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Liverpool Law Rev (2012) 33:235261
DOI 10.1007/s10991-012-9122-8
Evadn Grant
Published online: 4 January 2013 Springer Science+Business Media Dordrecht 2013
Abstract The South African Constitution numbers among a very few constitutions around the world which include justiciable socio-economic rights. One of the controversies surrounding judicial enforcement of such rights is the extent to which it is appropriate for courts to engage in policy choices in relation to the use of state resources in light of the doctrine of the separation of powers. The South African Constitutional Court has responded by developing an approach to adjudication of socio-economic rights in which the role of the court is to determine the reasonableness or otherwise of measures taken by the legislature and executive to implement such rights. However, the South African Constitution is also notable for its identication of human dignity as an underlying value and the explicit duty placed on the courts to interpret the rights protected under the Bill of Rights in conformity with this value. This article scrutinises the socio-economic rights jurisprudence of the South African Constitutional court in light of the Constitutional commitment to human dignity. It questions whether reasonableness review in socio-economic cases successfully balances human dignity with the appropriate degree of deference to the legislature and executive, in compliance with the doctrine of the separation of powers.
Keywords Dignity South Africa Socio-economic rights
Introduction
According to the World Bank, South Africa is one of the most unequal societies in the world.1 The grinding poverty experienced by the majority of South Africans is
1 http://www.worldbank.org/en/country/southafrica/overview
Web End =http://www.worldbank.org/en/country/southafrica/overview accessed 12 September 2012. See also the UNDPs Human Development Index, http://hdrstats.undp.org/en/countries/profiles/ZAF.html
Web End =http://hdrstats.undp.org/en/countries/proles/ZAF.html .
E. Grant (&)
University of the West of England, Bristol, UK e-mail: [email protected]
Human Dignity and Socio-Economic Rights
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236 E. Grant
one of the legacies of apartheid which the 1996 South African Constitution specically sets out to address. The Constitution includes, as one of its stated aims, the improvement of the quality of life of all citizens in order to free the potential of each person.2 To this end, the Constitution embraces socio-economic rights in addition to the more predictable civil and political rights. The Constitution also directs the courts to promote the values of human dignity, freedom...