Significance of the Case
The ruling has immediate practical significance for countless poor people residing under circumstances of insecure legal tenure.
The Court’s decision marks a new departure in South African constitutionalism opening the way for a re-distributional understanding of social and economic rights. The Court held that under some circumstances the Bill of Rights binds private parties to contribute some quantum of their wealth and property to those less fortunate so that the latter may realize and enjoy their constitutional rights.
Magisterial opinions by Justice Madlanga (for the Court) and Justice Froneman (concurring) exemplify an approach to legal reasoning that is historically grounded, contextually sensitive, purposive, and informed by the aspiration of the South African Constitution to encourage legal processes and methods that will contribute to transforming society and realizing social justice. Notably, Justice Froneman’s searching concurrence calls for a critical interrogation of traditional conceptions of property and market-based exchange. He argues that in the South African historical context, the common law protection of private property “did not support personal autonomy and economic freedom, but effectively worked against it.” He urges jurists to look beyond the economic efficiency and economic-growth consequences of legal rules and carefully attend also to the distributive consequences of legal decisions: “The right to dignity does not easily fit into the subject of a market exchange.”
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.