Patrolling the Resource Transfer Frontier: Economic Rights and the South African Constitutional Court's Contributions to International Justice

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Abstract: Coming out of the apartheid nightmare in 1994, South Africa became an immediate sovereign beacon for global justice with its path-breaking Constitution of 1996 that is the most rights-protective in the world. South Africa's Constitutional Court has garnered global acclaim for the quality of its legal reasoning and the strength of its rights-protective commitment. Decisions such as that prohibiting the death penalty under the Constitution, in a national context of growing crime rates, have inspired rights-protective legal and judicial approaches throughout the global community. This is similarly true for the Court's decisions--especially in the Grootboom and Treatment Action Campaign cases--more recently. This paper explores the Court's contributions to global justice notions through its legal reasoning in Grootboom and subsequent related cases. Particularly, the paper examines the Court's use of "reasonableness" as an essential element of its justiciability analysis, and asks how reasonableness here advances notions of justice regarding the particular importance to poor people in South Africa, and elsewhere, of effectively enforcing economic, social, and cultural rights as legal rights. The Court's use of reasonableness is compared with approaches on the same major issues in the reports of the United Nations Committee on Economic, Social, and Cultural Rights, which provides standards of global justice for these issues. The question here is how strongly in a justiciability analysis this Court should push its judicial authority towards having actual decisional influence on national resource priorities and allocations, including where resources are scarce. Issues and arguments are also explored as to whether the Court has done all it could do in its legal approach to these rights. Whether or not this Court 'has gone far enough' in protecting these rights, however, it has provided a model for the competence of courts anywhere to protect these rights as legal rights--notwithstanding a western legal history of strong expectations and market demands to limit them to 'aspirations.' Through principled legal analysis it has held that where great needs exist for poor people, not least those of color, judicially-enforced legal rights can provide access to critical resource transfers for their basic welfare.


The judicial leadership of South Africa's able Constitutional Court under both that country's national Constitution and international law, in defining and enforcing economic, social and cultural rights for South Africans through holdings in important cases, has been prominent in the world community. [2] It has been both nationally and globally significant in the struggle to protect economic rights against what amounts to different shades of global economic apartheid. The Court's analytical strategies and jurisprudential approach in protecting these legal rights, in a nation of limited resources whose history and economy remain tortured by the results of comprehensive apartheid, are the focus of this article. Some assessment of the Court's work will be presented, as it has decided issues relative to protecting these rights, including justiciability, separation of powers, "minimum core" rights, "reasonableness," scope of remedial orders and judicial supervision, constitutional duties versus international legal duties, and judicial restraint versus the need to define a new role of judicial involvement in protecting and enforcing this particular category of human rights.

Assessments of the Court's work in South Africa can help us understand, among other things, the Court's contribution to global justice along this global frontier of potential resource transfers as a matter of legal rights, as these rights confront refusals from entrenched interests to modify processes of exclusive wealth and privilege. Since the global judicial potential and success on these issues contributes directly to an answer to Heilbroner's question below, judicial orders upholding and enforcing the economic rights of those petitioners before the Court generally represent a real or potential resource or wealth transfer across the fault-line to those particular poor people of color and all who are similarly situated on those issues. …


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