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

by Henry J. Richardson, III

Abstract

Coming out of the apartheid nightmare in1994, 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.

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Henry J. Richardson III is Professor of Law at Beasley School of Law at Temple University. Professor Richardson was International Legal Advisor to the Malawi Government for almost three years shortly after independence, and subsequently in charge of African policy on the Carter Administration National Security Council staff, a member of the Commission on the Independence of Namibia, helped monitor the 1994 South African elections, and was a constitutional advisor to the Rwandan government. He has written extensively on issues of human rights, international law, and development questions in Africa. He is a member of the Council on Foreign Relations, a past vice president and honorary vice president of the American Society of International Law, and a founding member of the National Conference of Black Lawyers.