The constitutional right to food in South Africa

This dissertation is a study of the ambit of the right to food as it is contained in the South African Bill of Rights and the steps needed to realise the right. Existing and potential food insecurity, hunger and malnutrition provide the social context for this research. The rationale for conducting the research is primarily two-fold. Firstly, the access to sufficient food is an indispensable right for everyone living in this country. Secondly, the right to food in South Africa has not been subject to extensive academic study to date. Socio-economic rights are fully justiciable rights in this country, equally worthy of protection as civil and political rights. Furthermore, socio-economic rights (like the right to food) are interdependent with civil and political rights: neither category can meaningful exist without realisation of the other. The right to sufficient food is found in section 27(1)(b) of the South African Constitution. Children have the additional right to basic nutrition in terms of section 28(1)(c). The right to sufficient food is subject to the internal limitation of section 27(2) that the state must take reasonable measures, within its available resources, to achieve the progressive realisation of the right. Furthermore, as with all rights in the Bill of Rights, both these rights are subject to the general limitations clause found in section 36. There is international law authority in various human rights instruments for the protection of the right to food and what the right entails. In accordance with section 39 of the Constitution, such international law must be considered when interpreting the right to food. It is argued that a generous and broad interpretation of food rights in the Constitution is called for. Existing legislation, state policies and programmes are analysed in order to gauge whether the state is adequately meeting its right to food obligations. Furthermore, the state’s food programmes must meet the just administrative action requirements of lawfulness, reasonableness and procedural fairness of section 33 of the Constitution and comply with the Promotion of Just Administrative Justice Act. The dissertation analyses the disparate and unco-ordinated food and law policies in existence, albeit that the National Food Security Draft Bill offers the hope of some improvement. Particular inadequacies highlighted in the state’s response to the country’s food challenges are a lack of any feeding schemes in high schools and insufficient food provision in emergency situations. Social assistance grants available in terms of the Social Assistance Act are considered due to their potential to make food available to grant recipients. On the one hand there is shown to be a lack of social assistance for unemployed people who do not qualify for any form of social grant. On the other hand, whilst presently underutilised and not always properly administered, social relief of distress grants are shown to have the potential to improve access to sufficient food for limited periods of time. Other suggested means of improving access to sufficient food are income generation strategies, the introduction of a basic income grant and the creation of food framework legislation. When people are denied their food rights, this research calls for creative judicial remedies as well as effective enforcement of such court orders. However, it is argued that education on what the right to food entails is a precondition for people to seek legal recourse to protect their right to food. Due to a lack of case authority on food itself, guidance is sought from the findings of South Africa’s Constitutional Court in analogous socio-economic rights challenges. Through this analysis this dissertation considers the way forward, either in terms of direct court action or via improved access to other rights which will improve food access