On 9 May 2024, South Africa tragically lost Justice Yvonne Mokgoro. A founding member and the first Black woman Justice of the Constitutional Court of South Africa, Justice Mokgoro will be remembered as an esteemed academic and jurist who embodied the values of the Constitution in her leadership and service to all.
South Africa as a whole, and all of us at SERI in particular, continue to benefit from Justice Mokgoro’s jurisprudence. In the realm of socio-economic rights, Justice Mokgoro’s jurisprudence has provided a powerful legal foundation to strive for a more just and equal society, and for the benefit of the most indigent and vulnerable in our society.
Her distinctive contribution is enormous and profound. We choose to remember her words in three landmark judgments where she reminded us that ‘everyone’ means everyone under the Bill of Rights; that socio-economic rights are essential for human dignity; and that we are a society based on the value of ubuntu.
In Khosa v Minister of Social Development [2004] ZACC 11, Justice Mokgoro interpreted ‘everyone’ under the Bill of Rights. She held that the exclusion of permanent residents from social security benefits was unreasonable in violation of the right in section 27 and constituted unfair discrimination on the ground of citizenship. Justice Mokgoro began by affirming that ‘[t]he socio-economic rights in our Constitution are closely related to the founding values of human dignity, equality and freedom’ [40], before recognising that vulnerability is not citizenship-dependent: ‘Equality in respect of access to socio-economic rights is implicit in the reference to “everyone” being entitled to have access to such rights in section 27. Those who are unable to survive without social assistance are equally desperate and equally in need of such assistance’ [42]. It was for this reason that ‘the word “everyone” in this section cannot be construed as referring only to “citizens”’ [47].
Justice Mokgoro emphasised the link between human dignity and socio-economic rights in Jaftha v Schoeman [2004] ZACC 25. For Justice Mokgoro, ‘[e]ach time an applicant approaches the courts claiming that his or her socio-economic rights have been infringed the right to dignity is invariably implicated’ [21]. In holding that the statutory regime governing the sale in execution of property to satisfy a debt was unconstitutional for a lack of judicial oversight, Justice Mokgoro explained:
‘Relative to homelessness, to have a home one calls one’s own, even under the most basic circumstances, can be a most empowering and dignifying human experience. The impugned provisions have the potential of undermining that experience. The provisions take indigent people who have already benefited from housing subsidies and, worse than placing them at the back of the queue to benefit again from such subsidies in the future, put them in a position where they might never again acquire such assistance, without which they may be rendered homeless and never able to restore the conditions for human dignity.’ [39]
Justice Mokgoro has championed the infusion of indigenous African values into the Constitution. In the Constitutional Court’s famous judgment declaring the death penalty unconstitutional, S v Makwanyane [1995] ZACC 3, Justice Mokgoro emphasised that despite South Africa’s divided past, ‘one shared value and ideal that runs like a golden thread across cultural lines, is the value of ubuntu’ [306]. Justice Mokgoro’s employment of ubuntu captures a communitarian conception of human dignity as distinct from Western individualism, emphasising the fundamentally moral character of our Constitution in the struggle for transformative change:
‘Generally, ubuntu translates as humaneness. In its most fundamental sense, it translates as personhood and morality. Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities. While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality.’ [307]
Justice Mokgoro stands out as a hero and a role model whose principled character we aspire to emulate. We are indebted to her for the wisdom she has left with us as we pursue the just and equal society our Constitution commands.
We express our heartfelt condolences to Justice Mokgoro’s family, friends and loved ones at this time.
Contact details:
- Nomzamo Zondo, SERI executive director, nomzamo[at]seri-sa.org.
- Download the statement here.
On 28 March 2024, the Socio-Economic Rights Institute of South Africa (SERI) made a submission to the Committee on the Elimination of Racial Discrimination (CERD) on the first draft of the Joint General Comment/Recommendation on "State Parties Obligations on Public Policies for Addressing and Eradicating Xenophobia and its impact on the rights of migrants, their families, and other non-citizens affected by racial discrimination". 