n Stellenbosch Law Review = Stellenbosch Regstydskrif - Taking poverty seriously : the South African Constitutional Court and socio-economic rights
|Article Title||Taking poverty seriously : the South African Constitutional Court and socio-economic rights|
|© Publisher:||Juta Law Publishing|
|Journal||Stellenbosch Law Review = Stellenbosch Regstydskrif|
|Affiliations||1 University of Witwatersrand and 2 University of Witwatersrand|
|Publication Date||Jan 2011|
|Pages||664 - 682|
The Constitutional Court-s socio-economic rights jurisprudence fails to meaningfully address the needs and interests that poor people approach the Court to vindicate. This has resulted in a body of jurisprudence which cannot realistically contribute to the elimination of poverty and inequality and the transformation of social relations. This need not be so. This article argues that the Court's existing approach to socio-economic rights claims can be adapted to contribute substantively to the progressive elimination of poverty and disadvantage. The starting point is to identify the specific needs and interests claimants come to Court to vindicate and weigh them against the state's justifications for its refusal to respond to them. The seeds of such an approach were sown in Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC). However, since Grootboom, the Court has turned away from an evaluation of the intensity of the interests litigants approach it to vindicate, preferring instead to embark upon an abstracted and empty facial evaluation of state policy. This article sketches out an alternative, interests-based approach which, we argue, may be adopted within the confines of the version of separation of powers doctrine the Court appears to have adopted. The article then applies the approach to three practical examples and seeks to demonstrate that it is better suited to responding to the needs and interests of the poor.
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