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South Africa

In 1995, a South African court opined in the Makwanyane case that both nonbinding, as well as binding, international law ‘may be used as tools of interpretation^8 in keeping with section 39 of the state’s (now former) Constitution—which is reflected in the current Constitution, also in Article 39.[1] The 1995 decision provided a list of potential sources of international law including instruments produced by the HRC,[2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] despite the fact that the state had not yet ratified the ICCPR. At present, South Africa is party to CERD™ ICCPR,72 CEDAW/3 CAT/4 CRC,75 CRPD,76 and the ICESCR/7 Since the passage of the 1996 South African Constitution8 the Constitutional Court has been particularly willing to utilize general comments in an effort to interpret rights stemming from the Constitution’s Bill of Rights (Articles 7—39). Interestingly, the South African courts for many years have tended to invoke general comments of the Committee on Economic, Social and Cultural Rights (ESCR Committee) most often despite only having ratified the ICESCR on 12 January 2015.

In 2000, the Constitutional Court employed relevant international law, including a general comment issued by the ESCR Committee, as a tool of interpretation when considering the socio-economic right of access to housing in South Africa v. Grootboom?9 The Court incorporated paragraph 10 of General Comment No. 3 on The Nature of States Parties’ Obligations into the opinion verbatim to establish that the ‘minimum core obligation’ is necessary to determine whether a state is in violation of its obligations under the ICESCR, as outlined by the ESCR Committee. The minimum core obligation was eventually determined to be outside the scope of the case.80 The dicta, however, proved useful in subsequent examinations of alleged violations of economic and social rights. Many human rights observers took issue with the Court for its failure to employ a ‘minimum essential level’ of an economic, social, and cultural right,81 as outlined by the ESCR Committee in General Comment No. 3.82 Effectively the opinion severed an essential component of the realization of economic and social rights identified by the ESCR Committee, thereby inhibiting the development of a universal interpretation of the right to adequate housing.[15] The Court opted for a test of reasonable legislative (and other) measures within its available resources to progressively realize the right to housing. Whilst in many ways Grootboom was a major victory in the fight to have economic, social, and cultural rights recognized and substantiated in a court of law, it is a sad note that eight years after Irene Grootboom’s ‘victory’ she died in a shack in Cape Town without any indicia of her right to housing having been fulfilled. The realization of the right was not achieved in part due to the state’s failure to employ the ESCR Committee’s outlined ‘minimum essential level’.

The ESCR Committee has issued two general comments on the right to adequate housing. The Constitutional Court has employed both general comments in subsequent efforts to flesh out the duties imposed on the state by Article 26 of its Constitution, particularly in relation to displaced individuals. Article 26(1) of the Constitution provides that ‘[e]veryone has the right to have access to adequate housing’. The South African Constitutional right to ‘access’ adequate housing is somewhat different from the right as introduced by ICESCR Article 11(1). General Comment No. 7, The Right to Adequate Housing^[16] was utilized by the Constitutional Court in the 2009 Joe Slovo Community?[17] forced evictions case. It drew upon the treaty body’s interpretation of appropriate measures to establish the obligation of the state to provide housing for those persons subject to a legitimate forced eviction.

[E]victions should not result in people being rendered homeless. And where the people affected by the eviction are unable to provide for themselves, the [government] must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.8[18]

Comment No. 7 was also used to define the duty of the government, including procedural protections, when relocating people under South Africa’s PIE8[19] [20] [21] policy.88 Previously, in Mpange v. Sithole8 the Court had relied upon the ESCR Committee’s 1991 General Comment No. 4 on the Right to Adequate Housing[22]

to examine the duties imposed on the state by Article 26 of its Constitution with respect to the right to adequate housing.[23] [24] Particularly the Mpange Court noted the interrelatedness of adequate housing and other fundamental rights, such as human dignity, as the ESCR Committee outlined in General Comment No. 4.92 Underscoring the relationship to human dignity is particularly important in light of the Constitutional Court’s recognition of human dignity as the ‘central value of the objective normative value system established by the Constitution’.'[25] [26] [27] [28] [29] [30] [31] [32] It also emphasized the ESCR Committee’s stress on the need for effective domestic legal remedies in order to comply with ICESCR obligations.'4 These references to general comments are a step forward; however, the South African experience highlights that domestic use of these soft law instruments does not always equate to the successful implementation of a universal minimum standard of human rights.

