Kandala Lupwana John South African Research Chair in International - - PDF document

Kandala Lupwana John South African Research Chair in International Law University of Johannesburg Faculty of Law Cell: 27 760663472 Email: okandala@yahoo.fr The Enforcement of Socio- economic and Human Rights in South Africa: The Right to education Session “Children, Youth and Human Rights” Friday 3, November 2017 (08: AM) Abstract* University students are claiming that they are entitled to free education and that fees must fall to allow them enjoy the right to education as enshrining in the Constitution. However, the government and University administrators have disagreed and argue that free education is not affordable nor is it fair. Neither side has focused on interpreting the requirements of the constitution and examine the various facets of this rights in light of the relevant international law, academic writings, foreign case law and those decided by the South African Constitutional Court in relation to similar rights. Therefore this paper critically evaluate the arguments that have been made in light of section 29 (1) (b) of the South African constitution which provides that ‘everyone has the right to further education, which the state, through reasonable measures, must make progressively available and accessible’. In order to reach a conclusion as to what the constitution requires in relation to higher education, it is expected that the paper will consider international law, particularly the approach developed by the United Nations Commission on Economic, Social and Cultural Rights. The reference to the UNCESCR arise because section 39 (1) of the SA constitution provides that when courts interpret the Bill of rights they must consider international law. In generic terms, international law means the binding or non-binding agreements, and customary international law.

• 1. Background to the study

It is generally accepted that education is fundamental to a well-functioning democracy. The link between education and democracy provides the need to improve people’s mind to a certain degree in order to establish democratic governments.1 Education also play an important role in the context of a knowledge society. In this regards, Darlin states: “We are entering a knowledge society since the speed of the changing process is increasing and since the new society demands new, increasing and greater qualifications of each of us. Education will no longer be something linked to a certain range but will be a necessity and a self-evident part of everyday life to all ranges, social classes and occupational groups. We are already there. We know that ‘life-long education’ has become a reality”. 2 This assertion gained momentum in the ninety’s when world leaders agreed on the Millennium Development Goals (MDGs),3 which were replaced by the Sustainable Development goals/SGDs in 2015 .4 In order to make the MDGs tool in Africa, African leaders adopted the New Partnership for African Development (NEPAD) which requires among other things, each country to play a role, in particular in eradicating poverty, hunger as well as achieving universal primary school. 5 Today, these goals have been translated in the African road map strategies for the implementation of the agenda 2063. However, although Africa has the potential to achieve these goals, in practice it has not succeeded as poverty on the continent still a great

• concern. In the era of education however, few countries, including Ghana and South Africa

have made significant progress. In South Africa, education has been noted among the primary SDGs and many argue that the country has improved in net enrolment of learning in primary

• school. 6 Hence, social exclusion of the majority of South African from the labour market due

1 Berger E "The Right to Education under the South African Constitution" College of Law, Faculty

• Publications. Paper 26 (2003). Available at http://digitalcommons.unl.edu/lawfacpub/26 (accessed 29-04-2016).

2 Popkewitz T S, Olsson U and Petersson K “The Learning Society, the Unfinished Cosmopolitan, and Governing Education, Public Health and Crime Prevention at the Beginning of the Twenty-First Century” in Jan Masschelein J, Maarten S, Bröckling, U. & Pongratz, L (Eds.,) The learning society from the perspective of Governmentality. Blackwell, Oxford, Educational Philosophy and Theory (2007) 17-35. 3The Millennium Development Goals are Goal 1: Eradicate Extreme Hunger and Poverty, goal 2: Achieve Universal Primary Education, Goal 3: Promote Gender Equality and Empower Women, Goal 4: Reduce Child Mortality, Improve Maternal Health Goal 6: Combat HIV/AIDS, Malaria and other diseases, Goal 7: Ensure Environmental Sustainability, Goal 8: Develop a Global Partnership for Development.

