From wickedness to equality: The moral transformation of South African law

Transcription

1 ROUNDTABLE From wickedness to equality: The moral transformation of South African law Arthur Chaskalson * Apartheid is frequently taken as an example of a wicked system of law. 1 This was the system in which I practiced law for some forty years. Now, apartheid has collapsed. South Africa has become a democratic constitutional state in which the Constitution is the supreme law, and I am a member of South Africa s first Constitutional Court. How does one describe the difference between then and now? And where does one start in attempting to deal with Professor Ronald Dworkin s theories in the context of South African law. In this article, I will focus on two issues: first, why Professor Dworkin s writings were of value to lawyers and judges practicing in a wicked legal system, and second, why, in the context of the South African Constitution, his theory of equality provides a basis for addressing the legacies of the past and for the development of a new jurisprudence dealing with socioeconomic rights. Racial discrimination had long been a feature of South African law. It was, however, institutionalized by apartheid into a powerful ideology, described by Dr. H. F. Verwoerd, one of its architects, as compris[ing] a whole multiplicity of phenomena. It comprises the political sphere; it is necessary in the social sphere; it is aimed at... church matters; it is relevant to every sphere of life. Even within the economic sphere it is not just a question of numbers. What is of more importance there is whether one maintains the colour bar or not. 2 Apartheid, which caused great poverty and suffering, privileged whites and marginalized blacks in all aspects of life. It was entrenched in the law and enforced through the law in ways that lacked even the pretense of the separate but equal doctrine that influenced law in the United States prior to the decision in Brown v. Board of Education. 3 White supremacy, ordained by law, was maintained * Chief Justice of South Africa. I would like to thank Steven Budlender for his assistance in the preparation of this article. 1 The most detailed discussion of this is probably to be found in DAVID DYZENHAUS, HARD CASES IN WICKED LEGAL SYSTEMS: SOUTH AFRICAN LAW IN THE PERSPECTIVE OF LEGAL PHILOSOPHY (Oxford Univ. Press 1991). 2 T. R. H. DAVENPORT, SOUTH AFRICA: A MODERN HISTORY 270 (Univ. of Toronto Press 1978) U.S. 483 (1954). In South Africa, the Reservation of Separate Amenities Act 49 of 1953 sanctioned the provision of separate facilities for different races and expressly precluded courts Oxford University Press and New York University School of Law 2003, 590 I.CON, Volume 1, Number 4, 2003, pp

2 The moral transformation of South African law 591 through an intricate network of security laws that imposed severe constraints on freedom of expression, freedom of assembly, freedom of association, freedom to form political parties, and freedom of movement. These laws sanctioned detention without trial and holding detainees in solitary confinement. This led, in turn, to the torture of prisoners and deaths in detention. Statutory offenses were created in which the burden of proof was shifted to the accused person. Complex statutes and regulations, geared to the use of administrative discretion, were enacted so as to provide the levers of bureaucratic control necessary for the implementation of apartheid policies. 4 The wickedness of this system cannot reasonably be disputed. 5 How relevant are Dworkin s theories in such a system? What would Hercules have done if he had been a South African judge between 1948 and 1994, when apartheid formally came to an end? 1. Apartheid was introduced some eighteen years before Dworkin s first essay, The Model of Rules 6 was published and almost thirty years before the publication of Taking Rights Seriously. 7 By then, South African courts were set in their ways and in their approach to the interpretation of apartheid laws. The doctrine of parliamentary supremacy prevailed. That doctrine, however, lacked any validity in the South African setting, for parliament was not a parliament of all the people. It was a parliament of the whites in which blacks, from declaring such action invalid on the grounds that the separate facilities were not equal. The act was passed in response to a judgment of the Appellate Division in Rex v. Adburahman, 1950 (3) SALR 134 (AD), which held that the court had a duty to declare invalid any practice that, in the absence of the authority of an act of parliament, resulted in partial and unequal treatment to a substantial degree. 4 A detailed account of the early stages of apartheid law and the role of the courts in enforcing apartheid is given by JOHN DUGARD, HUMAN RIGHTS AND THE SOUTH AFRICAN LEGAL ORDER (Princeton Univ. Press 1978); ANTHONY S. MATHEWS, LAW, ORDER AND LIBERTY IN SOUTH AFRICA (Univ. of California Press 1971); and ALBIE SACHS, JUSTICE IN SOUTH AFRICA (Univ. of California Press 1973). Later studies include STEPHEN ELLMANN, IN ATIME OF TROUBLE: LAW AND LIBERTY IN SOUTH AFRICA S STATE OF EMERGENCY (Oxford Univ. Press 1992) and DAVID DYZENHAUS, JUDGING THE JUDGES, JUDGING OURSELVES: TRUTH, RECONCILIATION AND THE APARTHEID LEGAL ORDER (Northwestern Univ. Press 1998). 5 I have spoken about the practice of law under apartheid and since on a number of occasions, and in this article I draw on what I have said previously. Some of the speeches have been published. See, e.g., Arthur Chaskalson, The Judicial Role in the Development of Human Rights: Judges under the New South African Constitution, in THE STRUGGLE FOR SIMPLICITY IN THE LAW: ESSAYS FOR LORD COOKE OF THORNDON 257 (Butterworths 1997); Arthur Chaskalson, Human Dignity as a Foundational Value of our Constitutional Order, 16 S. AFR. J. HUM. RTS. 193 (2000); and Arthur Chaskalson, Judicial Review in Post-Apartheid South Africa, in JUDICIAL REVIEW (Schrage ed., 2002). 6 Ronald Dworkin, The Model of Rules, 35 U. CHI. L. REV. 14 (1967). 7 RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (Harvard Univ. Press 1977).

