Browsing by Author "Liebenberg, Sandra"

Now showing 1 - 6 of 6
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    The application of socio-economic rights to private law
    (Juta Law, 2008-01) Liebenberg, Sandra
    The constitution is explicitly committed to redressing and transforming socio-economic exclusion and marginalisation. This is manifest, amongst other constitutional provisions, in the entrenchment of a comprehensive range of socio-economic rights read together with the provisions relating to substantive equality,1 land reform2 and environmental rights.3 Moreover, the constitution contains a number of express provisions signalling that the rights and values in the bill of rights are intended to apply to private relations and to influence the development of the common law and customary law. Sections 8(1)-(3) and 39(2) are the primary provisions governing the application of the bill of rights to private parties. In South Africa (as is the case in other societies based on a market economy) powerful private actors such as landlords, banks, medical aid schemes, insurance companies and utility companies delivering public services such as water exercise significant control over people’s access to socio-economic rights. Common-law rules and institutions structure access to socio-economic resources in diverse areas of contract law, property law, delict, family law and succession.
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    Narrowing the band : reasonableness review in administrative justice and socio-economic rights jurisprudence in South Africa
    (Juta Law, 2011) Quinot, G.; Liebenberg, Sandra
    This contribution explores the standard of reasonableness review applied in both administrative justice and socio-economic rights jurisprudence in South Africa. The first part traces the development of reasonableness as a standard of review in administrative law, and the significant shift towards a more substantive conception of review. The implications of this shift for cases involving review of administrative action impacting on socio-economic rights (what we term, "overlap cases") are examined. The second part of the contribution examines reasonableness review in socio-economic rights cases where the cause of action is not formulated in terms of administrative law (what we term, "non-overlap cases"). This typically concerns cases where it is alleged that the legislature or executive branches of government have failed to fulfil the obligations imposed by socio-economic rights. In this section we highlight the failure of existing constitutional jurisprudence on socio-economic rights to develop a substantive account of the normative purposes and values promoted by these rights. We argue that it remains possible for such an account to be developed within the existing framework of reasonableness review applied to positive socio-economic rights claims. The paper concludes with an argument in favour of the development of a single model of reasonableness review across socio-economic rights and administrative justice cases. While the reasonableness standards under the different sections overlap, they should not result in duplication, but fulfil different functions in the review. Taken together, reasonableness offers a model of review of socio-economic rights that promotes a number of key constitutional objectives. These include transparency, the justification of all forms of public action, proper consideration of the factual and normative context, and the development of the substantive dimensions of the socio-economic rights in the Constitution.
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    Needs, rights and transformation: adjudicating social rights
    (Juta Law Publishing, 2006-01) Liebenberg, Sandra
    INTRODUCTION: One of the most contested issues in South Africa’s burgeoning jurisprudence on social rights relates to how the courts should enforce the duties imposed by these rights. Debate has focused in particular on the extent to which the courts should affirm an enforceable right to the provision of basic needs by those who lack access to these needs. In the South African context, this is a plight affecting a substantial portion of our population, and must also be contextualised within the high degree of inequality existing in our society.1 This article explores the relationship between a jurisprudence of basic needs and the transformative goals of the Constitution. The question that interests me is whether a jurisprudence relating to the fulfilment of social and economic needs can have transformative potential, and if so, under what conditions. My aim is to examine how such a perspective can inform the development of our socio-economic rights jurisprudence in a way that supports a project of social transformation consistent with constitutional values and rights.
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    Remedial principles and meaningful engagement in education rights disputes
    (Academy of Science of South Africa, 2016-04) Liebenberg, Sandra
    This article evaluates the meaningful engagement doctrine in the education rights jurisprudence of the Constitutional Court in the light of a set of normative principles developed by Susan Sturm for evaluating participatory public law remedies. It commences by identifying four principles for evaluating participatory remedies appropriate to South African constitutional law and jurisprudence. Thereafter the relevant jurisprudence is analysed and evaluated in the light of these principles. The article concludes by making proposals for the development of meaningful engagement as a participatory remedy in educational rights disputes. These proposals seek to ensure a better alignment between the meaningful engagement remedy and the four remedial principles identified.
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    Toward an equality-promoting interpretation of socio-economic rights in South Africa : insights from the egalitarian liberal tradition
    (Juta Law, 2015-01) Liebenberg, Sandra
    Theorists within the egalitarian liberal tradition have grappled with the question of how to achieve an alignment between the attribution of equal worth and citizenship to each person and the distribution of material resources in democratic societies. Their insights are relevant to devising constitutionally grounded strategies for redressing the intertwined challenges of poverty and inequality in post-apartheid South Africa. This article examines the implications of these theories for integrating the value of equality in the interpretation of socio-economic rights by the courts. It concludes that Nancy Fraser’s principle of parity of participation offers rich possibilities for rendering both reasonableness review and the application of socio-economic rights to contractual relations more responsive to systemic social and economic inequalities.
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    A tribute to professor Andre van der Walt
    (Juta Law, 2018) Liebenberg, Sandra
    As I write this, it has been shortly over a year since André van der Walt passed away at the age of 60 on 5 November 2016 after a two-year struggle with cancer.