Student Number : 0215058X -
PhD thesis -
School of Law -
Faculty of Commerce, Law and Management / Socio-economic rights have the potential to contribute to the achievement of social
justice through insisting on the satisfaction of vital material needs. However, their
effectiveness in this regard is compromised when they are incapable of tangibly
contributing to the satisfaction of the needs that they represent. By including justiciable
socio-economic rights in the text of the 1996 South African Constitution, its drafters
indicated that South Africans are entitled to demand effective relief that amounts to
adequate reparation for the harm suffered through the non-satisfaction of their vital
material needs. The legitimacy of the constitutional order partially depends on the
ability of socio-economic rights to live up to this promise. This dissertation examines
the extent of this promise and the extent to which it is currently being fulfilled, in relation
to a discrete set of rights - those that operate together to achieve the highest attainable
standard of physical and mental health. I argue that successful reliance on healthrelated
rights in litigation must, in appropriate circumstances, produce tangible benefits
for individual rights-bearers. I explore the extent to which constitutional health rights
may realistically be expected to render tangible benefits, examine the degree to which
this potential of health rights is realised through current judicial approaches to their
vindication and suggest manners in which such approaches may be modified and/or
supplemented in order for tangible benefits to result more readily from successful
vindication of health rights. In doing this, I attempt to show that a benefit-orientated
approach to the interpretation and enforcement of health rights is not only required, but
also facilitated by the Bill of Rights in the 1996 Constitution. Moreover, the Bill of
Rights enables South African courts to interpret and enforce health rights in
accordance with their benefit-rendering potential, without overextending judicial
capabilities or transgressing the institutional boundaries of the judicial function. Courts
are accordingly implored to acknowledge and affirm the justiciable nature of healthrelated
rights and to adopt interpretative, evaluative and remedial practices that enable
their tangible vindication in appropriate circumstances.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:wits/oai:wiredspace.wits.ac.za:10539/1572 |
| Date | 01 November 2006 |
| Creators | Pieterse, Marius |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | 841450 bytes, application/pdf, application/pdf |
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