4UNGA Resolution A/RES/70/1 on the global Sustainable Development Goals (SDG), particularly Goal 7 and

13. 5 The UN Economic Commission for Africa (ECA) was established by the Economic and Social Council (ECOSOC) of the United Nations (UN) in 1958 as one of the UN's five regional commissions. ECA's mandate is to promote the economic and social development of its member States, foster intra-regional integration, and promote international cooperation for Africa's development. 6 Maile S “Education and Poverty Reduction Strategies: Issues of Policy Coherence” Human sciences research council (2008) at 12.

to the lack of education and skills attainment originated from the country’s history of Apartheid, which create a bipolarised society cannot be waived as a result of the claim that primary education has been improved.7 In particular, having emerged from a past (Apartheid) characterised by violations rather than respect for fundamental rights, the new South Africa has inherited inequalities of classes and racism.8 As a result, the country faces significant awkward wedges, including crimes, unemployment, inequality, and social exclusion.9 Because of the poor educational and skills attainment of the majority of South African population, it is expected that the informal sector is relatively large as many peoples are not able to find employment in the formal sector.10 This perception has brought significant changes not only in South Africa but also worldwide. In South African for instance, the new society (democracy) Constitution (FC) of the 1996 provides in its section 29 (1)(b) that ‘everyone has the right to further education, which the state, through reasonable measures , must make progressively available and accessible’. Although education is generally recognised as an instrument for changes, schools and universities frequently fail to receive the necessary resources to improve their standards and to satisfy people needs, especially that of free education. Nowhere this paradox is more evident than in contemporary South Africa, where the country has included the right to education in its emphatically modern Constitution, but where schools, particularly for poor blacks, remain woefully inadequate. The explanation for these shortcomings are obvious the lack of adequate resources to address the needs of its citizens. It is therefore important to critically evaluate in the following sections, the arguments that have been made in light of section 29 (1)(b) of the constitution (section 2) and to examine (section 3) on the various facets of this rights in light

• f the relevant case laws of the Constitutional Court in relation to the right to health

(Soobramoney) and housing (Gootboom).

7 Goujon A & Samir KC (2009) “Women’s Level of Education Attainment in North Africa (1970-2050), Gender Gap versus Gender Dividend: Challenges and Policy Implication” In Lutz W, Goujon A (Eds.,) Capital Humano, Genero y Envejecimiento en el Mediterraneo, PAPERSIEMed. (2009)19-19. 8 Seekings J “Social Stratification and Inequality in South Africa at the End of Apartheid” Centre for Social Science Research. University of Cape Town, Working Paper n0 31(2003).

9 Adoto M, Carter, May J “Exploring Poverty Traps and Social Exclusion in South Africa Using Qualitative and Quantitative Data” 42(2) Journal of Developmental Studies ( 2006) 226-247.

10 Petersen MM “Informal Employment in South Africa: A Critical Assessment of its Definition and Measurement” University of Cape, Mini Thesis (2011) at 43.

• 2. Aim of the study

This paper aims to provide a legal opinion (an understanding) on what the South African constitution requires in relation to the right to education, particularly higher education. It is also expected that the paper shall draw lessons on international human and socioeconomic rights instruments and previous case laws in order to inform the current debate on the justiciability of socioeconomic rights.

• 3. Facts and discussion

3.1.Education under Apartheid and its implication South Africa has remained one of the world's third most economically unequal country, after the fall of apartheid.11 Inequality and the racial fracture which ran through the whole of the society during Apartheid included education in its path. This was obvious not only by separation but also by a determination to provide only a rudimentary schooling for black

• people. Apartheid education system for black people was extraordinarily poor because of the

views that black people were seen as not needing an education of any quality. This ironic view restricted the role of black people in only to perform menial domestic service or unskilled

