Download this publication - PULP

322 Chapter 18
In Grootboom, the Court held that the comprehensive, coordinated
programme which the state is obliged to adopt to give
effect to socio-economic rights ‘must be capable of facilitating the
realisation of the right.’ 95 However, until some understanding is
developed (even if it is provisional) of the content of the right, the
assessment of whether the measures adopted by the state are
reasonably capable of facilitating its realisation takes place in a
normative vacuum. Reasonableness review should thus be developed
in a way which incorporates a principled and substantive
interpretation of the content of socio-economic rights. Such an
interpretation should seek to elucidate the purposes and interests
which these rights protect and should promote ‘the values that
underlie an open and democratic society based on human dignity,
equality and freedom’ as required by FC section 39(1)(a).
As I observed above, the Court has not spent much interpretive
energy in developing the substantive content of the various socioeconomic
rights in FC sections 26 and 27. Grootboom offered a
promising start. The Court held that ‘access to adequate housing’
implies a recognition ‘that housing entails more than bricks and
mortar’:
It requires available land, appropriate services such as the provision of
water and the removal of sewerage and the financing of all of these,
including the building of the house itself. For a person to have access to
adequate housing all of these conditions need to be met: there must be
land, there must be services, there must be a dwelling. 96
However, in arriving at this definition the Court proffers little
engagement with the very purposes that the right to housing is meant
to protect. The Court’s main engagement with the constitutional
values, particularly human dignity, is in the context of justifying the
element of the reasonableness test which requires that short-term
measures of relief must be provided for those in desperate need. 97
These values do not play any significant role in developing the
substantive content of the rights protected in FC sections 26 and 27.
In Treatment Action Campaign, the Court provides even less
insight into the scope and content of the right of access to health care
services. 98 The Court’s primary aim is to demonstrate that
government’s inflexible stance regarding the confining of Nevirapine
to the nine research sites could not be justified in the light of the
policy, capacity and resource arguments raised by the state itself.
The Court does not explain why the provision of essential drugs and
95 Grootboom (n 2 above) para 41
96 Grootboom (n 2 above) para 35.
97
Grootboom (n 2 above) para 44.
98 Treatment Action Campaign (n 3 above).