Browsing by Author "Sandra, Liebenberg"
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Item The application of socio-economic rights to private law(Journal of South African Law, 2008) Sandra, LiebenbergThe constitution is explicitly committed to redressing and transforming socio-economic exclusion and marginalisation. This is manifest, amongst other constitutional provisions, in the entrenchment of a comprehensive range of socio-economic rights read together with the provisions relating to substantive equality, land reform and environmental rights.3 Moreover, the constitution contains a number of express provisions signalling that the rights and values in the bill of rights are intended to apply to private relations and to influence the development of the common law and customary law. Sections 8(1)-(3) and 39(2) are the primary provisions governing the application of the bill of rights to private parties.Item Basic rights claims How responsive is ‘reasonableness review’?(ESR Review, 2004) Sandra, LiebenbergSouth Africa’s 1996 Constitution (the Constitution) is widely renowned for its holistic, inclusive Bill of Rights. A particular innovation is its inclusion of a wide range of fully justiciable socio-economic rights. There is now a burgeoning body of jurisprudence from the Constitutional Court interpreting these rights. There can be little doubt that South African jurisprudence has given a significant boost to international endeavors to protect socio-economic rights. Through its jurisprudence, the Court has to achieve a critical balance between effectively protecting the socio-economic rights of the poor, while also respecting the roles of the legislature and executive as the primary branches of government responsible for realising socio-economic rights.Item The constitutional protection of those facing eviction from “bad buildings”(ESR Review, 2008) Sandra, Liebenberg; Lilian, ChenwiThe Constitutional Court’s judgment in the Olivia case, handed down on 19 February 2008, represents a victory for the occupiers of “bad buildings” in the inner city of Johannesburg as well as other poor people facing eviction for health and safety reasons. The judgment gives effect to South Africa’s constitutional commitment to housing rights. It also affirms the obligation on local authorities, in all evictions, to seek reasonable ways to avoid homelessness by engaging meaningfully with the affected communities. Central to this case are the provisions of the National Building Regulations and Building Standards Act 103 of 1977 (NBRA), which empower local authority official to issue a notice to occupiers to vacate premises when they deem it necessary for the safety of any person (section 12(4)(b)). Failure to comply with such a notice constitutes a criminal offence for which the offender can be fined up to R100 for each day of noncompliance (section 12(6)).Item The courts and socio-economic rights: carving out a role(ESR Review, 2002) Sandra, LiebenbergAlthough the jurisprudence on the socio-economic rights in the Bill of Rights is still in its infancy, the number of cases coming before the courts is gathering momentum. In particular, the Constitutional Court judgment in the case of Government of the RSA v Grootboom 2000 (11) BCLR 1169 (CC) [the Grootboom case] is a landmark in socio-economic rights enforcement in South Africa. Several important insights can be garnered from the emerging jurisprudence, particularly from the Grootboom case. The Constitutional Court has confirmed that the socio-economic rights in the Bill of Rights place both a duty on the State and other important role players to respect these rights, and a positive duty on the State to protect, promote and fulfil them.Item Engaging the paradoxes of the universal and particular in human rights adjudication: The possibilities and pitfalls of ‘meaningful engagement’(African Human Rights Law Journal, 2012) Sandra, LiebenbergThis article examines the disjunctures between the universal aspiration of human rights norms and the complexity of their interpretation and application in diverse and pluralistic contexts. It examines the extent to which a deliberative model of democracy can assist in promoting a more dialectical relationship between the universal and particular in human rights constitutional adjudication. The article further evaluates the potential of the mechanism of meaningful engagement employed by the South African Constitutional Court in the context of evictions jurisprudence to negotiate the tension between the universal normative values and purposes of human rights, and the democratic ideal of popular participation in the making of decisions which affect people’s daily lives.Item Giving money to children: the state's constitutional obligations to provide child support grants to child headed households(South African Journal on Human Rights, 2004) Sandra, Liebenberg; Beth, GoldblattOne of the most tangible effects of the HIV epidemic is the growing number of orphans and the emergence in ever increasing amounts of households headed by children. These new family configurations pose a wide range of