• labour. Nonetheless, the apartheid history on education had a profound effect in shaping the

current right of education and public school system for all South Africans. Nowadays, the struggle which brought apartheid to an end have taken another direction where learners and schools are becoming more likely another site for the struggle. 3.2. Education under the new Democratic South Africa The new Constitution provides for the right to education. Particularly, section 29 states that: “Everyone has the right to a basic education, including adult basic education; and to further education, which the state, through reasonable measures, must make progressively available and accessible…” The formulation of the requirement as provided for under section 29 have been widely interpreted as they also found in the International Covenant on Economic, Social and Cultural Rights (ICESCR).12 Thus, when dealing with socio economic rights emphasis have always

11 (ranking Brazil, Guatemala, and South Africa as the three most unequal societies in the world as measured by

the Gini coefficient); see also Arthur Chaskalson, Dialogue: Equality & Dignity in South Africa, 5 Green Bag 2d 189, 189 (2002)

12 Article 13 of the International Covenant on Economic, Social and Cultural Rights adopted and opened for

signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 3 January 1976.

been put on “reasonable measures”, “progressive realisation”, and “availability of resources”. Only from the perspective of these terms, one may conclude to the negative character of these

• rights. However, the wordings under section 29 of the Constitution seem to translate another

meaning which obviously lays an obligation on the Government to provide education to

• everyone. The government is required to adopt reasonable measures and make education

available and accessible. Practically, the Government is required to implement educational programmes and develop reasonable educational alternatives to ensure equal participation of all citizens. Thus the right to education under its new formulation requires feasibility and practicality in order to redress the consequence from the past racially discriminatory laws and

• practices. How to achieve these results, remain and raise great deal of concerns. The concerns

lie in the fact that the formulation of this right under the Constitution is very confusing. On one side, it requires or imposes an obligation on the Government to fulfil the right to education by adopting reasonable measures and on the other side it requires the government to do so progressively by taking into account the availability of its resources. Obviously, it unclear formulation or lack of clarity of whether or not the Government has the duty to give effect to the rights of education as well as other socio economic rights, has shaped the positions of government on one side and that of the communities on the other side. Many believe that the government has the obligation to provide such rights whereas the government believe that the fulfilment of such rights is subjected to its resources and may only be provided progressively. Obviously, many governments, including the South African government prefers to rely on or chooses the easiest part which is the argument on the lack of available resources in order not to implement socioeconomic rights. It is therefore important to determine the extent and the context of the government obligation in light of international law and previous case laws of the Constitutional Court on the right to health and housing. The discussion and analysis as provided for by the Constitutional Court provide a broad understanding on how socio economic rights may be seen and viewed or whether or not they are justiciable. The various facets of the rights

• f education in light of the relevant case laws of the Constitutional Court

In order to analyse the various facets of the right to education, it is important to discuss the relevant case laws of the Constitutional Court in relation to other socioeconomic rights. 3.2.1. Soobramoney Case

The facts in this case reveal that Mr. Soobramoney, a 41 years old man from Kwazulu Natal was having a chronic renal failure, which at the time of this case, was in the final stage. When he approached the health care services, he was denied access by the health care authorities to a regular renal dialysis treatment, which was required in order to extend his life. After he was denied access, he brought a case against the provincial authorities based on the grounds that he was entitled to such care under section 27 of the Constitution. Before the Constitutional Court, his claim was rejected on the ground that the application of section 27 is not direct. The realisation of these rights depend on the availability of resources. This means that the realisation of socio-economic rights is linked or limited to the availability of resources. Furthermore, the Court says that the decision to deny the patient with access to health care services was fair and rational because under stretched resources, the Government has to allocate them adequately. Thus, it was not possible for the health care services to provide access

• r expend the limited resources on Mr. Soobramoney only while only what was supposed to

be used for his condition could have helped and saved the life of many other peoples with basic

• claims. Notably, the court agreed with the government that failure to provide renal dialysis to

those patients does not constitute a violation of state obligation under section 27 of the

• constitution. A similar approach was also adopted in the context of the right to housing.