More recently, in April 2011, the Constitutional Court used HRC General Comment No. 3'5 and ESCR Committee General Comment No. 13'6 to frame the importance of and basic right to education. The comment further aided the Court’s interpretation of a private party’s obligation to not infringe the right of education under the Bill of Rights. In Juma Musjid Primary School57 the Court established that the Member of the Executive Council for Education for KwaZulu- Natal, a representative of the government, failed to comply with the positive obligation to ‘respect, protect, promote and fulfil’'8 the right to a basic education despite its recognized status as an empowerment right and ‘the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities’.99 In this instance, the treaty bodies’ interpretations helped consolidate the international minimum standards required to fulfil the right to education.

It is not only the South African Constitutional Court that has relied upon general comments in pursuit of abiding by Article 39 of the state’s Constitution. In 2008, the High Court of South Africa relied upon ESCR Committee General Comment No. 15 on The Right to Wateri00—derived from Articles 11 and 12—to determine that ‘the State is obliged to provide free basic water to the poor’[33] despite there being no express right to water under international or South African law.102 This case exemplified the Court’s readiness to recognize the interrelatedness and indivisibility of human rights and the fact that gaps related to the realization of rights must often be filled using all available tools of interpretation.

The courts of South Africa have firmly established the role of treaty body jurisprudence as an interpretative tool and indispensable source of law. Though the use of general comments has not consistently represented a step forward in the universal standard of certain rights addressed by the South African courts, progress definitely can be charted. As the courts tease out the true meaning of the protections provided in the South African Bill of Rights, the interpretative guidance provided by general comments, and other treaty body jurisprudence, will continue to be an unparalleled tool.

