Cases Cited at Justiciability Conference
March 19-21, 2009
Northeastern University School of Law


Corte Suprema de Justicia [CSJN], 13/3/2001, “Etcheverry, Roberto v. Omint Sociedad Anónima y Servicios / amparo,” Fallos [F.C.S.] (2001-324-677) (Arg.).

Etcheverry v. Omint Corporation and Services, 324 F.C.S. 677 (2001).

The Supreme Court decided that a refusal by a private health insurance fund to maintain the membership of an HIV-positive client amounted to a breach of the right to health. The Court stated that private health insurance companies had special duties towards their customers that extended beyond a mere commercial deal – health insurance companies carried a duty to protect the right to health. The Court found that these companies bear “a social pledge to their users.”

Corte Suprema de Justicia [CSJN], 22/08/2007, “Mendoza, Beatriz Silvia v. Estado Nacional/ daños y perjuicios,” (2007-M-1569-XL) (Arg.).

Mendoza v. National Government, M 1569 XL, Originario (2001).

The Supreme Court, in an attempt to safeguard the collective property of the Matanza-Riachuelo river basin and its population against the existing environmental pollution, exercised its authority to obtain public information. The Court found it necessary to compile accurate, updated, public and accessible information in order to progress prevention measures and rectification processes. The Court ordered that the Basin Authority, the National Government, the Province and the City of Buenos Aires furnish and maintain accessible information on the water and air conditions of the basin, water-bearing strata, and the industries therein that carry out polluting activities.



Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, available at

The Supreme Court of Canada, held that that prohibiting private medical and health insurance for services covered by the public health insurance system was inconsistent with, the rights to life and to personal inviolability protected by s. 1 of the Quebec Charter of Human Rights and Freedoms (“Quebec Charter”) where it prevented patients subject to excessive wait times in the public system from obtaining treatment in a timely fashion for non-life threatening illness. The majority found that the evidence did not support the government’s argument that the absolute prohibition on private insurance is necessary to protect the integrity of the public plan. Three members of the majority applied the same reasoning to find that the provision also violated the rights to life, liberty and security of the person in section 7 of the Canadian Charter of Rights and Freedoms.

Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, available at

Supreme Court of Canada held that the failure to provide sign language interpreters in the provision of healthcare violated the right to equality without discrimination on the ground of disability, contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms (“Canadian Charter”). The unanimous Court rejected arguments advanced by provincial governments that section 15 does not impose positive obligations on governments to ameliorate disadvantages not caused by government action. The Court found that absence of interpreters impaired deaf citizens’ ability to communicate with their doctors and health care providers and increased the risk of misdiagnosis and ineffective treatment. The Court considered the cost of interpreter services in comparison to the general healthcare budget and found that a refusal to provide this service was not reasonable. As there were a myriad of ways the government might choose to provide the service, the Court granted a declaration that this failure was unconstitutional and directed the British Columbia government to determine how best to remedy the violation.

Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, available at

Supreme Court of Canada held that Section 29(a) of the Quebec’s Regulation Respecting Social Aid (“Regulation”), which reduced welfare benefits for individuals under 30 not participating in training or work experience employment programs to roughly one third of the base amount payable to those 30 and over, did not violate s. 15 or s. 7 of the Canadian Charter of Rights and Freedoms (“Canadian Charter”), nor did it violate s. 45 of the Quebec Charter of Human Rights and Freedoms (“Quebec Charter”). Court found that s. 15 right to equality was not violated as the purpose of the age distinction corresponded to the actual needs and circumstances of individuals under 30 - overall impact did not undermined individual’s human dignity or right to be recognized as fully participating members of society. With respect to the alleged violation of the right to life, liberty and security of the person, Arbour J. wrote in dissent that this right places positive obligations on the state to provide adequate social assistance to persons in need and that Ms. Gosselin’s right to security of the person had been violated. The Chief Justice, writing for the majority, held that while such a “novel” application of the right to security of the person may be possible in special circumstances, the evidence in this case did not support such an interpretation. Finally, the Court held that s. 45 of the Quebec Charter, providing for a right to “measures of financial assistance and to social measures provided for by law, susceptible of ensuring … an acceptable standard of living” does not affirm a clear right to an adequate standard of living as contained in article 11 of the ICESCR or article 25 of the UDHR. Rather, s. 45 requires only that the government be able to point to measures of the appropriate kind, without having to defend the wisdom of its enactments.

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, available at

Canadian Supreme Court found that administrative decision-makers evaluating applications for “humanitarian and compassionate considerations” exceptions under s. 114(2) of the Immigration Act requires close attention to the interests and needs of children since those rights are central humanitarian and compassionate values in Canadian society (found in the purposes of the Act, in international human rights instruments, and in the Minister’s guidelines). To meet a standard of reasonableness, decisions must be consistent with international human rights values. The decision of the immigration officer to deny Ms. Baker’s application was an unreasonable exercise of the power conferred by the legislation in that it did not give appropriate weight to the best interests of the children, recognized under the Convention on the Rights of the Child.

