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Republic of South Africa v. Grootboom. Case No. CCT 11/00. 2000 (11) BCLR 1169 and Minister of Health v. Treatment Action Campaign. Case No. CCT 8/02

Published online by Cambridge University Press:  27 February 2017

David D. Caron ,
Joan Fitzpatrick  and
Ron C. Slye
Ron C. Slye
Affiliation:
Seattle University School of Law
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Extract

Republic of South Africa v. Grootboom. Case No. CCT 11/00. 2000 (11) BCLR 1169. Constitutional Court of South Africa, October 4, 2000.

Minister of Health v. Treatment Action Campaign. Case No. CCT 8/02. At <http://www.concourt.gov.za>.

Constitutional Court of South Africa, July 5, 2002.

Two cases decided by the Constitutional Court of South Africa in 2000 and 2002 implement several economic, social, and cultural rights guaranteed by the Constitution of South Africa. The decisions illuminate the role in such reasoning of human rights treaties to which South Africa is a state party or a signatory. They also analyze General Comment No. 3 of die UN Committee on Economic, Social and Cultural Rights (Committee). These cases, Republic of South Africa v. Grootboom, decided October 4,2000, and Minister of Health v. Treatment Action Campaign, decided July 5, 2002, illuminate questions concerning both die jusdciability of economic, social, and cultural rights—at least as incorporated into Soudi Africa's Bill of Rights, sections 7 through 39 of its Constitution—and the concept of “minimum core obligations” as developed by the Committee.

Type
International Decisions
Information
American Journal of International Law , Volume 97 , Issue 3 , July 2003 , pp. 669 - 680
Copyright
Copyright © American Society of International Law 2003

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References

1 Committee on Economic, Social and Cultural Rights, General Comment No. 3, The Nature of States Parties Obligations (Art. 2, Para. 1 of the Covenant), UN Doc. E/1991/23 (1990).

2 2000 (11) BCLR 1169 (CC) [hereinafter Grootboom judgment]. The decisions of South Africa’s Constitutional Court are available online at <http://www.concourt.gov.za>.

3 Case No. CCT 8/02 (Const. Ct.July 5, 2002) [hereinafter Treatment Action Campaign judgment].

4 The respondents in Grootboom were 510 children and 390 adults. Grootboom judgment, supra note 2, para. 4 n.2.

5 Id., paras. 7,8. As described by the Court, the housing at Wallacedene consisted of shacks with no water, sewage, or refuse removal. Only 5 percent of the households had electricity. The area was partially waterlogged and close to a dangerous thoroughfare. Id., para. 7.

6 Id., para. 8.

7 Id., para. 10. The municipality does not appear to have been a party to the eviction proceedings.

8 Id. The Court noted that this eviction “was done prematurely and inhumanely: reminiscent of apartheid-style evictions.” Id.

9 Id., para. 11.

10 Id., para. 4. The High Court order is reported as Grootboom v. Oostenberg Municipality, 2000 (3) BCLR 277 (SA).

11 Grootboom judgment, supra note 2, para. 4.

12 Id., para. 5.

13 Id.

14 Id., para. 13.

15 Id., para. 18. Amici argued that section 28(1) (c) had been included in the Constitution in order “to place the right of children to this minimum core beyond doubt.” Id.

16 Id., para. 19.

17 Id., para. 20 (footnotes omitted).

18 7d.

19 Id.

20 Id., paras. 22–25. The social and historical context was also examined in the prior decision of Soobramoney v. Minister of Health, KwaZulu-Natal, 1998 (1) SALR 765 (CC).

21 Grootboom judgment, supra note 2, para. 26.

22 Id. (citing State v. Makwanyane, 1995 (3) SALR 391, para. 24 (CC)).

23 Id., para. 26. Sections 231–35 of the Constitution regulate the application of international law.

24 Dec. 16, 1966, 993 UNTS 3. Article 2(1) provides:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Article 11(1) provides:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

25 Grootboom judgment, supra note 2, para. 27.

26 Id., para. 27 n.29.

27 Id., para. 28.

28 Id., paras. 29–33.

29 Id., para. 32.

30 Id., para. 33.

31 Id. The Court continued:

However, even if it were appropriate to do so, it could not be done unless sufficient information is placed before a court to enable it to determine the minimum core in any given context. In this case, we do not have sufficient information to determine what would comprise the minimum core obligation in the con text of our Constitution.

Id.

32 Id., paras. 35–36.

33 Id., para. 38.

34 Id., para. 40.

35 Id., para. 42.

36 Id., para. 41.

37 Id., para. 43.

38 Id., para. 45.

39 Id. (quoting General Comment No. 3, supra note 1, para. 9).

40 Id., para. 46.

41 Id., para. 63.

42 Id., para. 69.

43 M, para. 71.

44 Id., para. 75.

45 Id.

46 Id., para. 76.

47 Id., para. 77.

48 Id., para. 78.

49 Id., para. 88.

50 Id., para. 93.

51 Id., para. 95.

52 Id., para. 96.

51 Treatment Action Campaign judgment, supra note 3, para. 2.

54 Id., para. 12.

55 Id., para. 19.

56 Id., para. 16.

57 Id., paras. 13–16.

58 Id., para. 17.

59 Id., para. 8.

60 Id., paras. 23–25.

61 Id., para. 26.

62 Id., para. 34.

63 Id.

64 Id., para. 37.

65 Id., para. 39.

66 See, e.g., id., paras. 29–30.

67 Id., paras. 51–66.

68 Id., paras. 68–70.

69 Id., para. 80.

70 Id., paras. 74–79.

71 Nov. 20, 1989,1577 UNTS 3.

72 Treatment Action Campaign judgment, supra note 3, para. 96.

73 Id., paras. 107–12.

74 Id., para. 135.

75 The Constitutional Principles were the product of the multiparty negotiations facilitating the transition from apartheid to democracy, and were appended to the Interim Constitution of 1993. Constitutional Principle II reads as follow: “Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched and justiciable provisions in the Constitution, which shall be drafted after having given due consideration to inter alia the fundamental rights contained in Chapter 3 of this Constitution.” Constitution of the Republic of South Africa, Act 200 of 1993, sched. 4. The Constitutional Court certified that the final (1996) text of the Constitution was largely consistent with the Constitutional Principles. In re Certification of the Constitution of the Republic of S. Afr., 1996 (4) SALR 744 (CC).