3 592 A. Chaskalson who made up about 80 percent of the population, had no say. Yet its laws were binding on all of us and not open to challenge in the courts. 8 Courts accepted that parliament could make laws that, expressly or by necessary implication, sanctioned discrimination and the deprivation of rights. The only question for consideration in such cases was whether, on a proper construction of the statute, such express or implied permission existed. If it did not, the discrimination or deprivation of rights would be invalid. The difference between liberal and conservative judges, in the application of this principle, depended on the reading of the statute and the interpretation of what it sanctioned. In 1983, Dworkin s theory of adjudication was given prominence by Professor Raymond Wacks of the University of Natal in Durban. He delivered a public lecture in which he argued that the South African legal order was quintessentially unjust, and that judges who shared this view and were concerned about the moral dilemma of having to apply apartheid laws should resign. In his speech, he referred extensively to Taking Rights Seriously, seeking support there for his conclusion. This speech gave rise to a heated debate in the press and to a formal reply by Professor John Dugard. 9 The debate captures the tension inherent in the role of a judge under apartheid. This tension was similar, in some respects, to what was experienced by judges holding office in southern U.S. states in the Jim Crow era. It was, possibly, more acute in South Africa because there was no constitution that limited the power of the state, and, as the laws became harsher and more repressive, there may have been less scope for a moral reading of the law. Although apartheid was pervasive and affected all aspects of life, there were still areas of the law in which moral judges had an important role to play. This was particularly so in matters regulated by the common law; it was also the case in the application of most of the criminal law, the law of contract and tort, and in commercial law, even where the subject matter was regulated by statute. These judges had a role to play, as well, in the manner in which they interpreted and applied apartheid laws. The question, however, is whether this was of any value in the apartheid state. In Taking Rights Seriously, Dworkin accepted that a judge seeking to do what is morally right faces a conflict when called upon to apply an unjust law. If the 8 Section 59 of the 1961 Constitution (Act 32 of 1961) provided that [n]o court of law shall be competent to enquire into or to pronounce upon the validity of any Act passed by Parliament. S. AFR. CONST. (1961) 59. This section gave effect to the common law doctrine of parliamentary supremacy that South African courts had always applied. 9 John Dugard was, at that time, probably the preeminent academic voice in South Africa in support of judges adopting a liberal approach to the adjudication of apartheid laws. See Raymond Wacks, Judges and Injustice, 101 S. AFR. L.J. 266 (1984) [hereinafter Judges and Injustice]; John Dugard, Should Judges Resign? A Reply to Professor Wacks, 101 S. AFR. L.J. 286 (1984); Raymond Wacks, Judging Judges: A Brief Rejoinder to Professor Dugard, 101 S. AFR. L.J. 295 (1984) [hereinafter Judging Judges].

4 The moral transformation of South African law 593 institutional right, as found in a statute, for instance, clearly conflicts with moral rights, there is a dilemma: The institutional right provides a genuine reason, the importance of which will vary with the general justice or wickedness of the system as a whole, for a decision one way, but certain considerations of morality present an important reason against it. If the judge decides that the reasons supplied by background moral rights are so strong that he has a moral duty to do what he can to support these rights, then it may be that he must lie, because he cannot be of help unless he is understood as saying, in his official role, that the legal rights are different from what he believes they are. He could of course avoid lying by resigning, which will ordinarily be of very little help, or by staying in office and hoping, against odds, that his appeal based on moral grounds will have the same practical effect as a lie would. 10 Dworkin did not make the lie part of his jurisprudential theory. Instead, he thought that the conflict between the institutional right and morality must be reported accurately, leaving to the judge both the difficult moral decision he must then make and the lie he may be forced to tell. 11 This dilemma is reflected in the judgment of a South African judge who had to determine whether or not a case before him on review had been conducted in accordance with justice: The trouble is that it was not. It may have been in accordance with the legislation, and because what appears in the legislation is the law, in accordance with that too. But it can hardly be said to have been in accordance with justice. Parliament has the power to pass the statutes it likes, and there is nothing the Courts can do about that. The result is law. But it is not always the same as justice. The only way that Parliament can ever make legislation just is by making just legislation. 12 He then examined the law and reached a conclusion that did not involve a lie: [t]he proceedings were therefore contrary not only to justice, but to the Act as well, with the result that, on this occasion at least, it is possible to apply the Act and to do justice simultaneously. 13 This, however, was often not possible. Wacks argued that the institutional history of South Africa was one of 10 See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at Id. 12 In Re Dube, 1979 (3) SALR 820 (N) at 821 (opinion of Justice John Didcott). This brief judgment of less than two pages is a good example of the way in which a judge is able to bring to the surface the moral issues in a case and, ultimately, find a solution that, for this case at any rate, was consistent with justice. It is well worth reading. 13 Id. at 822.

