Does history make a difference? The role of history in the interpretation of socio-economic rights in South Africa

Bilchitz, D. ORCID: https://orcid.org/0000-0001-6195-675X (2023) Does history make a difference? The role of history in the interpretation of socio-economic rights in South Africa. In: Bilchitz, D. ORCID: https://orcid.org/0000-0001-6195-675X and Cachalia, R. (eds.) Transitional and Distributive Justice: reflections from Colombia and South Africa. Oxford University Press, pp. 196-215. ISBN 9780192887627 doi: 10.1093/oso/9780192887627.003.0011

Abstract/Summary

This chapter investigates the role historical context plays in the interpretation of socio-economic rights in South Africa. It begins by arguing that historical justice can provide both an independent justification for those rights as well as an important context in which to construct the content of these rights and their path to implementation. The chapter then focuses on the right to housing and then engages in a qualitative analysis of four seminal cases. The chapter finds that the South African Constitutional Court often expressly references South Africa’s history of injustice. Its reasoning relating to history appears clearly to have influenced the approach it adopts towards interpreting the obligations that flow from these rights as well as the remedies it orders. The analysis highlights that, following from South Africa’s negotiated transition, there is a clear preference expressed by the Court for individuals and institutions to resolve the problems between them through a process of continuing negotiation. There are also obligations placed on both the state and private parties to address the legacies of the past in an approach that appears aimed very much at restoring relationships that had been ruptured between people in the society. Addressing historical wrongs—as a form of transitional justice—thus has concrete implications in the present for the approach adopted towards socio-economic rights and thus the form of distributive justice enacted in South African society.