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316 Chapter 18
which implicate minimum core obligations. 64 This two-tier approach
requires distinguishing between core needs (those that implicate
survival) and non-core needs (those that relate to fulfilling a range of
purposes and flourishing as a human being) in relation to both socioeconomic
policy-making and in adjudicating cases.
However, the difficulty, as I have previously suggested, is that
social needs are in fact interconnected and that no clear-cut
distinction exists between core and non-core needs. Nancy Fraser
describes needs these claims as ‘nested’ in that they are ‘connected
to one another in ramified chains of “in order to” relations’. 65 It is
generally possible to reach consensus on what Fraser terms, ‘thin
needs’ such as the need of people in non-tropical climates for shelter
in order to survive. However, as soon as one inquires into the detail
of what precisely is required in order to provide shelter which can be
sustained and fulfil its purposes, one encounters a diversity of views.
In relation to housing, for example, the issue of the location of
housing close to employment and livelihood opportunities is generally
not defined as part of the minimum core obligations of the state. 66
However, the location of housing is usually a crucial factor in people’s
abilities to pursue sustainable livelihood strategies which secure the
socio-economic well-being of themselves and their dependants. 67
64 Bilchitz Poverty and fundamental rights (n 31 above) 210-213 characterises this
heightened scrutiny as a form of ‘weighted priority’. It refers ‘to a reason which
has great importance to us and which can only be overridden by considerations
that are of equivalent weight’ (211). Bilchitz identifies four such weighty reasons
which can justify overriding core obligations: (1) scarcity of resources; (2)
situations where the minimal interests of some individuals can only be met by
dedicating a disproportionately vast amount of resources to them; (3) the need to
preserve some space for individuals to pursue interests beyond the minimal
interest in survival, such as ‘opportunities to realise their goals and achieve
positive experiences’; and (4) situations when the realisation of the minimum
core of a particular right would prevent the realisation of the minimum core of
64
other Bilchitz rights Poverty and liberties and fundamental (212). rights (n 31 above) 210-213 characterises this
65 Fraser heightened (n 56 scrutiny above) 163. as a form of ‘weighted priority’. It refers ‘to a reason which
66 For has great example, importance Bilchitz to argues us and that which the can general only be standard overridden that by constitutes considerations the
minimum that are of core equivalent obligation weight’ of the (211). state Bilchitz in relation identifies to four housing such weighty would be reasons that
everyone which can should justify have overriding ‘access core to obligations: accommodation (1) scarcity that involves, of resources; at least, (2)
protection situations where from the the elements minimal in interests sanitary of conditions some individuals with access can to only basic be services, met by
such dedicating as toilets a disproportionately and running water.’ vast Bilchitz amount Poverty of resources and fundamental to them; (3) rights the need (n 31 to
above) preserve 198. some space for individuals to pursue interests beyond the minimal
67 See interest City in of survival, Johannesburg such v as Rand ‘opportunities Properties to (Pty) realise Ltd & their Others goals 2007 and 6 achieve SA 417
(SCA). positive The experiences’; Supreme Court and of (4) Appeal situations ordered when the the City realisation of Johannesburg of the to minimum provide
temporary core of a particular accommodation right would to occupiers prevent who the face realisation eviction of in the terms minimum of the National core of
Building other rights Regulations and liberties and (212). Building Standards Act 103 of 1977. The Court ordered
65
that Fraser this ‘Unruly ‘temporary Practices’ accommodation (n 56 above) 163. is to consist of at least the following
66
elements: For example, a place Bilchitz where argues they may that live the secure general against standard eviction; that a structure constitutes that the is
waterproof minimum core and secure obligation against of the elements; state in relation and with to access housing to basic would sanitation, be that
water everyone and should refuse services.’ have ‘access In order to accommodation to implement the that foregoing, involves, the at City least, was
ordered protection to from determine the elements the location in sanitary of conditions the alternative with access accommodation to basic services, ‘after
consultation’ such as toilets if and requested running by water.’ any occupier Bilchitz (para Poverty 78, and Orders fundamental (c), 2.1 and rights 2.3). (n This 31
represents above) 198. an implicit acknowledgment of the significance of the location of