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314 Chapter 13
3.2 Socio-economic rights adjudication
The Constitutional Court has made it clear that the socio-economic rights
entrenched in the Constitution are justiciable. Despite this, the Court has not
dealt with the adjudication of socio-economic rights in the same way that it
has treated civil and political rights. This is evidenced primarily through the
adoption of a lower standard of review, and deferential remedies. The
reasons for this deferential approach appear to be that the Court, despite
acknowledging the equal status of socio-economic rights, retains a number
of unarticulated and unexamined reservations to the adjudication of these
rights. The notion of constitutional deference can be used to examine and
critique these reservations. This final section ends with three general
observations on the Constitutional Court’s approach to interpretation and
enforcement of socio-economic rights based on the framework set out in this
article.
First, it is clear that the test adopted by the Constitutional Court to
review socio-economic rights is the reasonableness test – a standard of
review lower than the standard of proportionality used for the review of civil
and political rights. This test is used as it allows the courts to support a
restrictive approach to the interpretation and review of socio-economic
rights. Following on from this point, the reasonableness test also allows
the courts to avoid engagement with a normative interpretation of the
scope of the right, demonstrated in the Court’s refusal to entertain an
interpretation of the right which includes a minimum core, in Grootboom 117
and TAC. 118 Hence, a feature of the Court’s approach is its restrictive
interpretation of socio-economic rights and rejection of a more expansive
reading of the right found in international law and domestic legislation.
Second, because of the Court’s preference for the reasonableness test
used to interpret sections 26 and 27 of the Constitution, it has shown a
tendency to attempt to adjudicate all socio-economic rights matters brought
before it using this test derived from those sections. Hence, in Soobramoney,
the Court refused to consider an expansive reading of the unqualified right
to life where the applicant’s claim could be decided under the more
restrictive right of access to healthcare in section 27(1). 119 This allowed the
Court to be more deferent to the hospital policy decision makers, as all they
had to demonstrate was that their policy was reasonable, rather than that
their policy was a justified limitation of the right to life under section 36 (the
limitations clause) of the Constitution. Similarly, in Grootboom 120 (and to
a lesser extent in TAC), 121 the Court decided claims based on section
28(1)(c) (unqualified children’s socio-economic rights) under sections 26
117
Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC) paras 26 - 33.
118 TAC (n 104 above) paras 37 - 38.
119 Soobramoney v Minister of Health, KwaZulu-Natal 1998 1 SA 765 (CC) paras 15 19.
120
Grootboom (n 117 above) para 71.
121 TAC (n 104 above) paras 74 - 79.