Seminar on Exploring the Substantive Content of Socio-Economic Rights: Should the Constitutional Court Change Tack?
On 24 April 2023 the Faculty of Law, University of the Western Cape, in conjunction with the Dullah Omar Institute, University of the Western Cape, hosted a panel discussion that considered the substantive content of socio-economic rights. The discussion was moderated by Justice Steven Majiedt (Constitutional Court of South Africa) and panel discussants included Prof Sandy Liebenberg (Oppenheimer Chair in Human Rights Law and Distinguished Professor of Law, Stellenbosch University) and Prof David Bilchitz (Professor of Fundamental Rights and Constitutional Law University of Johannesburg and the University of Reading, Director, SAIFAC).
Seminar on Exploring the Substantive Content of Socio-Economic Rights: Should the Constitutional Court Change Tack?
"This is a vital question as it relates to meaningfulness of socio-economic rights for economically disadvantaged people in South Africa. In particular, this seminar will seek to consider whether the approach adopted by the Constitutional Court in South Africa – which focuses on the reasonableness of government action – is desirable or should be replaced by an alternative conception of such content. The leading alternative contender is the minimum core approach which was developed by the United Nations Committee on Economic, Social and Cultural Rights (CESCR) as a way of ensuring that states comply with their obligations under the Covenant. The minimum core approach is aimed at ensuring that at the very least minimum essential levels of each right are provided by a state party and seeks to set a floor of socio-economic rights that states must prioritise. Questions have arisen concerning what constitutes this minimum core, and whether it would require too much intervention by a court in the behaviour of other branches of government. The South African Constitutional Court has sought to distance itself from applying the concept and instead focused on evaluating the reasonableness of government action when addressing socio-economic rights. The Court’s approach has also come under sustained criticism for failing to grapple with the content of rights and so limiting their enforceability. At the same time, it has been defended by some scholars and also in extra-curial lectures of Justices of the Court, including most recently a Dean’s Distinguished Lecture delivered by Justice Steven Majiedt at the UWC Faculty of Law.
Against this backdrop, this seminar, involving eminent scholars in the field of socio-economic rights, hopes to re-ignite debate on the substantive content of socio-economic rights and which approach to their enforcement by the courts is most desirable."