5 594 A. Chaskalson discrimination that had endured for centuries prior to apartheid and was deeply entrenched in the law. He referred to judgments upholding laws enforcing segregation as text book examples of Hercules in action 14 and took issue with those South African academics who argued that South African judges could and should rely on principles and precedents of the common law to adopt a liberal interpretation of apartheid statutes. He acknowledged that there were some judges who, within the narrow confines permitted to them by apartheid laws, could dispense justice, but he argued that this could not redeem the system s essential injustice. In such a situation, judges had but three choices: to protest, to lie or to resign. 15 In his view, protest would bear little fruit, the severe constraints on the jurisdiction of courts left little scope for the judicial lie, and there was, accordingly, no compelling alternative to resignation. 16 It is true that South African courts were called upon to enforce apartheid laws and did so routinely. Many judges found support for this in positivism, and the distinction it makes between law as it is and law as it ought to be. They contended that if an apartheid statute was clear, the judge s duty was to enforce it, and, if not, there were rules of interpretation the judge had to follow in finding the answer. In their view, the moral responsibility for the law rested with the parliament that made the law and not with the judge who applied it. 17 This somewhat crude distinction between law and morality also seeped into the approach of some judges to adjudication in matters other than apartheid laws. The question whether it was immoral to accept appointment as a judge in South Africa or to continue to act as a judge as the laws became increasingly repressive is not as straightforward as Wacks made it out to be. Despite the attitude of the positivists, it cannot be said that there was no scope for moral decisions or that moral judges were powerless in the face of apartheid. As Dugard pointed out, principles of equality and liberty immanent in Roman- Dutch law formed part of South African common law. The common law doctrine of statutory interpretation required statutes to be interpreted, where possible, consistently with such principles. Thus, there was room for moral decisions in the development and application of the common law, in the interpretation and application of statutes not directly affected by apartheid, and even, though to a limited extent, in the interpretation and application of apartheid laws. 14 Wacks, Judges and Injustice, supra note 9, at Id. at Id. 17 In 1967, then chief justice L. C. Steyn made a speech in which he said that judges ought not to criticize laws passed by the legislature. For criticism of this attitude and of Steyn s approach to adjudication, see Edwin Cameron, Legal Chauvinism, Executive Mindedness and Justice L.C. Steyn s Impact on South African Law, 99 S. AFR. L.J. 38 (1982).

6 The moral transformation of South African law 595 There was a small but vigorous human rights bar within South Africa that continually brought issues pertaining to apartheid laws before the courts and demanded decisions regarding them. Although their powers were curtailed, the courts remained an independent source of authority within the white power structure and an important institution within which infringement of rights could be challenged. Challenges were brought and not infrequently succeeded. Wacks s contention was that the best justification of wicked laws was to be found in the wicked principles on which such laws were based. 18 This was rejected by other academics, and, in particular, by Etienne Mureinik who, like Dugard, argued that apartheid formed only one component of the ancient and multifaceted South African legal system. South African judges almost always take it for granted that every racial distinction requires statutory justification, usually express. In the absence of such, they enforce contracts, and remedy delicts, and strike down administrative decisions, and administer companies, and protect property, and enforce statutory duties, and apply rules of court, on the unquestioned premise that the race of the parties before them is irrelevant. Routinely they affirm conceptions of the equal treatment of individuals which are quite discordant with the theory underlying apartheid statutes; whether consciously, such as when they strike down by-laws and regulations for partial and unequal treatment, or unconsciously, such, perhaps, as when they apply the doctrine of precedent. 19 This way of proceeding, says Mureinik, was consistent with Dworkin s theory of constructive interpretation, which aspires to make adjudication the best that it can be. It is based on principle and recognizes only principles that satisfy some minimum threshold of moral appeal. To be sure, apartheid statutes were either capricious exercises of power or based on the principle that blacks were less worthy of concern than whites, a principle that did not meet the moral threshold requirement, and justifie[d] nothing. Nonetheless, although the political system based on apartheid was illegitimate and provided no justification for the exercise of political power, this did not mean that participants should withdraw from the legal system. There were sufficient sub-moralities in the system to make it preferable for conscientious lawyers to contest the legitimacy of the system, while legitimately continuing to participate in it and attempting to make of the law the best it can be made. He concluded that Dworkin s theory of constructive interpretation offers richly instructive guidance to a conscientious participant in the South African legal order Wacks, Judges and Injustice, supra note 9, at Etienne Mureinik, Dworkin and Apartheid, in ESSAYS ON LAW AND SOCIAL PRACTICE IN SOUTH AFRICA (Hugh Corder ed., Juta 1988). 20 Id. at 214.

