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South Africa’s Grootboom and TAC cases 13 years later: what was achieved after all?
South Africa has a history of apartheid in which the civil and socioeconomic rights of the black community were systematically violated. In creating a new constitution, a holistic approach was adopted. The constitution stressed fundamental human rights as well as socio-economic rights for every individual, as codified in the Bill of Rights. This narrowed existing inequalities and promoted the reconstruction of society.
One of the most pressing problems facing South Africa is the vast amount of people living in deplorable conditions. Almost half of the population lives in poverty, and the level of income-inequality is one of the biggest worldwide. The HIV/AIDS pandemic aggravates the situation of poverty (Liebenberg). The question rises whether the codification of socio-economic human rights proves to be a helpful tool in addressing these challenges. This could help specify the role of laws and legislation in the process of development. If laws are able to transform society and influence economic relations in South Africa, this could be useful for policymakers in other developing societies and for legal scholars researching, inter alia, social engineering.
In addressing the effectiveness of the creation of the South African Bill of rights, it is interesting to look at the role of the Courts in enforcing these rights. Judges will have to give meaning and effect to the constitution. It is therefore interesting to focus on two of the primary cases dealt by the Constitutional Court: the Grootboom case and the TAC case.
The Grootboom case arose after the respondents had been evicted from 'their informal homes situated on private land earmarked for formal low-cost housing.' They 'applied to the … High Court for an order requiring the government to provide them with adequate basic shelter or housing until they obtained permanent accommodation and were granted certain relief.' The Court upheld the claim on the basis on S.28(1)(c), declaring that the government should, as a bare minimum, provide children and their parents with 'tents, portable latrines and a regular supply of water…' The government asserted that they had complied with the relevant constitutional provisions by formulating a land program to assist councils in managing the settlement of families in crisis; it just had not been put into effect yet. They argued that '[t]he right of access to housing is directly dependant on resources available to the State … [and] there is an express recognition by the framers of the Constitution that the right to housing cannot be effected immediately' and so did not agree with the judgment. Therefore, they appealed to the Constitutional Court.
The Court stated that the test in cases concerning how socio-economic rights are to be enforced is 'whether the measures that have been adopted are reasonable', both in terms of policy and in implementation. The Court held that while the rights are subject to the principle of progressive realization, steps must still be taken to ensure that the basic needs of everyone in society are met. It considered what the state had already done was not reasonable because it did not provide any short-term support to people in desperate need.
The Court held that the state housing program did not comply with S.26(2) of the Constitution. As well as handing down a settlement order providing the respondents with money for shelter, water and sanitation and allowing them to temporarily remain on the sports field where they had since settled, the Court declared more generally that the state must 'devise and implement within its available resources a comprehensive and coordinated programme progressively to realise the right of access to adequate housing.' It also said that '[t]he programme must include reasonable measures such as, but not necessarily limited to, … to provide relief for people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations.'
This decision was largely acclaimed as a great victory for the homeless and landless people of South Africa; it was a 'promising approach' (Sunstien). However, in reality it was disappointing because '[t]he implementation of the judgment has been less than optimal' (Liebenberg). Grootboom’s legal representative said that her death 'and the fact that she died homeless shows how the legal system and civil society failed her' (Joubert). The new program of housing assistance for those in emergency circumstances was notn't adopted until three3 years after the judgment. Until then there had been 'little tangible or visible change in housing policy so as to cater for people who find themselves in desperate and crisis situations' (Pilay). This may be because of the declaratory nature of the order; it did 'not compel the State to take steps to ensure that its programme complies with the Constitutional requirements' (Pillay), nor did it 'contain any time frames within which the State has to act' (Pillay). As such, 'the Court did not do justice to the remedies available under the South African Constitution' (Roux).
The TAC case is another example of socioeconomic rights being used to influence development and how not only the courts but also society is able to enforce such rights. This case concerned Treatment Action Campaign (TAC), an organization who challenged the South African government on their half-hearted attempts at realizing the rights constitutionally afforded to South Africans in relation to the treatment of with HIV and AIDs and in particular the prevention of Mother To Child Transmission (PMTCT). The court dealt with two issues;
Whether the government had violated sections 27 (guarantee of healthcare) and 28 (protection of children) through the restrictions placed on availability of Nevirapine.
Whether the government’s attempts at the creation of an effective program with dealing with MTCT met their obligations under s.27.
The Court held that the government’s positive duty under s.27 was breached in that the restrictions excluded a vulnerable group from lifesaving healthcare. The government’s measures were not considered to be a reasonable attempt at realization as under the criteria established in the Grootboom case with the restrictions proving inflexible and could be seen to neglect the poor who would not be able to afford the costs of private treatment. It was also held that the delay period imposed on the decision to expand the use of the treatment beyond the original sites was unreasonable.
The Court found that for the second issue the fact the drug itself was so restrictive led to the entire program the government had put into place to deal with PMTCT being inadequate.
The Court ordered the government to immediately make the drug available at public hospitals and clinics and to enhance the training of councilors where Nevirapine is concerned in addition to the expansion and improvement of facilities for the purpose of testing and counselling.
