3 November 2017

South Africa: Govt Must Implement Court Decisions

The Department of Justice and Constitutional Development's Report on the Impact of Court Decisions on Achieving Socio-Economic Rights has revealed that while courts are doing their part, government stakeholders need to pull their weight.

The assessment report delivered by Minister Michael Masutha on Friday in Tshwane, looked into the impact of decisions taken by the Constitutional Court and the Supreme Court of Appeal (SCA) and how they affect the transformation of society.

Briefing reporters at the Tshedimosetso House, Minister Masutha emphasised the achievement of socio-economic rights such as access to services like housing, water, sanitation, electricity, health and education.

"While the courts have an opportunity to give a deeper analysis of the implications of the constitutional obligations in honouring socio-economic rights, the courts alone do not carry sole responsibility, and cannot possibly give full effect to the objectives. It is a collective responsibility, parliaments has to make the laws and the executive has a duty to implement all those laws and policies," said Minister Masutha.

A key finding of the report is the need for a constitutional dialogue amongst the three branches of state to address issues of how to improve the socio-economic conditions of citizens.

The relevance of the report is to provide greater clarity to parliament on the obligations of the executive and parliament which is critical for further policy development.

Lead investigator on the report, Human Science and Research Rights Council (HSRC) Head of Programme for Democracy, Governance and Service Delivery, Narnia Bohler-Muller, said communities who need access to services often go to the court as a last resort with the assistance of public interest litigation firms.

"The ... courts are doing a good job but the other spheres of government need to come to the party a bit more, there needs to be a focus on implementation to achieve socio-economic rights."

Other findings include the idea of the separation of powers does not allow courts to make policy but they have the power to judge government policies. The recognition of the failures of government to deliver basic services necessitate remedies by courts such as interdicts. Majority of the interviewees of the study cautioned that South Africa is no longer a young democracy and pressure was needed to ensure services are delivered.

The report, which was commissioned by Cabinet, was informed by a discussion document on the transformation of the judicial system published by Minister Jeff Radebe in 2012.

This document identified the Constitutional Court and SCA as key institutions that would aid transformation and ensure socio-economic conditions are realised. Assessment of the capacities of the judiciary and state were also highlighted as the crux that would deliver services to citizens.

The report is a product of two years of research by the successful bidders at the HSRC and the University of Fort Hare, who assessed 43 landmark cases by the Constitutional Court and the SCA.

Included amongst these cases are the Government of the Republic of South Africa and Others versus Grootboom, the Minister of Health versus the Treatment Action Campaign, The MEC for Education, Free State Province versus Welkom High School and Harmony High School, and the MEC for Education in Gauteng Province and Others versus Governing Body of the Rivonia Primary School and Others.

The judgments are considered to have crystallised South African human rights jurisprudence, particularly with regard to right of access to housing, health and education.

The report acknowledged that despite a number of landmark judgements confirming the state's obligation to take reasonable measures to ensure socio-economic rights are realised, the apex courts pursued a constrained approach when adjudicating socio-economic rights disputes.

Challenges that hinder objective of judgments

The report also noted some of the challenges that have the potential to hinder the full realisation of the objective of judgments, in particular:

The challenges regarding the interface and overlap between the mandates of the three spheres of government with regard to socio-economic rights. This is due to the interplay of the national, provincial and local spheres of government which have different and sometimes overlapping competencies in respect of services such as water, electricity, land rezoning, mining and mineral licencing etc;

The three year Mid-Term Expenditure Framework used by Government which may render it difficult to allocate budget to realise additional projects which are necessitated by court judgments;

The lack of clarity from the judgments as well as capacity constraints on the part of Government to implement court decisions, due to poor skills and ignorance; and

The need to strengthen accountability, oversight and monitoring mechanisms across all spheres of Government in order to ensure that there is progressive realisation of the socio-economic rights through programme design, as well as effective and expedient implementation of court judgments.

Limited copies of the report are available and the full report can be accessed from the department's website at the following address: www.justice.gov.za

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