analysisBy Steven Friedman
The more the courts do to fix poverty and inequality directly, the more likely is it that people will remain poor and unequal.
For some time, an important debate has been raging between legal academics who want our courts to help the fight for social justice. It has been confined to law journals and has hardly registered in the public debate. This is a pity, since it addresses a crucial question: how can the courts help to combat poverty and inequality?
The constitutional court has gained a reputation for contributing to the quest for social justice. Perhaps the best known cases are the Grootboom judgment, in which it ruled that government needed to address the needs of the homeless, and the Treatment Action Campaign (TAC) case, where it instructed the government to provide anti-retroviral medication to prevent mothers transmitting HIV to their infants.
But these are not the only social justice rulings the court has handed down - the most frequent issue on which it has intervened is evictions (including striking down a section of the law in response to a case brought by shack-dweller movement Abahlali baseMjondolo) and it has handed down judgements on education, access to water and electricity, and health care. It is common to see the court as a fighter for the poor and the weak.
Reality is more complicated: only once has the court ever told the government to take specific action, which would cost it money - the TAC case where it was told to provide the medication. Instead, it has found two ways to avoid telling the government what its policy should be.
The first is the 'reasonableness test'. This does not judge government actions on whether they achieve greater social justice, but on whether there is a reasonable link between its stated intentions and what it does.
In Grootboom, the court did not rule that everyone was entitled to a decent house: it said that it was unreasonable to exclude a class of people (those in shacks) from government housing programmes. And so it did not tell the government what its housing policy should be: it told it to come up with a more 'reasonable' approach.
More recently, the court has changed tack, particularly in eviction cases: its approach, where possible, has been to instruct the authorities to negotiate with the people who are demanding fairer treatment. In Johannesburg's inner city, where people threatened with eviction because the council was 'improving' the area asked the court to help, it told the city to negotiate with residents and report back on progress.
It is this approach, which influential legal academics have rejected. In complex language, they accuse the court of ducking its responsibility to the poor by failing to tell the government exactly what it must do to meet their needs.
Most who hold this view want the court to adopt a 'minimum core content' for social and economic rights. This means that courts must 'give content' to the right by laying down exactly what it entails: one example was a lower court judgement finding that the 6kl of water government was providing families free of charge was too little and that the right to water meant that people should get 12kl. The court should, in this view, not leave it up to the government to decide what social and economic rights mean - it should tell it.
At first glance, it is no surprise that this is sometimes seen as the more radical option. Telling the government how to address poverty is surely more likely to ensure social justice than merely ordering it to negotiate.
In reality, it is not the approach most likely to serve the needs of the marginalised. The view that courts should decide what government policy should be is not only anti-democratic because it wants unelected judges to dictate to elected politicians. It also removes the most important weapon which poor people have - their ability to act to change the world.
'Minimum core content' judgements reflect the court's opinion, not a legal principle. What legal doctrine says people have a right to 12kl of free water? Why not 9 - or 24? Human rights lawyers may cheer when a court doubles the amount of free water people should receive. But what is to stop another court deciding that the government need only provide 3kl?
Once judges, not the political process, decide, there is no guarantee that their rulings will favour the poor. Since few judges have any experience of living in a shack (and the number who do will recede as formal apartheid becomes a memory), it is a strong possibility that the power will be used to restrict what the poor receive.
The people best able to decide what the poor need are, of course, the poor themselves. And if poor people cannot win political gains, which empower them, the court rulings are likely to be of little help. The only constitutional court ruling enforcing the 'minimum core content' - the TAC judgment - could only be implemented because activists pressed health authorities to supply the medicine. Left alone, governments can always find ways to delay implementing the right or not to bother at all.
And so courts that want to support the poor are not helping by deciding for them what they need - this deprives people of power by taking the ability to decide or act out of their hands. The court will need to give many rulings on poverty for a long time because there will still be much poverty on which to rule.
Action by the poor may be the only way to ensure lasting change. But it isn't easy for poor people to act: the power balance is stacked against them. That is why the most important contribution to social justice the court can make is to ensure that it is easier for poor people to act. And one way of doing that is to force power holders to negotiate with the poor.
This is why some legal academics have argued that the court's 'retreat' into telling the authorities to negotiate is really a step forward. It imports into the law an important principle - that the first task of a court, which takes social and economic rights seriously, is to empower people to claim rights themselves. And so, in the work of these academics, the debate is what the court needs to do to empower people, not what it should tell the government to do about poverty.
It is this second position which is most likely to offer a way out of poverty and inequality by beginning to change the power balance. The missionary zeal of those who want the court to decide what poor people should get is not only patronising - it is sure to set the fight against poverty back. The court's 'step backwards' turns out to be an important step forwards.
Friedman is the Director of the Centre for the Study of Democracy at Rhodes University and the University of Johannesburg.
Read more articles by Steven Friedman.