The following journal entry is based on chapters 6 and 7 in Bilchitz et al. Please note that there is a special pre-recording on this journal available under 'module content' - 'lecturer recordings'.
Read the following quotations:
“The people of South Africa are committed to the attainment of social justice and the improvement of the quality of life for everyone. The Preamble to our Constitution records this commitment......This case grapples with the realisation of these aspirations for it concerns the State’s constitutional obligations in relation to housing: a constitutional issue of fundamental importance to the development of South Africa’s new constitutional order”.
[Paragraph 1 of the judgment of Yacoob J in GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS V GROOTBOOM AND OTHERS 2000 (11) BCLR 1169 (CC)]
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996
Preamble
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to—
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.
1. Social justice commitments involving the just distribution of resources in society can be understood as imposing duties on (1) the state and possibly (2) non-state actors.
1.1 Evaluate, by comparing at least 2 jurisprudential theories that address the state’s duties regarding ‘social justice’, which of these jurisprudential theories, according to you, best attains the stated aims to achieve social justice in the first paragraph of the Grootboom case as well as in the Preamble of the Constitution. Motivate your opinion throughout. Your answer should be between 200-250 words in length. [5]
1.2 Evaluate, by comparing at least 2 jurisprudential theories that address non-state actors’ duties regarding ‘social justice’, which of these jurisprudential theories, according to you, best attains the stated aims to achieve social justice in the first paragraph of the Grootboom case as well as in the Preamble of the Constitution. Motivate your opinion throughout. Your answer should be between 200-250 words in length. [5]
1.1 In the context of the state's duties regarding social justice, two jurisprudential theories that can be compared are Rawlsian justice and utilitarianism. Rawlsian justice, as articulated by John Rawls in his theory of justice as fairness, posits that justice is achieved when society's basic structure is organized in a way that benefits the least advantaged members. This theory emphasizes the importance of protecting the rights and interests of vulnerable groups, such as the homeless individuals in the Grootboom case, in order to achieve a just society. In contrast, utilitarianism focuses on maximizing overall happiness or well-being in society, often leading to trade-offs between the needs of different groups.
In the context of the Grootboom case and the Preamble of the Constitution, the Rawlsian theory of justice seems to align more closely with the stated aims of achieving social justice. By prioritizing the improvement of the quality of life for all citizens and freeing the potential of each person, Rawlsian justice emphasizes the importance of addressing the needs of marginalized populations, such as those in need of housing, in order to achieve a fair and just society.
1.2 When considering non-state actors' duties regarding social justice, two jurisprudential theories that can be compared are libertarianism and communitarianism. Libertarianism emphasizes individual liberty and minimal government intervention in economic and social affairs, often leading to a focus on personal responsibility and limited obligations to address social inequalities. In contrast, communitarianism emphasizes the importance of community and collective responsibility in addressing social issues, advocating for a more active role of non-state actors in promoting social justice.
In the context of the Grootboom case and the Preamble of the Constitution, the communitarian theory seems to align more closely with the stated aims of achieving social justice. By recognizing the injustices of the past, honoring those who have worked to build the country, and striving to improve the quality of life for all citizens, communitarianism emphasizes the importance of shared responsibilities and collective action in promoting social justice and addressing inequalities in society.