The Constitutional Court's Approach to the Limitations Analyses in Socioeconomic Rights Cases

  • Caroline James

Abstract

The inclusion of socioeconomic rights in the South African Constitution was met with much opposition. While there have been many discussion points surrounding these rights since the adoption of the Constitution, a fundamental one has been around the structure of these rights.


The socioeconomic rights include what have been termed ‘internal modifiers’ which limit the extent to which the rights can be enforced; and so the rights appear to be subject to two limitation clauses because the general limitations clause in section 36 applies to all rights in the Bill of Rights. The Constitutional Court has not applied section 36 in most of the socioeconomic rights cases, however, and has instead relied solely on the internal modifiers set out in section 26(2) and section 27(2).


In this essay I will use the judgment of the Constitutional Court in Khosa v Minister of Social Development; Mahlaule v Minister of Social Development1 to demonstrate that the court appears to conflate the inquiry into whether the measures taken by the government were reasonable under section 27(2) with the general limitations inquiry under section 36 designed to determine whether a rights infringement is reasonable and justifiable.


Although an apparent methodological difficulty has been offered as a reason for the failure to apply both distinctly, I will analyse the nature of these two reasonableness assessments, and explain why it is possible, and indeed necessary, to subject socioeconomic rights infringements to both.


I have chosen to focus on the Khosa case because the court explicitly referred to the section 36 analysis in a socioeconomic rights context but refused to be drawn into a discussion on the differences or similarities between the two assessments. What is also interesting about the case is that the minority and majority judgments adopt different approaches. This case is pertinent because I will show how conflating the two assessments has potentially serious negative consequences for future litigants.


I will first examine the reasonableness assessments under section 27(2) and section 36 respectively and how they have been applied in Constitutional Court decisions generally, and then look at the majority and minority judgments in Khosa and the way in which the court applied the assessments. I will examine the problems with the reasoning of the court in Khosa and set out why section 27(2) and section 36 should not be conflated, and why intersecting rights in socioeconomic rights cases should be evaluated under section 36.

Published
May 1, 2012
How to Cite
JAMES, Caroline. The Constitutional Court's Approach to the Limitations Analyses in Socioeconomic Rights Cases. Inkundla, [S.l.], may 2012. Available at: <https://inkundlajournal.org/index.php/inkundla/article/view/10>. Date accessed: 29 mar. 2024.
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