The constitutional court and justice

The impact of decisions of the Constitutional Court and Supreme Court of Appeals on the lived experiences of all South Africans was the topic of a second colloquium held late last year to discuss a mid-term report of a large research project, commissioned by the Department of Justice and Constitutional Development.

The research project, which began in early 2014, aims to assess the impact of such decisions, with particular emphasis on the adjudication and implementation of socioeconomic rights within the context of a capable and developmental state, including issues relating to access to justice, with a view to addressing inequality and the eradication of poverty.

With regard to separation of powers between the three arms of government, and the transformative role of the top courts, the following broad findings were discussed:

•    Should socioeconomic rights have a minimum content by which government’s delivery of basic services can be measured?
Participants emphasised the need for clarification of the doctrine of separation of powers for a better understanding of a constitutional dialogue between the three arms of government and the need to monitor the implementation of court decisions.
•    Most delegates acknowledged that a failure to implement court decisions on socioeconomic rights was not necessarily a result of bad faith on the part of national, provincial and local government. Failure often had to do with capacity and resources at the level of implementation, usually municipalities.

The research also traced the impact of court decisions on the work of government departments through interviews with key officials and beneficiary organisations in all spheres of government. Preliminary findings point to the divergence of implementation levels; the need for improved inter-departmental and intergovernmental collaboration; the need for increased consultation with relevant stakeholders (especially affected communities), and the difficulty in quantifying implementation and impact.

On the access to justice, preliminary findings highlighted the empowering results of socioeconomic rights litigation, particularly those instituted by public litigation firms. However, such litigation led to indirect costs such as travelling to and from courts, lost work days attending court, or raising money for community mobilisation around a case. In most socioeconomic rights litigation, civil society and NGOs are the primary funders, in many instances using donor funds, which are drying up. This could well prove to be unsustainable unless the chapter 9 institutions (such as the Human Rights Commission) played a more supporting role.