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Oct. 7, 2014

Prof writing book on rights in post-apartheid South Africa

By Dan Levindofske

Dr. Brian RayCleveland State University law professor Brian Ray is currently working on a book regarding social rights decisions in post-apartheid South Africa.

Ray travelled to South Africa, where he spent seven months as a Fulbright Scholar, in order to examine social rights in practice.

Social rights, also called positive rights, are the rights to basic human needs such as housing, health care, food and water. Currently, the United States Constitution does not contain these rights, but many state constitutions have them in some fashion.

Ray maintains that there are three clauses regarding social rights: the right to have access to the aforementioned needs, the responsibility of the state to take reasonable measures to meet these needs and negative provisions — which deals with evictions and emergency medical care.

According to Ray social and economic rights are a relatively recent phenomenon make it more complicated.

“The new constitution of apartheid was designed to transform the country,” Ray said. “Part of the transformation is that it’s not enough to say everybody is free and equal now.”

Ray said that apartheid was economic segregation as much as racial — limiting work to certain industries, paying less and forcing minorities into less desirable areas.

South Africa has since enacted a new constitution. The problem is that whites got protection in constitution property rights, which requires just compensation. This makes meeting social rights for the South African government more difficult.

Social rights become increasingly complicated when the South African courts get involved because they cannot effect immediate and large scale change without the economic means of the government to do so.

“It’s a challenge for courts to enforce social rights because it requires the government to spend money and prioritize,” Ray said.

It appears that the South African courts have realized this and seem to have a long term plan in mind, although poor advocates believe the courts haven’t done enough, according to Ray.

“The government is required to do what it can, but the courts are worried that legal claims would force the government to do things that it can’t afford due to individualization,” Ray said. “They don’t have the institutional confidence to resolve these complex issues.”

While in South Africa in 2013, Ray met a woman named Matilda whose situation perfectly exemplified the social rights legislation passed down by the courts.

Matilda was living in a “temporary relocation facility” that was built to serve as emergency housing for illegal squatters who were evicted from public land.

She had agreed to move to the facility in 2008 after being promised relocation permanent housing within six months but had heard nothing on how long she would have to keep waiting.

Matilda wished to sue based on her right to adequate housing, stating that she interpreted the right as receiving it in a reasonable amount of time.

The courts interpreted that same right as what Ray refers to as a “programmatic response” - rather than an individual promise - which means that enforcement of the right was mainly a political obligation.

Despite Matilda’s situation, Ray argues that the courts have found a way to make an impact through what he calls “meaningful engagement.”

“The court developed a tool called meaningful engagement,” Ray said. “Which requires the government to consult poor communities and its advocates whenever it comes up with new legislation.”

Through meaningful engagement, Ray argues that the courts could play a much larger role without further complicating things due to institutional limitations or disruption of the ordinary political process.