H.F. Oppenheimer Chair in Human Rights Law at the Stellenbosch University Law Faculty and Distinguished Visiting Professor in the Faculty of Law at Rhodes University, Professor Sandra Liebenberg, highlighted mechanisms for socio-economic rights litigation and adjudication in the Eastern Cape in her public presentation on Monday (28 July 2014), “Forging new tools for vindicating the rights of the poor in the crucible of the Eastern Cape”.
Litigating socio-economic rights is hard in any circumstances, Prof Liebenberg suggested, noting that many aspects of the classic liberal legal culture, such as the opposition to positive rights and remedies, and the preference for individual over systemic, communal forms of legal standing and remedies, which constitute a significant part of South Africa legal history, are not conducive to socio-economic rights litigation and adjudication.
“Communities who are marginalised by a complex web of factors such as their race, gender, poverty, disability and their spatial location in remote rural areas face almost insurmountable obstacles in gaining access to courts in order to vindicate their constitutional rights. Access to legal services remains a perennial problem in South Africa,” Prof Liebenberg said.
According to Prof Liebenberg, litigating socio-economic rights in the context of the Eastern Cape is “exponentially harder due to the deep levels of poverty, administrative dysfunction, and the barriers to community organisation and public interest lawyering created by dispersed, largely rural communities and poor infrastructure”.
Yet as Prof Liebenberg explained, some of the most important innovations in socio-economic rights litigation have been pioneered in the Eastern Cape, such as broadening access to court through class actions, and designing innovative remedies and strategies for securing compliance with court orders.
Providing background context for her presentation Prof Liebenberg explained how the inclusion of socio-economic rights as enforceable rights in the Bill of Rights was intended as a “tangible commitment to overcoming the economic and social legacy of apartheid and the construction of a new society in which everyone has access to the resources and social services they require to live lives of dignity and to participate in all aspects of this society as equals”.
Socio-economic rights litigation can advance these goals in three ways: it can help secure the material necessities of life without which people will lack the means to survive and develop their full potential, let alone to participate in society as equals; litigation can be a vehicle through which those in power are compelled to hear the voices of marginalised groups, and to respond to their needs; and socio-economic rights litigation can deepen participatory democracy by “giving poor people and their organisations a meaningful say in governance processes which have a critical impact on their welfare”.
Describing the innovations in socio-economic rights litigation in the Eastern Cape as “extraordinary” Prof Liebenberg explained how many of the procedures and remedies that have now become settled features of our constitutional jurisprudence were pioneered in the Eastern Cape.
“They are also significant in the context of global interest in how socio-economic rights litigation can advance the interests of poor and marginalised communities through mobilisation and organization,” she said.
Additionally, it seems that the “circumstances of adversity” experienced in the Eastern Cape have stimulated bonds of social solidarity and activism, and unleashed creative forms of research, NGO-advocacy, public interest lawyering, and judging. Those of us privileged to enjoy the benefits of higher education in South Africa have a responsibility to “put our talents to good use in building a just post-apartheid society, particularly in redressing the entrenched legacy of poverty and inequality”.
According to Prof Liebenberg, “there is no better inspiration available for current generations of students at Rhodes University than the traditions established by the collaborative work of communities, research institutes, NGOs, and public interest lawyers in the Eastern Cape. It is this dedication and solidarity which enables the skillful wielding of the legal tools created by our Constitution to advance the human rights of the poor.”
By Sarah-Jane Bradfield
By: Hlumela Mkabile