Victoria (City) v. Adams, [2008] B.C.J. No. 1935 or 2008 BCSC 1363. (Appealed to BC Court of Appeal, CA File No. 36551, heard June 10, 11, 2009, decision reserved.), available at

British Columbia Supreme Court held that a prohibition against erecting temporary shelter on public property in the Parks Regulation Bylaw and the Streets and Traffic Bylaw of the City of Victoria violated s. 7 of the Canadian Charter of Rights and Freedoms, as it deprived homeless people of life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice. While Canada’s international human rights obligations to guarantee the right to adequate housing are not directly enforceable by courts, these may inform the interpretation of section 7 of the Canadian Charter. The prohibition was both arbitrary, overbroad, and inconsistent with the principles of fundamental justice, since it denied homeless persons the ability to perform essential, life sustaining acts in public.

Vriend v. Alberta, [1998] 1 S.C.R. 493, available at

The Supreme Court of Canada held that Alberta’s Individual’s Rights Protection Act’s (IRPA) omission of protection against discrimination on the basis of sexual orientation was an unjustified violation of the right to equality under s. 15 of the Canadian Charter of Rights and Freedoms. The Court found that a legislative omission can be the subject of a Charter violation. A “substantive equality” analysis in this case compares the effect of the omission of sexual orientation, in the context of the social reality of discrimination, on those who need the protection from discrimination (lesbians and gay men) to those who do not need it (heterosexuals). The under-inclusive legislation has a disproportionate effect on gay men and lesbian and therefore discriminates on the ground of sexual orientation. The Court held that the appropriate remedy in this case was to read the words “sexual orientation” into the list of prohibited grounds of discrimination in the IRPA rather than striking down the legislation.


Corte Constitucional, T-025/04 (22 January 2004).

The Constitutional Court addressed the inadequacies of current state practices and policies towards protecting the fundamental rights of internally displaced persons (IDPs). After having dealt with myriad individual cases, in T 024/04 the declared an "unconstitutional state of affairs" in relation to the problem of forced displacement and addressed the problem in a structural way. It mandated that the government strengthen relevant policies by increasing the allocation of resources and information and assign greater responsibilities to particular institutions. The Court defined and explained the condition of IDPs as the fact of being a victim of direct or indirect violent acts which force individuals to abandon routine activities in order to protect one’s own life. IDPs do not need to declare their status before any public entity in order to be recognized and direct victims of conditions that cause such displacement must be accounted for in IDP legislation. The Court held that the government has an obligation to enact legislation necessary to re-establish the original living conditions of IDPs and to allocate all necessary resources to that end, ensuring IDPs a minimum standard of basic resources, services, and protections. The Court stressed the importance of providing information regarding the rights of IDPs and held that various state agencies have an obligation to publish and disseminate information about existing legal instruments, available programs, and IDP rights generally.

Corte Constitucional, C-355/06 (10 May 2006).

The Constitutional Court struck down Colombia ’s total criminalization of abortion on the grounds that it violated women’s rights under a “Constitutional bundle” of laws under the Colombian Constitution and international agreements to which Colombia is a party. The Court held that all women are entitled to their human and reproductive rights, including the rights to dignity, liberty, health, life, reproductive autonomy, and equality. The Court recognized that laws criminalizing access to medical procedures that specially affect women and their fertility infringe a woman’s right to reproductive autonomy and gender equality in the area of health. The Court held that restrictive abortion laws lead to increased maternal mortality and infringe the right to life. The Court held that abortion should not be considered a crime under three circumstances: when the life or health (physical and mental) of the woman is in danger; when pregnancy is a result of rape or incest; or when grave fetal malformations make life outside the uterus unviable. The Court noted that the Colombian Constitution explicitly states that international human rights treaties take precedence over national laws and serve as a guide in interpreting the rights established in the Constitution. Thus, the Court relied on the reproductive rights established in CEDAW and other international agreements as the basis for the decision.
Corte Constitucional, T-760/08 (31 July 2008).

The Constitutional Court ordered a dramatic restructuring of the country’s health system and found that structural approach necessary to address the increased reliance on Tutelas resulting from the failure government healthcare organs to adopt decisions which sufficiently guarantee the constitutional right to health. The Court collected the 22 Tutelas at issue in order to illustrate the systemic problems in the health system, particularly related to the contributory benefits regime (“POS”) and the subsidized benefits regime (“POSS”), and called for measures to reduce such recourse. Among other things, the Court called for the restructuring and unification POS and POSS benefits and held that such a plan must be participatory, transparent, and evidence-based, and must include relevant indicators and benchmarks. The Court called for 1. Transparency in determinations of POS benefits as well as patients' rights charters and institutional performance audits; 2. Measures to facilitate execution of Tutelas, including contingency plans to ensure appropriate and timely reimbursements for uncovered care costs and 3. Measures to reduce the recourse to Tutelas, including increased authority for the scientific-technical committees of insurance companies. The Court directed the annual updating of the POS/POSS benefits through a process of direct and effective participation with the medical community and the users of the health system. The Court called upon the government to adopt deliberate measures to progressively realize universal coverage by 2010, and set various compliance deadlines.

