EXECUTIVE OFFICERS IN THE UNITED KINGDOM
IV. Should the decision of the SCA be overturned?
[I]n the light of the lengthy period during which the occupiers have lived on the land in question, the fact that there is no evidence that either the Municipality or the owners of the land need to evict the occupiers in order to put the land to some other productive use, the absence of any signifi - cant attempts by the Municipality to listen to and consider the problems of this particular group of occupiers, and the fact that this is a relatively small group of people who appear to be genuinely homeless and in need, I am not persuaded that it is just and equitable to order the eviction of the occupiers.
In the circumstances, the application for leave to appeal fails and the Municipality is ordered to pay the costs of the respondents, including the costs of two counsel.
Notes and Comments
1. Perspectives on Port Elizabeth. One prominent South African legal scholar has made the following comment about Port Elizabeth:
The judgment in Port Elizabeth . . . makes it clear that the constitutional court favours a contextual, transformative view of eviction, which means that the [South African Roman-Dutch] common law relating to eviction has to be developed (and new eviction legislation has to be interpreted) in a way that will refl ect the consti- tutional choice for change––in this specifi c instance, continuity and change have to make way for development and change because of a clearly justifi ed constitutional aspiration directly relating to the abolition and dismantling of the apartheid past and the building of a more equitable and just future land law. As far as eviction is concerned, the common law is subjected to direct infl uence and change inspired by constitutional provisions and aspirations.
A.J. van der Walt, Transformative Constitutionalism and the Development of South African Property Law (Part 1), 4 J. for S. Afr. L. 655, 677 (2005).
2. The right to housing. The Port Elizabeth Court was faced with the uneviable task of balancing the right of property under section 25 with the right to housing under 26. The leading case involving section 26 is Government of the Republic of South Africa v. Grootboom, 2001 (1) SA 46 (CC) (S. Afr.).
In Grootboom, the Constitutional Court held that the legislature’s housing pro- gram violated section 26 of the Constitution because the program was unreason- able in failing to address the plight of 900 individuals, more than half of them children, in desperate need of housing after they were evicted from an unlawful informal settlement. 2001 (1) SA 46 paras. 4, n.2, 8, 66. Although the court inter- preted section 26 as requiring the state to adopt a reasonable housing program that addresses both short- and long-term housing inadequacies, it rejected the notion that section 26 imposes on the state a minimum core obligation to supply a minimum essential level of housing. 2001 (1) SA 46 paras. 30, 33, 43. The court
further clarifi ed that section 28 does not oblige the state to supply children and their parents with shelter if the parents are caring for their children. 2001 (1) SA 46 paras. 77, 79.
Grootboom has had more than its share of critics, most of whom have taken the Court to task for its failure to read section 26 as imposing a minimum core obligation on the state. See, e.g., Theunis Roux, The Constitutional Protection of Property Rights, in Constitutional Law of South Africa, 46-1, 46-19 (Stuart Woolman et al., eds. 2006).
Professor Alexander has made the following observation regarding Port Elizabeth and Grootboom taken together:
Grootboom and Port Elizabeth Municipality create a unique approach to defi ning the constitutional dimensional to the social obligation of ownership. This approach has three defi ning characteristics. First, as Grootboom makes clear, the state is under positive duties in relation to both the section 25 property right and to socioeconomic rights. These duties exist in tension with the more conventional negative duties that section 25 also imposes on the state . . . .
Second, the social obligation defi ned by the socioeconomic rights provisions is limited in a highly important way. The state’s obligation . . . has three components:
(1) to undertake reasonable legislative and other measures and (2) to achieve pro- gressive realization of the socioeconomic rights (3) within the range of available resources. An important consequence of this defi nition of the social obligation is that individuals do not have a constitutional entitlement to demand direct pro- vision of services or benefi ts from the state.
Third, the social obligation . . . has primarily been imposed upon the state.
This is especially true with respect to positive obligations, which have been the basis for claims in most of the [constitutional] court’s socioeconomic rights cases.
Whether the socioeconomic rights provisions create causes of action in litigation solely involving private parties has been a highly controversial topic . . . .
Gregory S. Alexander, The Global Debate Over Constitutional Property:
Lessons for American Takings Jurisprudence 181–82 (University of Chicago Press, 2006).
3. Constitutional property and socioeconomic rights (including housing) in comparative perspective. South Africa’s recognition of a constitutional right to housing is highly unusual. Only a few constitutions, most of which have been enacted or revised in recent years, recognize this or any other positive constitutional right. The U.S. Constitution has no counterpart to section 26 or any of the other socio- economic rights provisions of the South African Constitution. Even Germany’s Basic Law, which is not a classical liberal constitution like that of the United States, does not guarantee positive socioeconomic individual rights such as housing.
