Advancing socio-economic rights as fundamental human rights

A sketch of women protesting, drawn on A4 printed court documents, depicts the struggles of many to ensure the socio-economic rights of all South Africans. It also celebrates Stellenbosch University (SU) distinguished professor Sandra Liebenberg’s career as a lawyer, A-rated human rights law researcher and mentor to a younger generation of jurists.

A recent LLM graduate, Gideon Basson, created the artwork to thank his supervisor. It hangs near the entrance to Liebenberg’s office. Basson sketched it on printouts of the amicus curiae (‘friend of the court’) brief that she helped draft in the 2000 Grootboom case, which resulted in a landmark judgment in which the Constitutional Court underlined the right to housing for people who face homelessness after being evicted.

“Justice has been a theme for me since I was a schoolchild,” explains Liebenberg, who grew up in Mpumalanga and KwaZulu-Natal. “I didn’t always pursue it in very sophisticated ways when I was younger, but justice, particularly for those oppressed by apartheid laws and social policies, has always motivated me.”

She’s played more than her part in securing human rights in South Africa. In the mid-1990s, the ANC nominated her to serve on the technical committee advising the Constitutional Assembly on the Bill of Rights in the 1996 Constitution. As chair, she took responsibility for researching and drafting provisions around the socio-economic and cultural rights contained in the Bill of Rights.

In the early 2000s, she helped with amicus curiae submissions to the Constitutional Court in the Treatment Action Campaign’s (TAC’s) seminal case aimed at ensuring access to antiretroviral treatment to prevent mother-to-child transmission of HIV/AIDS.

Back then, Liebenberg was with the University of the Western Cape’s Community Law Centre (now called the ‘Dullah Omar Institute’), where she founded the Women and Human Rights Project and the Socio-Economic Rights Project in 1994.

She researched the laws and policies needed to implement socio-economic rights (such as the legislation for a child support grant, water provision and housing), community education and supporting litigation. She also taught postgraduate modules on socio-economic rights, and edited books such as The Constitution of South Africa from a Gender Perspective and Socio-Economic Rights in South Africa: A Resource Book.

The Stellenbosch years

In 2004, Liebenberg joined the SU Faculty of Law as the HF Oppenheimer Chair in Human Rights Law. She has since assisted with amicus curiae interventions in the Constitutional Court, including the 2011 Olivia Road case on the eviction of people from derelict buildings in Johannesburg’s inner city.

After organising a major international conference on law and poverty, a book on the same topic followed in 2012, called Law and Poverty: Perspectives from South Africa and Beyond.

Since 2004, Liebenberg has co-organised the flagship International Course on the Justiciability of Economic, Social and Cultural Rights with the Åbo Akademi Institute for Human Rights in Finland, where it is hosted, and the Norwegian Centre for Human Rights. The course is part of the Global School on Socio-Economic Rights, a partnership of 10 university law faculties across the globe.

Liebenberg serves on the editorial boards of leading local and international law journals. She was a visiting scholar at the University of Nottingham in the UK and at Cornell University in the US. Moreover, she is an extraordinary professor in the University of the Free State’s Centre for Human Rights.

Her research has become increasingly international after her 2017 nomination to the influential United Nations’ Committee on Economic, Social and Cultural Rights. The committee, of which she is currently vice-chair, monitors the International Covenant on Economic, Social and Cultural Rights and hears cases of alleged rights violations.

“I’ve followed this body throughout my whole career. To be a part of it and to be making the laws around it is a huge honour.”

Future generations

Liebenberg currently leads the drafting committee of the international Maastricht IV Project on the Human Rights of Future Generations. The project develops international legal principles and guidelines on the protection of future generations’ human rights amid existential threats. The latter include climate change, environmental degradation, loss of indigenous peoples’ cultures and livelihoods, inequality, new technologies and weapons of mass destruction. The project is coordinated by Maastricht University’s Centre for Human Rights and the Food International Action Network, a non-governmental organisation.

The principles and guidelines developed as a result of this project could be useful to international and domestic courts, and to other legal bodies considering cases related to existential threats.

“Human rights law often only focuses on the present. We must increasingly think of the condition we leave the planet in, and what our children and grandchildren will inherit.”

Liebenberg is keen to approach the research project with a particularly African focus.

“Africa still bears a heavy burden due to the legacies of colonialism and unequal global patterns of development. These past injustices influence not only the present but also future African generations.”

The formative years

While Liebenberg was studying BA Law and LLB at the University of Cape Town in the mid-1980s, she provided legal advice to community and trade union advice centres. She organised a 1986 student conference on law in a state of emergency and, as a National Catholic Federation of Students member, participated in conferences in townships.

“Those conferences were formative. I saw firsthand the conditions under which people lived, their struggle for liberation and a decent quality of life,” remembers Liebenberg, who was once detained for two weeks after student protests.

As a public interest lawyer in Cape Town, she later represented communities and trade unions impacted by apartheid laws.

Thanks to a Helen Suzman Leadership Award from the British Council in 1993, Liebenberg went to study international human rights law at the University of Essex. In 1995, she received her LLM degree cum laude, as one of the two top students in her class. An LLD degree from the University of the Witwatersrand in 2011 fed into her seminal book Socio-Economic Rights: Adjudication under a Transformative Constitution.

Investing in students

At SU, she nowadays primarily teaches undergraduates on constitutional law issues. Her postgraduate students research topics such as poverty as a prohibited ground for discrimination in South Africa; the right to both healthcare and community-based mental healthcare for survivors of gender-based violence; linkages between environmental and socio-economic rights; and how company law can better protect human rights.

“My students’ commitment to justice and their studies inspires me and gives me the energy to keep pushing forward with my own research and advocacy.

“They will take one’s ideals and research into the future. It’s important to invest in them.”

It is, however, from her lawyer husband Jan Theron that she draws the most inspiration. Theron was general secretary of the influential Food and Canning Workers’ Union in apartheid times.

“I’m grateful for a partnership with someone who shares my political outlooks and beliefs. He gives me the confidence to stand up for my principles and to continue supporting the disadvantaged and marginalised.”

Liebenberg says that, at the start of her career, socio-economic rights were not yet accepted or taken seriously in South Africa’s mainstream, conservative legal fraternity.

“Great strides have since been made to recognise socio-economic rights as fundamental human rights, both in South Africa and internationally.”

She sees her A-rating from the National Research Foundation in 2022, which recognises her as a world leader in socio-economic rights, as an indication that this topic is now a legitimate area of legal research.

“A new generation of scholars is expanding the field in innovative and exciting directions. I am very grateful to have played a part in establishing it and in demonstrating its potential to support struggles for a more just society.”