Corte Constitucional, T-704/06 (22 August 2006).

The Constitutional Court addressed the failure of state practices and policies in transferring earmarked funds to indigenous communities, including the Wayúu. The Court noted that since these indigenous communities did not have at their disposal the resources to fulfill their basic rights to health, adequate housing, education, drinking water, and equal treatment that state deficiencies in allocating resources constituted a denial of fundamental constitutional rights. The Court found that the state (on both a local and national level) has a legal obligation to guarantee the rights of indigenous communities and a duty to effectively execute measures designed to ensure the full realization of these rights in practice. This included ensuring the availability and distribution of resources and national revenues necessary to addressing the needs and aspirations of indigenous communities. The Court found that a process giving indigenous peoples the tools and resources to participate actively and independently on matters that affect their communities ensures the effective realization of their rights to ethnic and cultural diversity. The Court noted the need for developing a strong communication system between national and local authorities aimed at coordinating efforts, as necessary to a policy of accountability.

Units of Constant Purchasing Power (UPAC) System (est. 1972). C-383/99, C-700/99, C-743/99 (1999)

UPAC was a mortgage loan system was created in Colombia in to finance housing, through the work of specialist organizations – saving and housing corporations (CAV). UPAC was a long-term housing loan system based on mortgages of up to 15 years and monetary unit indexing initially adjusted for inflation. The law that created this system gave CAVs special privileges, since they were the only organizations that could grant this type of housing loan, use the indexing unit, pay returns on savings using this adjustment system, and receive funds and special lines of credit through the Central Bank. Under UPAC, private investment not only accrued interest but also was adjusted for inflation. The UPAC system of adjusting for inflation extended to many elements of the economy, including life insurance, wages, and prices. The combination of the UPAC system and the huge investment in construction overstimulated the economy and eventually fueled inflation. In its decisions, the Court generally protected debtors, indexing the UPAC to inflation, prohibiting interest from being added to the debt principal and ordering that mortgages be recalculated to alleviate the burden on the debtors Furthermore, the court ordered new legislation regarding financing social housing.

European Committee of Social Rights (ESC)

International Centre for the Legal Protection of Human Rights (Interights) v. Greece, Complaint No. 49/2008 (September 23, 2008) – available at

The European Committee of Social Rights declared admissible Interight’s complaint against the Greek Government, which alleged that the Government had failed to take action to redress the serious and widespread violations of the Roma community’s right to housing and related guarantees which the ESC in a previous complaint (No. 15/2003, ERRC v Greece) had found to be a violation of the right of families to social, economic and legal protection recognised by Article 16 of the European Social Charter (“Charter”), the right to non-discrimination in the enjoyment of Charter rights as protected by Article E of the Charter and the non-discrimination clause of the Charter’s Preamble. The ESC declared that the fact that the same provision of the Charter was the subject of a previous complaint did not in itself render another complaint inadmissible. Further, the ESC observed that the complaint also referred to alleged violations of the Charter that have taken place since the original decision on the merits in the aforementioned case, as well as alleging ongoing violations of the Charter. While this is only an admissibility decision, it highlights the willingness of the ESC to review how states are addressing identified infringements of social rights.

European Roma Rights Center (ERRC) v. Greece, Complaint No. 15/2003 (December 8, 2004) – available at

The European Committee of Social Rights, acting on evidence provided by the ERRC as the complainant organization, declared the Greek Government in violation of its obligation to promote the right of families to adequate housing under Article 16 of the European Social Charter (“Charter”). The European Committee of Social Rights declared that the insufficiency of permanent dwellings, the lack of temporary stopping facilities, the practices of local authorities, lack of sufficiently protective rules of procedure, and the forced eviction and other sanctions of the Roma constituted violations of Articles 16 of the Charter.

International Movement ATD Fourth World v. France, Complaint No. 33/2006 (December 5, 2007) – available at

The European Committee of Social Rights, acting on evidence provided by ATD as the complainant organization, declared the French Government in violation of several articles under European Social Charter (“Charter”) relating to the obligation to ensuring the effective exercise of the right to housing and of the right to protection against poverty and social exclusion. The ESC declared that the eviction procedures applied by the French state and their implementation in practice, the shortage of affordable housing, the inadequate arrangements for allocating social housing to the poorest members of the community, the inadequate means of appeal in the event of excessively long waits for housing, the deficient implementation of the legislation on stopping places for Travellers, and the lack of a coordinated approach to promote the effective access to housing to persons in a situation of social exclusion or poverty constitute violations of Articles 30 and 31 of the Charter.

