A constitutional law perspective on structural poverty in South Africa

Abstract

Poverty in South Africa is rampant and widespread, and structural in nature. It has persisted after the political transformation of 1994, and has burgeoned and worsened since this time, notwithstanding the constitutional imperative for its amelioration. It must be understood both as a money-metric and a non-money-metric phenomenon. Furthermore, it is associated with failures of social justice and transformative constitutionalism. The fulfilment, or lack thereof, of the constitutional socio-economic rights is closely intertwined with poverty issues. Perspectives on poverty considered in this thesis include examination of its characteristics, its determinants, and possible solutions for its amelioration. Thirteen notable characteristics of poverty are distilled from literature. Determinants of poverty are multifaceted and are distinguished into six categories – ideological notions, social and economic phenomena, dysfunctionalities in the human rights regime, dysfunctionalities in the legal system, political determinants and a general category of other determinants. Solutions for poverty amelioration are similarly distinguished into six categories, being those associated with political and ideological considerations, sociological solutions, economic solutions, solutions relating to legal matters, an enhanced role for the executive, and multi-pronged and integrated solutions. Applying insights gained from the consideration of perspectives on poverty, it is possible to conceptualise a role for each of the branches of government in poverty amelioration. In the case of the legislature, this lies in embedding an awareness of poverty related issues in the law-making process, and through enhancement of the legislative oversight function. The executive as the hub of governmental processes has a significant role to play. It may contribute to poverty amelioration inter alia through gaining and promoting awareness of the nature and dimensions of poverty, rethinking and repurposing foundational ideologies such as neoliberalism, capitalism and constitutionalism, addressing economic and social governance and power issues, and pursuing means of redress for the poor. The judiciary’s role in poverty amelioration is exercised mainly through its function as an arbiter of disputes relating to socio-economic issues, although there is potential for it to wield influence outside of this function. There are a number of long standing practices of the judiciary which require re-evaluation and purposive redevelopment over time. In addition there are some areas of judicial functionality where shorter term action by the judiciary could produce quick gains. These include rethinking strict adherence to the separation of powers doctrine, actively pursuing stronger relief and remedies, departing from judicial minimalism and legalism, attributing meaning and normative content to legislative precepts, rethinking adherence to the prevailing legal culture, espousing judicial activism and a conscious transformative approach, overcoming judicial situatedness and elitism and arrogance, pursuing innovation in making court orders and judicial consequentialism, adopting a people-centred approach, and pursuing synergies with the legal profession. In the final chapter of this thesis, the material under consideration in the substantive chapters 2, 3, 4 and 5 is transposed into a set of findings regarding the role of each of the branches of government in poverty amelioration, and a corresponding set of recommendations as to how these roles may be fulfilled. In conclusion, a system of broad-based collaboration between the three branches towards poverty amelioration is envisaged.