2.3 General discussion on land as a subject matter (What is land)
2.3.2 Socio-economic rights
Similar to UNDRIP the South African government-provided a number of socio-economic rights in the Constitution. These socio-economic rights are classified into three categories namely the qualified socio-economic rights, the basic socio-economic rights and prohibition socio-economic rights. The first group of rights requires a positive approach on the state to take reasonable steps, within its available resources to achieve their progressive realization.
Whilst the second group of rights are neither drawn up as access rights nor are they subject to the eligibility of reasonableness, available resources or progressive realization. In addition, the last group of rights are rights created as the prohibition of certain forms of conducts.
Section 25(5)187 place a duty on the state “to take reasonable and other legislative measures” thus in terms of UNDRIP the state has a duty to implement legislative measures which will enable people to access land. Taking into account the above-mentioned, the state implemented the land reform program, which is initiated to ensure that the injustices and inequalities emanating from the previous land dispossession are redressed in a manner that allows everyone to access land on an equitable basis.
The same Constitution placed a constitutional duty on the state to, actively implement socio- economic rights. In light of the above, some of those socio-economic rights are solely dependent on availability and access to land. Rights such as access to adequate housing,188 access to health care services and sufficient food.189 However, the Constitutional duty on the state is not limited to the implementation of socio- economic rights, but it encompasses a broad responsibility that requires the state to also respect, protect and promote socio- economic rights. Failure to respect, protect and promote the fulfillment of these socio- economic rights the state will be held accountable.
187 See section 25(5) of the Constitution of the Republic of South Africa Act 108 of 1996.
188 See section 26 of the Constitution of the Republic of South Africa Act 108 of 1996.
189 See section 27 of the Constitution of the Republic of South Africa Act 108 of 1996.
The courts have showed initiative of ensuring that socio-economic rights are protected by using the engagement requirement as a control measure for approved evictions. In the case of Abahlali Base Mjondolo Movement of South Africa v Premier of the province of Kwazulu- Natal,190 the shack dwellers challenged the constitutionality of the KwaZulu-Natal Elimination and prevention of Slums Act.191 Arguing that the eviction provisions of section 6 of the Act192 violated section 26 of the Constitution.193 The court held that the Act was invalid for its failure to ensure that the residents’ rights to adequate housing are not violated without proper notice and consideration of other alternatives.
Pieterse asserts that “South African courts are not only permitted but are also constitutionally obliged to give meaning to socio-economic rights trough the interpretation, the evaluation of government compliance with the duties they impose, to pronouncement on the validity of legislation and policy in the socio-economic sphere and the remedy of the state noncompliance with socio- economic rights”.194 The courts have shown efforts in upholding socio- economic rights by its consistency and extreme measures placed in the application of the engagement requirement such as in the case of Residents of Joe Slovo community Western Cape v Thubelisha Homes.195 In this case, the court revisited the engagement requirement and granted an order requiring the city of Cape Town to engage further over the timing and details of eviction. Despite the fact that prior to the court proceedings, the city of Cape Town had already engaged in a meaningful engagement with the residents. This requirement ultimately led the city’s decision to postpone the eviction plans and reconsider the in situ upgrade the resident had sought.
The application of the engagement requirement in the above-mentioned case ensured that the people’s right to adequate housing is protected. Chenwi asserts that “meaningful engagement is an important development in the South African constitutional courts to enforce socio-economic rights and foster effective participation in service provision”.196 However Van der Berg is of the view that the requirement of meaningful engagement can be both praised as an innovative remedy and criticised as a further proceduralisation of
190 (CCT12/09) [2009] ZACC 31; 2010 (2) BCLR 99 (CC) (14 October 2009).
191 Act 6 of 2007.
192 KwaZulu Natal Elimination and prevention of Slums Act 6 of 2007.
193 Constitution (n33).
194 Marius Pieterse, Coming to terms with judicial enforcement of socio-economic rights (2004), South African Journal on Human Rights, 20: 383-417.
195 (CCT 22/08) [2009] ZACC 16; 2009 (9) BCLR 847 (CC) ; 2010 (3) SA 454 (CC) (10 June 2009).
196 Lilian Chenwi, Meaningful engagement in the realisation of socio-economic rights: the South African experience (2011), South African public Law, 26, 128-156.
socio-economic rights adjudication.197 This is due to its nature of causing delay and opening more rooms for critics and arguments, which is often the reason why many like the respondent in the above mentioned case deviated from it.
The state’s duty towards socio-economic rights is not limited to protecting but includes promoting of the socio-economic rights. Section 25(5) of the Constitution198 requires the state to enable citizens to gain equitable access to land. In order to achieve speedy delivery of socio-economic rights as provided for in section 27 and section 26 of the constitution,199 the state must actively make available land to people to promote realization of socio- economic rights. This calls for an urgent need for realization of land reform’s objectives, which will require rigorous and vigorous implementation and enforcement of land reform programmes.
Taking into account that the state has a constitutional duty to ensure that socio-economic rights are actively implemented or afforded to everyone, it is also pertinent to point out that same will be impossible without gaining access to land. Hence land reform program should not focus only on granting people access to land, but also ensure that land is used productively to alleviate poverty and ensure enjoyment and realisation of socio-economic rights.