European Federation of National Organisations Working with the Homeless (FEANTSA) v. France, Complaint No. 39/2006 (December 5, 2007) – available at

The European Committee of Social Rights, acting on evidence provided by FEANTSA as the complainant organization, declared the French Government in violation of its obligation to ensuring the effective exercise of the right to housing Article 31 under European Social Charter (“Charter”). The ESC declared that insufficient progress made regarding the eradication of substandard housing, lack of proper amenities of a large number of households, the unsatisfactory implementation of the legislation on the prevention of evictions, the lack of measures to provide re-housing solutions for evicted families, the insufficient measures currently in place to reduce the number of homeless, the insufficient supply of social housing accessible to low-income groups, the malfunctioning of the social housing allocation system and remedies, and the deficient implementation of legislation on stopping places for travelers constituted violations of Article 31 of the Charter.

Further examples of the ESC’s rapidly evolving and groundbreaking case law can be found at


People's Union for Democratic Rights v. Union of India, (1983) 1 S.C.R. 456 or A.I.R. 1982 S.C. 1473, available at http://www.commonlii.orgcgi-bin/

This was a case where the government had given construction contracts to private parties for the Asian Games, but the contractors were not observing labour laws relating to minimum wages and provision of health and sanitation facilities for workers. Moreover, the contractors were paying men and women differentially and using child labour. The Supreme Court of India held that a writ petition can only lie in case of a claim of violation of fundamental rights. The Court held further that while many of the fundamental rights enacted in Part III of the Constitution operate as limitations on the power of the state and impose negative obligations on the state not to encroach on individual liberty and are therefore enforceable only against the state, there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world. These include the rights against untouchability, against traffic in human beings and forced labour and against employment of children below the age of 14 years in factories or other hazardous employment as enshrined in Articles 17, 23 and 24 respectively. The court also held that whenever any fundamental right, which is enforceable against private individuals such as, for example a fundamental right enacted in Article 17, 23 or 24, it is the constitutional obligation of the state to take the necessary steps for the purpose of interdicting such violation and ensuring observance of the fundamental right by the private individual who is transgressing the same. The court made clear that while the person whose fundamental right is violated can always approach the court directly for the purpose of enforcement of his fundamental right, this cannot absolve the state from its constitutional obligation to see that there is no violation of the fundamental right of such person, particularly when he belongs to the weaker section of society and is unable to wage a legal battle against a more powerful opponent.

The court also derived from Art 14, the equality provision to infer an obligation upon the state to ensure the implementation of statutory obligations with respect to payment of minimum wages and equal pay for equal work for men and women.

Despite holding that it was the primary responsibility of the state to ensure compliance with applicable labour laws, the court issued directions directly to private parties. For instance, the court directed contractors to pay the workmen minimum wages and the Delhi Development Authority, a government body to take action against such contractors if they failed to do so

Mohini Jain v. State of Karnataka, (1992) 3 S.C.R. 658 or A.I.R. 1992 S.C. 1858, available at

The Supreme Court of India held that charging a discriminatory and high fee based on the location a student matriculated from violated constitutional guarantees and rights. The Court held that there was a fundamental right to education in every citizen. Further, the Court found that the state was duty bound to provide said education and that the private institutions that discharge the state's duties were equally bound not to charge a higher fee than the government institutions. The Court then held that any prescription of fee in excess of what was payable in government colleges was a capitation fee and would, therefore, be illegal.

Vishaka v. State of Rajasthan, (1997) A.I.R. 1997 S.C. 3011, available at

The Supreme Court of India held that sexual harassment violated the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India (the right to gender equality, life and liberty, and to practice any profession or to carry out any occupation, trade or business). The Court found the present civil and penal laws in the country did not adequately provide for specific protection of woman from sexual harassment at places of work and that enactment of such legislation would take a considerable time. Recognising that sexual harassment in the workplace results in a violation of the rights of a person by other private individuals who are fellow employees or superiors, the Court acted in a judicial lawmaking role in holding that working women were entitled to such protection from sexual harassment and issued certain guidelines to be adopted with a view to fill the vacuum in existing legislation. Though the writ petition was phrased in the idiom of the state’s failure to enact suitable legislation, the intervention sought was to remedy unfortunate developments in the relationships between private citizens ordinarily resolved by tort, contract and criminal law. Justice Verma writing for the court referred to the fundamental duties of citizens set out in Art 51-A, which provides that it “shall be the duty of every citizen in India to abide by the Constitution and respect its ideals and institutions.” However, he did not go onto explain whether constitutional duties include a legally enforceable duty to respect other citizen’s rights, casting a direct horizontal effect of constitutional rights.

M.C. Mehta v. Union of India, (1987) 1 S.C.R. 819 or A.I.R. 1987 S.C. 1086, available at

The Supreme Court of India held that Article 32 of the Constitution of India lays a constitutional obligation on the Court to protect the fundamental rights of the people and for that purpose the Court has all incidental and ancillary jurisdictional powers (including the power to forge new remedies and fashion new strategies designed to enforce fundamental rights). The Court found that compensation was available under Article 21, which guarantees the fundamental right to life and personal liberty against a private corporation if, as in the present case, it was engaged in an industry vital to public interest and with potential to affect the life and health of the people. Lastly, the Court held that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident (as occurred in the oleum gas leak), the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any exceptions.

