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320 Chapter 18
requirement that all programmes must provide short-term measures
of relief for those whose circumstances are urgent and intolerable. 84
Reasonableness review enables courts to adjust the stringency of its
review standard informed by factors such as the position of the
claimant group in society, the nature of the resource or service
claimed, 85 and the impact of the denial of access to the service or
resource in question on the claimant group. 86 The Court’s
jurisprudence suggests that the government’s justifications will be
subject to more stringent scrutiny when a disadvantaged sector of
society is deprived of access to essential services and resources. In
this regard, the Court has acknowledged the poor as a vulnerable
group in society, whose needs require special attention. 87
Thus the reasonableness inquiry takes into account a number of
considerations relevant to the claimant group, the nature of the
service or resource in question as well as the historical, economic and
social context 88 in which the claim arises. In this sense,
‘reasonableness review’ avoids closure and creates the on-going
possibility of challenging various forms of socio-economic
deprivations in the different contexts in which they arise. Such review
could facilitate the participation and the dialogical interaction
between the state and civil society in the defining of and realisation
of socio-economic rights. The Treatment Action Campaign (TAC) has
been able to use reasonableness review to win a major victory in the
provision of appropriate medical treatment to reduce the risk of the
transmission of HIV from mother to child. 89 The TAC and other civil
society organisations have been able to use this victory and the
criteria for a reasonable programme established in Grootboom as part
84 Steinberg (n 41 above) 277 argues that ‘the intense scrutiny’ of government
conduct combined with the heavy weighting of the values of human dignity and
equality in the proportionality assessment, gives the reasonableness inquiry in
socio-economic rights cases a discrete character.
85 In Soobramoney (n 1 above), a more tertiary and expensive form of medical
treatment was claimed and the Court applied a deferential standard of review
based on rationality. In contrast, in Grootboom (n 2 above), Treatment Action
Campaign (n 3 above) and Khosa (n 4 above) the review standard was stricter and
involved a more searching scrutiny of government’s justifications for denying the
applicants access to a basic level of service provision.
86 In Grootboom, Treatment Action Campaign and Khosa, the Court emphasised the
severe impact on the claimants of the deprivation in question. See, for example,
the historical context and current socio-economic circumstances of the claimants
sketched by the Court in its judgments at Grootboom (n 2 above) paras 2-11;
Treatment Action Campaign (n 3 above) 78-79; Khosa (n 4 above) paras 71, 76-77,
80-81.
87 Grootboom (n 2 above) para 36; Treatment Action Campaign (n 3 above) para 79.
88
Grootboom (n 2 above) paras 43–44 and 92.
89 See M Heywood ‘Preventing mother-to-child HIV transmission in South Africa:
Background, strategies and outcomes of the Treatment Action Campaign Case
against the Minister of Health’ (2003) 19 South African Journal on Human Rights
278.