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]
In evaluating jurisprudential theories regarding the state's duties regarding social justice in the context of the Grootboom case and the Constitution's Preamble, two theories that could be compared are Rawlsian theory and Marxist theory.
Rawlsian theory, as articulated by John Rawls, emphasizes the importance of fairness and equality in the distribution of resources. It argues for a system that prioritizes the needs of the least advantaged in society, ensuring that everyone has equal access to basic rights and opportunities. This theory aligns well with the aims of social justice as stated in the Grootboom case and the Constitution's Preamble, which emphasize improving the quality of life for all citizens and building a society based on democratic values. By focusing on ensuring equality and justice for the most vulnerable members of society, Rawlsian theory is likely to be effective in achieving these aims.
On the other hand, Marxist theory emphasizes the role of the state in redistributing resources and power to address systemic inequalities and exploitation. It aims to create a classless society where resources are shared collectively and everyone has equal access to opportunities. While this theory may be more radical than Rawlsian theory, it also aligns with the aims of social justice in the Grootboom case and the Constitution's Preamble by seeking to improve the quality of life for all citizens and establish a society based on democratic values.
In my opinion, Rawlsian theory may be more suitable for achieving the stated aims in the Grootboom case and the Constitution's Preamble. By prioritizing the needs of the least advantaged and promoting fairness and equality, Rawlsian theory can help create a society where social justice is achieved through a more equitable distribution of resources and opportunities.