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Socio-Economic Rights — Progressive Realisation? Socio-Economic Rights: Progressive Realisation?

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Socio-Economic Rights — Progressive Realisation? Socio-Economic Rights: Progressive Realisation? Socio-economic Rights — Progressive realisation? Socio-economic Rights: Progressive Realisation? Published by the Foundation for Human Rights 2016 Text © The contributors ISBN (Print): 978-0-620-72617-7 All rights reserved. No part of this book may be reproduced or transmitted in any form or by any electronic or mechanical means, including photocopying and recording, or any other information storage or retrieval system, without written permission from the publisher. Contents About the authors 5 Acronyms and abbreviations 9 Foreword 15 Introduction 21 Part 1 – socio-economic rights — The jurisprudence of the South African Constitutional Court on socio-economic rights KhuleKani moyo 37 Realising the right to basic education in South Africa Faranaaz veriava 81 The right to housing in South Africa JacKie DugarD with michael clarK, Kate tissington anD stuart wilson 155 The right to sanitation in South Africa JacKie DugarD 263 The right to water in South Africa JacKie DugarD 317 Realising the right to health in South Africa KhuleKani moyo 375 The right to social security in South Africa soPhie Plagerson anD marianne s. ulriKsen 457 Part 2 – comPlementary Political rights — The right to freedom of expression in South Africa Jane Duncan 519 The right to freedom of assembly, demonstration, picket and petition within the parameters of South African law simon Delaney 595 About the authors michael clarK is a legal researcher with considerable experience in legal and participatory action research in the areas of socio-economic rights, housing and land rights, now living in the US. He was formerly employed at the Rural Women’s Action Research Project at the Centre for Law and Society (CLS) at the University of Cape Town, which has become the Land and Accountability Research Centre (LARC). There he focused on rural land rights and tenure security. He has also worked at the Socio-Economic Rights Institute of South Africa (SERI) and has conducted research on administrative justice, public finance and public procurement law under the auspices of the Socio-Economic Rights and Administrative Justice Research Project (SERAJ) at the University of Stel- lenbosch. JacKie DugarD is an associate professor at the School of Law, University of the Witwatersrand, where she lectures Property Law. She was a co- founder and the first executive director of the SERI, where she is cur- rently Chairperson of the Board. With a background in social sciences and law, Jackie is a human rights activist and scholar, and has published widely on the role of law and courts in affecting social change, as well as on socio-economic rights, access to courts, protest and social move- ments. Jackie has recently co-edited, with Malcolm Langford, Ben Cousins and Tshepo Madlingozi, the book Symbols or Substance?: Socio- Economic Rights in South Africa (2014, Cambridge University Press). She is on the editorial committee of the South African Journal on Human Rights. Jackie is also a Member of the Board of Trustees of Womin. 5 SOCIO-ECONOMIC RIGHTS Jane Duncan is a Professor of Journalism at the University of Johannes- burg. Before that she was Highway Africa Chair of Media and Informa- tion Society, School of Journalism and Media Studies at Rhodes University. Jane is a former executive director of the Freedom of Expression Institute, a position she held for eight years. She has three postgraduate degrees, and has written widely on media policy and media freedom issues. KhuleKani moyo is a senior lecturer in the UNESCO Oliver Tambo Centre for Human Rights at the Nelson R. Mandela School of Law at the University of Fort Hare. He can be contacted at [email protected]. soPhie Plagerson is a senior research fellow at the Centre for Social Development in Africa, South Africa. She holds a PhD in Epidemiology from the London School of Hygiene and Tropical Medicine. Current and recent projects include research on social justice, social policy, social pro- tection, mental health, state-citizen relations, and work/family policies. Kate tissington worked as a researcher at SERI from 2010 to 2015 and at the Centre for Applied Legal Studies (CALS) from 2007 to 2009, where she focused on issues around housing, evictions and basic services in South Africa. She is currently a PhD candidate in the Centre for Urban- ism and Built Environment Studies (CUBES) at the University of the Wit- watersrand, researching how public interest litigation around inner city evictions has influenced state housing policy and practice in Johannes- burg. Kate has a BA Honours degree in History from Rhodes University and an MPhil in Development Studies from Cambridge University. marianne ulriKsen is Senior Research Fellow at the Centre for Social Development in Africa (CSDA), University of Johannesburg, South Africa. Marianne’s research areas include comparative politics, political economy of welfare policy development, social protection, social justice, state-citizens relations, poverty and inequality, aid and resource mobil- isation. Her research work focuses primarily on southern and eastern Africa. She has published widely, including in top journals like World Development and Comparative Political Studies. 