Alanna Chang, South Africa: the Up Down, an Application of a Downstream Model to Enforce Positive Socio-economic Rights

• Citation: Vol. 21 No. 2
• Publication year: 2007
• topic: Constitutional Law

COMMENTS

SOUTH AFRICA: THE UP DOWN, AN APPLICATION OF A DOWNSTREAM MODEL TO ENFORCE POSITIVE SOCIO- ECONOMIC RIGHTS

For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others.

A model of implementing rights, typically human rights, begins with a normative proposition-the belief that certain rights should be accepted even though they are not yet accepted. In South Africa, the political elite established a set of rights and attempted to implement them through the governmental process. The antithesis of this model is the development of a right by the will of the people, who force the government to enact these laws. A downstream model, by itself, is difficult to implement because the political elite impose their beliefs upon the people. Here, the land and housing rights were not culturally received by the white South Africans, who held 90% of South African land during apartheid and did not advocate for these laws. Aside from its challenges with the downstream model, South Africa has also chosen to take a positive approach to implement its second-generation, constitutional rights.5Second-generation rights protect a person's social and economic interests.6Often, these rights are broadly defined and costly to implement.7South African land and housing rights are second-generation rights because the Constitution's declaration of "the right to have access to adequate housing" does not define what this entails or how a person will be protected.8These land and housing rights, like all second-generation rights, can be enforceable through a negative or positive rights approach.9A negative approach "prohibits governments and other parties from infringing on one's right[s]."10The positive approach protects not only the infringement of a right, but also requires the government to take affirmative action to fulfill the right.11 In Republic of South Africa v. Grootboom, the South African Constitutional Court (Constitutional Court) interpreted land and housing rights using the positive rights approach.12This decision to have a positive rights approach while using a downstream model created greater challenges for the government. The South African national government faces (1) a lack of cultural reception (not only were the rights not derived from the will of the people, but the fulfillment of one person's land and housing rights are often acquired at the expense of another person's), and (2) the need for greater financial commitment to execute these positive rights, which is a stretch for any developing nation to achieve.13 The government does not aspire for immediate implementation of these socio-economic rights.14Instead, in Grootboom, the Constitutional Court acknowledged that these rights are a progressive realization (meaning that the non-implementation of these rights is allowed due to economic constraints) and established a reasonableness standard to determine whether the government complied with the laws.15The Constitutional Court rejected a "minimum core" approach suggested by the United Nations Committee on Social and Economic Rights;16the Court was concerned with the separation of powers and felt that establishing these standards was not its role.17Due to the government's tender approach to enforcing land and housing rights, land reform programs have progressed slowly and have failed to meet the initial goals set by the Housing Department. This Comment contends that the South African national government must create a more rigid structure that focuses on cultural receptivity to implement its land reform programs. The vague reasonableness standard gives the government too much discretion in creating policies and programs. A well-defined calculation of reasonableness based on various factors will eliminate variance within states and provide guidelines for state action. The national government should begin its "progressive realization" with land reform programs that highlight areas of cultural receptivity by both black and white South Africans. To foster cultural acceptance of these land and housing rights, the government should focus on programs that all South Africans agree to be legitimate means of correcting the direct effects of apartheid. In this Comment, the constitutional rights to land and housing are first placed in a historical context to provide a backdrop for the motivations and goals of the Constitution. Then, the Comment compares and contrasts the Constitution to Bas de Gaay Fortman's definition of a downstream model. Categorizing the Constitution as a downstream model helps identify the source of South Africa's inefficiency and delay in implementing land reform programs. The final part of the analysis offers tailored solutions that build cultural receptivity and create a formal structure for states to follow. In conclusion, the Comment acknowledges South Africa's need for a downstream model that implements second-generation rights. A downstream model emphasizes that the government needs to fill the hierarchal gaps to make the model feasible and convince the people that these rights reflect the will of the people. When the hierarchy is completed, the downstream model is identical to an upstream model. I. BACKGROUND South Africa is a nation with an infamous history of racial discrimination and inequality. In 1994, the South African Interim Constitution (Interim Constitution) entered into force; it was a significant step toward remedying the effects of apartheid.18South Africa finalized its current constitution (Constitution) in 1996; the Constitution affirms the rights of access to land and housing, as well as the rights to adequate healthcare, food, water, and social security.19 A. Traditional Land Use Historically, indigenous South Africans had a very different concept of land rights than that of the white colonists.20Precolonial South Africans did not believe in individual ownership of property.21They adopted a communal system of land rights and landholding.22Land was held in collective ownership, which allowed multiple interests in the same piece of land.23The community had the strongest interest-an allodial interest. Allodial property is held "without conditions or payments due to the government," which can be contrasted with the feudal system.24Individual interests in land were subordinate to the community interest.25To acquire these interests, members of the community pledged "allegiance to the political community and commitment to [their] social and moral standards."26 In the communal system, members held a "universal right of access" to the property.27However, individuals also held entitlements in land that they occupied or cultivated.28These individual rights were inheritable in perpetuity.29Typically, the head of the family (chief) acted as the "trustee" of the land.30The chief acted in a "fiduciary capacity" with respect to the community and consulted the community's principal elders and the individuals living on the land before he made decisions affecting property rights.31This system distributed property based on need and personal status.32Communal systems still exist in rural areas of South Africa, such as the Eastern Cape, KwaZulu-Natal, and the Northern Province.33Often, the poorest communities continue this communal land tradition.34 The cultural tension between black and white South Africans is exemplified by the parallel existence of the precolonial communal system and the common law system. With the arrival of white colonists in 1652,35a separate system of land rights developed.36The colonists imported a system of common law property rights that required formal registration of property.37Apartheid laws prohibited blacks from participating in the formal registration system, which did not recognize communal land rights.38Therefore, blacks were "excluded from a valuable economic asset in . . . land."39 These two different systems of land rights, communal and common, co- existed for decades during the colonial and apartheid eras.40In 1996, the Constitution provided South Africans with socio-economic land and housing rights. Textually, these rights are traditional second-generation rights. In application, however, the government adopted a policy that incorporated both communal and common property law attributes. Specifically, the government operated under the common law system but weakened ownership rights: "[O]wnership is not necessarily a trump card in the new South Africa. The government can override ownership."41The white landowners, whose properties were vulnerable to expropriation, did not culturally receive the shift in policy. The dispossessed, black South Africans were also frustrated with the slow pace of enforcement given their need for the land. Although the system protected certain characteristics of the communal system with legislation, such as the Communal Land Rights Bill, the protections did not match the traditional customary law system.42This tension continues to plague land reform implementation. To find strategies that can resolve this tension and aid the implementation of land reform, one first has to understand apartheid's effect on land distribution and ownership. B. Apartheid Racial discrimination against the blacks began with the arrival of white colonists.43The government embraced apartheid as its official policy, but later abolished it with the adoption of the Interim Consitution in 1994.44Apartheid was an institutionalized regime of racial discrimination and segregation.45The government prohibited military training for nonwhites, disenfranchised nonwhites, prohibited interracial marriages, forced citizens to carry identification cards to indicate the person's race, and imposed racial segregation.46Apartheid was not only a system of racial segregation, but also was a way to limit the black population's participation in the economy.47 Apartheid plays a central role in South Africa's present-day...