THE NEW SOCIAL CONTRACT AND THE RHETORIC OF POVERTY IN THE JURISPRUDENCE OF SOCIOECONOMIC RIGHTS IN SOUTH AFRICA

Abstract

South Africa’s Constitution is hailed for the extensive, fully justiciable socio-economic rights in its Bill of Rights. In the context of apartheid history and the travaux préparatoires of the interim Constitution of 1993, these rights created a new social contract between the state and the electorate. We argue that this contract imposes a duty on the state to efficiently provide basic amenities as the foundation for redressing historical economic inequalities. However, 30 years after apartheid ended, the laudable promises of the social contract have not materialised. While many non-legal factors account for this situation, we argue that lacklustre judicial review plays a considerable role. Using literature review and critical analysis of six purposively selected decisions of the Constitutional Court on socio-economic rights, we reveal how judges use legal rhetoric to defer unduly to the executive branch of government. We posit that judicial deference and its accompanying rhetoric hamper the socio-economic revolution envisaged by the Constitution in South Africa.