6 ABOUT THE AUTHORS Faranaaz veriava works as a lawyer and senior researcher focusing on education rights at the public interest organisation SECTION27. Faranaaz has practised as an advocate of the Johannesburg Bar. She has maintained a long interest in working within civil society. Previously she has worked as a researcher at IDASA before joining the South African Human Rights Commission as a lawyer and then working at the Centre for Applied Legal Studies (CALS) at Wits University, where she helped establish a project to conduct research, litigation and advocacy to realise the right to basic education for the poorest learners. Faranaaz is currently completing an LLD at the University of Pretoria. stuart wilson is SERI’s co-founder and executive director. He is a practising advocate, a Member of the Johannesburg Bar, and a door member of the Bridge Group of Advocates. Prior to joining the Bar and SERI, Stuart ran the Litigation Unit at the Centre for Applied Legal Stud- ies (CALS). Stuart has been responsible for litigating many of the leading socio-economic rights cases to come before the courts in recent years. He appears regularly at all levels of the courts system. His practice encom- passes constitutional law, administrative law, defamation, property law, labour law and criminal defence work. He has particular expertise in land and housing law. He holds a Master of Arts degree (in Philosophy, Politics and Economics) from the University of Oxford and a Bachelor of Laws degree (with distinction) from the University of the Witwatersrand. He is a part-time lecturer and Visiting Senior Fellow at Wits Law School. Stu- art also writes and publishes on constitutional law, property law and the intersection between law and society. He sits on SERI’s Board of Direc- tors and on the Human Rights Committee of the General Council of the Bar of South Africa. 7 Acronyms and abbreviations ACESS Alliance for Children’s Entitlement to Social Security ACHPR African Charter on Human and Peoples’ Rights ADSL asymmetric digital subscriber line ANC African National Congress ARV Anti-retroviral ASIDI Accelerated schools infrastructure delivery initiative BCCSA Broadcasting Complaints Commission of South Africa BNG Breaking New Ground CALS Centre for Applied Legal Studies CCC Complaints and Compliance Committee CCL Centre for Child Law CDE Centre for Development and Enterprise CEDAW Convention on the Elimination of all forms of Discrimination Against Women CESCR (United Nations) Committee on Economic, Social and Cultural Rights CFO chief financial officer CoGTA Department of Co-operative Governance and Traditional Affairs (previously DPLG) Comtask Communications Task Group COO chief operating officer COSATU Congress of South African Trade Unions CRC Convention on the Rights of the Child CSIR Council for Scientific and Industrial Research CSSR Centre for Social Science Research DA Democratic Alliance DBE National Department of Basic Education DHS Department of Human Settlements (previously National Department of Housing or NDoH) DMA Disaster Management Act 57 of 2002 DMMA Digital Media and Marketing Association DORA Division of Revenue Act (renewed annually) 9 SOCIO-ECONOMIC RIGHTS DPLG Department of Provincial and Local Government (now CoGTA) DPME Department of Planning, Monitoring and Evaluation DWA Department of Water Affairs (previously DWAF) DWAF Department of Water Affairs and Forestry (now DWA) ECA Electronic Communications Act ECDoE Eastern Cape Department of Education ECS electronic communications service ECT electronic communications and transactions EEA Employment of Educators Act 76 of 1998 EFF Economic Freedom Fighters EHP Emergency Housing Programme ES equitable share ESTA Extension of Security of Tenure Act 62 of 1997 FBSan free basic sanitation FBW free basic water FICA Financial Intelligence Centre Act 38 of 2001 FHR Foundation for Human Rights FLISP Finance Linked Individual Subsidy Programme FXI Freedom of Expression Institute GCEO group chief executive officer GCIS Government Communication and Information System GDE Gauteng Department of Education GEC General Education Certificate GG Government Gazette HDA Housing Development Agency HOD head of department HSDG Human Settlements Development Grant IBA Independent Broadcasting Authority ICASA Independent Communications Authority of South Africa ICCPR International
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