Positive socioeconomic constitutional rights have been a subject of consider- able debate in the United States and elsewhere. One of the objections often raised is that such rights are not justiciable because courts lack the power to enforce them. Positive rights impose affi rmative obligations on the state to act on behalf of the individual. They compel the state to reach into its pocket to make provi- sion for certain basic needs, and budgetary and other constraints make courts unsuitable to order such actions. See, e.g., David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864 (1986). In In re Certifi cation of the Constitution of the Republic of South Africa, 1996(4) SA 744 (CC) (S. Afr.), the South African Constitutional Court rejected this objection, holding that the positive socioeconomic rights in its constitution are, at least to some extent, justiciable.
Property Rights / 71 Acknowledging that enforcement of socioeconomic rights almost invariably is limited by budgetary constraints, the court said that this does not bar justi- ciability because at a minimum courts can negatively protect such rights from improper invasion. The implication is that although fi scal complications are not a suffi cient reason for judicial abstention, they may nevertheless infl uence the stan- dard of review in individual cases. See Sandra Liebenberg, The Interpretation of Socio-Economic Rights, in Constitutional Law of South Africa 33-i, 33-5 (Stuart Woolman et al. eds., Juta Publishing, 2d ed. 2004).
In the United States, the Constitution does not expressly recognize positive socioeconomic rights. Some state constitutions, however, do affi rmatively guar- antee certain specifi c socioeconomic interests, such as education. See, e.g., N.H.
Const., Pt. I, Art. 12. There appeared to be some possibility that the U.S. Supreme Court would recognize socioeconomic interests as property when the Court in Goldberg v. Kelly, 397 U.S. 254 (1970), held that the Fourteenth Amendment’s Due Process Clause requires that a welfare recipient was entitled to an evidentiary hearing prior to termination of benefi ts. That possibility was soon dashed, how- ever, when the Court in Dandridge v. Williams, 397 U.S. 471 (1970), held that a state family-assistance law was valid even though its cap on maximum payments left many families living at state-recognized poverty levels. Since then, the Court has consistently rejected any possibility of reading a right to substantive protection of socioeconomic interests into the U.S. Constitution.
4. The “horizontal effect” and the duty to protect. Alexander’s last comment alludes to the possibility that individual rights provisions of the South African Constitution might be given “horizontal effect,” as it is sometimes called. The term refers to the idea that constitutional rights provisions impose duties on private actors as well as the state. As Professor Stephen Gardbaum puts it, “The horizontal position expressly rejects a public–private distinction in constitutional law. . . . ” Stephen Gardbaum, The “Horizontal Effect” of Constitutional Rights, 102 Mich. L.
Rev. 387, 395 (2003). For additional discussion, see infra chapter 16, State Action Doctrine.
More recently, the Court seems to have sidestepped the horizontality issue altogether. It did so by introducing the German discourse of a state duty to pro- tect constitutional principles. According to this protective duty theory, the rel- evant question is, “Do the constitutional duties placed on government include positive ones to prohibit . . . certain actions by private individuals that touch on constitutional values.” Gardbaum, “Horizontal Effect,” supra, at 390 n.10.
An important case that seemingly adopted this theory is Modderklip East Squatters v. Modderklip Boerdery (Pty) Ltd., 2004 (8) BCLR 821 (SCA) (S. Afr.), aff’d sub nom., President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd., 2005 (5) SA 3 (CC) (S. Afr.). In Modderklip, some 400 residents of an informal set- tlement in Johannesburg moved onto adjacent land that they mistakenly thought was owned by the city. In fact, the land was privately owned by Modderklip Farm. Within six months the new settlements included 18,000 people living in 4000 shacks. The owner sought to evict the occupants, relying on the Prevention of Illegal Eviction and Unlawful Occupation of Land (PIE) Act. The lower court granted an eviction order, but the occupants failed to vacate. Meanwhile the Modder East settlement had grown to 40,000 inhabitants. The sheriff was ordered to evict trespassers, but she insisted that the owner pay a large sum of money to cover the cost of eviction. The owner was unwilling to pay the sum because
it exceeded the estimated value of the land. Modderklip then sought assistance from various public bodies, including the President of South Africa, who referred the matter to the Department of Land Affairs, which referred the matter to the Department of Housing, which did not respond. Understandably frustrated, Modderklip once again went to court and obtained a declaratory order forcing all of the relevant government offi cials to take all necessary steps to remove the unlawful occupants.
The state offi cials and the police treated the case solely a matter of private law, enforcement of a simple eviction order. The Supreme Court of Appeal took a different view of the situation. It observed that this attitude “does not refl ect an adequate appreciation of the wider social and political responsibilities [that the Grootboom Court] identifi ed in respect of persons such as the present occupiers.”
