When and Why the South African Government Disobeys Court Orders

Abstract

A common objection to the justiciability of social and economic rights is that judicial decisions protecting such rights are unlikely to be enforced — or less likely to be enforced than similar orders remedying violations of civil and political rights. This objection does not hold up in the central case of South Africa, one of the first countries to make social and economic rights justiciable. The South African constitution contains broad provisions protecting social and economic rights, and the South African government has a good reputation — partially justified — for compliance with decisions of its Constitutional Court. This note relies on newspaper accounts and the parliamentary record to investigate the aftermath of ten well-known Court judgments and explain why the South African government sometimes complies and sometimes does not. The conclusion: administrative incapacity and the political interests of the African National Congress are the most common causes of noncompliance. In reaching that conclusion, this note rejects the view that the South African government is especially unlikely to comply with decisions remedying violations of socio-economic rights.

Keywords: South Africa, socio-economic rights, courts, compliance