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(Utilitarianism THEORY by Jeremy Bentham and John Stuart Mill and Justice as fairness theory by John Rawls) 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]
Both Utilitarianism and Justice as fairness theories offer different perspectives on the state's duties regarding social justice.
Utilitarianism, as proposed by Jeremy Bentham and John Stuart Mill, focuses on maximizing overall happiness or well-being in society. According to this theory, the state should allocate resources in a way that produces the greatest good for the greatest number of people. In the context of the Grootboom case and the Preamble of the Constitution, Utilitarianism could argue that the state should prioritize housing and other resources to maximize overall well-being and improve the quality of life for all citizens.
On the other hand, Justice as fairness theory, proposed by John Rawls, emphasizes the importance of distributive justice and fairness in society. This theory suggests that the state should ensure that resources are distributed in a way that benefits the least advantaged members of society. In the context of the Grootboom case and the Preamble of the Constitution, Justice as fairness could argue that the state has a duty to prioritize the needs of the most vulnerable and marginalized groups, such as those in need of adequate housing.
In my opinion, Justice as fairness theory aligns more closely with the aims stated in the Grootboom case and the Preamble of the Constitution. This is because it emphasizes distributive justice and fairness, which are essential components of social justice and are crucial for addressing inequalities and improving the quality of life for all citizens, as highlighted in the Preamble.