There are various reasons why it is necessary to have regard to the impact of the South African Constitution156on social security. Firstly, the Constitution itself makes it157 abundantly clear that it is the supreme law of the country as mentioned above158, while the Bill of Rights contained in Chapter 2 thereof is said to apply to all law and to bind the legislature, the executive, the judiciary, and all organs of the State.
Secondly, the Constitution enjoins every court, tribunal or forum to promote the spirit, purport and objects of the Bill of Rights when interpreting any legislation and when developing the common law.
2.9.1. SOCIAL SECURITY RIGHTS
It is sometimes argued that social security rights are second generation or socio-economic rights and that they place a duty upon the State to act in a positive manner.
Socio-economic rights have to be contrasted with rights that protect an individual
155Id at 68.
156The 1996 Constitution.
157Olivier et al Social Security Law: General Principles (1999) 117.
158Section 2 of the 1996 Constitution and explored in Section 4.2. of Chapter 4 of this dissertation.
against undue interference by the State.159 Due to the peculiar nature of social security rights, it is said that these rights cannot be enforced by the courts without intruding upon the terrain of the legislature and or the executive branch of the government.160 It has become evident that these rights are capable of enforcement, if only the legislature or executive is ordered to take action or is sent back to the drawing board to arrange for a more equal distribution.161 The Constitution further adopts an innovative approach by placing a specific duty on the State to take positive measures in order to give effect to (some of) these rights.162 The Constitutional Court is specifically empowered to decide that Parliament, or the President, has failed to comply with a constitutional duty163. The question is how far will the court go? The court may require the State to review programs and policies, but it is doubtful whether it may be prepared to order a specific distribution of financial and other sources164.
In certifying the text of the 1996 Constitution, the Constitutional Court stressed that the socio-economic rights contained in the Constitution are justiciable, even though the inclusion of the rights may have direct financial and budgetary implications.165
2.9.2. THE DUAL TEST
The Constitutional Court adopted a relatively cautious approach by invoking the dual test of
a) rationality, and
b) bona fides as the yardstick in this regard.
The Constitutional Court opined: “A court must be slow to interfere with rational decisions taken in good faith by the political organs and authorities whose responsibility it is to deal with such matters.”166 The Constitutional Court has acknowledged on several occasions that socio-economic rights are in fact justiciable.
159Olivier et al Social Security Law: General Principles (1999) 118.
160Ibid.
161Ibid.
162Olivier et al, Introduction to Social Security (2004) 118.
163Id at 118 – 119. Section 167(4)(e) of the Constitution.
164Olivier et al Social Security Law: General Principles (1999) 118.
165Ex parte Chairman of the Constitutional Assembly: In re: Certification of the constitution of the Republic of South Africa, 1996 4 SA 744 (CC) 800 D – F (para 77). Ibid.
166Soobramoney v Minister of Heath (KwaZulu – Natal) 1998 1 SA 765 (CC) para 29.
The question that remains unanswered is how these rights can be enforced.167 When the obligation imposed on the State in terms of section 27(2)168 is read in conjunction with section 2, the assumption can be made that the fundamental right to access to social security is enforced, because section 2 explicitly states that duties imposed by the Constitution must be performed.169
In answering the question as to how far the court will be prepared to go, in the first certification judgment the Constitutional Court remarked:
“ It is true that the inclusion of socio-economic rights may result in the courts making orders which have direct implications for budgetary matters. However, even when a court enforces civil and political rights such as equality, freedom of speech and the right to a fair trial, the order it makes will often have such implications. A court may require the provision of legal aid, or the extension of state benefits to a class of people who formerly were not beneficiaries of such benefits. In our view it cannot be said that by including socio-economic rights within a bill of rights, a task is conferred upon the courts so different from that ordinarily conferred upon them by a bill of rights that it results in a breach of the separation of powers.”170
According to the court, effective implementation requires at least adequate budgetary support by national government. It is hence essential for a reasonable part of the national budget to be devoted to the granting of relief to those in desperate need. The precise allocation in this regard is for national government to decide itself. The court must be slow to interfere with rational decisions taken in good faith by the political organs. There are instances where the larger needs of society, as opposed to the specific needs of particular individuals, may have to be given priority.171
The court in Minister of Health v Treatment Action Campaign172 refused to hold that the granting of a mandatory order, as opposed to a mere declaratory order, would amount to an unwarranted infringement of the separation of powers. In fact, the court
167Olivier et al Social Security Law: General Principles (1999) 119.
168The 1996 Constitution.
169Olivier et al Op cit note 167 at 125.
170Ex parte Chairman of the Constitutional Assembly: In re: Certification of the Constitution of the Republic of South Africa, 1996 4 SA 744 (CC) 800 D – F par 77. Id at 128.
171Olivier et al Social Security Law: General Principles (1999) 128.
1722002 5 SA 721 (CC).
enunciated that it indeed retains the power to exercise some form of supervisory jurisdiction, in order to ensure that its orders are implemented.173
Courts have the power to enforce socio-economic rights and in particular the right to access to social security. Wide-ranging remedies are at the disposal of the courts in this regard. This may result in courts making orders which have direct implications for budgetary matters.174 The Constitution in sections 27(2) and section 36 read together requires the devising, formulation, funding and implementing, as well as the constant review, within the resources available, of a comprehensive and co-coordinated programme with well-targeted policies. These have to be reasonable both in their conception and their implementation, and must be implemented by the executive and through legislative intervention. Provided that the measures adopted are reasonable, the Constitutional Court will, generally speaking, also uphold a social security programme which institutionalizes social security provisions. It will be discussed in Chapter four that the courts are empowered, whenever they decide on any issue involving the interpretation, protection and enforcement of a fundamental right contained in the Constitution, to make any order that is just and equitable and may grant “appropriate relief.”
In Fose v Minister of Safety and Security175appropriate relief is described as follows:
“Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even fashion new remedies to secure the protection and enforcement of these important rights.”176
173Minister of Health and Others v Treatment Action Campaign 2002 5 SA 721 (CC) para 104. Olivier et al Op cit note 171 at 130.
174Id at 131.
1751997 3 SA 786 (CC).
176Grootboom and Others v Oostenberg Municipality and Others 2000 3 BLLR 277 (C).