Zoroastrian Co-operative Housing Society Ltd v. District Registrar, Co-operative Societies, (2005) A.I.R. 2005 S.C. 2306, available at

The Supreme Court held that a bylaw established by a co-operative society restricting membership solely to the Parsi community, a small religious minority in India and prohibiting the sale or transfer of interest of land within the society to non-Parsis was not opposed to public policy. The Court held that under Article 19 (1)(c) of the Constitution of India the Parsis had a fundamental right of forming an association and that compelling membership of non-Parsis would violate that right. Since a co-operative society was not a State, it was not possible to argue that a person had a fundamental right to become a member of a voluntary association or of a co-operative society governed by its own byelaws.
Acknowledging that “[ ] in secular India it may be somewhat retrograde to conceive of co-operative societies confined to group of members or followers of a particular religion, a particular mode of life, a particular persuasion”, the court held that “ [this] is different from saying that you cannot have a co-operative society confined to persons of a particular persuasion, belief, trade, way of life or a religion.” The Supreme Court agreed with the society, holding that unless the Cooperative societies Acts of various states were amended to outlaw restrictive byelaws, such byelaws could continue. The Court would not try to make policy in the area and override the legislative will.

South Africa
City Council of Pretoria v Walker 1998 (3) BCLR 257 (CC) (S. Afr.), available at

The Constitutional Court found that the council’s policy regarding water and electricity charges for white residents of Old Pretoria (consumption based) versus the black residents of other areas (flat rate) were based on consideration of the poorly developed infrastructure for municipal services and the adequate facilities and the necessary infrastructure of the former. The Court held that, as such the differentiation was not in violation of Section 8(1) of the Constitution as it was rationally connected to legitimate governmental objectives (measures were temporary and designed to provide continuity in the rendering of services during a period of transition). However, the Court held that viewed objectively, the policy of selective enforcement of debt (only against residents of old white Pretoria and not against residents of old black Pretoria) affected the claimant and others in a manner amounting to an invasion of their dignity and unfair indirect discrimination within the meaning of s. 8(2).

Soobramoney v Minister of Health (Kwazulu-Natal) 1998 (1) SA 765 (CC) (S. Afr.), available at

This case dealt with a claim by a terminally ill patient suffering from, amongst other ailments, chronic kidney failure, that the state was constitutionally obliged to provide him with life-prolonging kidney dialysis treatment at state cost and that failure to do so would breach his right not to be refused emergency medical treatment. The Constitutional Court held that complainant’s right to not be “refused emergency medical treatment” (in accordance with Section 27(3) of the Constitution) was not violated, as his condition was an “ongoing state of affairs” and not an emergency requiring immediate intervention at pain of death or permanent injury. In addition, the Court held that the right not to be refused emergency medical treatment was a right not to be denied treatment that was available in an arbitrary fashion only – it did not require the state to make available emergency medical treatment there where it is not. The Court proceeded to consider the complainant’s claim also in light of the section 27(1) right of everyone to have access to health care services. It held that the obligations imposed on the state regarding access to health care are dependent upon the resources available, as stated in Sections 27(2). The state argued that its health care resources were limited and had to be rationed in order to be applied equitably. Its rationing with respect to kidney dialysis treatment favoured curative treatment above life-prolonging treatment. The applicant did not qualify for treatment as judged in terms of a set of rational criteria, applied in good faith. The Constitutional Court accepted the need for rationing of health care services and resources within the public sector even if inequities result between the private and public sector. The Court found the hospital’s criteria for deciding who gets access to treatment to be rationally conceived and fairly applied to the complainant. The Court declared that it could not interfere with decisions taken in good faith by political organs and medical authorities as to how to allocate budgets and decide on priorities.

Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC) (S. Afr.), available at

In this case the Constitutional Court heard a claim that the State was constitutionally obliged to provide homeless people with shelter. The Court held that the State’s entire housing programme, to the extent that it failed to make provision for the needs of homeless people, was unreasonable and so breached the right of everyone to have access to adequate housing and issued a declaratory order to this effect.

Minister of Health v Treatment Action Campaign 2002 (10) BCLR 1033 (CC) (S. Afr.), available at

The Constitutional Court held that sections 27(1) and (2) of the Constitution required the government to devise and implement within its available resources a comprehensive and coordinated program to realize the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV, including the antiviral drug Nevirapine. The court found that the government’s previous policy for reducing these risks fell short of compliance with those rights, especially within public hospitals and clinics, where, at the time, the use of Nevirapine was restricted to a small number of pilot site, ostensibly to guarantee safety and efficacy. The Constitutional Court ordered the government to remove the restrictions preventing availability of Nevirapine at these public sites, to permit and facilitate its use and availability therein, and take reasonable measures to extend testing and counseling facilities throughout the public health sector.