7 596 A. Chaskalson Of course, conscientious participation was not the only choice. There was the option of going into exile, or of remaining in South Africa but abandoning the practice of law and joining the underground resistance. The latter is what Nelson Mandela did, after having been active as a lawyer for a number of years. The same course was later followed by Bram Fischer, Q.C., who, charged with offenses under the Suppression of Communism Act, 21 decided to go underground rather than to participate in the trial. In a letter to the court, he said that he could no longer serve justice in the way I have attempted to do during the past thirty years. I can only do it in the way I have now chosen. 22 He made his decision, he said, [o]nly because I believe that it is the duty of every true opponent of this Government to remain in this country and to oppose its monstrous policy of apartheid with every means in his power. That is what I shall do for as long as I can....cruel, discriminatory laws multiply each year, bitterness and hatred of the Government and its laws are growing daily. No outlet for this hatred is permitted because political rights have been removed. National organisations have been outlawed and leaders, not in gaol, have been banned from speaking and meeting. People are hounded by the Pass Laws and by Group Area controls. Torture by solitary confinement, and worse, has been legalised by an elected parliament surely an event unique in history...unless this whole intolerable system is changed radically and rapidly, disaster must follow. Appalling bloodshed and civil war will become inevitable because, as long as there is oppression of a majority, such oppression will be fought with increasing hatred... these are my reasons for absenting myself from Court. 23 But, as Mureinik points out, joining the armed struggle against apartheid involved moral and political choices. The fact that this option existed did not necessarily invalidate a choice to participate in the legal system on the basis he advocated. In political trials, those charged almost without exception turned to lawyers to defend them. Some defendants used the trial as a forum to assert that their conduct, though contrary to apartheid law, was a legitimate response to oppression. This was the approach adopted by Mandela and some of his coaccused at their 1963 trial where, in effect, they put apartheid on trial and attracted great national and international publicity. At the time of their arrest, it was widely forecast that all would be convicted and sentenced to death. This did not happen instead, two of the accused were acquitted, and those 21 Act 44 of STEPHEN CLINGMAN, BRAM FISCHER: AFRIKANER REVOLUTIONARY (Univ. of Massachusetts Press 1998). 23 Id.

8 The moral transformation of South African law 597 convicted were sentenced to life imprisonment. If the judge had been dishonest, if there had been no legal representation, if the accused had been tried and convicted in a matter of days, they would almost certainly have been sentenced to death, and the history of our country would have been quite different from what it has been. Cases could also be cited in which important principles of justice were upheld as a result of successful arguments raised concerning the interpretation and application of apartheid laws and practices and the actions of state functionaries who had abused their powers. 24 It would be wrong, however, to see these cases as typical of the legal process under apartheid: there were many other cases, particularly in the lower courts, in which judicial officers and prosecutors treated accused persons shamelessly, where statutes were read broadly to uphold apartheid rather than narrowly to exclude oppression, and innumerable cases in which the law was clear and apartheid statutes were enforced with the full rigor of the law. The recent hearings of the Truth and Reconciliation Commission provided an opportunity for reflection upon the role of judges and lawyers under apartheid and the institutional circumstances that rendered the gross violation of human rights possible. Evidence was heard from representatives of the organized legal professions, lawyer organizations, individual lawyers, and law teachers. Written submissions were made by a number of judges including the five most senior judges. The commission seems to have accepted that moral judges were not obliged to resign. Its findings with regard to the legal sector are, however, severe and serve as a reminder to all in the judiciary and the profession of their role under apartheid. The legal profession is condemned for its silence in the face of unjust laws, for its defensiveness at international gatherings, for its failure to make justice accessible to those who could not afford it, and for its acceptance of the legality of the unjust laws. The judiciary is condemned for its willingness to uphold unjust laws without comment, and for the readiness with which it accepted police evidence over that of accused persons. The commission was probably influenced in this regard by policemen seeking amnesty. These policemen acknowledged that they had committed torture and murdered detainees. The extent of these admissions suggested that atrocities were widespread and that the security police considered themselves beyond the law. There was, however, praise for what the commission described as the handful of judges, lawyers, law teachers, and law students who did not adhere to this pattern: there were always a few lawyers (including judges, teachers and students) who were prepared to break with the norm. These lawyers used 24 See RICHARD ABEL, POLITICS BY OTHER MEANS: LAW IN THE STRUGGLE AGAINST APARTHEID (Routledge 1995) and ELLMANN, supra note 4.

