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Mazibuko v City of Johannesburg - a jurisprudential setback 331
but it may review the implementation of a political decision to undertake
such policy. This shows a great measure of deference.
Soobramoney v Minister of Health, KwaZulu-Natal (Soobramoney case) 58 was
the first decision in which the principal issue before the Constitutional
Court rested on the interpretation and enforcement of socio-economic
rights, and the Court observed that it was primarily the duty of the
provincial administration to make decisions about the funding that should
be made available for health care and how such funds should be spent.
These choices, the Court observed, involved difficult decisions to be taken
at the political level in fixing the health budget, and at the functional level
in deciding upon the priorities to be met. It then held that a court ought to
be slow to interfere with rational decisions taken in good faith by the
political organs and authorities whose responsibility it is to deal with such
matters. 59
Thus, the approach of the Court in Soobramoney seems consistent with the
remarks, albeit obiter, by Chaskalson P in the Ferreira case. The Court in the
Soobramoney case adopted rationality as the standard of review in
determining the margin of discretion for political authorities that is
beyond judicial scrutiny. As long as the decision taken by the political
authorities with regard to the allocation or distribution of resources was
rational, the courts could not intervene.
The rationality standard adopted in Soobramoney was later refined into
the reasonableness review in Government of South Africa v Grootboom
(Grootboom case), 60 which is a more substantive and less deferential
standard. 61 Mbazira rightly suggests however, that while the
reasonableness approach is more rigorous than the rationality test adopted
in Soobramoney, it still has a significant element of judicial deference, and
remains respectful of the [representative] democratic decision-making
process and the limited nature of public resources, while simultaneously
bestowing special deliberative attention upon those whose minimal needs
are not being met. 62
As it has evolved thus far, the reasonableness test is rather a shy
approach. It seeks to ensure that those in desperate need are included in policy
making, especially those that further socio-economic rights, and to ensure that
those policies do not result only in statistical progress but treat each human
being as a person deserving of care and concern, 63 but the reasonableness test
has failed to define the content of particular rights. In adopting this test, the
58 1998 1 SA 765 (CC).
59 Soobramoney (n 58 above) para 29.
60
2000 11 BCLR 1169 (CC).
61 C Mbazira You are the ‘weakest link’ in realising socio-economic rights – goodbye: Strategies for
effective implementation of court orders in South Africa (2009) 10.
62
Mbazira (n 61 above) 11.
63 Grootboom (n 60 above) para 44.