Khoza defined “Socio-economic rights as those rights that give people access to certain basic needs necessary for human beings to lead a dignified life”,200 meaning it is the duty of the state to ensure that people live a dignified life. However, the slow pace of land reform programe, defeats the duty of state to ensure that socio-economic rights are actively implemented. Koopman opines that dignity can be actualised “through the provision of opportunities for people whose land had been taken away, to build a life where the features of dignity are actualized”.201 Koopman extensively explained that “land symbolises the space that brings a life of prominence for all living beings and nature.” He further opines that land needs to be restored and redistributed to address the severe transgression of dignity, injustices and oppression of people brought about by previous dispossession of land in
197 Shanelle Van der Berg, Meaningful engagement: proceduralising socio-economic rights further or infusing administrative law with substance (2013), South African Journal on Human Rights, 29:376-398.
198 Constitution (n33).
199 Ibid note 198.
200 Khoza, Sibonile. Socio-economic rights in South Africa: A resource book. Community Law Centre, University of the Western Cape, 2007.
201 Koopman (n167).
South Africa.202 However, in order to ensure that previous injustices and inequalities of apartheid era are rectified, land redistribution must be reconciled with poverty alleviation strategies such as productive utilisation of land. Which will generate income and maintain livelihood for land reform beneficiaries.
Koopman is of the view that for some people without land, reconciliation with the land means that they do not necessarily go back to the original piece of land, but that they are given a piece of land, where they can enjoy the space, the opportunities and support given to build a life of dignity. That is a life where they have access to the necessities of life such as “water, food, shelter, health care, education, employment, safe environments, and leisure”.203 Moreover, engage in social, economic, cultural and political life, and the space to actualize their various potentialities and capacities as human beings, potentialities such as freedom, creativity, caring for others, entering into relationships and the taking-up of responsibility.204 Furthermore, that reunion of people with the land would then suggest the accomplishment of prominence through the implementation and accomplishment of, particularly the second- dimension socio-economic rights and the third-dimension ecological rights, as well as the third-dimension rights to development.205
However, Pienaar asserts that it is significant to appreciate that land reform is not an automatic solution to all economic, developmental, social and political challenges. However, one has to be pragmatic and accept that land reform has limits.206 As stated above, Pienaar further alluded that access to land through land redistribution is not a right. But the state has a duty take ‘reasonable measures’, ‘within its available resources’, to foster conditions enabling equitable access to land,207meaning the slow pace of realization of the objectives of land redistribution is strongly projected to the availability of resources. As a result, perspectives of utilizing land reform as a tool to speedy delivery of socio-economic rights, development and alleviate poverty is wholly dependent on the speedy realization of land reform’s objectives. However, De Wet asserts that it is not translucent whether the land reform strategy will be able to follow its goals of distributive justice and reconciliation without in the process adding to the very challenges of inequality, competition, and conflict that it
202 Ibid note 201.
203 Koopman (n167).
204 Ibid note 203.
205 Koopman (n167).
206 Juanita M Pienaar, Land reform as embedded in the Constitution: Legal contextualisation (2015) Vol 144 Scriptura, 5
207 Ben Cousins. "Land Reform in South Africa is Sinking. Can it be Saved?" (2016).
aspire to overcome.208 In addition to the submission, the challenges presently encountered evidently proves the shortfalls of land reform program.
According to the Land reform policy discussion document, many South Africans continue to be landless or have insecure land rights. This conclusion may also be drawn from reported and unreported cases of evictions, land invasions, irregular land uses and other activities, The people affected by this are those in poverty traps, welfare-dependent, least educated, resource-poor, inhabiting the poor quality land, and often residing in rural areas.209
Some of the land reform issues as enshrined on the Land reform policy discussion document210 revolve around the question of how the demand for land in South Africa can be advanced to ensure economic development, food security and improved livelihoods. That requires vigorous enforcement of compliance and cooperation of the national and provincial governments to ensure that speedy delivery of the land reform objectives is fully achieved.
Cousins asserts that it has become increasingly impossible to address issues identified by the Land reform policy without having to include social differences and inequalities based on a complex utterance of race, gender and class identities which is the core of unequal distribution of land and insecure rights to land.211 It is rather unfortunate that land issues in South Africa are tied to racial discrimination and injustices, as a result redress approaches have to address the core issues of racial discrimination in order to address the injustices.
Cousins further allauded that land is an invaluable asset to people and for future generations. However, despite the importance of land to the livelihoods of everyone, it is only few Blacks people who can afford land on a free market out of the millions of Black South Africans who were forced into overcrowded and impoverished reserves, homelands and townships during the apartheid era.212
From the above discussion it is evident enough that realisation of socio-economic rights is wholly depended on access to land. Furthermore, the slow progress of land reform program adversely affects the use and enjoyment of socio-economic rights of many Black South Africans and if it is not resolved there is a probability that it will also affect generations to come. Hence, it is important to ensure that legislation, laws, and policies promoting land
208 Christiaan de Wet, A vehicle to justice and reconciliation (1997).
209 Land reform policy discussion document 2012, P4.
210 Ibid note 209.
211 Cousin (n207).
212 Ibid note 211.
reform program be rigorously implemented and enforced. Before the right to access to land can be properly implemented to suit the socio-economic rights of people, perhaps it is pertinent that attention be focused on how this right is recognised and how it can be best implemented to alleviate poverty amongst the historically disadvantaged people.