9 598 A. Chaskalson every opportunity to speak out publicly and within the profession against the adoption and execution of rules of law that sanctioned arbitrary official conduct and injustice. They explored the limits of their forensic skills in defending those on trial for offences in terms of such legislation, or in arguing for the invalidity of vague or unreasonable administrative action. They worked ceaselessly to prepare the cases of those targeted by the state, often in trying conditions and for little material reward. They advised and educated those in the community most vulnerable to official excesses, such as the rural poor and workers, through advice offices and religious bodies. They challenged their students to confront the relationship between law and justice and to translate their ideals into practice. They forswore the comforts of commercial practice for the sake of the upliftment of those excluded from all forms of power. They exercised their judicial discretion in favour of justice and liberty wherever proper and possible... and were influential enough to be part of the reason why the ideal of a constitutional democracy as the favoured form of government for a future South Africa continued to burn brightly throughout the darkness of the apartheid era. 25 There were, undoubtedly, contradictions in opposing apartheid yet participating in the legal process. I agree, however, with the conclusion of the Truth and Reconciliation Commission that more good than harm came from participation on such terms. 26 The role of the judiciary within South Africa was a complex one, and it would be oversimplifying to see it as no more than the instrument of a repressive state. It enforced unjust laws almost invariably without protest and in so doing helped to legitimate them within the white community. But, at the same time, the South African state was based on structures that had legal form. 27 The courts required the state and its officials to adhere to the forms of law, and, in so doing, imposed some constraint upon the exercise of arbitrary power. Laws could be and were changed in response to adverse court rulings, but there were political costs to such actions, and, in the end, there were constraints that no government and no official was willing to risk breaking, openly. If this restraining influence had not been there, there would have been no control whatever over the use or abuse of power; no restraint whatever of arbitrary or extralegal action. In such a situation the most oppressed section of the population would have been the most vulnerable. As Mureinik observed at the 25 4 Report of the Truth and Reconciliation Commission, ch. 4, (1998). 26 I participated as an advocate and not as a judge. But if there had been no moral judges there would have been little purpose in such participation. 27 There must be a minimum commitment to legality for the application of any theory of adjudication. Some unjust societies lack any semblance of such a commitment. There was, strangely, a commitment to legality in apartheid South Africa, and that is what makes it such an unusual case.

10 The moral transformation of South African law 599 time of the Wacks debate, if we argue... that moral judges should resign, we can no longer pray, when we go into court as defence counsel, or even as the accused, that we find a moral judge on the bench. 28 No general theory of adjudication can deal adequately with the dilemmas facing lawyers and judges in wicked legal systems. Much will depend, as Dworkin acknowledged, on the general justice or wickedness of the system. 29 In such circumstances, Dworkin s insistence on a moral reading of laws has the advantage over the positivist s argument, which leaves hard cases to the judge s discretion. Although the result may be the same in most cases, the important difference is that the positivists exclude morality from the decision-making process, whereas Dworkin keeps it in the foreground. That is of particular importance in unjust societies, for it forces judges to confront moral issues and through their judgments to articulate what those issues are. It also affords to lawyers and their clients the opportunity to raise moral issues in cases where it is open to them to do so. It keeps alive within the legal system moral principles to which greater effect can be given when the unjust system collapses, as unjust systems inevitably do. Dworkin s writings were seldom, if ever, referred to in the judgments of the apartheid courts. He was, however, influential in shaping the ideas of academics who challenged the conventional approach of South African jurists to positivism. In the 1980s, the separation of law from morality was increasingly questioned, positivist decision making was challenged, and there was academic criticism of the failure of courts to confront the moral issues at stake in particular cases. 30 Dworkin s influence was such that he, more than anyone else, put moral decision making on the agenda and kept it there. We have undoubtedly benefited from that, and this will be apparent from what follows. 2. It is time, now, to turn to the present legal order in South Africa. Since 1994, South Africa has been a democratic constitutional state. How and why this happened lie beyond the scope of this article. The change has, however, had a profound impact on the legal system and its jurisprudence. The new South African Constitution is a moral document. Even a cursory reading of its provisions demonstrates this. It is the supreme law, and law or conduct inconsistent with its provisions is invalid. 31 The preamble to the Constitution identifies constitutional goals that include establishing a society 28 This comment was made in an article in the Sunday Tribune during the debate precipitated by Professor Wacks s speech and is cited by Dugard in his response to Wacks, supra note 9, at DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at ELLMANN, supra note 4, at S. AFR. CONST. (1996) 2.