Generally, the views that many have on socioeconomic rights is that they do not provide an individual benefits or immediate service and satisfaction. As stated above, the realisation of socio economic rights depends on the availability of resources on the disposal of government. Obviously, what seems and appears to be considered as an obligation on the part of government is only the duty to implement or have a comprehensive plan for the realisation of these rights (progressive).13 Like the right to education, the rights to health, as it is provided for under the South African Constitution (FC) provides that: “Everyone has the right to have access to health care services, including reproductive health care…”. Under this formulation, one may distinguish between the right to have access to health care services and the right to health itself or other similar right including the right to a healthy environment which is provided for under Section 24 (a) of the Constitution.

13 Soobramoney v Minister of Health, Kwazulu Natal 1998(1) SA 765 (CC), 1977 (12) BCLR 1696(CC)

(‘Soobramoney’) at para 11 and 31.

Considering the right to have access to health care services, it is important to understand that the constitution requires the government to provide and facilitate access to health care services. In light of this obligation, the government is required to develop strategies and programme that will allow access to health care. However, the question that arises is the meaning of ‘services’ and the extent to which these services may be provided. This question arise because the term ‘services’ have different meaning and may have a broad interpretation as to include all kind of health care services. Also, under its current formulation, the right to have access to health care services does not provide the mean on how to maintain this health.14 How to do so remain an open question, which may require an expansive interpretation of the wording “services”. Obviously, ‘services’ must be interpreted in light of other socio economic rights, including the rights to have access to an adequate housing, and the right to have access to sufficient food and water. This is because, it is aberrant to talk about health care services when people lack sufficient food or

• water. Socio economic rights are interdependent and are also interrelated so that one cannot

exist or be implemented without others. For instance, the right to health cannot be fulfilled in isolation from food, housing and social security. Accordingly, the United Nations Committee entrusted with the duty to provide the meaning of the right to health services recognised that it include nutrition, clean water, and sanitation.15 Obviously, the understanding of socio economic rights requires a wide interpretation. Such interpretation was given by the South African Constitutional Court. 3.2.2. The Gootboom case ( Right to housing) The constitution has one or more provisions on the right to housing. Section 26, 28 and 35 have provisions, respectively on the right to access to an adequate housing, the right of children to shelter and the right of prisoners to adequate accommodation. Particularly section 26 provides that: “Everyone has the right to have access to adequate housing. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right…”

14 Bilchitz D “Constitutional Law of South Africa, Health (2005) 2nd Ed.

15 United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) General Comment no 14 “The Right to the Highest Attainable Standard of Health” para 4. ( article 2 of the ICESCR) 22nd Session, 2000) UN Doc. E/C 12/2000/4 available at www. Unhchr.ch/tbs/doc.nsf ( accessed 06/05/2016)

In light of the requirements provide for under this section, it is obvious that the primary

• bligation of the government is to provide access to housing to the poor. In that, the constitution

requires the government to establish programmes on how to provide adequate housing. This commitment, however can only be realised progressively. This means that the fulfilment of this commitment is possible only when there are resources available. In Grootboom case and the right to adequate housing.16 Although there are many cases under the right to an adequate housing, the Grootboom case deal with a variety of issues raise on socio economic rights, including the right to education, health, and adequate housing. The facts in the case reveal that Mr Grootboom and others brought a case against the local municipality in the Cape High Court for an order granting temporary shelter. This was after they were evicted from an unlawful occupation of a private

• land. They relied on section 26 and 28 of the Constitution on the right to adequate housing and

children rights, especially the rights to family care or parental care, to appropriate alternative care when removed from the family environment and the right to basic nutrition, shelter, basic health care services as well as the right to social services and the right to be protected from maltreatment, neglect, abuse or degradation. Apparently, their petition was successful before the High Court, which granted them with an