challenges to our society. Not least of these is the challenge to change laws that hamper these households from accessing desperately needed benefits. The state currently provides a child support grant (CSG) for children in need. This grant (R170 per month from 1 April 2004) is provided to the ‘primary care giver’ (PCG) of a child who is currently under the age of 11 years. Neither the SocialAssist ance Act, nor the regulations promulgated under it set any age limit for the PCG. Effectively, however, such a person must be 16 years old as this is the age when an identity document is first provided, and a PCG has to provide his or her identity document in applying for the grant. In practice, the various offices of the Department of Social Development, responsible for administering the CSG, are treating applicants differently and some are even turning away those who are under the age of 21. This note argues that the exclusion of children living in child-headed households from the child support grant programme constitutes a violation of the Constitution.Item The interrelationship between equality and socio-economic rights under South Africa's transformative constitution(South African Journal on Human Rights, 2007) Sandra, Liebenberg; Beth, GoldblattThis article develops the interrelationship between the equality and socio-economic rights in the Bill of Rights to enhance the responsiveness of our jurisprudence to the mutually reinforcing patterns of poverty and inequality in South Africa. We proceed from the principle that rights are interdependent and interconnected, and examine the implications of this for our evolving socio-economic rights and equality jurisprudence. We argue that such a reading accords with the mandate of the courts to promote the foundational constitutional values of human dignity, equality and freedom in their interpretation of the Bill of Rights, and advances the transformative goals of the Constitution. The article examines how equality jurisprudence should be developed so as to be more responsive to material disadvantage and the values protected by socio-economic rights. Thereafter, it examines how an equality perspective can enrich South Africa’s evolving jurisprudence on socio-economic rights. We demonstrate how the value of equality can be integrated within the model of reasonableness review developed by the Constitutional Court for evaluating positive socio-economic rights claims. Finally, some of the strategic implications of this interdependent reading of equality and socio-economic rights for developing a jurisprudence that facilitates the attainment of social and economic transformation in South Africa are considered.Item Muddying the waters: the Supreme Court of Appeal’s judgment in the Mazibuko case(ESR Review, 2009) Sandra, Liebenberg; Jackie, DugardOn 25 March 2009, the Supreme Court of Appeal handed down judgment in the Mazibuko case. The case was an appeal against the judgment of the Johannesburg High Court (now the South Gauteng High Court) of 30 April 2008, concerning the sufficiency of the City of Johannesburg’s free basic water (FBW) policy and the lawfulness of prepayment water meters (PPMs). This article analyses the judgment.Item Needs, rights and transformation: adjudicating social rights(Stellenbosch Law Review, 2006) Sandra, LiebenbergOne of the most contested issues in South Africa’s burgeoning jurisprudence on social rights relates to how the courts should enforce the duties imposed by these rights. Debate has focused in particular on the extent to which the courts should affirm an enforceable right to the provision of basic needs by those who lack access to these needs. In the South African context, this is a plight affecting a substantial portion of our population, and must also be contextualised within the high degree of inequality existing in our society. This article explores the relationship between a jurisprudence of basic needs and the transformative goals of the Constitution. The question that interests me is whether a jurisprudence relating to the fulfilment of social and economic needs can have transformative potential, and if so, under what conditions. My aim is to examine how such a perspective can inform the development of our socio-economic rights jurisprudence in a way that supports a project of social transformation consistent with constitutional values and rights.Item The potential of the International Covenant on Economic, Social and Cultural Rights as a tool for poverty reduction in South Africa(ESR Review, 2014) Sandra, LiebenbergTogether the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR; hereafter ‘the Covenant’) represent the fundamental human rights commitments of the international community. They were adopted to give concrete legal force and effect to the human rights commitments in the United Nations Charter (1945) as well as the Universal Declaration of Human Rights (1948). The Covenant – ratified by 161 states – is based on the values of recognising the inherent dignity, potential and equality each person.Item Social Citizenship: A Precondition for Meaningful Democracy(Agenda: