Adjudicating Constitutional Priorities in a Transnational Context: A Comment onSoobramoney'sLegacy andGrootboom'sPromise

Craig M. Scott · Philip Alston

44 citations0/0 files storedSouth African Journal on Human Rights

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Legal Issues in South Africa Comparative constitutional jurisprudence studies Legal Rights and Human Rights

Abstract

This article discusses the first two social rights cases to go to the Constitutional Court under the 1996 Constitution. Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) involved a claim of a breach of the right to health care brought by one person pursuant to s 27 of the Bill of Rights. Grootboom v Oostenburg Municipality 2000 (3) BCLR 277 (C) involves a claim of breaches of rights to housing or shelter brought by some 900 persons under ss 26 and 28. The article seeks to demonstrate why the Court's judgment in Soobramoney would be problematic if replicated in future cases, most immediately in the appeal decision in Grootboom. The authors argue that the result in Soobramoney may have been correct, but that its reasoning on several fronts should not be treated as a dispositive precedent in the face of better understandings that will evolve as the courts, and the Constitutional Court itself, gradually feel their way forward in the adjudication of social rights. Similarly, the judgment in Grootboom is found wanting for having been far too deferential to government justifications as to why the failure to meet even the core shelter needs of the applicant adults was not a violation of s 26. At the same time, the High Court in Grootboom was too ready to interpret children's rights to shelter under s 28 as absolute priorities without locating that interpretation in a discussion of the concept of core minimum entitlements, a concept which should have been equally applicable to the s 26 claims of the applicant adults as to the s 28 claims of the children. The doctrinal analysis of the two cases is situated within an interpretative account of the relationship between the South African Bill of Rights and both international human rights law and foreign constitutional law.

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References

1998A Constitution of Democratic Experimentalism 1992The Sources of Human Rights Law : Custom, Jus Cogens, and General Principles 1984The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views 1999Reaching Beyond (Without Abandoning) the Category of "Economic, Social and Cultural Rights"

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