11 600 A. Chaskalson based on democratic values, social justice and fundamental human rights. Key to this is the Bill of Rights, contained in chapter 2 of the Constitution, which is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. 32 One of the founding values of the South African Constitution is the achievement of equality. 33 For Dworkin, equal concern is a precondition for political legitimacy and without it government is only tyranny. 34 He regards equal concern as the sovereign virtue, saying the political process of a genuine community must express some bona fide conception of equal concern for the interests of all members, which means that political decisions that affect the distribution of wealth, benefits, and burdens must be consistent with equal concern. 35 Dworkin has referred to equality as the endangered species of political ideals. 36 That may be the case in the United States but it is not the case in South Africa. The equality clause includes not only a prohibition on unfair discrimination but specifically allows steps to be taken to redress past discrimination. 37 One of the purposes of the equality guarantee is to prohibit... patterns of discrimination and to remedy their results. 38 It is only by doing this that we will be able to establish a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. 39 Dworkin is unlikely to have any quarrel with the achievement of equality as a constitutional value nor with its being very closely linked with the value of human dignity. He may, however, quarrel with other provisions of the Constitution that impose positive duties on the state to address the legacies of the past, and, he may argue that such rights raise policy considerations closer to the political process rather than legal principles relevant to the judicial process S. AFR. CONST. (1996) S. AFR. CONST. (1996) 1(a). 34 RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 1 (Harvard Univ. Press 2000) [hereinafter SOVEREIGN VIRTUE]. 35 RONALD DWORKIN, FREEDOM S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 25 (Harvard Univ. Press 1996) [hereinafter FREEDOM S LAW]. 36 DWORKIN, SOVEREIGN VIRTUE, supra note 34, at S. AFR. CONST. (1996) Brink v. Kitshoff NO, 1996 (4) SALR 197 (CC) President of the Republic of South Africa v. Hugo, 1997 (4) SALR 1 (CC) See Dworkin s discussion of rules, principles, and policies, DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at

12 The moral transformation of South African law 601 Provision is made in the South African Constitution for socioeconomic rights that require the state to take action to achieve the progressive realization of access to housing, 41 health care, food, water, social security, 42 and land. 43 South Africa faces great disparities in wealth, with millions of people living in deplorable conditions and in great poverty: There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined in [the Constitution]. The realisation of these rights is also key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential. 44 In what follows I will look at how the Constitutional Court has foregrounded equal concern in its jurisprudence, particularly in decisions dealing with claims for socioeconomic rights. Claims for the enforcement of these rights represent hard cases. Governments are elected to deal with these issues, and socioeconomic rights are at the border of the separation of powers between the judiciary and the executive. The claims are hard not only because of the difficulty of interpreting and applying the provisions that entrench socioeconomic rights but because of the abject living conditions of many people in our country and their legitimate demand that these be addressed, now that apartheid is over. Should they turn to courts if the political process fails them? The mere fact that socioeconomic rights involve policy considerations is not in itself sufficient reason for excluding the court s jurisdiction. For instance, it is plain that a policy to provide particular services to whites only, as was often the case under apartheid, would raise an issue of principle justifying intervention by a court. Policy must be consistent with the Constitution. At the same time, these rights are not absolute. They are justiciable and have been carefully formulated. Take, as an example, housing rights, which are expressed as follows: (1) Everyone has the right to have access to adequate housing; (2) The state must take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of this right. 45 The rights to health care, food, water, and social security are stated in similar terms, and the Constitutional Court has taken both the rights 41 S. AFR. CONST. (1996) S. AFR. CONST. (1996) S. AFR. CONST. (1996) 25(5). 44 Government of the Republic of South Africa v. Grootboom 2001 (1) SALR 46 (CC) S. AFR. CONST. (1996) 26.

13 602 A. Chaskalson and qualifications seriously: [I]t is an extremely difficult task for the State to meet these obligations in the conditions that prevail in our country. This is recognised by the Constitution which expressly provides that the State is not obliged to go beyond available resources to realise these rights immediately... however... despite all these qualifications, these are rights, and the Constitution obliges the State to give effect to them. This is an obligation that Courts can, and in appropriate circumstances, must enforce. 46 The Constitutional Court has, as yet, been required to deal with only three cases in which direct claims have been made for the enforcement of these rights. Two concerned access to health care 47 and one access to housing. 48 In Soobramoney, the Court dismissed a claim by a patient suffering from chronic renal failure to be provided with renal dialysis without charge. The evidence showed that renal dialysis facilities were costly and scarce. Resources were limited, and there were guidelines that regulated the use of dialysis machines in public hospitals by establishing priorities. Those who could be cured patients suffering from an acute illness that could be treated and patients who were candidates for kidney transplants and required dialysis to keep them alive while waiting were given preference. Soobramoney did not fall into this category. He was a diabetic in the final stage of chronic renal failure, suffering from ischemic heart disease and cerebrovascular disease. His life could be prolonged by means of regular renal dialysis, but he would have to be placed on a dialysis machine three times a week, each treatment taking about four hours, after which a further two hours would be required to clean the machine. The guidelines for the use of the dialysis machines were intended to provide maximum benefit to the greatest number of patients, and no suggestion had been made that they were either unfair or unreasonable. It was held, in dismissing the claim, that [a] court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters. 49 This is a hard case, and the judgment of the Court alludes to this: [t]he hard and unpalatable fact is that if the appellant were a wealthy man he would be able to procure such treatment from private sources; he is not and has to look to the State to provide him with treatment Grootboom, 2001 (1) SALR 46 (CC) Soobramoney v. Minister of Health, KwaZulu-Natal, 1998 (1) SALR 765 (CC) and Minister of Health v. Treatment Action Campaign (No. 2), 2002 (5) SALR 721 (CC) [hereinafter TAC]. 48 Grootboom, 2001 (1) SALR 46 (CC). 49 Soobramoney, 1998 (1) SALR 765, Id. 31.

