The potential of socio-economic rights litigation for the achievement of social justice: Considering the example of access to medical care in south african prisons

Journal of African Law

Volumn 50, Issue 2, 2006, Pages 118-131

  Pieterse, Marius ^a  

^a UNIVERSITY OF THE WITWATERSRAND   (South Africa)

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[No Author keywords available]

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EID: 84889953014     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S0021855306000118     Document Type: Article

References (119)

1. See L.A. Williams, “Issues and challenges in addressing poverty and legal rights: a comparative United States/South African analysis”, (2005) 21 South African Journal on Human Rights 436, 439.
2. Even the United States, which is widely cited as an example of a state that is ideologically opposed to the notion of justiciable socio-economic rights, awards a myriad of “welfare” entitlements to citizens in terms of federal and national legislation. For a discussion of the pursuit of social justice through enforceable legal entitlements in the United States, see, e.g., South African Journal on Human Rights, 440–445.
3. These assumptions typically relate to concerns about the implications of justiciable socio-economic rights for the separation of powers, representative democracy and polycentric decision-making. I have defended the constitutionalization of socio-economic rights in South Africa against these assumptions in M. Pieterse, “Coming to terms with judicial enforcement of socio-economic rights”, (2004) 20 South African Journal on Human Rights 383, 390–396; 405, and will not attempt to do so again here.
4. See, for instance, the observations of S. Liebenberg, “Needs, rights and transformation: adjudicating social rights”, (2005) 8 Center for Human Rights and Global Justice Working Paper (Economic and Social Rights Series) 6–7.
5. This was famously pointed out, in response to the Critical Legal Studies movement's critique of rights discourse, by several prominent critical race theorists: see, for instance, R. Delgado, “The ethereal scholar: does critical legal studies have what minorities want?”, (1987) 22 Harvard Civil Rights Civil Liberties Law Review 301, 304–305
6. P.J. Williams, “Alchemical notes: reconstructing ideals from deconstructed rights”, (1987) 22 Harvard Civil Rights Civil Liberties Law Review 401, 411–413
7. generally, M.J. Matsuda, “Looking to the bottom: critical legal studies and reparations”, (1987) 22 Harvard Civil Rights Civil Liberties Law Review 323.
8. Liebenberg, above n. 6, 17.
9. See, e.g., Liebenberg above n. 6, 30
10. Williams, above n. 3, 445.
11. Liebenberg, above n. 6, 7
12. relying on the discussion of “non-reformist reforms” enabled by the “trajectory of change” set in motion by the consistent pursuit of affirmative rights-strategies, by N. Fraser, “Social justice in the age of identity politics: redistribution, recognition and participation”, in N. Fraser and A. Honneth (eds.) Redistribution or Recognition? A Political-Philosophical Exchange, London, 2003, 74–80.
13. The Court has recently declined to hear a matter based indirectly on s. 35(2)(e) as forum of first instance. See Mnguni v. Minister of Correctional Services 2005 (12) B.C.L.R. 1187 (C.C.), discussed in s. III below.
14. The Court set out its approach in Government of the RSA v. Grootboom 2001 (1) S.A. 46 (C.C.), regarding the right to have access to adequate housing in s. 26(1) of the Constitution.
15. The approach was subsequently applied in Minister of Health v. Treatment Action Campaign (No 2) 2002 (5) S.A. 721 (C.C.)
