May I further ask that I be allowed to reflect on the decision of the Court of

May i further ask that i be allowed to reflect on the

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socio-economic rights in our constitution is a necessary avenue. May I further ask that I be allowed to reflect on the decision of the Court of Appeal of Botswana over the right of access to water of the Basarwa community based in the Kalahari desert, authored by the president of this Honourable Court. The government argued that it was not obliged to provide communities inside the reserve with water and other basic services or to restore the services that it had cut off. Nor would the communities be allowed to re-commission the borehole themselves, or contract anyone else to do so. The Court delivered a succinct— and devastating—appraisal of the government’s attitude: “Government seems 3 C of A (CIV) NO.43 B /10
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to be saying to the appellants: you can live in your settlement in the [Central Kalahari Game Reserve] as long as you don’t abstract water other than from plants.” In upholding the community’s right to re-commission the borehole at Mothomelo and to sink other boreholes for domestic purposes, the Botswana Court of Appeal crafted a judgment that is a model of lucid thinking and writing—and one that demonstrates explicit empathy for those whose rights have been violated. In one poignant—and for the government, particularly damning—section, the court “observed at once that it is a harrowing story of human suffering and despair caused by a shortage of water in the harsh climactic conditions of the Kalahari desert, where the applicants and their ‘ Basarwa ’ community live.” This represents a radical departure from judicial norms prevailing in most of southern Africa, where it is uncommon for judges to rely on international treaties and norms, and where the enforcement of socio-economic rights is often regarded as a thorny issue best left to the discretion of the Executive. The Court of Appeal in Botswana has now demonstrated that it is willing to take into consideration non-binding—but profoundly important— statements emanating from the emerging international consensus on the fundamental importance of socio-economic rights to the fulfillment of human dignity. This is also said against the background of yet another locus classicus case of Khathang-Tema Baitšokoli in which this Honourable Court pronounced itself in clear and comprehensive terms. Our humble views as the Law Society is that we are in desperate need of legal practitioners who can best institute litigation which is of a public policy nature and the bench that fully appreciates and acknowledges the vitality of international instruments which serve the objective of the infusion of socio-economic rights. We as lawyers can only effectively work for policy transformation by instituting litigations before courts which have a broad societal relevance. Why am I inspired to emphasize this aspect on this particular occassion? It will be noted that a courageous lady who instituted a constitutional case in South Africa Irene Grootboom was the woman whose name became known around the world
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  • Spring '13
  • Mr.Minken

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