Khosa v Minister of Social Development, Mahlaule v Minister of Social Development 2004 (6) BCLR 569 (CC) (S. Afr.), available at

The Constitutional Court held that certain provisions of the Social Assistance Act 59 of 1992, which disqualified persons who are not South African citizens from receiving certain welfare grants and benefits, was constitutionally invalid. The Court held that the Constitution vests the right to social security in “everyone” and the citizenship requirement breached permanent residents’ constitutional rights to equality and social security, based mainly on a breach of s 9(3)-prohibition of unfair discrimination and s 27(1)(c) when read with (2). The Court rejected the justification offered for the exclusion by the State - that it was necessary to prevent indigent non-citizens flooding to South Africa with the express purpose of gaining access to the South African welfare system – and held that there were ways to achieve this purpose less restrictive of welfare rights than the exclusion, such as tightening border controls. The Court also rejected the State’s objection that doing away with the exclusion would place an unmanageable additional financial burden on the welfare budget, holding that the State had failed to place enough evidence before the Court to sustain this claim. On this basis the Court found that the exclusion of permanent residents from the welfare scheme is not a reasonable way to achieve the realization of the right to social security and was discriminatory, unfair, and infringed the right to equality. The Court read the words “permanent resident” into each of the challenged sections and those in the process of being passed to remedy this constitutional defect. The decision includes only permanent residents in the welfare scheme and does not extend to other non-citizen residents of South Africa.

Port Elizabeth Municipality v Various Occupiers 2004 (12) BCLR 1268 (CC) (S. Afr.), available at

This case dealt with an application by a state organ for an eviction order against a group of unlawful occupants of private land. Acting in terms of section 6(3)(c) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, which requires a Court to consider all relevant circumstances to decide whether it would be “just and equitable” to issue an eviction order, the Constitutional Court denied the application for the eviction order. The Court held, depending on relevant circumstances, it was generally not “just and equitable” to order the eviction of reasonably settled occupants of private land unless suitable alternative accommodation or land is available. The Court found that the State has a constitutional responsibility to satisfy both property rights (under Section 25 of the Constitution) and housing rights (Section 26 of the Constitution), and that solutions to difficult problems must be found on a case by case basis The Court considered the length of occupation, the size and genuine need of the group, the fact that eviction was not necessary for the land to be put to productive use, the state’s failure to consider the problems of this particular group, the state’s failure to attempt a negotiated solution to the problem and the state’s failure to offer suitable alternative accommodation as factors prompting a denial of the application.

Jaftha v Schoeman, Van Rooyen v Stoltz 2005 (1) BCLR 78 (CC) (S. Afr.), available at

The Constitutional Court considered section 66(1)(a) of the Magistrates’ Courts Act 32 of 1944, which authorised under certain circumstances, without proper judicial oversight, the sale in execution of the home of a debtor to satisfy a judgment debt. The Court held that the section, because it countenanced the sale in execution of debtor’s homes without judicial oversight, breached, without adequate justification, the constitutional right of everyone to have access to adequate housing. This constituted a violation of the negative duty inherent in section 26(1) not to deprive people of the existing access to adequate housing that they enjoyed. Any such justification falls to be justified in terms of the strict purpose and proportionality requirements of the general limitations clause (s 36).The Court, through a combination of interpretation and of reading words into the Act, adapted the Act so that a judgment debtor’s home can only be sold in execution if a court has specifically ordered so after considering all relevant circumstances. Section 67 of the Act, which outlines items exempt from attachment, was also found unconstitutional as it did not prohibit the sale of houses below a certain value. The Court held that, with respect to this defect, the Act should be amended consistent with its judgment.

President of the Republic of South Africa v Modderklip Boerdery 2005 (8) BCLR 786 (CC) (S. Afr.), available at

The Constitutional Court held that the refusal of the state to enforce an eviction order against 40,000 unlawful occupants on complainant’s land and the state’s general insufficient assistance in aiding in formal eviction proceedings violated complainant’s right of access to the courts guaranteed under Section 34 of the Constitution and the constitutional principle of rule of law. The Court held that land invasions of the kind at issue in the case amounted to large-scale disruptions of the social fabric, something which the State, in terms of the principle of rule of law, was constitutionally obliged to prevent. The State could in this case do so only by enforcing the eviction order against the occupiers. This, in turn, it could do only if suitable alternative accommodation was available to the occupiers. The Court found it unreasonable for a private entity to bear the burden of providing such alternative accommodation, holding that this burden should be borne by the State. The State’s failure to enforce the eviction order and to make available alternative accommodation deprived the property owner of an effective remedy and so breached his right of access to courts. The Court ordered the State to pay the property owner constitutional damages to the value of the land lost through the invasion and further ordered the State to allow the occupants to remain on the land until suitable alternative accommodation became available.