16. in relation to the right to have access to health care services in s. 27(1)(a) of the Constitution and in Khosa v. Minister of Social Development; Mahlaule v. Minister of Social Development 2004 (6) S.A. 505 (C.C.), regarding the right to have access to social security in s. 27(1)(c).
17. For critical discussion of the approach, see, for example, D. Bilchitz, “Towards a reasonable approach to the minimum core: laying the foundations for future socio-economic rights jurisprudence”, (2003) 19 South African Journal on Human Rights 1
18. D. Brand, “The proceduralisation of South African socio-economic rights jurisprudence, or ‘what are socio-economic rights for?”’, in H. Botha et al (eds.), Rights and Democracy in a Transformative Constitution, Stellenbosch, 2003, 33
19. F. Coomans, “Reviewing implementation of social and economic rights: an assessment of the ‘reasonableness’ test as developed by the South African Constitutional Court”, (2005) 65 Heidelberg Journal of International Law 167
20. S. Liebenberg, “South Africa's evolving jurisprudence on socio-economic rights: an effective tool in challenging poverty?”, (2002) 6 Law, Democracy and Development 159
21. F.I. Michelman, “The Constitution, social rights, and liberal political justification”, (2003) 1 International Journal of Constitutional Law 13
22. M. Pieterse, “Possibilities and pitfalls in the domestic enforcement of socio-economic rights: contemplating the South African experience”, (2004) 26 Human Rights Quarterly 882
23. T. Roux, “Understanding Grootboom - a reply to Cass R. Sunstein”, (2002) 12(2) Constitutional Forum 41
24. C.R. Sunstein, “Social and economic rights? Lessons from South Africa”, (2001) 11(4) Constitutional Forum 123
25. M. Wesson “Grootboom and beyond: reassessing the socio-economic jurisprudence of the South African Constitutional Court” (2004) 20 South African Journal Human Rights 284.
26. I have argued this in more detail in the South African context, in Pieterse, above n. 5, 406–416.
27. See statistics cited in the Annual Report of the Judicial Inspectorate of Prisons, 2006, available at: , 20–21.
28. These conditions are reported and/or discussed in statistics cited in the Annual Report of the Judicial Inspectorate of Prisons, 17–21
29. HIV/AIDS in Prison: Treatment Intervention and Reform: Joint Submission of the Aids Law Project and Treatment Action Campaign to the Jali Commission, March 2004, available at: , 13–21.
30. See also the remarks of J.C. Mubangizi, The Protection of Human Rights in South Africa, Cape Town, 2004, 99
31. I. Currie and J. D. Waal, The Bill of Rights Handbook (5th ed.), Cape Town, 2005, 773.
32. See HIV/AIDS in Prison, above n. 16, 6.
33. HIV/AIDS in Prison. 13–17.
34. HIV/AIDS in Prison. 17–19.
35. These reasons are provided by E. De Wet, The Constitutional Enforceability of Economic and Soci Rights: The Meaning of the German Constitutional Model for South Africa, London, 1996, 110.
36. See, for instance, the concerns evident from observations by C. Ngwena, “Aids in Africa: access to health care as a human right”, (2000) 15 SA Public Law 1, 17
37. J.C. Mubangizi, “Public health, the South African Bill of Rights and the socio-economic polemic”, (2002) Tydskrif vir die Suid Afrikaanse Reg 343, 349.
38. Soobramoney v. Minister of Health, KwaZulu Natal 1998 (1) S.A. 765 (C.C.), para. 8.
39. J. De Waal, I. Currie and G. Erasmus, The Bill of Rights Handbook (4th ed.), Cape Town, 2001, 614.
40. See also De Wet, above n. 21, 113
41. J.C. Mubangizi, “The constitutional rights of prisoners in South Africa: a critical review”, (2002) 35 De Jure 42, 48–49.
42. Ngwena, above n. 22, 17–18.
43. See also rules 24–26. In terms of s. 39(1)(b) of the South African Constitution, rights in the Bill of Rights must be interpreted in light of prevailing standards of international law.