• rder in term of section 28 (1) (c) instructing the State to provide shelter for the Children and

their Parent in the community. However, the State appealed against the order to the Constitutional Court, which dealt with not only the order but also the original claim and held that the right to adequate housing as provided for under section 26 and 28 of the Constitution did not entitle the respondent (Grootboom) to claim shelter or housing immediately after demand.17 Likewise, the Constitutional Court argued that although, the right to housing and other socioeconomic rights are justiciable and enforceable, this enforcement may only be through direct regulation taking by the Government. In light of this decision, it is arguable that the Constitutional Court took a similar position, which translate the negative character of socio economic rights. In particular, the court held that the rights to housing as provided for under the Constitution does not entitle individual to claim shelter rather the provision requires state to develop a reasonable or comprehensive plan over time and within it limited resource to fulfil

16 Government of the Republic of South Africa v Grootboom (2001) (1) SA 46(CC), 2000 (11)BCLR 1169 (CC)

(Grootboom).

17 Ibid at para 94 and 95.

these rights. Furthermore, the Court finds that while there is an obligation upon the state to give effect to the right (housing and other socioeconomic rights), this obligation is not a positive but a negative one. Notably, the Court refuses to give an interpretation on socio economic, which may put a positive obligation on State. Instead, the Court relies on an interpretation that provide a negative meaning of socioeconomic rights. It relies on terms such as ‘reasonable measures’, ‘progressive realisation’ and ‘available resources’, which describe an administrative model of socioeconomic rights.18 The ultimate objective of the constitutional court was not to hold the executive accountable for their failure. But thanks to the intervention

• f the Legal Resources Centre (LRC) and that of amici curies, changed the course of the
• judgement. It was until such argumentation came that the Court reached a binding agreement

in favor of the right of housing. Nowadays socio economic rights impose positive obligations

• n states as it requires under the United Nations Committee on Economic, Social and Cultural

Rights (UNCESCR). However before that, it is noteworthy to discuss the main arguments or terminologies developed by the Constitutional Court, which also constitute the main arguments put forward by many governments on the enforcement of socio economic rights. 3.2.3. Reasonable measures and progressive realisation Section 29 (1) (b) requires state to adopt reasonable measures to provide education to everyone

• progressively. This terminology was assessed in the Grootboom case, where the Constitutional

Court held that it only require states to adopt a well-coordinated or comprehensive plan toward a progressive realisation of the rights. In the context of the right to education, it will mean that state must have plans on education, including subsidies towards free education. However, the question may be what is reasonable measures? In trying to elaborate on what the meaning of reasonable is, the Court expended the reasonableness enquiry to include interdependence with other socio economic rights. Reasonableness has since become a test to assess other socio economic rights. In dealing with the term ‘progressive realisation’, the court also referred to its use in the United Nations Convention on Economic, Social and Cultural Rights(UNESCR) and argued that the meaning under the Final Constitution was the same as the one used in the UNCESCR. Consequently, it argued that progressive realisation as it is

• riginated from the UNCESCR refers to a ‘necessary flexibility device, reflecting the realities
• f the world and the difficulties involving in ensuring full realisation of socioeconomic

18 Sunstein CR Designing Democracy: What Constitutions Do (2001) 222-234.

rights’.19 Accordingly, the Court clearly indicate that socioeconomic rights are not realised

• immediately. Although, it is very difficult to determine its nature, the Court has, however

agreed that state has the obligation to adopt both legislative measures and provide well directed

• policies. In this context it is important to determine whether education measures (legislative

and policies) are reasonable. Nevertheless, such an interpretation is coined out by the requirement of minimum core realisation. In Grootboom and the Treatment Action Campaign case, the amici curiae strive to persuade the court that under the International Covenant on Economic and Social and Cultural Rights (UNCESCR)20 there is a minimum core to each socioeconomic rights.21 This minimum core obliges the government to realise the right

