Social rights and transformation in South Africa: Three frames
Authors Sandra Liebenberg
Affiliations: HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch Law Faculty
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 446 – 471
This article conceives of transformative constitutionalism as processes of constitutional enactment, interpretation and enforcement which help bring about fundamental changes to South Africa’s current unjust economic and social structures. Transformative strategies seek to redress the underlying structures which generate patterns of material deprivation and status hierarchies. Based on this understanding, the article analyses the transformative potential of three ways in which social rights have been framed in law and policy discourses in South Africa: (1) social citizenship; (2) equality; and (3) participation. The concept of a frame is useful as it acts as an ‘interpretive lens’ which highlights certain dimensions of legal responses to the complex, multi-faceted social problem of poverty. By drawing explicit attention to how the meaning of rights is constructed, framing invites reflection on what is included and excluded from the frame, and how this might shape our understanding of the nature of social rights violations and transformative remedial responses. Each frame is evaluated in terms of its strengths and limitations in stimulating and supporting transformation in the sense described above. Strategies for strengthening the transformative development of each frame are also identified.