Constitutional Law and Philosophy of Law

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Analysing the three-fold relationship between corruption, socio-economic rights and social justice in South Africa
(University of the Free State, 2023) Morisse, Taylor Riley; De Man, Annelie
This study analyses the three-fold relationship between corruption, socio-economic rights, and social justice in South Africa. This analysis consists of a review of three concepts and the relationship between these concepts in a South African context. Referred to as the three core concepts, the research problem that this study addresses and the research questions that emanate from it revolve categorically around (a) corruption, specifically governmental corruption; (b) human rights, specifically socio-economic rights; and (c) social justice. The aim of this study is two-fold. First, this study aims to combine academic comprehension of these core concepts. This study's second and overriding aim is to establish how these concepts relate, this second aim relates directly to the objective of this study which is to analyse the three-fold relationship between corruption, socio-economic rights, and social justice in South Africa. To establish this three-fold relationship between these concepts, each concept is investigated in terms of its attributed meanings, suggested consequences, assigned obligations, and debated achievement views. This investigation is done by analysing ample differing academic views. As it relates to the first core element of this study, corruption within government in South Africa is probed with the objective possibly to show its extent and gravity as its existence is well documented. The consequences of corruption within government are elucidated due to their potential contribution to understanding this element's role within this three-fold relationship. A commonly suggested consequence of corruption within government is that it adversely affects the fulfilment of human rights. To understand whether anything is undermining human rights fulfilment in South Africa, an assessment of the respect, protection, promotion, and fulfilment of human rights is applicable. Regarding the evaluation of human rights, the scope of this study is limited to the assessment of two socio-economic rights recognised in the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘙𝘦𝘱𝘶𝘣𝘭𝘪𝘤 𝘰𝘧 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢, 1996 (𝘵𝘩𝘦 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯). Note below the applicable sections of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 that guarantee these rights and the limitations of this study. Sections 27(1)(a)-(c) of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 guarantee the following socio-economic rights: (a) everyone has the right to access healthcare (including reproductive healthcare), (b) everyone has the right to access to sufficient food and water, and (c) everyone has the right to access to social security. This study is limited to assessing the right to access healthcare as contained in Section 27(1)(a). This assessment includes the evaluation of the availability of pre-exposed HIV/AIDS (Human Immunodeficiency Virus Infection and Acquired Immune Deficiency Syndrome) medications for mother-to-child transmission, including nevirapine, but excludes the evaluation of reproductive healthcare. The space limitation of this study does not allow for this subset of rights to be addressed. Section 29 of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 guarantees that everyone has the right: (a) to basic education, including adult basic education and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible. This study is limited to assessing the right to a basic education as contained in Section 29(a). This assessment excludes the evaluation of adult basic education due to the space limitation of this study. Therefore, the assessment of corruption within government in national departments in South Africa focuses on the Department of Health and the Department of Education as these departments are arguably the national departments responsible for enabling the realisation of the rights contained in Sections 27(1)(a) and 29(a) of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯. Considering modernity and the aim of providing an updated viewpoint, it must be acknowledged that governments have ever changing variables, when assessing a government, ongoing changes and challenges must be considered. The inclusion of current events does this. Befittingly, corruption in state-owned enterprises as it relates to the investigation into state capture in South Africa carried out by the 𝘑𝘶𝘥𝘪𝘤𝘪𝘢𝘭 𝘊𝘰𝘮𝘮𝘪𝘴𝘴𝘪𝘰𝘯 𝘰𝘧 𝘐𝘯𝘲𝘶𝘪𝘳𝘺 𝘪𝘯𝘵𝘰 𝘈𝘭𝘭𝘦𝘨𝘢𝘵𝘪𝘰𝘯𝘴 𝘰𝘧 𝘚𝘵𝘢𝘵𝘦 𝘊𝘢𝘱𝘵𝘶𝘳𝘦, 𝘊𝘰𝘳𝘳𝘶𝘱𝘵𝘪𝘰𝘯 𝘢𝘯𝘥 𝘍𝘳𝘢𝘶𝘥 𝘪𝘯 𝘵𝘩𝘦 𝘗𝘶𝘣𝘭𝘪𝘤 𝘚𝘦𝘤𝘵𝘰𝘳, 𝘪𝘯𝘤𝘭𝘶𝘥𝘪𝘯𝘨 𝘖𝘳𝘨𝘢𝘯𝘴 𝘰𝘧 𝘚𝘵𝘢𝘵𝘦 (the Zondo Commission) is included because it is the most recent investigation into corruption within government in South Africa. The findings of the Zondo Commission are included to demonstrate that it is not only corruption in national departments that has a potential plummeting effect on government funding in South Africa. Arguably, it is also corruption in state-owned enterprises that erodes the availability of government resources.¹ Although there are other variables that impact the availability of government resources this study is limited to the assessment of the above mentioned. Given the last core element of this study, the conceptual idea of social justice and what is believed to be necessary to achieve social justice is analysed to understand whether it is possible to achieve social justice in South Africa if socio-economic rights are not respected, protected, promoted, and fulfilled for everyone. An idea of social justice is to see all people be equal under the law and have equal opportunities to develop their potential.² Social justice includes the fair distribution of rights, resources, and opportunities.³ The achievement of social justice within a society is necessary because its potential to enable and promote human rights fulfilment including the fulfilment of socio-economic rights, redress injustices, ensure equality, create opportunities and an overall better standard of living.⁴

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