  • [1] Art. 39, para. 1, of the current Constitution of the Republic of South Africa reads as follows: ‘When interpreting the Bill of Rights, a court, tribunal or forum— ... (b) must consider international law; and (c) may consider foreign law.’
  • [2] Art. 39, para. 35, of the current Constitution of the Republic of South Africa.
  • [3] 71 South Africa signed on 3 Oct. 1994 and ratified on 10 Dec. 1998.
  • [4] 72 South Africa signed on 3 Oct. 1994 and ratified on 10 Dec. 1998.
  • [5] South Africa signed on 29 Jan. 1993 and ratified on 15 Dec. 1995.
  • [6] South Africa signed on 29 Jan. 1993 and ratified on 10 Dec. 1998.
  • [7] South Africa signed on 29 Jan. 1993 and ratified on 16 Jun. 1995.
  • [8] 76 South Africa signed on 30 Mar. 2007 and ratified on 30 Nov. 2007.
  • [9] South Africa signed on 3 Oct. 1994 and ratified on 12 Jan. 2015.
  • [10] Adopted on 18 Dec. 1996 and became effective on 4 Feb. 1997.
  • [11] South Africa v. Grootboom, 2001 (1) SA 46 (CC) (4 Oct. 2000).
  • [12] ‘There may be cases where it may be possible and appropriate to have regard to the content ofa minimum core obligation to determine whether the measures taken by the State are reasonable.However, even if it were appropriate to do so, it could not be done unless sufficient information isplaced before a Court to enable it to determine the minimum core in any given context. In this case, wedo not have sufficient information to determine what would comprise the minimum core obligationin the context of our Constitution. It is not in any event necessary to decide whether it is appropriate for a Court to determine in the first instance the minimum core content of a right.’ South Africav. Grootboom, 2001 (1) SA 46 (CC) (4 Oct. 2000), at 66.
  • [13] E.g.: D. Davis, ‘Socio-economic rights in South Africa: The Record of the Constitutional Courtafter Ten Years’, ESR Review vol. 5 (2004): 3—7; Institute for Democracy in Africa (IDASA), ‘TheWomen’s Budget’, Budget Brief No. 111, (October 2002), (last accessed 3 Jan. 2015).
  • [14] ESCR Committee, General Comment No. 3: The Nature of States Parties’ Obligations, UNDoc. E/1991/23, Annex III at 86 (1991), para. 10.
  • [15] It must be acknowledged, also, that the South African right is phrased ‘right to have access toadequate housing’ (emphasis added) whilst the international obligation is the ‘right to adequate housing’ which some argue are two different concepts.
  • [16] ESCR Committee, General Comment No. 7: The Right to Adequate Housing (Art. 11(1) of the Covenant): Forced Evictions, UN Doc. HRI/GEN/1/Rev.9 (vol. 1), paras 7, 16.
  • [17] Residents of Joe Slovo Community, Western Cape v. Thubelisha Homes and others (CCT 22/08) (2009).
  • [18] 86 Residents of Joe Slovo Community, Western Cape v. Thubelisha Homes and others (CCT 22/08)(2009), para. 32.
  • [19] Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), Act 19 of 1998.
  • [20] Residents of Joe Slovo Community, Western Cape v. Thubelisha Homes and others (CCT 22/08)(2009), paras 36-37.
  • [21] Mpange and others v. Sithole (07/1063) [2007] ZAGPHC 201 (22 June 2007).
  • [22] ESCR Committee, General Comment No. 4: The Right to Adequate Housing (Art. 11(1) of theCovenant), UN Doc. E/1992/23 (1991), para. 8.
  • [23] Mpange and others v. Sithole (07/1063) [2007] ZAGPHC 201 (22 June 2007), para. 51.
  • [24] 92 Mpange and others v. Sithole (07/1063) [2007] ZAGPHC 201 (22 June 2007), para. 51.
  • [25] Mpange and others v. Sithole (07/1063) [2007] ZAGPHC 201 (22 June 2007), para. 53. On thispoint: A. Chaskalson, ‘Human Dignity as a Foundational Value of our Constitutional Order’, SouthAfrican Journal of Human Rights vol. 16 (2000): 193—206.
  • [26] Mpange and others v. Sithole (07/1063) [2007] ZAGPHC 201 (22 June 2007), para. 52.
  • [27] HRC, General Comment No. 3, Art. 2 Implementation at the National Level, Doc. HRI/GEN/1/Rev.1 at 4 (1994).
  • [28] 96 ESCR Committee, General Comment No. 13, The Right to Education, UN Doc. E/C.12/1999/10 (1999).
  • [29] Juma Musjid Primary School & others v. Essay N.O. and others (CCT 29/10) [2011] ZACC 13(11 Apr. 2011).
  • [30] Juma Musjid Primary School & others v. Essay N.O. and others (CCT 29/10) [2011] ZACC 13(11 Apr. 2011), para. 45.
  • [31] Juma Musjid Primary School & others v. Essay N.O. and others (CCT 29/10) [2011] ZACC 13(11 Apr. 2011), para. 41, quoting the ESCR Committee, General Comment No. 13, UN Doc. HRI/GEN/1/Rev.9 (vol. 1).
  • [32] UN Doc. HRI/GEN/1/Rev.9 (vol. 1).
  • [33] S v. Mazibuko (A1246/2006) [2008] ZAGPHC 106 (18 Apr. 2008), paras 36—7, see specificallypara. 40. 102 S v. Mazibuko (A1246/2006) [2008] ZAGPHC 106 (18 Apr. 2008), para. 45. The right towater, as indicated in General Comment No. 15, is derived from Art. 11 of the ICESCR, which enunciates a non-exhaustive list of rights that must be insured in order to uphold the right to an adequatestandard of living. See ESCR Committee, General Comment No. 15: The Right to Water (Arts 11 and12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. HRI/GEN/1/Rev.9 (vol. 1), paras 2—6. 103 European Convention for the Protection of Human Rights and Fundamental Freedoms(ECHR), 4 Nov. 1950, ETS No. 005, 213 UNTS 221, as amended by Protocol Nos 11 (ETS No. 155)and 14 (CETS No. 194), entry into force 1 June 2010. 104 HRC, General Comment No. 20: Prohibition ofTorture, or Other Cruel, Inhuman or DegradingTreatment or Punishment, Art. 7, 30 Sept. 1992 at (last accessed 3 Jan. 2016). 105 Margus v. Croatia, ECtHR (GC) [2014] ECHR 523.
 
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