A SECTION27 report compiled by Mila Harding, Mbali Baduza and Julia Chaskalson

FOREWORD

By Faranaaz Veriava and Sasha Stevenson

As 2020 began, South Africa was grappling with decreasing budgets for social services, widespread corruption and mismanagement of funds, and deep and growing inequality. By March, the country was locked down in response to the COVID-19 pandemic. In the months that followed, the impacts of historical fiscal consolidation, austerity and wastage became even clearer, with already strained social services buckling under the pressure of new demands, and emergency interventions inadequate to meet our soaring need.

It is in this context that we consider how best to use legal advocacy and litigation to ensure the realisation of socioeconomic rights in 2020 and beyond.

Regarding the amount of money committed and spent for the realisation of socio-economic rights, reductions come in many forms. Declared austerity,fiscal consolidation, re-prioritisation, economic policy shifts, corruption and misuse of funds all take money and services away from those who rely on social support, and violate their socio-economic rights. The impact of these violations is disastrous. The poor and vulnerable are disproportionately harmed. Inequality increases. Power consolidates. And the economy weakens further.

The question is: as public interest lawyers and activists, what can we do about it? The answer is that we must refine and adapt our methods for a new context with new challenges. Litigation as a last resort is a mainstay
of public interest lawyering in South Africa, and the principle is as applicable as ever in relation to budgeting and spending shifts.

Before litigating, we must delve more deeply into the making of legislation and economic policy, including assessing whether tax policy is becoming regressive, and whether (and how) progressive policies are being
implemented. We must track allocations and spending for socio-economic rights realisation, monitoring shifts in priorities. We must pay attention to the process of instituting austerity measures, to ensure that impact assessments are done. We must follow and address the capacity and functioning of critical institutions, including institutions such as the South African Revenue Service and the National Prosecuting Authority, and tackle issues that may seem ‘political’.

Once litigation is required, our traditional approach can also be adapted, targeting different processes and structures and using different legal frameworks and provisions. While we do not expect the courts to step into the role of the executive and legislature, the courts can continue to be used to catalyse socio-economic rights realisation through legal challenges to cuts or inadequate allocations; to inaction, in terms of the State’s duty to act progressively in fulfilling socio-economic rights; to fruitless expenditure and corruption; and in combatting the incapacity of critical institutions that have not always been at the core of socio-economic rights litigation.

Socio-economic rights realisation sits at the core of South Africa’s constitutional democracy. The cost of failing to realise these rights can be counted in lives lost and citizens relegated to poverty and inequality. As civil society organisations committed to achieving social justice, unless we explore new and innovative ways to face the challenges of austerity, the enormous implementation gap between socio-economic rights in the Constitution and in practice will only widen.