Constitutional Equality- Socioeconomic Rights in Post-Apartheid South Africa

• In Event: Division 26: Law and Courts Virtual Poster Session

Abstract

Has there been a shift in socioeconomic jurisprudence in post-apartheid South Africa? Following the culmination of the apartheid-era, South African constitutionalism has been widely celebrated around the world. The process of drafting the constitution and the country’s ability to consolidate racial differences from the apartheid-era marvelled international spectators and scholars. A non-violent peaceful transition from the apartheid-era to establishing a substantive constitution was seen as an almost impossible task a decade earlier. Democratic South Africa’s constitutional development has lead’s the world in its transformation with efforts to eliminate apartheid “root and branch.” Being internationally renowned for its incorporation of a comprehensive catalogue of human rights, civil and political rights, as well as social and economic rights. South Africa’s modern and progressive constitutionalism closely resembles the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the primary international legal doctrine whose focus is primarily on human rights. This paper argues temporal related determinants in concert with contextual and structural related challenges have shifted socioeconomic jurisprudence in post-apartheid South Africa. To support this hypothesis, this paper develops two distinct temporal periods (Immediate post-apartheid era and later democratic era) and builds a metric comparing two distinct socioeconomic rights- health care and housing.

Using a broad range of sources and applying the fruitcake of methodologies (Archival data, statistical analysis, secondary literature, transcripts, and jurisprudence). This research draws on four distinct socioeconomic cases that have been decided before the South African Constitutional Court and draws on two distinct socioeconomic rights as per Sections 26 and 27 of the constitution- the right to health care and housing. This paper further investigates their jurisprudence and contextual significance over two different temporal periods (‘Immediate post-apartheid era and the ‘Late Democratic-era’). The metric that this paper adopts compares two areas of housing and health care jurisprudence in each temporal period. The scope of this paper adopts a ‘single country’ as its primary unit of analysis and building a comparative case.

Author

• Yusuf Bulbulia, University of Toronto