Occupiers of 51 Olivia Road, Berea Township v City of Johannesburg 2008 (5) BCLR 475 (CC) (S. Afr.), available at

The Constitutional Court held that the provision under section 12(6) of the National Building Regulations and Building Standards Act 103 of 1977 (“NBRA”) compelling people to leave their homes on pain of criminal sanction in the absence of a court order where a relevant official of local government was of the view that their homes were unsafe for human habitation, was inconsistent with section 26(3) of the Constitution, which prohibited eviction of people from their home without a court order based on consideration of all relevant circumstances. The Court ordered that section 12(6) be read as allowing criminal sanctions only after noncompliance with an order. Further, the Court noted that the ejectment of a resident by a municipality in circumstances where the resident would possibly become homeless should take place only after a meaningful engagement between the parties and should be considered in granting an ejectment order. Before handing down this judgment, the Court had also ordered the parties to the case (the occupiers and the City of Johannesburg) to engage with each other with a view to reaching a solution to their dispute. The parties did so, submitting an agreement to the Court, which was ratified by it, in terms of which the occupiers would vacate the condemned buildings in question once suitable alternative accommodation as agreed had been made available to them.

Mazibuko v City of Johannesburg 2008 (4) SA 471 (W) (S. Afr.), available at

The High Court considered the insufficiency of the City of Johannesburg’s Free Basic Water policy and the lawfulness of prepayment water meters. The court held that the City’s practice of forcibly installing prepayment water meters in Phiri, Soweto was unconstitutional. It also rejected the City’s decision to limit its free basic water supply to 25 litres per person per day and ordered the City to provide the residents with 50 litres per person per day. The court further held that the City’s water policy was discriminatory, as people in low-income, historically black townships were required to pay for water in advance, while those in wealthy, historically white suburbs were entitled to water on credit and to negotiate payment when they delay their bills.

City of Johannesburg v L Mazibuko (489/08) [2009] ZASCA 20 (25 March 2009) (S. Afr.), available at

On appeal from the High Court’s decision, the Supreme Court of Appeal set aside the policy of allocating 25 litres per person per day of free basic water supply to the residents of Phiri, finding it insufficient to cover the basic needs of the people. The court held that 42 litres per person per day would constitute sufficient water in terms of s. 27(1) of the Constitution. The court held that in accordance with the provisions of s. 27(1), the City was obligated to provide 42 litres free water to each Phiri resident who cannot afford to pay for such water to the extent that it is reasonable to do so, having regard to its available resources and other relevant considerations. The court ordered the city to reconsider and reformulate their free water policy in the light of this decision, including allocating water per person per day, rather than per household per month. Only residents that were registered as indigents on the City’s Register of Indigents would be entitled to claim the free basic supply of 42 liters free water per person per day. The Court reaffirmed the High Court’s finding that the prepayment water meters installed in Phiri Township were unlawful in that they did not comply with the conditions specified in the relevant by-laws for the installation of pre-payment water meters.

United Kingdom

R v. North West Lancashire Health Authority, ex parte A, D, and G (2000) 53 BMLR 148, available at

The Court of Appeal held that the Health Authority’s 1998 policy of placing transsexualism low on the priorities scale of illnesses for treatment (and denying treatment except in exceptional circumstances) was rational as regional health authorities are obligated to establish certain priorities in funding different treatments from their finite resources. However, the court found the instant policy did not genuinely recognize the possibility of an overriding clinical need nor did it consider each request for treatment on its individual merits (application of policy effectively treated transsexualism as a state of mind and not an illness). Thus, the court ordered the health authority to reconsider its policy concerning transsexualism and the instant applications on their individual merits.

R (on the application of Rogers) v. Swindon NHS Primary Care Trust, (2006) 89 BMLR 211 or (2006) 1 WLR 2649, available at

The Court of Appeal held that the Primary Care Trust (“PCT”) policy of withholding certain treatment save in “exceptional circumstances” is only rational if such exceptional circumstances can be envisioned – or else the policy would, in practice, amount to a complete refusal of funding. The court found there was no rational basis for distinguishing between patients within the eligible group on the basis of exceptional clinical or personal circumstances. The court found the PCT policy regarding approval of Herceptin treatment for patients with breast cancer was irrational and unlawful and ordered the PCT to formulate a lawful policy upon which to base decisions in future cases.

N v. United Kingdom, (2008) 25 BHRC 258, available at

The European Court of Human Rights (Grand Chamber) held that the United Kingdom’s denial of asylum to a Ugandan national with HIV did not give rise to violations of art. 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The U.K. Secretary of State argued that all the AIDS drugs available under the National Health Service could also be obtained in Uganda, thus applicant would not be subjected to a complete absence of medical treatment nor acute physical and mental suffering. The court held that aliens who were subject to expulsion could not claim any entitlement to remain in an expelling state in order to continue to benefit from medical or social assistance and services, except in very exceptional cases where humanitarian grounds against the removal were compelling. The fact that the applicant's circumstances would be significantly reduced if she were removed from the U.K. was not sufficient to give rise to a breach of art. 3 of the Convention.