14 The moral transformation of South African law 603 Soobramoney s case must be seen in the context of the resources available to the state and the needs that the health services had to meet. It involved policy considerations regarding how much of the budget should be allocated to health care, and, of that, how much should go to primary health care and how much to tertiary care. If treatment were to be provided to Soobramoney because of the life-threatening diseases from which he suffered, it would also have to be provided to all other persons similarly placed. And if this principle were to be applied and extended to all patients requiring access to expensive medical treatment or expensive drugs, the health budget would have to be dramatically increased and restructured. The Court stressed that the state had to manage its limited resources in order to address the extensive needs of millions of people, not only for access to health care but also for access to housing, food and water, employment opportunities, and social security. It held that there will thus be times when this requires [the state] to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals. 51 The decision is consistent with Dworkin s views. 52 Grootboom concerned the state s housing program. This program, as adopted for the Cape Metropolitan area, was intended to provide formal housing to people who could not afford to pay for it. This was a long-term goal, and a comprehensive program had been formulated for this purpose. No provision was made, however, for the immediate needs of thousands of people unable to afford homes and who had no access to land, no roof over their heads, and were living in intolerable conditions on vacant land from which they were liable to be evicted. The persons concerned came from the most disadvantaged sections of the community and would be consigned to their fate for the foreseeable future unless some temporary measures [were created] as an integral part of the nationwide housing programme. 53 The program thus failed to meet the obligation imposed on the state by the Constitution because it excluded from its scope a significant segment of society in need of access to shelter. 54 This was not reasonable. Reasonableness, said the Court, must... be understood in the context of the Bill of Rights as a whole. The right of access to adequate housing is entrenched because we value human beings and want to ensure that they are afforded their basic human needs. A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality. To be reasonable, measures cannot leave out of 51 Id. 52 See the discussion on Justice and the High Cost of Health in DWORKIN, SOVEREIGN VIRTUE, supra note 34, at Grootboom, 2001 (1) SALR 46 (CC), Id. 43.

15 604 A. Chaskalson account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore are most in peril must not be ignored by the measures aimed at achieving realisation of the right. Furthermore, the Constitution requires that everyone must be treated with care and concern. 55 The judgment makes clear that the applicant did not have a constitutional right to claim shelter or housing immediately, on demand. The state was, however, obliged to devise and implement a coherent, co-ordinated, program designed to meet its [constitutional] obligations. 56 It was entitled to decide how much to allocate to housing. 57 But it could not exclude from that allocation a provision for the needs of those whose needs are the greatest. Dworkin would probably agree with this conclusion as a matter of political policy. He would accept that the Constitution requires that all be treated with care and concern. He would also accept that a policy that denies any group of citizens, however small or politically negligible, the equal resources that equal concern would otherwise grant them is flawed. 58 But does that entitle a court to intervene and say that the government s policy is inconsistent with the Constitution? Dworkin may well have reservations about this. The Constitutional Court has held, however, that this is permissible. The Constitution requires the state to respect, protect, promote and fulfill the rights in the Bill of Rights. 59 The socioeconomic rights are entrenched in the Bill of Rights. Unless the courts resort to the stratagem of declaring disputes concerning socioeconomic rights to be political questions and for that reason decline jurisdiction, they must confront and decide the hard cases that arise when it is alleged that the state has failed to comply with its constitutional obligations to take reasonable measures to achieve the progressive realization of these rights. Courts have to judge the issue of reasonableness. That is a legal principle that courts are often required to apply when there is a challenge to the validity of administrative action by the executive. In this way, policy is collapsed into principle, 60 and techniques similar to those used in administrative law can be adopted to give effect to the constitutional standard of reasonableness. Sunstein suggests that Grootboom answers a number of questions about the proper relationship among socioeconomic rights, constitutional law, and 55 Id Id I do not exclude the possibility of a challenge to budgetary allocations assuming it is possible to argue that the state is able yet has unreasonably failed to make the necessary resources available but that would be a much more difficult case to establish. 58 RONALD DWORKIN, A MATTER OF PRINCIPLE 211 (Harvard Univ. Press 1985). 59 S. AFR. CONST. (1996) 7(2). 60 See the discussion by Dworkin of rules, principles, and policies, DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at

