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4 Const. Ct. Rev. 1 (2011)

handle is hein.journals/conrev4 and id is 1 raw text is: HE SOUTH AFRICAN CONSTITUTP AND SOCIO-ECONOMIC RIGHTS AS 'INSURANCE SWAPS' Rosalnd Dixon* & Tom Ginrg* 1 Introduction Socio-economic rights are a central terrain of struggle in new democracies.' Often deemed essential for the legitimacy of the constitution at the time of adoption, they are subject to downstream pressures at the implementation stage as governments confront limited budgets and the need for macroeconomic credibility. The result is a gap between promise and reality. It is not surprising that, in an age of judicialisation, socio-economic rights have become a central topic of constitutional adjudication in many new democracies, as courts struggle to balance normative commitments with democratic prerogatives.2 The South African Constitutional Court, in the 2010 Term, heard a number of important cases involving the socio-economic rights provisions in sections 26-29 of the Constitution. In Nokotyana v Ekurhuleni Metropolitan Municipality,3 the Court considered a claim by the applicants to have access to upgraded toilets and lighting, as * Assistant Professor, University of Chicago Law School, Professor, UNSW Faculty of Law. Leo Spitz Professor of International Law and Professor of Political Science, University of Chicago Law School, Research Professor, American Bar Foundation. Our thanks to Sujit Choudry, Beth Goldblatt, Eric Posner and Theunis Roux for extremely helpful comments on prior versions of the paper, and to Alex Bergersen and Kristen McKeon for excellent research assistance. The division between socio-economic and other rights is, of course, an artificial one: see eg T Daintith 'The constitutional protection of economic rights' (2004) 2 International Journal of Constitutional Law 56 - 90. We use the LabeLs, however, simply as a short-hand for denoting a distinct set of rights. 2 RU Yepes 'The enforcement of social rights by the Colombian Constitutional Court' in R Gargarella, P Domingo Et T Roux (eds) Courts and social transformation in new democracies (2006) 127; C Rodriguez-Garavito 'Colombia: The new left: Origins, trajectory and prospects' in P Barret et at (eds) The new Latin American left: Utopia reborn (2008) 129 - 157. Nokotyana v Ekurhuleni Metropolitan Municipality 2010 4 BCLR 312 (CC). 1 COUR,