The transformative potential of the constitutional environmental right overlooked in Grootboom

Abstract

It is axiomatic that Grootboom (Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) hereinafter "Grootboom") remains the hallmark of the Constitutional Court’s success in terms of its transformative socio-economic rights jurisprudence. In this regard, De Vos has argued that lawyers and legal academics who wish to pursue the transformative possibilities of the Bill of Rights may find much to assist them in the Grootboom case. One of the reasons for De Vos’s recommendation is that the Court acknowledged the transformative nature of the Constitution in this Case and strongly asserted the interrelated, interdependent and mutually reinforcing nature of the rights in the Bill of Rights in achieving the transformative objectives of the Constitution. The purpose of this article is to reflect on the court's transformative jurisprudence in Grootboom and to argue that, although the court strongly asserted the interrelated and interdependent nature of the variety of rights in Bill of Rights in fostering the transformative vision of the Constitution, it failed to highlight the centrality of the section 24 environmental right in fostering that vision. This article argues that the realization of elements of the section 24 environmental right are indispensible to the realization of rights that are generally perceived as having transformative potentials - rights entrenched in sections 26(1) and 27(1) of the Constitution. Drawing from a variety of sources, this article demonstrates the intersection between these rights and argues that the fulfilment of the section 24 environmental right can also contribute to the transformative vision of the Constitution.