The following journal entry is based on chapters 6 and 7 in Bilchitz et al.
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 with practical examples from the textbook mentioned above. [5]
According to Utilitarianism, the state's duty regarding social justice is to maximize overall happiness or well-being in society. This is achieved by distributing resources in a way that produces the greatest overall good for the greatest number of people. In the case of Grootboom, the state's duty to provide housing to those in need can be justified by the Utilitarian principle of maximizing overall well-being. By ensuring that everyone has access to adequate housing, the state can improve the quality of life for all citizens and free the potential of each person, as stated in the Preamble of the Constitution.
On the other hand, Justice as fairness theory by John Rawls emphasizes the importance of fairness and equality in the distribution of resources. Rawls argues that a just society is one where everyone has an equal opportunity to succeed and where inequalities are only permissible if they benefit the least advantaged members of society. In the case of Grootboom, Rawls' theory would support the state's duty to provide housing to those in need in order to ensure that everyone has an equal opportunity to live in dignity and pursue their goals.
In my opinion, Justice as fairness theory by John Rawls is more aligned with the aims of achieving social justice in the Grootboom case and the Preamble of the Constitution. Rawls' emphasis on fairness and equality resonates with the commitment to social justice and the improvement of the quality of life for everyone as stated in the Constitution. By prioritizing the needs of the most vulnerable members of society, such as those in need of housing, Rawls' theory provides a more comprehensive and equitable approach to achieving social justice. Utilitarianism, while focusing on maximizing overall well-being, may not adequately address the specific needs and rights of the most marginalized individuals in society, such as the homeless families in the Grootboom case.