Socio-economic rights litigation : a potential strategy in the struggle for social justice in South Africa

Abstract

In this study I investigate how and to what extent socio-economic rights litigation can be used as a pragmatic strategy in the struggle for social justice in South Africa. In response to arguments that litigation lacks potential to change the socio-economic conditions that poor people often contest, I examine its potential to create social transformation. My analysis is premised on the fact that the constitutional project promises to construct South African society among others on the pillar of social justice, where the potential of every individual to enjoy improved quality of life is guaranteed. However, I illustrate how apartheid legacy and the neo-liberal politics of the post-apartheid government have conspired to keep the poor in perpetual deprivation. While much has been achieved in terms of the provision of basic services, millions of South Africans continue to battle with escalating poverty, deprivation and inequalities in resource redistribution. Consequently, a number of academic commentaries on the post-apartheid experience have expressed uncertainty that the constitutional experiment will result in improve livelihood.

In interrogating this claim I construct a theoretical analysis, from a socio-legal point of view, in which I explain the concept of socio-economic rights litigation. I examine the instrumental role of civil society, including the activism of social movements in converting political demands into legal claims framed in the language of socio-economic rights. I explain how recourse is had to the courts to challenge political conduct, to contest the unconstitutionality of state policies and to demand the fulfillment of political promises with the aim to achieve redistributive justice. In examining the context within which socio-economic rights litigation applies I identify three phases in its trajectory, which include a period of contestation, a first decade and a second decade of litigation. These phases illustrate significant trends that have developed in socio-economic rights litigation over the years. Thus I argue that socio-economic rights litigation has potential to engineer social transformation but that potential has not adequately been explored. Given the magnitude of socio-economic challenges that need to be redressed, I further argue that socio-economic rights litigation needs to be developed as a pragmatic strategy in the struggle to achieve social justice.

To substantiate this argument I analyse the decisions of the Constitutional Court in Mazibuko, Modderklip, Abahlali baseMjondolo and Schubart Park to illustrate the practical dimensions how and to what extent litigating socio-economic rights has contributed to social transformation. Based on the analysis of the judgments, I identify certain determining and necessitating factors that either cause litigation to happen or facilitate the process. I then further examine some challenges and constraints that inhibit the potential of litigation with the aim to point out flaws that need to be overcome when planning future socio-economic rights litigation. I conclude by looking at prospects for the future of socio-economic rights litigation in driving not only social transformation but also in creating possibilities for the advancement of the law, the further development of jurisprudence on socio-economic rights as a pragmatic strategy in the broader commitment to achieve social justice. I argue that to develop the potential of litigation for social change entails developing a balanced jurisprudence that provides a forum for the prevalence of social justice to ensure that benefits accrue equitably to the poor.