The Justiciability of Socio-Economic Rights - Courts as Protectors of Economic and Social Rights: The Case of South Africa

Sammanfattning: Socio-economic rights have been described as the ''underdeveloped stepchild of the human rights family''. There has been a tendency to treat them as merely aspirational and it is frequently argued that they may not deserve the name of rights as they lack content and are considered ill-suited for enforcement. Owing to this, and because of the fact that their enjoyment has by their very nature, been considered as more resource-demanding than enjoyment of civil and political rights and hence involving sensitive questions of political resource allocation, they have been considered to not belong in constitutions in other forms than aspirational goals and especially not in any justiciable bill of rights documents. Consequently, issues related to enjoyment of socio-economic rights have been considered to be the prerogative of the executive and legislative branches of government as courts do not posses the same democratic legitimacy in regard to the allocation of resources. Therefore, given the above context, it is remarkable that post-Apartheid South Africa opted for inclusion of socio-economic rights alongside civil and political rights in its first democratic constitution of 1996. Moreover, subsequently, its Constitutional Court has not shied away from adjudicating on cases pertaining socio-economic rights. Some of the Court's decisions have been described as the most far-reaching decisions concerning socio-economic rights. This thesis analysis the Court's jurisprudence against the backdrop of the debate and controversies related to the justiciability of socio-economic rights. It shows that the Court has demonstrated that such rights are in fact justiciable, but that their adjudication, in general, is more politically sensitive and to some extent more complicated than adjudication of civil and political rights and that the Court therefore inevitable has had to treat such rights differently from civil and political rights. This has especially had bearing on remedies, and the Constitutional Court has not, despite giving general effect to the rights in question, been in a position to offer relief to the individual. This would support the stance that socio-economic rights are different to their nature and enjoyment when compared with civil and political rights.