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Title:Adjudicating constitutional priorities in a transnational context: a comment on Soobramoney's legacy and Grootboom's promise
Authors:Scott, CraigISNI
Alston, PhilipISNI
Year:2000
Periodical:South African Journal on Human Rights
Volume:16
Issue:2
Pages:206-268
Language:English
Geographic term:South Africa
Subjects:constitutions
1996
rule of law
External link:https://doi.org/10.1080/02587203.2000.11827595
Abstract:This article discusses the first two social rights cases to go to South Africa's Constitutional Court under the 1996 Constitution. Soobramoney v Minister of Health, KwaZulu-Natal (1998) involved a claim of a breach of the right to health care brought by one person pursuant to s 27 of the Bill of Rights. Grootboom v Oostenburg Municipality (2000) involves a claim of breaches of rights to housing or shelter brought by some 900 persons (390 adults and 510 children) under ss 26 and 28. At the time of writing (May 2000), the Grootboom case was due to be heard on appeal by the Constitutional Court. The article demonstrates why the Court's judgment in Soobramoney would be problematic if replicated in future cases, most immediately in the appeal decision in Grootboom. The authors argue that the result of Soobramoney may have been correct, but that its reasoning on several fronts should not be treated as a dispositive precedent in the face of better understandings that will evolve as the courts, and the Constitutional Court itself, gradually feel their way forward in the adjudication of social rights. The doctrinal analysis of the two cases is situated within an interpretative account of the relationship between the South African Bill of Rights and both international human rights law and foreign constitutional law. Notes, ref., sum.
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