The implementation of the judgment has been impressive and the government has taken a large step towards realization of the Constitutional rights. The HIV & AIDS and STI (sexually transmitted infections) Strategic Plan for South Africa (2007-2011) shows the true extent of the government’s commitment and acknowledgment of their obligations in that it allowed for the spending of $6 billion over five years and has been regarded as one of the most impressive programs in the world for dealing with HIV.
However the plan was not applied evenly and there are still some areas where prevention and treatment remain at what could be considered a substandard level. Despite this, success can be seen from the fact that in 2004 only 47000 people were receiving treatment, this rose to 1.79 million people by 2011 (McNeil).
The legal challenge brought by TAC was a major factor behind the government’s program. Through social mobilization the issue was brought to the attention of the government and the country as a whole and encouraged action.
There were some political motivations behind this impressive response in that the government in power at the time was under political scrutiny as there was a forthcoming election. It could still be seen that it was the efforts of TAC which made the issue of AIDs/HIV an issue to be taken seriously in the political sphere in the first place.
The dramatic fall in drug prices during the same period also had an important impact on implementation, something which was brought about by another successful TAC legal challenge. (Not only done by TAC though…).
As stated under S.27(2) the State is only obliged to take reasonable measures within its available resources to achieve realization. South Africa still has economic difficulties and therefore there are financial limits on governmental departments and this will continue to remain a challenge. However despite this there is continued implementation with a third National Strategic Plan on HIV, STDs and TB for 2012-2016.
Not only did the Grootboom case have an immense impact on the Grootboom community, but other communities reaped the benefits from the case aswell. The Grootboom case emphasized that socio-economic rights are justiciable despite the fact that the enforcement of these rights has budgetary implications for the state (Joubert). As a result the Grootboom-case caused more communities to enforce their right of access to adequate housing.
The fact that socio-economic rights are justiciable also had an impact on the interpretation of the lCESCR. The Grootboom-case is perceived as contributing to a transnational consensus on international law in relation to socio-economic rights (Joubert).
The TAC-case contributes to the existing jurisprudence on socio-economic rights, particularly the right to healthcare (Zandile Sebenzile). It made the government aware of the fact that they should adhere to these obligations during the process of making social policies. (Zandile Sebenzile).
Both cases had an impact on the theory of the separation of powers. The government is bound by the constitution and when a government policy is declared unconstitutional it should be adjusted. The Constitution gives the courts a discretionary powers when granting relief in matters involving the enforcement of constitutional rights (Joubert). The Court does not follow the traditional interpretation of the theory of the separation of powers. Despite this considerable power, the South African Court is limited by institutional constraints. For example, the National Coalition For Gay and Lesbian Equality and Others v Minister of Home Affairs and Others said that the Court owes deference to the Legislature in devising a remedy for a breach of the Constitution in any particular case.
The cases ensured an increase in the quality of life of individuals in South Africa. Second, the cases created awareness for the government . Furthermore, the cases had a major influence on the theory of the separation of power. Finally, the cases contributed to a transnational consensus on international law obligations in relation to socio-economic rights.
The combination of law and social mobilization was a new – and in this case also successful – approach in demanding access to drugs. The distinctive feature of this movement is that people did not collaborate with professionals – they distrusted them because they suspected involvement in the government and pharmaceutical industry and considered their work ineffective – but build a group of people concerned of the issue: many living in poverty with HIV/AIDS. They had to acquire knowledge about public health, human rights and what HIV/AIDS is actually doing to the(ir) body – they became the first organization from a developing country adapting the concept of ‘treatment literacy’ (Heywood).People who were trained in treatment literacy were assigned to clinics, hospitals etc. in order to teach people living with HIV/AIDS (PLWHA) about for instance the affect of treatment, human rights, and equality. This way they informed more than 100.000 people per month. The intention of providing information is to arm poor people with knowledge to become their own advocates and empower them and their community.What TAC did:
it created a national social mobilization capable of unifying people to demand the right to health from government and pharmaceutical companies and it created an empowered citizenry at a local level who assisted and demanded the delivery of healthcare services within poor communities as a matter of right and law (Heywood).
Later on, TAC started working with lawyers in order to claim their rights stated in the constitution. TAC received and created a lot of media attention especially in the public health environment.
Another current example of social mobilization within the health sector is launched by the organization TB PROOF. This is an organization founded by medical students and health care workers (HCW) to protect their health against tuberculosis (TB) while working in health facilities. The government does not provide proper prevention for HCW and presents low numbers of infection of HCW with TB in their working environment – TB PROOF have done their own investigation and came up with higher numbers of HCW infected with TB. By mobilization of HCW, medical students and people concerned, TB PROOF wants to increase the pressure on the government of South Africa in order to improve the prevention guidelines and the support of HCW and students.
In conclusion, while the implementation of these two cases left much to be desired, they still enabled much progress in South Africa. They also inspired people to stand up and claim their socio-economic rights. These cases may set an example for other countries, although some factors, especially lack of resources may hinder progress in less developed countries.