Justice and Justiciability: Advancing Solidarity and Justice Through South Africans' Right to Health Jurisprudence

Abstract

The South African Constitutional Court's jurisprudence provides a path-breaking illustration of the social justice potential of an enforceable right to health. It challenges traditional objections to social rights by showing that their enforcement need not be democratically unsound or make zero-sum claims on limited resources. Indeed the South African experience suggests that enforcing health rights may in fact contribute to greater degrees of collective solidarity and justice as the Court has sought to ensure that the basic needs of the poor are not unreasonably restricted by competing public and private interests. This approach has seen the Court adopt a novel fights paradigm which locates individual civil and social rights within a communitarian framework drawing from the traditional African notion of 'ubuntu', denoting collective solidarity, humaneness and mutual responsibilities to recognize the respect, dignity and value of all members of society. Yet this jurisprudence also illustrates the limits of litigation as a tool of social transformation, and of social rights that remain embedded in ideological baggage even where they have been constitutionally entrenched and enforced. This paper explores the Constitutional Court's unfolding jurisprudence on the right to health, providing background to the constitutional entrenchment of a justiciable right to health; exploring early Constitutional Court jurisprudence on this right; turning to the forceful application of this right in relation to government policy on AIDS treatment; and concluding with thoughts about the strengths and limits of this jurisprudence in light of subsequent case-law.