A capabilities approach to remedies for systemic resource-related socioeconomic rights violations in South Africa

CITATION: Van der Berg, S. 2019. A capabilities approach to remedies for systemic resource-related socioeconomic rights violations in South Africa. African Human Rights Law Journal, 19(1):290-316, doi:10.17159/1996-2096/2019/v19n1a14 .The original publication is available at https://www.ahrlj.up.ac.zaThe judiciary plays a key role in holding the government accountable for its socio-economic policies. By adhering to certain tenets that underlie both South Africa's transformative Constitution and Sen and Nussbaum's capabilities approach, courts can promote the foundational values of dignity, equality and freedom, broaden participation and ensure accountability. Since government's priorities are most clearly reflected in its budgetary allocations, courts should apply a capabilities-based standard of proportionality review where it is claimed that a socioeconomic right has been violated due to disproportionate resource allocation. In this article, the focus shifts to the implications of adopting a capabilities approach at the remedial phase of adjudication. Given that the South African Constitution demands 'effective' relief where a constitutional right has been infringed, it is argued that efficacy can be assessed by a remedy's ability to realise the capabilities that form the content of the infringed socio-economic right. Furthermore, where socioeconomic rights are infringed upon on a systemic level through unreasonable resource allocation, key principles that inform a capabilities approach to adjudication can be incorporated into the design of structural interdicts to ensure lasting capability realisation and institutional reform. Where all these principles are observed, effective relief can ensue. Finally, the incorporation of these principles into remedial design can help mitigate separation of powers-based concerns that the judiciary lacks the institutional competence and legitimacy required to adjudicate complex, polycentric matters of government resource allocation.https://www.ahrlj.up.ac.za/van-der-berg-sPublisher's versio