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Sandra Liebenberg 305
and egalitarian direction.’ 8 The preamble of the Final Constitution
affirms that it was adopted so as to establish, amongst other goals, a
society based on social justice and an improvement in the quality of
life of all. When interpreting socio-economic rights, the courts are
obliged to ‘promote the values that underlie an open and democratic
society based on human dignity, equality and freedom.’ 9 The
realisation of socio-economic rights is integral to this vision of a
transformed society.
2 What does ‘reasonableness review’ mean in the context
of socio-economic rights claims?
In reviewing positive socio-economic rights claims, the central
question that the Court asks is whether the means chosen are
reasonably capable of facilitating the realisation of the socioeconomic
rights in question. 10 The Court’s approach is designed to
allow government a margin of discretion relating to the specific policy
choices adopted to give effect to socio-economic rights:
A Court considering reasonableness will not enquire whether other more
desirable or favourable measures could have been adopted, or whether
public money could have been better spent. The question would be
whether the measures that have been adopted are reasonable. It is
necessary to recognise that a wide range of possible measures could be
adopted by the state to meet its obligations. Many of these would meet
the requirement of reasonableness. Once it is shown that the measures
do so, this requirement is met. 11
8 K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South
African Journal on Human Rights 146; C Albertyn & B Goldblatt ‘Facing the
challenges of transformation: Difficulties in the development of an indigenous
jurisprudence of equality’ (1998) 14 South African Journal on Human Rights 248;
M Pieterse ‘What do we mean when we talk about transformative
constitutionalism?’ (2005) 20 South African Publiekreg/Public Law 155; S
8 Liebenberg ‘Needs, rights and transformation: Adjudicating social rights’ (2005) 1
Stellenbosch
K Klare ‘Legal
Law
culture
Review
and
1; P
transformative
Langa ‘Transformative
constitutionalism’
constitutionalism’
(1998) 14
(2006)
South
3
Stellenbosch
African Journal
Law
on
Review
Human
351.
Rights
See further
146; C
the
Albertyn
cases of
&
S
B
v Makwanyane
Goldblatt ‘Facing
1995 3
the
SA
391
challenges
(CC), 1995
of transformation:
6 BCLR 665 (CC)
Difficulties
para 262; Bato
in the
Star
development
Fishing (Pty)
of
Ltd
an
v Minister
indigenous
of
Environmental
jurisprudence of
Affairs
equality’
and
(1998)
Tourism
14
2004
South
4
African
SA 490
Journal
(CC), 2004
on Human
7 BCLR
Rights
687
248;
(CC)
paras
M Pieterse
73-74; Minister
‘What
of
do
Finance
we mean
v Van Heerden
when we
2004
talk
6 SA 121
about
(CC),
transformative
2004 11 BCLR
1125
constitutionalism?’
(CC) para 142;
(2005)
Rates Action
20 South
Group
African
v City of
Publiekreg/Public
Cape Town 2004 12
Law
BCLR
155;
1328
S
(C)
Liebenberg
para 100.
‘Needs, rights and transformation: Adjudicating social rights’ (2005) 1
9 Sec
Stellenbosch
39(1)(a). See
Law
also
Review
Soobramoney
1; P Langa
(n
‘Transformative
1 above) para 8.
constitutionalism’ (2006) 3
10 Grootboom
Stellenbosch
(n
Law
2 above)
Review
para
351.
41.
See further the cases of S v Makwanyane 1995 3 SA
11 As
391
above.
(CC), 1995
O’Regan
6 BCLR
J describes
665 (CC) para
the
262;
purpose
Bato
of
Star
the
Fishing
reasonableness
(Pty) Ltd v
standard
Minister of
as
follows
Environmental
in Rail Commuters
Affairs and
Action
Tourism
Group
2004
v
4
Transnet
SA 490 (CC),
Ltd t/a
2004
Metrorail
7 BCLR
2005
687 (CC)
2 SA
359
paras
(CC),
73-74;
2005
Minister
4 BCLR
of
301
Finance
(CC) para
v Van
87:
Heerden 2004 6 SA 121 (CC), 2004 11 BCLR
1125 (CC) para 142; Rates Action Group v City of Cape Town 2004 12 BCLR 1328
(C) para In adopting 100. this standard the Court requires the bearer of constitutional
9
Sec 39(1)(a). obligations See to also perform Soobramoney them (n in 1 a above) manner para which 8. is reasonable. This
10 Grootboom standard (n strikes 2 above) an para appropriate 41. balance between the need to ensure that