MaKIng tHE COnstItutIOn
a LIVIng dOCuMEnt
5
The Bill of Rights is a cornerstone of our democracy. It
enshrines the rights of all people in our country and affirms
the democratic values of human dignity, equality and
freedom. One of the central tenets of our Constitution is a
commitment to substantive equality and to improving socioeconomic conditions for all. Both the Constitutional Court
and other courts view the Constitution as a transformative
document. The transformative role of the Constitution was
acknowledged by the then Chief Justice in Soobramoney
v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC)
when he wrote that: “a commitment …therefore to transform
our society lies at the heart of the new constitutional order.”
The epilogue to the interim constitution describes the
Constitution as:
“A historic bridge reached between the past
of a deeply divided society characterised
by strife, conflict, untold suffering and
injustice and a future founded on
the recognition of human rights,
democracy and peaceful coexistence and development
opportunities for all South
Africans, irrespective of
race, class, belief or sex”.
South Africa has to
contend with unequal
and insufficient access
to housing, food,
water, healthcare
and electricity. The
depressed job market
together with fewer
job opportunities
contributes to
increased socioeconomic disparities
in wealth.
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A large proportion of the
population suffers from systemic
inequality and deep conditions of
poverty, making the commitment
to social justice and improvement
in the quality of people’s lives
ring hollow. It comes as no
surprise that South Africa has the
unenviable reputation of being
the country with the highest
disparities in income between the
rich and the poor.
This was graphically illustrated in
the spontaneous eruption of protests by communities across the
length and breadth of the country
to highlight poor service delivery.
Unfortunately these protests were
accompanied by xenophobic violence directed at the humanity of
those seeking refuge amongst us
against human rights persecution
in their own countries. Overnight
refugees became “the other” –
the outsider and the wanton acts
of violence called into question
our own humanity and commitment to the culture of Ubuntu.
If we are to establish a truly
equal society, then the provision
of basic socio-economic rights
to all becomes a necessary part
of transformation. The notion of
transformative constitutionalism
has been embraced in the
jurisprudence of our courts and
can be seen in the celebrated
judgment of Grootboom in
which the concept of the gradual
realisation of access to socioeconomic rights for all was
developed.
However,
the
Grootboom
judgment was of little comfort
to the main applicant, Irene
Grootboom, who died homeless
some 10 years later because
the City of Cape Town failed to
promote, protect and defend
the rights enshrined in the
Constitution.
It follows therefore that the transformation is not the
sole responsibility of the judiciary. Lawyers have a role
to play in making their services available on a pro bono
basis to those most in need of legal representation when
their constitutional rights are violated. Legal Aid South
Africa is committed to protecting the rights of the poor,
including women, children, the aged and the landless and
to contributing to a just society in which the rule of law is
promoted and respected by all.
The transformative nature of
the Constitution is being subtly
undermined by the trend which
has developed in government
departments to ignore and
disrespect court orders. The
relevant government departments
in KwaZulu-Natal and the
Eastern Cape have a history
of failing to ensure that social
grants are paid timeously and not
unlawfully terminated. The courts
have struggled valiantly with this
phenomenon through a host of
interventions such as structural
interdicts, judicial supervision
over mandatory orders, contempt
orders against errant officials and
the awarding of constitutional
damages against government
officials to be paid out of their
own pockets.
In pursuing this mandate Legal Aid South Africa has
established the Impact Litigation Unit, which is tasked with
acting on behalf of poor and indigent members of society
in class actions and precedent setting cases that promote,
protect and defend their constitutional rights.
In terms of the separation of
powers doctrine the judiciary
cannot legislate. Laws have
to be promulgated by the
legislature. The legislature is
under a constitutional obligation
to pass laws that will assist in the
transformation of South Africa
from an unjust society to a just
and caring society.
With this book we celebrate our achievements in being
part of ensuring the transformation of our society.
Bill of Rights
Rights
7. (1) This Bill of Rights is a
cornerstone of democracy in South
Africa. It enshrines the rights
of all people in our country
and affirms the democratic values
of human dignity, equality and
freedom.
(2) The state must respect, protect,
promote and fulfil the rights in the
Bill of Rights.
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