n South African Journal on Human Rights - Adjudicating the socio-economic rights in the South African Constitution : towards 'deference lite'?

Volume 22, Issue 2
  • ISSN : 0258-7203



The record of adjudicating the socio-economic rights in the Constitution of the Republic of South Africa, 1996 reveals a judicial and academic retreat into administrative law and the occasional, mechanistic application of international law. The Constitutional Court has been reluctant to impose additional policy burdens on government or exercise supervision over the executive. This approach has its source not only in the restrictive legal repertoire employed by the Court, but also in the political and economic context in which current legal practice is located. The Constitution invites a transformation of legal concepts. This requires breaking down the division between negative and positive rights, in addition to the adoption of different remedies. The focus should move from ss 26, 27 and 28 of the Constitution towards the distributional implications of all constitutional rights. There is already a small but significant body of decisions of the Court which support the development of more fused conception of rights, including the recognition that the concept of legality may impose positive obligations on the state.

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