Procedural relief, constitutional citizenship and socio-economic rights as legitimate expectations
Authors Marius Pieterse
Affiliations: Professor of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 359 – 379
It is often argued that the Constitutional Court adopts an ‘administrative law approach’ in deciding socio-economic rights matters. Following from this, this article considers the methodology inherent to the so-called ‘second wave’ of the Court’s socio-economic rights jurisprudence. It argues that several features of this methodology correspond to the logic and method inherent to the doctrine of legitimate expectation in South African administrative law. While welcoming the extent to which this method of adjudication appears to have deepened participative democracy and enhanced accountability in the formulation and implementation of socio-economic policy, the article also points to the limits inherent to the Court’s approach. First, as with the conventional application of the doctrine which it appears to reflect, the Court’s method appears capable of yielding only procedural relief. Secondly (and more worryingly), in reflecting the liberal foundations of the legal culture from which it was adapted, the method appears to hinge on a neo-liberal concept of market-citizenship, which foregrounds entrepreneurial conduct and individual payment for public services in deciding whether a particular socio-economic rights claim is worthy of vindication. The article therefore argues, first, for the modification of the Court’s approach so that it may be capable, in appropriate circumstances, of yielding more tangible relief and, secondly, for the realignment of the notion of citizenship informing the approach with the concept of social citizenship evident from a purposive reading of the Bill of Rights.