76 Sandra Liebenberg, Socio-Economic Rights, in Constitutional Law of South Africa 41–1, 41–4 n. 1 (Chaskalson, Matthew, Kentridge, Janet, Klaaren, Jonathan, Marcus, Gilbert, Spitz, Derek, & Woolman, Stuart eds., 5th rev. 1999)Google Scholar. The inclusion of socioeconomic rights was challenged during the Constitutional Court proceedings to certify the Constitution. While the Court agreed that such socioeconomic rights were not “universally accepted,” it concluded that the Constitutional Principles allowed the inclusion of rights that were not universally accepted. Id. at 41–5.

77 Id. at 41–4. Whereas South Africa has ratified the International Covenant on Civil and Political Rights, infra note 78, it has only signed, but not ratified, the International Covenant on Economic, Social and Cultural Rights.

78 Dec. 16,1966, 999 UNTS 171.

79 See Article 7(2) of South Africa’s Constitution, which provides: “The state must respect, protect, promote and fulfil the rights in the Bill of Rights.” The obligation to respect and protect imposes a negative duty on the state to refrain from conduct that would diminish access to the right. The obligation to promote and fulfill places a positive duty on the state to undertake actions to increase access to the right. It is the latter, positive duty that is at issue in both of the cases discussed here.

80 See In re Certification of the Constitution of the Republic of S. Afr., para. 20 (the Constitution’s socioeconomic rights provide both positive and negative obligations); see also Grootboom judgment, supra note 2, para. 34 (noting negative obligations created by the right of access to adequate housing).

81 See Grootboom judgment, supra note 2, para. 34. The rights in South Africa’s Constitution “bind[] a natural or juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.” Const. §8(2). The Constitutional Court applied the right to have access to housing against a private environmental organization that attempted to block a government plan to create a temporary camp for flood victims. The Court decided that the government’s obligation to provide access to adequate housing outweighed the countervailing considerations that there was no legislation authorizing such a use and that the camp violated the municipal-planning scheme and environmental laws. Minister of Pub. Works v. Khayalami Ridge Envd. Ass’n, 2001 (7) BCLR 652 (CC).

82 Grootboom judgment, supra note 2, para. 31.

83 General Comment No. 3, supra note 1, para. 10. The Committee also declared that the ICESCR requires states to implement policies and programs that, at a minimum, target the needs of the most vulnerable members of society, even “in times of severe resources constraints.” Id., para. 12. The Inter-American Commission on Human Rights has adopted a minimum-threshold approach but does not have a well-developed jurisprudence on economic, social, and cultural rights. See Inter-Am.C.H.R., Annual Report 1993, OEA/Ser.L/V/II.85, at524 (1993) (states are obligated “to guarantee a minimum threshold of economic, social and cultural rights”).

84 Grootboom judgment, supra note 2, para. 32.

85 Treatment Action Campaign judgment, supra note 3, para. 37.

86 General Comment No. 3, supra note 1, para. 12.

87 Committee on Economic, Social and Cultural Rights, General Comment No. 12, The Right to Adequate Food (Art. 11), para. 15, UN Doc. E/C.12/1999/5 (1999).

88 Grootboom judgment, supra note 2, para. 68.

89 Id., para. 69.

90 The Court stated that

it must be kept in mind that this case concerns particularly those who cannot afford to pay for medical services. To the extent that government limits the supply of nevirapine to its research sites, it is the poor outside the catchment areas of these sites who will suffer. There is a difference in the positions of those who can afford to pay for services and those who cannot. State policy must take account of these differences.

Treatment Action Campaign judgment, supra note 3, para. 70 (emphasis added).

91 See, e.g., id., para. 59. In rejecting the government’s otherwise legitimate concern regarding the risk of creating HIV-resistant strains with the use of nevirapine, the Court noted that such a possibility was slim when compared to the harm suffered by a child infected with HIV.

92 General Comment No. 12, supra note 87, para. 15.

98 Soobramoney v. Minister of Health, KwaZulu-Natal, 1998 (1) SALR 765, para. 25 (CC).

94 CONST. §27(3) (“No one may be refused emergency medical treatment.”).

95 Soobramoney, para. 20.

96 Id.

97 See Treatment Action Campaign judgment, supra note 3, para. 125 (noting that the ruling does not mean that any one individual has an enforceable right to the medical services at issue); Grootboom judgment, supra note 2, paras. 71–79 (noting that even homeless children with parents or family members are not individually entitled to shelter).

98 See Soobramoney, para. 25 (stating that Court would not intervene under Articles 27(1) and 27(2) unless government policies or legislation was irrational).

99 Grootboom judgment, supra note 2, para. 33.

100 Treatment Action Campaign judgment, supra note 3, para. 70.

101 Sandra Liebenberg of the Community Law Centre at the University of the Western Cape was the source of this observation.

102 Grootboom judgment, supra note 2, para. 99.

103 Treatment Action Campaign judgment, supra note 3, para. 135(2) (b).

104 Id., para. 135(3).