Empowering Women for Gender Equity, 1999) Sandra, LiebenbergIn 1959, the scholar, TH Marshall, analysed the historical development of those features that were vital to effective 'citizenship'. He viewed democratisation as a progression, spanning three centuries. Civil rights were the great achievement of the 18th Century, establishing the principle of the equality of all members of society before the law. Political rights emerged in the 19th Century, paving the way for increasingly broader participation in the exercise of political power. The fulfilment of democracy is the recognition of the concept of 'social citizenship' in the 20th Century.Item Socio-economic rights under a transformative Constitution The role of the academic community and NGOs(ESR Review, 2007) Sandra, LiebenbergFollowing Karl Klare’s seminal article in the 1998 SA Journal on Human Rights, South Africa’s Constitution has been widely described by the courts and in academic literature as a “transformative Constitution”. While finding deep resonances in the South African community, the concept has also remained tantalisingly elusive. At one level, it implies an undoing of the multifaceted injustices inflicted by four centuries of colonial and apartheid rule in the political, social, economic and cultural spheres. At another level, it also implies the construction of a new and better society for the future – one which is founded, as the preamble of the South African Constitution of 1996 states, “on democratic values, social justice and fundamental human rights”.Item South Africa's evolving jurisprudence on socio-economic rights: An effective tool in challenging poverty(Law, Democracy & Development, 2002) Sandra, LiebenbergThe drafters of the Constitution clearly envisaged a far-reaching role for it in the transformation of post-apartheid society.' Among the key aims of the Constitution is to "improve the quality of life of all citizens and free the potential of each person".4 This constitutional concern with the socioeconomic well being of people is especially evident in the entrenchment of a wide range of justiciable socio-economic rights in the Bill of Rights." If the socio-economic rights in the Constitution are to amount to more than paper promises, they must serve as useful tools in enabling people to gain access to the basic social services and resources needed to live a life consistent with human dignity. This paper focuses on the role of the courts in promoting the realisation of socio-economic rights in South Africa.Item Universal access to social security rights: can a basic income grant meet the challenge?(ESR Review, 2002) Sandra, LiebenbergAccess to social assistance for those unable to support themselves and their dependants is a fundamental human right enshrined in the Constitution. In March this year, the Committee of Inquiry into a Comprehensive System of Social Security for South Africa, chaired by Prof. Viviene Taylor, released its consolidated report, entitled Transforming the present protecting the future. It recommends a range of policy measures aimed at building a comprehensive social security system in South Africa. The report's underlying philosophy is that social security reform should form part of a comprehensive social protection package. This package of developmental strategies and programmes should be designed to ensure, collectively, at least a minimum acceptable living standard for all citizens. Without such a core minimum of social provisioning, the constitutional promises of socio-economic rights, human dignity, equality and freedom will have a hollow ring.Item The value of human dignity in interpreting socio-economic rights(South African Journal on Human Rights, 2005) Sandra, LiebenbergThere has been considerable criticism of the use of human dignity as a guiding value in the context of South Africa's equality jurisprudence. What are the implications of the use of the value in socio-economic rights jurisprudence? Drawing on the work of Martha Nussbaum, the article links the value of human dignity to the material conditions necessary to enable people to develop and exercise their capabilities. Access to basic social services is crucial not only to people's physical survival, but also to enable the development of their potential to shape their own lives and to be active agents in the shaping of our new society. Human dignity as a relational concept requires society to respect the equal worth of the poor by marshalling its resources to redress the conditions that perpetuate their marginalisation. This, in turn, requires a focus on the actual impact of the state's actions or omissions on the life chances of disadvantaged groups, and a response that is proportionate to the seriousness of that impact. In constitutional adjudication, it requires that a high burden of justification is placed on the state in cases involving a deprivation of basic human needs. The article concludes by examining how the Constitutional Court's reasonableness review standard and remedial jurisprudence could be strengthened to accord greater value to this conception of human dignity.