalation of separation of powers and other tensions. The critics would also, in effect, make the judiciary's "vocabulary of rights" the engine for social transformation, based on only a few factual situations, when the elected African National Congress (ANC) dominated Parliament and the ANC President may be the better institutions to rely upon for change over time. Contrary to the critics, I believe the Court should not prematurely clip the wings of these institutions.

This paper is divided into four parts. Part I discusses the leading cases dealing with South African socio-economic rights. Part II examines the points of view of those who criticize these cases. Part III responds to these criticisms and Part IV discusses, in a more exploratory vein, how the faith these critics have in the judiciary is inconsistent with the ANC majoritarian roots of the constitutional provisions at issue. This author concludes that the Constitutional Court's approach is more pragmatic and, paradoxically, more transformative than the approach suggested by the critics.

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