2004 (8) BCLR at 828. The case posed an apparent confl ict between two constitu- tional duties of the state: its duty to protect Modderklip’s ownership rights under section 25 and its duty to provide access to adequate housing under section 26.
The court’s resolution of this apparent confl ict was premised on its assumption that the state was under a constitutional duty to break the impasse by removing the main obstacle to enforcement of the eviction order, namely, the lack of avail- able alternative land for the occupants. The court treated the state’s failure in this regard as simultaneously a breach of the occupants’ section 26 housing right and Modderklip’s section 25 property right. The basis for this conclusion was section 7(2) of the Constitution, which provides that the state is under a duty to “respect, protect, promote and fulfi ll the rights in the Bill of Rights.” In the court’s view, by failing to provide the occupants with alternative housing in accordance with section 26, the state failed to protect the owner’s section 25 property right, as section 7(2) requires. The court stated:
[I]n a material respect the state failed in its constitutional duty to protect the rights of Modderklip: it did not provide the occupiers with land which would have enabled Modderklip (had it been able) to enforce the eviction order. Instead, it allowed the burden of the occupiers need for land to fall on an individual. . . .
Id. at 834. Failure to protect one right, in other words, meant failure to protect another right.
On appeal, the Constitutional Court affi rmed the relief ordered by the Supreme Court of Appeal. It did so on a theory other than the protective duty theory but without directly rejecting that theory. The status of both the horizontal effect question and the protective duty theory in South African constitutional law remains unclear. The possibility remains open that the Constitutional Court will recognize some version of either of these doctrines.
5. Additional readings. The best sources on South African constitutional property law include A.J. van der Walt, Constitutional Property Law (2005); Theunis Roux, Property, in South African Constitutional Law: The Bill of Rights 429 (M.H. Cheadle, D.M. Davis & N.R.L. Haysom eds., 2002); Theunis Roux, Section 25, in Constitutional Law of South Africa ch. 46 (Stuart Woolman et al. eds., 2d ed. 2003); Geoff Budlender, The Constitutional Protection of Property Rights: Overview and Commentary, in Juta’s New Land Law ch. 1 (Geoff Budlender, Johan Latsky & Theunis Roux eds., 1998).
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6
Abortion Rights
Radhika Rao
As one legal scholar observes, “it has been striking to watch the United States Supreme Court wrestle with the problems of abor- tion as though pregnancy were a phenomenon unique to the United States.”1 Other legal systems confront the same basic questions of when life begins, whether a fetus is a person entitled to legal protection, and who should possess the power to decide. Their choices illustrate alternate pos- sibilities and illuminate the character of American law. Comparative study demonstrates that abortion rights may stem from a constitution, a statute, local law, or even international obligations. They may be conceptualized as procedural or substantive, and they may take the form of negative rights or affi rmative obligations. Comparative study also highlights the divergence between the articulation of a right and its realization.
Justice Scalia claims that American abortion law is “out of step” with the rest of the world because the United States is “one of only six countries that allow abortion on demand until the point of viability.”2 Technically, he may be correct: only fi ve other countries expressly permit abortion until viability (estimated to occur between 20 and 24 weeks) or a later point in pregnancy.3 Yet 56 countries, containing almost 40% of the world’s population, currently allow abortion for any reason in the early stages of pregnancy (generally the fi rst trimester).4 Moreover, close study of comparative abortion law reveals that the reality is too complex to be captured in a series of statistics. Even in
1 John Langbein, The Infl uence of Comparative Procedure in the United States, 43 Am.
J. Comp. L. 545, 550 (1995).
2 Norman Dorsen (ed.), The Relevance of Foreign Legal Materials in U.S.
Constitutional Cases: A Conversation Between Justice Antonin Scalia and Justice Stephen Breyer, 3 Int’l J. Const. L. 519, 521 (2005); Roper v. Simmons, 543 U.S. 551, 625 (2005) (Scalia, J., dissenting).
3 The fi ve include Canada, China, Korea, the Netherlands, and Vietnam, although Sweden and Singapore could also be added to this list because they permit abortion for any reason up until eighteen weeks and twenty-four weeks of pregnancy, respectively. See Center for Reproductive Rights, The World’s Abortion Laws (May 2007) (http://www.reproductiverights.org/pub_fac_abortion_laws.
html) (last accessed March 2008).
4 See Center for Reproductive Rights, The World’s Abortion Laws (May 2007) (http://www.reproductiverights.org/pub_fac_abortion_laws.html) (last accessed March 2008).
those countries where abortion appears to be illegal in principle, the reality often belies the language of the law. French law, for example, limits abor- tion to women who are “in distress” but authorizes women to judge their own situation. German abortion law is frequently invoked as diametrically opposed to that of the United States. As you read the following materials, consider whether this is an accurate assessment.