Siyabonga Hadebe
Pretoria - Over the past few months, I have been fiddling with the construction of the law and its philosophical inclinations.
I am reading about the socio-economic rights as prescribed in the Constitution. The rights are covered in sections 26(2) (housing), 27(2) (health care, food and social security) and 29(2) (education).
The inclusion of the rights in the Constitution is a significant achievement, and many people still need to realise since we have not used the provisions to our advantage.
Generally, we have seen that access to the courts is the domain of people with money, preventing many people from realising justice and freedom.
On a broader scale, people complain about poor service delivery of goods and services like water, health care, education, security, jobs and so on, but have nowhere to go to fix the problems.
Since we are a democracy, the avenues available to the populace are protest action, voting and active political participation. However, these methods have yet to yield the desired outcomes. For instance, the ballot paper has more than 20 political parties, and many at times disappear without a trace.
In 2024, we stand to have more faces to elect from since the Constitutional Court ruled that individuals, and not only parties, can stand in the national elections.
We could have a combination of presidential and parliamentary systems. But there is no evidence that this would improve people’s lives, and the likely beneficiaries would be those who make it to Parliament.
The more significant concern, however, is that voter apathy is rising as fast as Mmusi Maimane and Duduzane Zuma’s excitement. Voter apathy threatens democratic political systems because they rely on numbers for legitimacy. In the absence of compulsory voting in South Africa, a no-show in elections is always a possibility.
Seeing that many people seem to be losing faith not just in the ANC but the political system as a whole, l have this silly idea: Why don’t we overturn the political system, using judicial overreach to work for everyone, and not just a few? Using judicial overreach, we could kill two birds with one stone: collapse the trias politicas system and the political system itself.
But the question is, how to do this?
We turn to the least popular notion of a class action suit to force the government, Parliament, courts and large companies to deliver on all the socio-economic rights prescribed in the Bill of Rights. We need to test the much-praised Constitution and the Freedom Charter to see if they can deliver the political freedom we yearn for. Putting constitutionalism and its virtues into action would be nice.
For once, we won’t complain about the “captured” judiciary and the Constitution. But we would make them work. And for the first time, we would render so-called civil society useless and do the bidding ourselves by funding a class action suit in which the black majority become plaintiffs in a massive case. It would be up to the legal eagles to decide if it is permissible to demand the enforcement of socio-economic rights via class action.
As a test case, we could start with land, water, food, safety, education, health and social security issues. After all, poverty is the biggest threat to people’s lives. This we could follow with clean air, a liveable environment, electricity, access to finance, and any other issues that require action.
The UDM and others have taken the government and Eskom to court over “the provision of sustained, reliable electricity to all South Africans in line with their rights and basic service delivery needs”. This proves that it may be possible to demand the delivery of socio-economic rights.
Large landowners plus listed and non-listed companies and other businesses can be identified as respondents together with the three arms of the state. The case would take the owners of the Republic of South Africa to court using their laws.
* Hadebe is an independent commentator on socio-economics, politics and global matters.
** The views expressed do not necessarily reflect the views of IOL or Independent Media.
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