Progressive realisation in South African CC judgments

Jackie Dugard, executive director, Socio Economic Rights Institute of South Africa (SERI) Madrid Metrics meeting, 22-24 March 2012

Overview of the CC’s SER record

• • • • Very cautious court, only about 23 cases a year Approximately 400 cases in 18 years Only +/- 16 SER cases (and only 6 in first 10 years) Almost all housing; 1 social security (Khosa); 1 healthcare (TAC); 1 electricity (Joseph);1 (failed) water (Mazibuko); 1 (failed) sanitation (Nokotyana).

• • • • • • •

Standard of review and progressive realisation

Rejected minimum core in Grootboom and TAC Opted for reasonableness standard of review Authors such as David Bilchitz, Sandy Liebenberg and Kirsty McLean point to the problem this creates with the formulation of the qualified rights (excl basic education)- housing, healthcare, sufficient food and water, social security: Section 27(1) “Everyone has the right to have access to xyz” Section 27(2) “The state must take reasonable legislative and other measures within available resources to achieve the progressive realisation of each of these rights” Very difficult to make sense of the two components without approaching (1) as minimum core and (2) as progressive realisation beyond minimum core– what is the benchmark, what does part (1) mean?

In Mazibuko, CC says that what it means (as per Grootboom and TAC) is that the state has an obligation to progressively realise the right to sufficient water ie there is no right to sufficient water per se. Para 67

Mazibuko (2009)

• Only case to have touched on progressive realisation – although not explicitly as without minimum core is hard to frame it as such: – Built up a case on what was adequate in the context (right of access to sufficient water); multi-dwelling households and waterborne sanitation in urban setting • Court rejected this, not engaging at all in the arguments about what was sufficient or the amounts we argued for, but rather found policy reasonable purely on basis that it had evolved over time (mainly in response to our litigation) – totally devoid of content – Combined with regressive measures aspect re prepayment water meters being a regressive step • Court rejected this, saying PPMs were better and people loved them

Blue Moonlight (2011)

• Case about the state’s obligations in respect of private evictions – Same obligations – distinguishing between poor people on the basis of who is evicting is an unreasonable exclusion in breach of section 26(2)(City said it made no provision in emergency housing policy for those privately evicted) – State ordered to provide temporary shelter within a set timeframe (have to go back to CC at end of March as nothing is forthcoming) pending the provision of permanent housing – This is the closest we’ve come to progressive realisation – the state having to provide housing where it did not previously – And CC made it’s first substantive comments about budgets (available resources), separating the consideration of whether the state has an obligation to fulfil a SER from whether it had planned and budgeted to do so. “It is not good enough for the City to state that it has not budgeted for something, if it should have planned and budgeted for it in the fulfilment of its objectives”. In other words, if there is an obligation to fulfil the right, there’s an obligation to plan and budget [THEN the discussion starts re whether it has budgeted enough etc]

So where are we

• • • To some extent a blurring between negative and positive obligations (Joe Slovo on terms of eviction); and between minimum core and progressive realisation all in the absence of much clarity on content (temporary shelter de facto becomes permanent as eviction leading to homelessness would not be allowed [Olivia Road]) Some inroads into private property (Blue Moonlight) and contract (Maphango on reading in fairness into lease) Merely not having budgeted for something isn’t an acceptable escape hatch from positive obligations – BUT WHAT HAPPENS WHEN THE STATE BUDGETS BUT THIS ISN’T SUFFICIENT??????

– OR IF IT HASN’T BEEN ABLE TO SPEND IT’S BUDGET DUE TO UNDER CAPACITY – what will court order???

– AND WHAT ABOUT ECONOMIC POLICY AND TAXATION (UNEQUAL MIDDLE INCOME COUNTRY)