• immediately. Likewise, because the Constitution role is to ensure that the basic needs of the

people are met, progressive realisation in this context means that state must take steps to ensure accessibility and availability of basic needs. 3.2.4. Available resources In the Soobramoney case, the Court held that the Government has a duty to ensure adequate use of its limited resources. Thus, the case was decided based on the notion of limited resources. The Court noted that the obligations lay on state are dependent on the availability of resources. In the context of the case at issue, because there were many more patients who required to receive the treatment and if Mr. Soobramoney were given this treatment, then other patients in the same conditions would have also be treated. The Court pushed its reasoning further by arguing that if all with chronic renal failure were to be treated ‘the cost of doing so would make substantial inroads into the health budget. And if this principle were to be applied to all patients claiming access to expensive medical treatment or expensive drugs , the health budget would have to be dramatically increased to the prejudice of other needs which the state has to meet’.22 The question arising from the court findings is how to prove that the government have limited resources or resources are not available. This question arises in light of the pool of resources available for the expenses of the executive members, including salaries and allowances.

19 UNESCR General Comment no 3 ” The Nature of State Parties Obligations” of article 2(1) of the Convention

(5th session, 1990 ) UN Doc.E/1991/23 at Para 9.

20 United Nations International Covenant on Economic, Social and Cultural Rights 1996 UN Doc.A/6316 UNTS.

Available at www.unhchr.ch/html/menu3/b/a_cescr.htm (accessed 7-05-2016).

21 Grootboom case (n 15 above) Para 63-64 22 Soobramoney (as n12 above) Para 29.

3.3.International law approach on the enforcement of socio-economic and human rights While the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides for progressive realization of these rights and acknowledges the constraints due to the limits of available resources, it also imposes on States parties various obligations which are of immediate effect. These include the obligation to “guarantee” that the right “will be exercised without discrimination of any kind” (art.2 (2)) and the obligation “to take deliberate, concrete and targeted steps” (art. 2 (1)) towards the full realization of the right. Progressive realization means that States parties have a specific and continuing obligation “to move as expeditiously and effectively as possible” towards the full realization of the right. The Covenant also recognised that the right to education, like all human rights, imposes three types or levels of

• bligations on States parties: the obligations to respect, protect and fulfil. In turn, the obligation

to fulfil incorporates both an obligation to facilitate and an obligation to provide. This is also emphasised in the African Charter on Peoples and Human Rights. Unlike the fact that the African Charter does not make direct reference to “progressive realisation” and “available resources”, the question of when and how socio- economic and human rights can be enforced is not avoided. The African Commission makes reference to “minimum core

• bligation” in the SERAC case and also recognises that like the right to education, all socio-

economic and human rights, imposes four types or levels of obligations on States parties:

• bligations to respect, protect, promote and fulfil.

The African Union Commission argued that internationally, it is accepted that there are various

• bligations engendered by human rights or international instruments. That all rights both civil

and political rights, social and economic generate at least four levels of duties for a state that undertakes to adhere to a rights regime.23 States obligations and duty in this context universally apply to all rights and entail a combination of negative and positive duties. It notes that states have an obligation to respect: to refrain from interfering directly or indirectly with the enjoyment of rights. States must respect right-holders, their freedoms, autonomy, resources, and liberty of their action. The state is also obliged to protect right-holders against

• ther subjects by legislation and provision of effective remedies. This obligation requires the

state to take measures to protect beneficiaries of the protected rights against political, economic and social interferences. Protection generally entails the creation and maintenance of an

23 SERAC case (as n 34 above) Paragarph 44.

atmosphere or framework by an effective interplay of laws and regulations so that individuals will be able to freely enjoy their rights and freedoms. These requirements corresponds to a large degree with the obligation of the state to promote the enjoyment of all human rights. The state should make sure that individuals are able to exercise their rights and freedoms, for example, by promoting tolerance, raising awareness, and even building infrastructures. Equally importance, state are obliged to fulfil the rights and freedoms it freely agreed upon under various international human rights instrument and those enshrining in the constitution. In the SERAC case the ACHPR demonstrated that it is more of a positive expectation on the part of the state to move its machinery towards the actual realization of rights. In doing so, state will comply with the duty to promote the provision of international and national law. It could be the direct provision of basic needs such as free education, health, and housing or resources that can be used for food (direct food aid or social security). Unlike the previous ones this

