Reparative Justice in South Africa’s Socio-Economic Rights Jurisprudence
How can the interpretation and adjudication of socio-economic rights advance reparative justice for deep patterns of socio-economic disadvantage and inequality generated by historical injustices such as colonialism and apartheid?
My recently published article in the 2025 edition of Constitutional Court Review grapples with this question in the South African context.
The first part of the article focuses on what constitutes an appropriate theory of reparative justice for the consequences of historical systems of oppression and exploitation. The kind of historical injustice I am concerned with in my article is not a singular atrocity or even a series of such events. Rather, it is a system of political, social, economic and cultural oppression and exploitation imposed on a subordinated population or group by a dominant power or powers.
The imposition of this system occurs over long periods of historical time and creates entrenched and multifaceted disadvantages which are intergenerationally transmitted. Examples of such injustices include the transatlantic slave trade, colonialism, and apartheid.
The successive colonial-apartheid regimes of South Africa’s history exemplify such systems. The disenfranchisement of indigenous peoples was accompanied by the dispossession of their traditional lands, resources and means of livelihood as well as systemic discrimination in every sphere of economic, social and cultural life.
The consequences of these regimes are manifest in the present era of constitutional democracy. Thus, Black people bear a vastly disproportionate burden of poverty, income and wealth inequality and unemployment. Without sustained and far-reaching interventions, these historically generated patterns of poverty and inequality will replicate into the future, undermining the proclaimed goals and values of the 1996 Constitution.
Traditional models of reparative justice grounded in theories of corrective justice offer an inadequate response to these kinds of historical injustices. Corrective justice models aim to restore specific victim groups to the situation they would have been in “but for” the historical event for which reparations are sought. I argue that the structural theory of reparations proposed by Olúfẹ́mi O. Táíwò in his book, Reconsidering Reparations is more suited to the repair of the kind of historical injustices described above.
According to his account, the goal of reparative justice should be to dismantle the structural relations of social and economic privilege and disadvantage that were created by the historical systems in question. It is integrally concerned with remedying the unequal distribution of resources and access to social goods constructed by past injustices.
“Without sustained and far-reaching interventions, these historically generated patterns of poverty and inequality will replicate into the future, undermining the proclaimed goals and values of the 1996 Constitution.”
Táíwò further argues that the burdens of reparative justice should primarily rest on groups whose advantages stem from unjust historical systems. Practically, this implies a rigorous and sustained commitment to redistributive economic and social policies aimed at redressing the maldistribution of resources and services created by the colonial/apartheid systems.
Táíwò’s account of reparations requires ambitious national and international policies, programmes and political and social mobilisation. The second part of my article examines how processes of rights interpretation and adjudication can support such a broader political project of reparation. I acknowledge the institutional limitations of courts and litigation, but nonetheless argue that how cases are framed, rights interpreted, and remedies crafted has symbolic and practical significance in broader struggles for reparative justice.
I propose three elements of reparative-justice attuned socio-economic rights adjudication: (1) historically conscious contextualisation; (2) reparative justice-infused interpretation and review; and (3) reparative remedies. The first element seeks to promote a more serious engagement by litigants and adjudicators with the historical context of socio-economic rights cases, with a view to gaining a deeper understanding of how current deprivations and unequal access to the relevant rights are linked to past injustices.
The second element argues for incorporating reparative justice within the normative content of socio-economic rights as well as the assessment of the reasonableness of the State’s conduct. The third element highlights the role that reparative justice can play in developing remedies such as meaningful engagement to promote greater participation by historically disadvantaged groups. It also argues that reparative justice should play an important role in the justification and development of the remedy of constitutional damages in appropriate cases.
The third part of my article analyses to what extent these three elements of reparative justice are reflected in the socio-economic rights jurisprudence of the Constitutional Court over the past 30 years. It focuses particularly on seminal cases decided under sections 26 and 27 of the Constitution. The article finds that considerations of historical injustice and reparation played a relatively marginal role in the early landmark socio-economic rights jurisprudence of the Court.
While references to the historical context of housing and water services under apartheid are present in cases such as Grootboom and Mazibuko, they generally do not play a key role in the outcome and reasoning in the judgments.
However, a more promising trend towards integrating the elements of reparative justice is detected in four recent socio-economic rights judgments of the Constitutional Court – Daniels, Mahlangu, the dissenting judgment of Majiedt J in Thubakgale, and the important recent judgment of the Court in Commando.
In these cases, there is a markedly deeper engagement with the historical context of the rights at stake and the applicant communities. This context informs not only the interpretation of rights, but also the manner in which the conduct of organs of state or relevant private actors is evaluated. Thus, for example, in the Commando judgment, both the majority judgment of Mathopo J and the partially dissenting judgment of Bilchitz AJ incorporate the redress of the legacies of spatial apartheid in South Africa’s urban areas as an element of the right of access to adequate housing in section 26.
One of the grounds for finding that the conduct of the City of Cape Town was unreasonable was that its offers of alternative accommodation to inner City residents facing eviction due to gentrification policies took no account of the imperative to redress spatial injustice.
In conclusion, I welcome the more explicit incorporation of the tenets of reparative justice in these cases, particularly at our present juncture when it is becoming increasingly clear that our unredressed past blights prospects of a more just future.
