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Patrolling the Resource Transfer Frontier: Economic Rights and the South African Constitutional Court's Contributions to International Justice

African Studies Quarterly, Vol. 9, No. 4, 2007

Temple University Legal Studies Research Paper No. 2007-36

26 Pages Posted: 20 Nov 2007 Last revised: 5 Dec 2014

Henry J. Richardson III

Temple University - James E. Beasley School of Law

Abstract

Coming out of the apartheid nightmare in 1994, South Africa became an immediate sovereign beacon for global justice with its path-breaking Constitution of 1996 that is the most rights-protective in the world. South Africa's Constitutional Court has garnered global acclaim for the quality of its legal reasoning and the strength of its rights-protective commitment. Decisions such as that prohibiting the death penalty under the Constitution, in a national context of growing crime rates, have inspired rights-protective legal and judicial approaches throughout the global community. This is similarly true for the Court's decisions - especially in the Grootboom and Treatment Action Campaign cases - more recently. This paper explores the Court's contributions to global justice notions through its legal reasoning in Grootboom and subsequent related cases. Particularly, the paper examines the Court's use of reasonableness as an essential element of its justiciability analysis, and asks how reasonableness here advances notions of justice regarding the particular importance to poor people in South Africa, and elsewhere, of effectively enforcing economic, social, and cultural rights as legal rights. The Court's use of reasonableness is compared with approaches on the same major issues in the reports of the United Nations Committee on Economic, Social, and Cultural Rights, which provides standards of global justice for these issues. The question here is how strongly in a justiciability analysis this Court should push its judicial authority towards having actual decisional influence on national resource priorities and allocations, including where resources are scarce. Issues and arguments are also explored as to whether the Court has done all it could do in its legal approach to these rights. Whether or not this Court has gone far enough in protecting these rights, however, it has provided a model for the competence of courts anywhere to protect these rights as legal rights - notwithstanding a western legal history of strong expectations and market demands to limit them to aspirations. Through principled legal analysis it has held that where great needs exist for poor people, not least those of color, judicially-enforced legal rights can provide access to critical resource transfers for their basic welfare.

Keywords: South African Constitutional Court, International Economic Social and Cultural Rights, Comparative Constitutional Law, Justiciability of Economic Rights, Minimum Core of Economic Rights, UN Committee of Economic Social & Cultural Rights, Economic Apartheid in Human Rights, Right of Access to Housing

JEL Classification: D63, F02, J71, K19, K33, K40, N30, N37, N47, O19

Suggested Citation

Richardson, Henry J., Patrolling the Resource Transfer Frontier: Economic Rights and the South African Constitutional Court's Contributions to International Justice. African Studies Quarterly, Vol. 9, No. 4, 2007; Temple University Legal Studies Research Paper No. 2007-36. Available at SSRN: https://ssrn.com/abstract=1027984

Henry J. Richardson III (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States
215.204.8987 (Phone)
215.204.1185 (Fax)

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