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Sandra Liebenberg 315
person per day which the World Health Organisation and an
international expert recommended as being required for a healthy
and dignified lifestyle. 59 This judgment suggests that the application
of a heightened review standard should not only be confined to one
core value or interest such as biological survival. Moreover, in respect
of other socio-economic rights, such as the right to education, the
focus on mere biological survival simply does not accord with the
broader purposes and interests which such a right protects. In striving
to establish clear, fixed and judicially manageable standards for the
adjudication of socio-economic rights claims, the minimum core
approach is in danger of encouraging minimalism in social provisioning
when the context may in fact render such minimalism unnecessary
and inappropriate. 60
A fourth difficulty with the minimum core concept is related to
the Constitutional Court’s observations concerning the difficulty of
defining minimum core obligations given the diversity of needs and
circumstances in which different groups find themselves. 61 The
underlying concern is that the minimum core approach is unduly rigid,
and its application may operate to exclude or marginalise the needs
of various groups that do not fit the background norms informing the
definition of core obligations. Bilchitz responds to this concern by
arguing that the minimum core should aim to define a general
standard informed by people’s urgent survival needs. This standard,
for example, still allows for a measure of latitude and flexibility
regarding what precisely is needed to meet people’s needs in
different contexts. 62 However, he argues that the minimum core does
require ‘a rigid stance in one respect: it requires us to recognise that
it is simply unacceptable for human beings to have to live without
sufficient resources to be free from threats to their survival.’ 63 He
thus argues for a form of heightened scrutiny to be applied to claims
59 Mazibuko (n 48 above) paras 179 – 181.
60 See the similar concern expressed by Porter (n 38 above) 55.
61
Grootboom (n 2 above) paras 32–33.
62 Bilchitz Poverty and fundamental rights (n 31 above) 198. See also his response
(200-202) to Danie Brand’s argument that the minimum core may be suitable for
the international enforcement of socio-economic rights, but is not useful for the
domestic context where we must be ‘far more specific, concrete, contextsensitive
and flexible in our thinking about basic standards, core entitlements and
minimum obligations.’ D Brand ‘The minimum content of the right to food in
context: A response to Rolf Künnemann’ in D Brand & S Russell (eds) Exploring the
core content of socio-economic rights: South African and international
perspectives (2002) 99 101.
63 Bilchitz Poverty and fundamental rights (n 31 above) 208.