Discrimination Law and Social Rights: Intersections and Possibilities

Author:Murray Wesson
Position:Dr., Lecturer, School of Law University of Leeds, United Kingdom

1. Introduction - 2. Social rights and substantive equality: An overview - 3.Khosa v. Minister of Social Development - 4. Government of the Republic of South Africa v. Grootboom - 5. The minimum core - 6. A third way? - 7. Conclusions


Murray Wesson

Dr., Lecturer, School of Law University of Leeds, United Kingdom

Discrimination Law and Social Rights: Intersections and Possibilities

1. Introduction

In both academic articles and court judgments, a connection is frequently drawn between the idea of substantive equality, developed in the sphere of discrimination law, and social rights. To give just one example, in Grootboom, the South African Constitutional Court 's leading judgment on social rights, the court observed that the case brought home "the harsh reality that the Constitution's promise of dignity and equality for all remains a distant dream"1. Generally, however, such statements are left undeveloped. Part of the aim of this article is to explore the connection between social rights and equality, so often drawn but so seldom elaborated. A further aim is to consider the limits of judicial activism in this area. How far can courts go in enforcing social rights, given the clear policy questions that these rights would seem to raise?

This article discusses these issues in light of the social rights jurisprudence of the South African Constitutional Court . The first part introduces the concepts of social rights and substantive equality. In brief, it argues that the substantive approach to discrimination law is distinctive insofar as it allows for preference to be accorded to worse-off groups, thereby accommodating the promotion of equality within the sphere of discrimination law. Thereafter, the article discusses the most obvious connection between discrimination law and social rights - that is, where a social programme distinguishes between people on the basis of a ground of discrimination. This discussion is undertaken in light of the Constitutional Court 's judgment in Khosa2.

There is, however, a less obvious intersection between substantive equality and social rights. This concerns the principle, integral to substantive equality, that preference should be accorded to those who are worse off. This principle finds expression in Grootboom, where the court ordered that the state's housing programme should be adjusted so as to accord priority to those who are destitute. The court did not, however, order that all such individuals be provided with relief, and the judgment has been criticised for according insufficient priority to those whose needs are most urgent. The final part of the article discusses the extent to which this criticism is valid and argues for an approach that, while not extending individual entitlements to the social right in question, nevertheless steps beyond Grootboom. It is suggested that this approach would adequately reflect the limits of judicial activism in this area.

2. Social rights and substantive equality: An overview

Social rights require governments to provide their citizens with the most basic amenities of life, such as food, water, and shelter. Typically, the state need only meet this obligation progressively and within the limits of the resources available to it. This is, for instance, the case under the International Covenant on Economic, Social and Cultural Rights (ICESCR) 3 and the South African Constitution4.

Although the ICESCR has been widely ratified, only a handful of states have taken steps to enshrine social rights constitutionally. This means that the question of how social rights should be enforced has received relatively little attention. The United Nations Committee on Economic, Social and Cultural Rights (CESCR) has, however, recommended that a 'minimum core' approach be adopted5. In essence, the minimum core refers to obligations that should be fulfilled immediately, notwithstanding the fact that social rights are subject to progressive realisation. One such obligation is that the state initially concentrate on the needs of those who are worse off, before moving on to other, less pressing, needs. Thus, in the sphere of housing, for instance, the state should first cater to people who have no shelter whatsoever before making provision for people who already have some form of housing, however inadequate.

The minimum core does not require that those who are worse off be provided with the relevant social right in its most expansive form. Instead, only 'minimum essential' 6 levels of the right need be provided, although the expectation is that these will be progressively upgraded7. The minimum core should, however, be made available as a matter of individual right8. In certain circumstances, the state may be able to justify failures to meet its core obligations. However, the argument is that it should do so on the same basis upon which rights are limited generally, which in South Africa would be a limitation clause enquiry under § 36 of the Constitution9. The South African Constitutional Court has, by contrast, formulated a somewhat different approach to the enforcement of social rights, which is discussed in greater detail below.

Substantive equality, on the other hand, embodies a particular approach to discrimination law. In this regard, a good starting point is Aristotle's view that equality consists in treating like cases alike and unlike cases differently10. Although this formula has been subjected to criticism, 11 it is submitted that it is not so much wrong as empty.

An initial problem is that almost all legislation draws distinctions between people for one purpose or another. In other words, governments habitually treat people differently from one another on the basis of perceived differences or similarities. However, not all of these distinctions can be closely scrutinised by the courts. To do so would be impractical and would result in the judiciary making determinations for which it is ill-qualified.

This discussion relates to the grounds of discrimination, or the type of distinctions that should attract judicial solicitude on the basis that they potentially give rise to issues of equality. Clearly, Aristotle's formula gives us little guidance about how to approach this issue. In the US , courts have attempted to resolve this question by focusing upon process-related factors. Thus, in the seminal judgment of CaroleneProducts, Justice Stone held that legislative classifications should be regarded as 'suspect' if they are directed at "discrete and insular" minorities or groups that are at a disadvantage in the political process, the classic example of which are racial minorities12.

Quite apart from the question of grounds of discrimination, a further difficulty with the Aristotelian formula is that it does not tell us what should count as like and unlike cases. One attempt to lend it content is formal equality. In essence, formal equality takes the view that equality inheres purely in consistency of treatment; that is, all individuals should be treated alike, regardless of their membership of particular groups. In other words, formal equality gives content to the Aristotelian formula by stipulating that, in judging the similarity or dissimilarity of two cases, group membership should never be taken into account.

Formal equality is now widely maligned, and the difficulties with this approach are well-documented. Nevertheless, it bears reiteration that a central objection to formal equality is that it is capable of disallowing measures that are designed to promote equality. For instance, by insisting that individuals should always be treated alike, regardless of attributes such as race and sex, a formal approach appears to preclude positive action in the form of, for instance, affirmative action. Policies such as these recognise that disadvantage frequently tracks characteristics such as race and sex and therefore takes these into account rather than ignoring them completely. What formal equality fails to recognise, in other words, is that it is only in certain contexts that such characteristics are irrelevant and detrimental13.

Substantive equality, in contrast, takes account of the position of the individual in society and the impact that the measure is likely to have upon him or her14. In particular, government action that entrenches pre-existing disadvantage is unlikely to be upheld, whereas measures that promote disadvantaged groups are likely to be endorsed15. Unlike formal equality, substantive equality therefore authorises, although it does not require, positive action. We should note, however, that substantive equality does not imply a rejection of the Aristotelian formula. Instead, like formal equality, it lends it content, yet does so in a different way, by stipulating that whether someone is better off or worse off is relevant to whether that person should be considered 'like' other individuals and thus whether he or she may be treated differently. A key feature of substantive equality is therefore its commitment to improving the position of worse-off sectors of society.

The substantive approach to discrimination law raises, of course, a host of further questions. Of these, the most obvious is: If preference may be accorded to worse-off groups, how far may such preference extend? Put differently, at what point does the pursuit of equality cease to treat those adversely affected as equals?

To answer this question, we need to understand the centrality of dignity in the South African Constitutional Court 's equality analysis. In the words of the court, unfair discrimination "principally means treating people differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity"16. Dignity therefore serves as the test, or touchstone, of whether unfair discrimination has occurred. In so doing, it also tells us how far the remedial measures authorised by substantive...

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