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Paul Nolette

excerpted from: Paul Nolette, Lessons Learned from the South African Constitutional Court: Toward a Third Way of Judicial Enforcement of Socio-economic Rights, 12 Michigan State Journal of International Law 91-119, 91 (2003) (153 Citations)

The question of whether constitutionally recognized socio-economic rights are judicially enforceable remains a hotly debated issue throughout the world as the number of socio-economic guarantees appearing in national constitutions continues to grow. Much of this debate, however, is conducted on a purely theoretical level since judicial precedent speaking to the issue is remarkably thin. This lack of judicial precedent has made it difficult to predict how judicial enforcement might actually work in practice.

Recently, however, South Africa's Constitutional Court has decided a number of significant cases that provide important insight into the judicial enforceability of socio-economic rights. The South African constitutional system, as an "administrative law model of socio-economic rights," presents a "novel and highly promising approach to judicial protection of socio-economic rights." This is because the approach "answers a number of questions about the proper relationship among socio-economic rights, constitutional law, and democratic deliberation." In particular, the Court's approach "promote[s] a certain kind of deliberation, not [] preempting it, as a result of directing political attention to interests that would otherwise be disregarded in ordinary political life." The insights provided by the South African system contribute greatly to bridging the gap between theory and practice.

This note builds upon Professor Cass Sunstein's observations that the structure of the South African Constitution, coupled with the important decisions of the Constitutional Court in Government of the Republic of South Africa and Others v. Grootboom and Others (hereinafter Grootboom) and Minister of Health and Others v. Treatment Action Campaign and Others (hereinafter TAC), offers a workable solution to the problem of the judicial enforceability of constitutionalized socio-economic rights. The South African system provides a rejoinder to those who claim that enforceability of socio-economic rights gives the judiciary far too much power (and that it is ultimately unworkable) by presenting an example of a system that offers a vast improvement over other existing schemes aimed at the enforcement of constitutional socio-economic rights.

Part I contrasts the South African system with other constitutional systems by briefly examining the constitutional structure of the United States, which provides for no explicit socio-economic rights, and that of Hungary, which explicitly provides for a large number of such rights. The analysis examines some of the more common criticisms received by both systems. Part II briefly outlines the South African constitutional arrangement and then moves into a description of the key elements of the Grootboom and TAC cases. Part III analyzes how the Court, by means of the constitutional system described in Part II, has navigated between the difficulties presented by the two options that are contrasted in Part I. The section demonstrates how the Court has created a "third way" of judicial enforceability of socio-economic rights that, due to the presence of self-imposed limits, promises a solution that is both sensible and workable.