South African Constitutionalism Through the Lens of the Grootboom Case

The Moynihan Institute and the Law in World Affairs series presents Anthony Diala from the University of the Western Cape, South Africa.

South Africa’s innovative inclusion of fully justiciable socio-economic rights in its Constitution was inspired by the injustices of colonialism and Apartheid. Moving from a notoriously insular legal culture to a culture of liberal social justice, a nation in desperate need for change embraced the notion of transformative constitutionalism—that is the use of a constitution’s core values to promote equality, human welfare and affirmative action.

Touting transformative constitutionalism, the Constitutional Court ruled in the Grootboom case that socioeconomic rights are justiciable, even when their enforcement has budgetary implications for the state. Although the Grootboom judgment was considered a seminal decision, its piecemeal implementation attracted criticism for not addressing homelessness and poor housing in South Africa. I use Grootboom to assess how the enforcement of socioeconomic rights has fared in a nation whose constitutionalism promotes reverence for the Bill of Rights.

Anthony Diala is pioneer director of the Centre for Legal Integration in Africa at the University of the Western Cape. He has worked in the International Criminal Court, the International Criminal Tribunal for Rwanda, the Justice and Peace Commission, Nigeria, and universities in Germany, Italy, Nigeria, Sweden and South Africa. He is a fellow of the Bayreuth Academy of Advanced African Studies and co-editor of the African Journal of Legal Studies.

Diala has researched customary law and human rights in several countries with grants from the American Council of Learned Societies, the Social Science Research Council of New York, the Nordic Africa Institute, and the South African National Research Foundation. Among others, he serves on the advisory boards of Legal Pluralism and Critical Social Analysis and the Journal of African Law. He holds a doctorate in socio-legal studies from the University of Cape Town.