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ESCR Litigation, Research and Advocacy in South Africa

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ESCR Litigation, Research and Advocacy in South Africa A Guide for the Legal 7 Enforcement and Adjudication of Economic, Social and Cultural Rights in South Africa August 2019 Migration and International Human Rights Law Composed of 60 eminent judges and lawyers from all regions of the world, the International Commission of Jurists promotes and protects human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems. Established in 1952 and active on the five continents, the ICJ aims to ensure the progressive development and effective implementation of international human rights and international humanitarian law; secure the realization of civil, cultural, economic, political and social rights; safeguard the separation of powers; and guarantee the independence of the judiciary and legal profession. ® A Guide for the Legal Enforcement and Adjudication of Economic, Social and Cultural Rights in South Africa © Copyright International Commission of Jurists, 2019 The International Commission of Jurists (ICJ) permits free reproduction of extracts from any of its publications provided that due acknowledgment is given and a copy of the publication carrying the extract is sent to its headquarters at the following address: International Commission of Jurists P.O. Box 91 Rue des Bains 33 Geneva Switzerland This publication has been produced with the financial support of the European Union. The contents of this publication are the sole responsibility of the ICJ and can in no way be taken to reflect the views of the European Union. A Guide for the Legal Enforcement and Adjudication of Economic, Social and Cultural Rights in South Africa August 2019 Acknowledgments This Guide was written and researched by Timothy Fish Hodgson between August 2017 and August 2019. Editorial assistance with footnoting was provided by Simphiwe Sidu. Ian Seiderman provided comprehensive Legal Review. Invaluable external review was provided by Professor David Bilchitz. The Guide draws on an excellent body of academic work and research publications by local NGOs in South Africa on Economic, Social and Cultural Rights. In particular the work of David Bilchitz, Lilian Chenwi, Jackie Dugard and Sandra Liebenberg was helpful throughout. The Guide builds directly on the ICJ’s Practitioners Guide No. 8 “Adjudicating Economic, Social and Cultural Rights at National Level” in particular. The ICJ partners with a range of organizations within South Africa including: Abahlali BaseMjondolo; the Amadiba Crisis Committee; the Marievale Community Association; the Socio-Economic Rights Institute of South Africa; the Centre for Applied Legal Studies; the South African Institute for Advanced Constitutional, Public, Human Rights and International Law; the Southern African Human Rights Defenders Network; the Southern African Litigation Centre; Lawyers for Human Rights; the Legal Resources Centre; the South African Human Rights Commission; Legal Aid South Africa; the South African Judicial Education Institute; the National Association of Democratic Lawyers; and Probono.Org. The ICJ has also undertaken partnerships with the Right to Education for Children With Disabilities Alliance and South Africa’s Ratification Campaign of the International Covenant on Economic, Social and Cultural Rights. Though none of these partners gave direct input and advice on the drafting of this Guide, nonetheless, the ICJ recognizes the importance of its interactions with these local partners, organizations and coalitions in better understanding and appreciating the socio-economic context of ESCR litigation, research and advocacy in South Africa. The provision of input and advice by individuals or groups and/or the recognition of their contribution and/or influence do not imply their endorsement of the content of the Guide for which the ICJ remains solely responsible. 2 TABLE OF CONTENTS List of Acronyms………………………………………………..……6 I. PURPOSE OF THIS GUIDE…………………………………….7 II. SCOPE AND FORMAT OF THE GUIDE……………………14 III. CONSTITUTIONAL INTERPRETATION AND INTERNATIONAL LAW……………………………………………17 IV. GENERAL STANDARDS APPLICABLE TO ESCR RIGHTS IN SOUTH AFRICA…………………………………………………27 A. STATE DUTIES RELATING TO ESCR: RESPECT, PROTECT, FULFILL (PROMOTE?)…………………………..33 1. The duty to respect………………………………………………….34 2. The duty to protect ............................................ 35 3. The duty to fulfill ............................................... 38 4. The duty to promote .......................................... 40 5. State obligations and rights holders ..................... 42 B. IMMEDIATE OBLIGATIONS: MINIMUM CORE, NON-RETROGRESSION AND NON-DISCRIMINATION 45 1. Obligation to take steps ...................................... 46 2. Obligation to avoid retrogressive steps ................. 46 3. Obligation of non-discrimination .......................... 47 4. Minimum core obligations ................................... 48 C. MINIMUM CORE OBLIGATIONS ........................... 48 1. Minimum core or obligations of immediate effect under the ICESCR .................................................... 49 2. What is the relationship between progressive realization and minimum core? .................................. 51 3. What is the minimum core of specific ESCR? ......... 53 4. International justiciability and the minimum core ... 61 5. Indeterminacy of minimum core in international law 66 6. Minimum core in South African law ...................... 68 7. Judicially determined minimum core v judicial enforced minimum core ............................................ 75 8. Applying the minimum core consistently with the requirements of international and South African law ..... 77 9. Can South Africa’s ratification of ICESCR be harnessed to modify the Constitutional Court’s approach to minimum core? .................................................... 82 3 D. THE OBLIGATION OF “PROGRESSIVE REALIZATION” .......................................................... 85 1. Purposive Progressive Realization ........................ 87 2. Elimination of barriers and hurdles ....................... 87 3. Continuous improvements: access to a “larger number” and “wider range” ....................................... 88 4. Prohibition of deliberate retrogression .................. 89 5. Perpetual, continuous, and varying ...................... 91 6. Flexible and dynamic .......................................... 94 7. Achieved through clear, well-communicated plans and strategies ................................................................ 94 8. Compliance with the obligation of progressively realization ............................................................... 95 E. REASONABLE LEGISLATIVE AND OTHER MEASURES ................................................................. 98 1. Reasonableness and the provisions of the Constitution 102 2. Reasonable “legislative and other measures” ........ 103 3. Reasonable measures are not necessarily “perfect” measures ............................................................... 107 4. Purposive measures .......................................... 108 5. Reasonable measures in conception and implementation ....................................................... 109 6. Contextually-informed measures ........................ 111 7. Comprehensive and Coordinated measures .......... 113 8. Coherent measures ........................................... 117 9. Flexible, adapting and updating measures ........... 118 10. Transparent measures ..................................... 120 11. Measures addressing “desperate” or “compelling” need……. ................................................................ 121 12. Specific measures for marginalized individuals and groups ................................................................... 123 13. Proportionality and measures at relatively or comparatively low cost ............................................ 125 14. Measures with an (adverse) impact on other human rights 127 15. Meaningful engagement and consultation as reasonable measures ............................................... 128 16. Conclusion: developing reasonableness, defining the content of rights ..................................................... 131 F. WITHIN (MAXIMUM) AVAILABLE RESOURCES .. 133 4 1. Available resources and the text of the Constitution 135 2. Is there a duty on the State to budget for the fulfillment of ESCR? ................................................. 136 3. Budgeting and ESCR ......................................... 138 4. Available resources in specific circumstances........ 155 G. OBLIGATIONS RELATING TO PRIVATE ENTITIES …………………………………………………………………167 1. State obligations to respect, protect and fulfill under international human rights law.................................. 168 2. The duty to protect: the State’s duty to prevent human rights abuses by private entities ..................... 169 3. Direct human rights duties owed by private entities under domestic law ................................................. 175 4. Direct obligations on private entities in South African law 177 5. Future development of positive duties on private entities .................................................................. 180 6. Private entities performing public functions .......... 182 H. EQUALITY, NON-DISCRIMINATION AND ESCR……..188 1. Equality and non-discrimination and ESCR in international law ..................................................... 190 2. Equality, non-discrimination and ESCR in South African law ............................................................
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