239.
The CSAR generally provides an account of the recognition and protection
of civil and political rights in the country, as provided for in chapter 4 of the
constitution on fundamental rights. These include the rights and freedoms
to life, dignity, liberty, access to courts, fair trial, privacy, expression,
assembly and association, and protection of property. The CSAR highlights
the existence and enjoyment of freedoms such as those of association,
movement and expression, noting that the country has a vibrant media
and press and a thriving film industry. Cultural traditions and practices
are protected and promoted. The CSAR further points to limitations that
are placed on the civil and political rights and freedoms by law.
240.
The CSAR points to national policy enshrined in the constitution for the
provision of free and compulsory education and free university and
adult education. It correctly points out that, in practice, the high level of
social inequality and poverty mitigates against the enjoyment of the right
to education.
241.
The CSAR does not expressly speak to the right to housing, perhaps because
of the absence of a clear national policy or legal dispensation. However,
safety and health, as well as the national obligation to provide adequate
medical and health facilities, form part of “Fundamental objectives and
directive principles of state policy” in the constitution. It is pointed out
that the provision of clean water and sanitation is dealt with through policy
and federal and state legislation, but not within the rights paradigm.
ii.
Findings of the CRM
242.
Some social, economic and cultural rights and freedoms may be read into
chapter 2 of the constitution, which deals with “Fundamental objectives
and directive principles of state policy”. The primary aspects include
human security and welfare, participation in government and the economy,
suitable shelter, food, the welfare of the disabled, adequate means of
livelihood, and opportunities for employment, health and free primary,
university and adult education.
243.
It should be noted, however, that individual and group claims of rights
and freedoms are not adequately promoted or protected by policy alone.
Legally enforceable rights and freedoms are best claimed and asserted by
citizens when they inhere in policy, legally enforceable legislation, resource
allocation and other enforcement mechanisms. It is a combination of all of
these that provides the best means of securing rights and freedoms in the
realm of not only civil and political rights, but also social, economic and
cultural rights.
244.
In terms of international standards, the social, economic and cultural
rights are realisable ‘progressively’ commensurate with ‘available means
or resources’. There is therefore no reason why the justiciability of social,
economic and cultural rights has not been enhanced to the level enjoyed
by the civil and political rights in the ‘fundamental rights’ in chapter 4 of
the constitution.
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