Veranstaltungen

Socio-economic rights in South Africa - The state of the experiment

Socio-economic rights were included in the 1996 South African Constitution, in a context of considerable political and scholarly controversy about how courts would enforce them. This talk sketches what has happened in the 17 years since, in order to set up a discussion about the justiciability of socio-economic rights. It will briefly introduce the case law and the main elements of the Court's approach - the reasonableness test, the concept of meaningful engagement, and a conception of deference that recognizes government's primary role in giving effect to these rights but does not preclude the judiciary making orders with potentially very large budgetary and policy implications when government fails to do its job. It will also introduce the main lines of scholarly response, which has often been more critical in South Africa and the global South than in the rest of the world, and draw attention to some errors and questionable assumptions that are surprisingly prevalent in the literature.

James Fowkes