16 The moral transformation of South African law 605 democratic deliberation and shows respect for sensible priority-setting, and close attention to particular needs, without displacing democratic judgments about how to set priorities. 61 Grootboom was made easier because the needs of homeless persons had been ignored. The case would have been more difficult if the policy had made provision for homeless people and the dispute had been over the terms of the policy or the allocation for it in the budget. And, as Sunstein points out, the case left many issues unresolved. Some of these issues came to the fore in the TAC 62 case, which concerned the government s policy on HIV-AIDS. The question was whether an antiretroviral drug, nevirapine, should be made available in public hospitals for the treatment of children born to HIV-positive mothers. The treatment involved the administration of a single dose of nevirapine to the mother and child at the time of birth. This would save the lives of a significant number of infants. It was not an expensive form of treatment. In any event, the drug had been offered to the government for this purpose free of charge for a period of five years, and the cost of the drug was not a factor. The issue was complicated by the need to test the HIV status of the pregnant mothers, to counsel those who are HIV positive, and to advise the mothers on the choices open to them, the implications of the treatment, and the risks inherent in breast-feeding, which can lead to reinfection, and in bottle-feeding, where access to clean water is not readily available. The government had established a number of research and training sites at which nevirapine was made available for the treatment of mother-to-child transmission of HIV. These sites catered to approximately 10 percent of all births in the public sector. The research was primarily to monitor the efficacy and safety of nevirapine and to determine the best practice to prevent mother-to-child transmission of HIV. In addition to testing and counseling, the research sites provided formula feed to mothers who did not breast-feed their infants. Vitamin supplements and antibiotics were provided, and the progress of mothers and infants was carefully monitored. The government contended that the comprehensive package of treatment available at the research and training sites required substantial financial and human resources and could not be provided throughout the public health sector. It doubted the efficacy of using nevirapine in circumstances where a full package of treatment was not available, and it had certain concerns about the safety of the drug and the possibility that its use would lead to resistance to antiretrovirals. Most provinces, therefore, provided the drug only at research and training sites. Doctors at other public health facilities were not permitted to prescribe nevirapine for this purpose. This excluded the great majority of children born in the public health sector from access to this form of treatment. No other antiretroviral treatment was available at these institutions. 61 CASS R. SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO 236 (Oxford Univ. Press 2001). 62 TAC, 2002 (5) SALR 721 (CC).

17 606 A. Chaskalson The prospects of a child surviving if infected were slim. Testing and counseling facilities were available at many public hospitals and clinics outside the research sites. There was convincing evidence that nevirapine was efficacious for the treatment of mother-to-child transmission of HIV even if the mother breast-fed the infant. The use of nevirapine for the treatment of motherto-child transmission of HIV was recommended by the World Health Organization, and its use in South Africa for this purpose had been approved by the Medicines Control Council, which was responsible for assessing the safety of drugs. The drug was freely available for use by persons who had sufficient resources to access the private health sector. The government contended that the making of policy is the prerogative of the executive and not the courts, and that courts cannot make orders that have the effect of requiring the executive to pursue a particular policy. This argument was rejected: Where State policy is challenged as inconsistent with the Constitution, Courts have to consider whether in formulating and implementing such policy the State has given effect to its constitutional obligations. If it should hold in any given case that the State has failed to do so, it is obliged by the Constitution to say so. Insofar as that constitutes an intrusion into the domain of the Executive, that is an intrusion mandated by the Constitution itself. 63 The failure to provide access to effective health care for the treatment of mother-to-child transmission of HIV to children born at public health facilities that were not research sites was not reasonable. The provision of a single dose of nevirapine to mother and child at the time of birth was, as far as these children were concerned, essential. Their needs were most urgent, 64 and their ability to enjoy all the rights to which they were entitled under the Bill of Rights was imperiled by a rigid and inflexible policy that excluded them from having access to nevirapine. Infants born at the research and training sites would be given access to nevirapine, as would infants whose mothers had access to the private health care system. The children excluded from the treatment came from the poorest sector of the community and did not have access to health care in the private sector. [The] government policy was an inflexible one that denied mothers and their newborn children at public hospitals and clinics outside the research and training sites the opportunity of receiving a single dose of Nevirapine at the time of the birth of the child. A potentially lifesaving drug was on offer and where testing and counselling facilities were available it could have been administered within the available resources of the State without 63 Id Id. 78.