• bligation is more of a positive expectation, because it requires states to move their machineries

towards the actual realisation of the rights. Thus, since states are generally require to comply with the above set of duties when they ratify

• r agree voluntarily under human rights instruments, 24 it is important for civil societies to

engage in awareness campaign and have stand before international and national forums to make state accountable.

• 4. Conclusion

The cases analysed in this brief, constitute the benchmark on the litigation of socioeconomic and rights in South Africa. Although, it is widely accepted that they are justiciable, but their fulfilment raise a great deal of concerns. The concerns arise on the fact that the court appears not to accept the responsibility of requesting states to take immediate measures to fulfil socioeconomic and human rights. There is a need to understand that the constitution require the same in relation to the right to education and especially in relation to higher education. Notably, on the question of free education in higher education, one need to understand that state have to adopt reasonable measures and achieve the minimum core of the realisation of the right to education. Thus, the question of free education may be of immediate effects and may entitled student to any individual rights of free education, if public resources are

24 Social and Economic Rights Action Centre (SERAC) and another v Nigeria (2001) AHRLR 60 (ACHPR 2001).

sustainably managing or allocated. Likewise, there is no ranking between the categories of rights (socio economic and human rights). The preamble of the African Charter emphasizes the interdependence and indivisibility of all rights: “Convinced that … civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social, and cultural rights is a guarantee for the enjoyment of civil and political rights”. In paragraph 68 of the SERAC case, the African commission argued that: “The African Commission will apply any of the diverse rights contained in the Charter. It welcomes the opportunity to make clear that there is no rights in the African Charter that cannot be made effective.” Because all rights collectively promote the minimum for a reasonable quality of life, any decision to be made on how to allocate available resources, should be consistent with an equal distribution of resources on the promotion and protection of people rights. A disproportionate spending of resources is what the court is also entitled to challenge. There is a huge imbalance

• n states expenditures. They spend more on the defense, security and executive allowances

than to provide or raise the standards of life of their peoples. States are generally burdened with the above set of duties when they commit themselves under not only human rights instruments but also any other international instruments. However, the issue that need to be discussed further is that of, even if, a Court granted an order for the government to satisfy or fulfil these rights, the issues of compliance with court order may be a barriers. This is obvious in the context of a system deeply involved in separation of power, the executive may or not comply with the judiciary decisions. However, it is the duty

• f a constitutional lawyer to strive for the implementation and satisfaction of socio-economic

and human rights. The issue on the UNCESCR and the African Charter arise because section 39 (1) of constitution provides that when courts interpret the Bill of rights they must consider international law. In generic terms, international law means the binding or non-binding agreements, and customary international law. However, the issue on the South Africa positive

• bligation under the ICESCR may be arguable. There is no general consensus on whether

South Africa is bound by the ICESCR or not. Many argue that the country is not bound because it did not ratify the Covenant and therefore urge the government to do so. The government argument has always been that since the Constitution encompasses all these rights, there is no need or ratification of the covenant is not an urgent need. However, whatever may be the case, the obligation of South Africa arising from the ICESCR may be rooted in the Vienna Convention on the Law of Treaties. This Convention requires a State party to a Convention to

refrain from performing acts which may defeat or destroy the purpose and objectives of that

• treaty. Under this provision between the time of signature and ratification, South Africa has

the obligation to act in “good faith”. In this context the question is whether the obligation to act in good faith incur a positive obligation to provide social assistance under the ICESCR. This is a question that need to be answered by the Court. Because as the second branches of a state alongside with the executive with power, it is entitled to provide rules that may be followed by others,