An exploration of the positive obligation of juristic persons to promote and fulfil socio-economic rights
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Date
2021
Authors
Lekokotla, Buhle Desiree
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Abstract
There is a lot of uncertainty presently regarding the nature of the obligations imposed on juristic persons in the fulfilment of socio-economic rights. Case law is inconsistent. It describes the duty as negative and sometimes as positive. This requires an enquiry on the proper interpretation and parameters of s 8(2) of the Constitution, which binds juristic persons to the bill of rights, “to the extent that it is applicable, having regard to the nature of the right and the nature of the duty imposed by the right’. This paper explores the exact nature of this obligation imposed on juristic persons. In some instances it is a positive obligation. My argument is that concerns raised by corporations that “imposing” or “interpreting” this obligation as positive will have a detrimental effect on the economy and possibly open the proverbial floodgates of litigation are more imagined than real. This is because there are statutes that already provide for this positive obligation on corporations in certain circumstances. Furthermore, the enquiry is on a case by case basis. There is unlikely to be blanket findings against all corporations in all cases to incur public obligations to fulfil socio-economic rights, particularly in areas beyond the scope of their operations unless mandated by statute, in which case(s) the courts’ discretion will be limited anyway. The benefit of interpreting this obligation as positive will ensure that some of the load that is placed on the government, with its finite resources, to improve the lives of millions of people, is shared with corporations who benefit way more than they pay in taxes. This will also ensure that our jurisprudence develops through the courts pronouncing on this duty with certainty
Description
A research report submitted in partial fulfilment of the requirements for the degree of Master of Laws (by Coursework and Research Report), at the Faculty of Commerce, Law and Management, University of the Witwatersrand, 2021