44. For further deliberation on the ambit and scope of the s. 35(2)(f) entitlement, see N. Steytler, Constitutional Criminal Procedure, Durban, 1998, 197–203.
45. See also De Wet, above n. 21, 110
46. F. ka Mdumbe, “Socio-economic rights: Van Biljon versus Soobramoney”, (1998) 13 SA Public Law 460, 469
47. S. Liebenberg, “Socio-economic rights”, in M. Chaskalson et al (eds.), Constitutional Law of South Africa, Cape Town, 1999, ch. 41, 37
48. Mubangizi, above n. 22, 349.
49. On the extent of South African courts' remedial flexibility in socio-economic rights cases in terms of s. 38 of the Constitution generally, and on the need for them to make creative orders that adequately and effectively vindicate the interests infringed in such cases, see, for instance, T.J. Bollyky, “R if C > B + P: a paradigm for judicial remedies of socio-economic rights violations”, (2002) 18 South African Journal on Human Rights 161, 177, 184–186
50. Liebenberg, above n. 28, 52–54
51. M. Swart, “Left out in the cold? Crafting constitutional remedies for the poorest of the poor”, (2005) 21 South African Journal on Human Rights 215, 225–228
52. W. Trengove, “Judicial remedies for violations of socio-economic rights”, (1999) 1(4) ESR Review 8–11.
53. Goldberg v. Minister of Prisons 1979 (1) S.A. 14 (A), 39C-F.
54. See also Whittaker v. Roos 1912 A.D. 92
55. Minister of Justice v. Hofmeyr 1993 (3) S.A. 131 (A) at 141G-H
56. discussion in C. Van Wyk, “Die regte van gevangenes met HIV”, (1997) 60 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 699, 704.
57. August v. Electoral Commission 1999 (3) S.A. 1 (C.C.).
58. S.A. at paras. 18–19.
59. See also S v. Makwanyane 1995 (3) S.A. 391 (C.C.), paras. 142–143
60. Minister of Correctional Services v. Kwakwa 2002 (4) S.A. 455 (S.C.A.), paras. 25, 27, 31, 33.
61. Van Biljon v. Minister of Correctional Services 1997 (4) S.A. 441 (C).
62. Also reported as B v. Minister of Correctional Services 1997 (6) B.C.L.R. 789 (C).
63. B.C.L.R., paras. 42–43, 52, 60.
64. B.C.L.R, paras. 49, 52.
65. However, the treatment ordered was both expensive and state-of-the-art, and indeed, at the time, amounted to “optimal” or “best available” treatment. Liebenberg, above n. 28, 37
66. Ngwena, above n. 22, 18.
67. Van Biljon, above n. 34, para. 53.
68. See also B.C.L.R, para. 52.
69. B.C.L.R, para. 54.
70. B.C.L.R, para. 49.
71. B.C.L.R, paras. 56, 60, 65.
72. B.C.L.R, paras. 33–37, 61, 65.
73. For criticism of this aspect of the order, see C. Ngwena and R. Cook, “Rights concerning health”, in D. Brand and C. Heyns (eds.), Socio-economic Rights in South Africa, Pretoria, 2005, 134.
74. See Liebenberg, above n. 28, 37
75. ka Mdumbe, above n. 28, 462–463.
76. A similarly rigorous order vindicating a non-health-related aspect of s. 35(2)(e) was handed down in Strydom v. Minister of Correctional Services 1999 (3) B.C.L.R. 342 (W). In this case, the Witwatersrand High Court regarded it as an unjustifiable infringement of s. 35(2)(e) that high-security prisoners were denied the privilege of an electrical plug-point in their cells. This decision was informed by the facts that the prisoners had to spend most of their time in their cells, that they were previously allowed to keep electrical items in their cells before these had arbitrarily been confiscated, that the Department of Correctional Services had undertaken to supply electricity to their cells and that money for this purpose had already been budgeted.
77. The Department was accordingly ordered to “ensure that the upgrading of the electrical system in the Maximum Security Section is carried out expeditiously”. Socio-economic Rights in South Africa., 357B-C.
78. S v. Mpofana 1998 (1) S.A.C.R. 40 (Tk), 45d-i.
79. S v. Vanqa 2000 (2) S.A.C.R. 37 (Tk).
80. S.A.C.R, paras. 16, 18, 28.
