Latest report explores ways to improve the effectiveness of remedies for socio-economic rights violations

The workshop primarily aimed to address remedies for socio-economic rights violations and improve the effectiveness of court orders in socio-economic matters, including rights to basic education, access to healthcare, housing, and social security.

The workshop was held in December 2023 and convened a diverse array of participants, including academics, researchers, attorneys, advocates, and judges. A significant number of participants served as representatives of public interest organisations dedicated to advancing socio-economic rights enshrined in the Constitution. This workshop stemmed from the experiences of litigators and applicants including in the Thubakgale matter in which the Constitutional Court handed down a highly debated judgment in December 2021. The Constitutional Court’s judgment calls into question the right of claimants to obtain the remedy of constitutional damages when their socio-economic rights (such as their housing rights) are violated. 

The need for robust and sustainable remedies through the awarding of structural orders and their ongoing monitoring has also been illustrated by several recent cases. These include the Komape case where the Court ordered the Limpopo Department of Education to eradicate all pit toilets in Limpopo after five-year-old Michael Komape drowned in a pit latrine at school. Another important case involved the Gauteng High Court reversing an unconstitutional policy denying pregnant and lactating women, and children under six, from accessing free healthcare on the basis of nationality or documentation status.

The first part of the workshop highlighted the perspectives of civil society in South Africa, as they work towards ensuring the realisation of socio-economic rights. In part two, the workshop focused on developing strategies to address the fundamental factors contributing to the infringement of socio-economic rights in specific cases, examining perspectives from both South Africa and Colombia. The third section centered on perspectives from members of the judiciary in South Africa and Colombia, delving into implementing remedies to protect socio-economic rights.

Former Justice of the Constitutional Court, Justice Johan Froneman delivered the keynote address, offering valuable guidance to civil society and public interest lawyers on effectively litigating socio-economic rights cases. Additionally, Justice Natalia Angel Cabo from the Colombian Constitutional Court shared an inspiring narrative on how the courts in Colombia have addressed and tackled systemic violations of socio-economic rights. In his input, Judge Dennis Davis, former Judge of the Western Cape High Court and Judge President of the Competition Appeal Court, highlighted the significance of formulating remedies that have a lasting impact rather than short-term relief and highlighted the need for thorough case selection and presenting thorough research to the courts. When addressing public interest cases, Judge Kate Savage, serving at the Western Cape High Court, highlighted the importance of considering relief measures that have a deterrent effect or aim to prevent future incidents.

The report explores innovative remedies that can alleviate the monitoring burden on civil society organisations while enhancing the Courts' ability to oversee structural orders. Participants examined options such as declaratory orders, constitutional damages, and supervisory orders, as well as the possibility of appointing court agents to assist with monitoring. Drawing insights from successful models in Colombia, participants identified strategies to enhance the effectiveness of judicial remedies in addressing socio-economic rights violations.

Some specific suggestions include conducting research to gather empirical evidence on the support structures that arise from structural orders, creating a remedies handbook for practitioners, and exploring the possibility of establishing a mechanism to monitor and follow-up on judicial decisions. For effective monitoring, the report recommends the involvement of different stakeholders, including communities, civil society organisations, the government, and Chapter 9 institutions. It also highlights the importance of Chapter 9 institutions, such as the SA Human Rights Commission, helping to monitor and report on the implementation of structural orders.

Despite court orders in socio-economic rights cases mandating the government to comply, many civil society organisations encounter significant hurdles in compelling the state to fulfil their obligations. This is often because the court orders the government to perform tasks that require the government to change systems, organisational cultures and individual attitudes. As a result, ongoing court supervision becomes essential to ensure the effective implementation of court orders.

The report highlights the necessity of democratising public interest litigation and emphasises the importance of ongoing advocacy, engagement with government officials, and legislative submissions. Without them, our Constitution risks becoming an unfulfilled promise. The report highlights these critical issues and proposes actionable solutions for enhancing compliance and accountability in socio-economic rights litigation.

While the government has made progress in advancing socio-economic rights as stated in the Bill of Rights, many people in South Africa still lack access to essential resources such as quality education, healthcare, adequate housing, clean water, and sufficient food, resulting in extreme poverty. Effective remedies through litigation are one way of changing this.

Access the report here.