R (on the application of Limbuela) v. Secretary of State for the Home Department, R (on the application of Tesema) v. Secretary of State for the Home Department, R (on the application of Adam) v. Secretary of State for the Home Department (2006) 1 A.C. 396

The House of Lords held that s. 55(5)(a) of the Nationality, Immigration and Asylum Act 2002 (“2002 Act”) enabled the Secretary of State to exercise his powers to provide support to asylum seekers before the ultimate state of inhuman or degrading treatment was reached (i.e. when a claim of destitution was made). It was not necessary that the degree of severity which amounted to a breach of art. 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (“Convention”) had been reached. As soon as an asylum seeker made it clear that there was an imminent prospect that a breach of art. 3 would occur because the conditions being endured were on the verge of reaching the necessary degree of severity, the Secretary of State had the power under s. 55(5)(a) of the 2002 Act and the duty under the Convention to act to avoid it.

R v. Cambridge Health Authority, ex parte B, (1995) 2 All ER 129 or (1995) 1 WLR 898, available at

The Court of Appeal found the decision of the Health Authority to label a second bone-marrow transplant and course of treatment as “experimental” and subsequently deny a minor said treatment was not unlawful. The court held that it was not in a position to decide between conflicting medical opinions (whether a treatment was “experimental” or not) or to decide how a health authority’s limited budget should be allocated between opposing claims on its resources (the allocation to the maximum advantage of the maximum number of patients).

R (on the application of Razgar) v. Secretary of State for the Home Department, (2004) 3 All ER 821, available at

The House of Lords held that the right to respect for one’s private life, which is protected by art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (“Convention”), could be engaged by the foreseeable consequences on an asylum seeker’s health upon removal from the U.K. pursuant to an immigration decision. If the facts relied on were sufficiently strong, then this construction applies even where such removal did not violate art. 3 of the Convention. The court further held that the Secretary of State’s reliance on Germany’s asylum decision in the instant case was incorrect – the claimant's extreme fear of removal to Germany and his claim under art. 8 could not be ruled out in limine.

R (on the application of Carson) v. Secretary of State for Work and Pensions; R (on the application of Reynolds) v. Secretary of State for Work and Pensions, (2006) 1 A.C. 173, available at

The House of Lords held that while pension and benefit rights were possessions protected within the meaning of art. 1[b] of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (“The Convention”), distinctions made as to the allocation of those rights merely required some rational justification (such as social policy) and did not constitute discrimination that offended notions of respect due to the individual as prohibited under art. 14 of the Convention. One claimant had put herself outside the primary scope and purpose of the United Kingdom social security system (providing a basic standard of living for U.K. inhabitants through an interlocking system of taxation and social welfare) by moving to South Africa. The court found the position of a non-resident seeking full pension benefits was materially and relevantly different from that of a U.K. resident. In the case of the other claimant, the court found that the necessary expenses of young people, as a class, were lower and were properly treated differently for the purpose of social security payments. The objective justification for discrimination between persons aged 24 versus 25 was the need for legal certainty and a workable rule.

Runa Begum v. Tower Hamlets London Borough Council, (2003) 2 A.C. 430, available at

The House of Lords held that, on the assumption that claimant's right under s. 193 of the Housing Act 1996 to be secured available accommodations by the local housing authority was a civil right, the housing authority’s reviewing officer (who rejected the claimant's reasons for refusal as unreasonable) did not constitute an independent and impartial tribunal for the purposes of art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (“Convention”). The authority's failure to give consideration to referring their decision, which turned on questions of disputed fact, to an impartial tribunal wholly independent of the authority violated the claimant's rights under art. 6(1) of the Convention. For reasons of good administration, the absence of a full fact-finding jurisdiction in the county court did not disqualify it as a tribunal for the purposes of art. 6.

United States

Barbara Jiggets v. William J. Grinker, Commissioner of the New York City Department of Social Services, 528 N.Y.S.2d 462 (NY 1988), available at

The Supreme Court of New York held that there was sufficient evidence to establish that the New York State Department of Social Services' (NYSDSS) rent allowance schedule was insufficient to comply with legislative directives to care for needy families with children. The court granted recipients’ motion for class certification and a preliminary injunction. The court found that NYDSS chose to house evicted families in emergency shelters and welfare hotels at a much higher cost to NYSDSS, the families, and society. The court held that the legislature had a duty to enact meaningful statutes to aid the needy and fulfill statutory directives to aid children.

**The appellate division of the Supreme Court for the First Judicial Department reversed the order of the lower court denying defendant’s motion to dismiss. The Court of Appeals then reversed the decision of the appellate court, holding that the legislative intent of N.Y. Soc. Serv. Law imposed a duty on defendants to have established shelter allowances bearing a reasonable relation to the cost of housing in New York City.