Download this publication - PULP

332 Chapter 14
Court avoids adopting the minimum core content approach, whilst in
essence embracing the basic philosophy behind the same. 64
Following on the Grootboom case was the TAC case where it was held
that the courts are not institutionally equipped to make the wide-ranging
factual and political enquiries necessary to determine what the minimumcore
standards should be, and further, that they are ill-suited to adjudicate
upon issues where court orders could have multiple social and economic
consequences for the community. The Court thus held that the
‘Constitution contemplates a rather restrained and focused role for the
courts’ 65 and specifically rejected the applicability of the minimum core
concept in South Africa. However, the TAC case is quite ironic in some
respects as it proceeded, firstly, to arrive at a decision that had to do with
the distribution of resources. A specific mandatory order was granted
obliging government to distribute resources – in this case the essential drug
nevirapine that helps to prevent mother to child transmission of HIV.
Secondly, the Court made very interesting pronouncements that seem at
odds with the ultimate position it took. As stated earlier, the Court held
that it was proper for the Court, in appropriate socio-economic rights cases,
to make orders that can affect the policies of government or other organs
of state and which may have budgetary implications. It stated:
‘Government is constitutionally bound to give effect to such orders whether or
not they affect its policy and has to find the resources to do so.’ 66 Thus, the Court
here suggests that, as long as it is constitutionally mandated to do so, in this
cluster of rights a Court may make an order that obliges the other branches of
Government to identify and encumber the necessary resources. This is a
telling illustration of the unsettled position the Constitutional Court has taken
with regard to these cases.
In Khosa v Minister of Social Development (Khosa case), 67 the Court seemed
to depart from the deferential approach of refraining from expressing views
on the budgets or implications of decisions taken, or policies adopted, by the
political organs of the state on the premise that they are better institutionally
equipped to do so. The question before the Court was whether the exclusion
of permanent residents from accessing social grants available to citizens
was unconstitutional in terms of section 27(1)(c) of the Constitution. One
of the arguments advanced by the state was that including permanent
residents in the social security scheme would impose an impermissibly high
financial burden on the state. 68 The Court confronted the budgetary
figures placed before it directly. The Court carefully looked at, analysed
and interpreted the figures and concluded that they did not ‘support the
64 R Kapindu From the global to the local: The role of international law in the enforcement of
socio-economic rights in South Africa (2009) 46.
65 As above.
66 As above.
67
2004 6 SA 505 (CC).
68 Khosa (n 67 above) para 60.