81. S.A.C.R, paras. 27, 29.
82. Stanfield v. Minister of Correctional Services 2004 (4) S.A. 43 (C).
83. S.A., paras. 125, 129, 132.
84. S.A, paras. 89–91, 119–122.
85. S.A, para. 125.
86. Du Plooy v. Minister of Correctional Services [2004] 3 All S.A. 613 (T).
87. S.A, paras. 26–27. See also para. 23.
88. S v. Cloete 1995 (1) S.A.C.R. 367(W).
89. S.A.C.R, at 370d.
90. See also S.A.C.R, b-c.
91. Stanfield v. Minister of Correctional Services, above n. 48.
92. S.A.C.R, at para. 128.
93. Mnguni v. Minister of Correctional Services, above n. 11.
94. S.A.C.R, para. 6.
95. S.A.C.R, para. 7.
96. S.A.C.R.
97. On the discourse of “undeserving” welfare recipients generally, see D. Brand, “The ‘politics of need interpretation’ and the adjudication of socio-economic rights claims in South Africa”, in A.J. van der Walt (ed.), Theories of Social and Economic Justice, Stellenbosch, 2005, 20
98. P. Du Gay, “In the name of ‘globalization’: enterprising up nations, organizations and individuals”, in P. Leisink (ed.), Globalization and Labour Relations, Cheltenham, and Northampton, MA, 1999, 85–86
99. Liebenberg, above n. 6, 6
100. Williams, above n. 3, 441.
101. The particular insidiousness of this discourse in relation to prisoners in South Africa is evident from some of the arguments raised in the cases discussed above - see, for instance, the reference in S v. Cloete (above n. 54, 368f-i) to findings by the magistrate that the applicant's sentence should not be converted since he brought both his HIV-status and his imprisonment upon himself, and the discussion of the respondent's sceptical attitude towards the applicant in Du Plooy v. Minister of Correctional Services, above n. 52, para. 20.
102. See Van Biljon v. Minister of Correctional Services, above n. 34, paras. 52–55
103. Strydom v. Minister of Correctional Services, above n. 43, para. 15
104. Stanfield v. Minister of Correctional Services, above n. 48, paras. 125, 128
105. Du Plooy v. Minister of Correctional Services, above n. 52, paras. 5, 29.
106. S v. Makwanyane, above n. 33, para. 88. In Makwanyane, the Constitutional Court found that the death penalty was unconstitutional, mainly because it amounted to cruel, inhuman and degrading punishment.
107. See, for instance, the use of s. 35(2)(e) as justification for the call to reduce the South African prison population in Annual Report of the Judicial Inspectorate of Prisons, above n. 15, 21.
108. See also Strydom v. Minister of Correctional Services, above n. 43
109. S v. Mpofana, above n. 44.
110. It may be expected that litigants will only rely on socio-economic rights to the extent that they stand to gain tangible benefits from doing so: see M. Heywood, “Preventing mother-to-child HIV transmission in South Africa: background, strategies and outcomes of the Treatment Action Campaign case against the Minister of Health”, (2003) 19 South African Journal on Human Rights 300
111. Liebenberg, above n. 12, 176
112. C. Scott and P. Alston, “Adjudicating constitutional priorities in a transnational context: a comment on Soobramoney's legacy and Grootboom's promise”, (2000) 16 South African Journal on Human Rights 254–255.
113. Liebenberg, above n. 6, 6–7.
114. See AIDS Law Project Press Release, Prisoners Still Denied Access to Treatment, 19 January, 2006, available at: .
115. See Van Biljon v. Minister of Correctional Services, above n. 34, paras. 58, 61, 65.
116. The restrictive nature of the order in Van Biljon is lamented for precisely this reason by Ngwena and Cook, above n. 41, 134.
117. See AIDS Law Project, Submission on the Early Release of Prisoners with HIV/AIDS to the Jali Commission, June 2004, available at: .
118. See Aids Law Project Press Release, above n. 71.
119. Liebenberg, above n. 6, 33.