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Reply - Marius Pieterse 333
economic rights interpretation as indicating a preference for multiactor
dialogue as the means of such translation.
This reply proceeds to consider, as Liebenberg has done, the
manner in which the ‘minimum core’ and ‘reasonableness’
approaches to the interpretation of socio-economic rights
respectively structure and contribute to societal dialogue over the
meaning of these rights. As will become apparent, I agree with
Liebenberg on the appropriateness of dialogue as the means of
translation, the shortcomings of a minimum core approach from a
dialogic perspective and the need for the reasonableness approach to
be grounded more firmly in an understanding of the content of the
rights it seeks to vindicate. However, I am somewhat more
sentimental over the loss of the language of entitlement that was
inherent in minimum core arguments rejected by the Constitutional
Court and less optimistic over the potential of the reasonableness
approach to foster the kind of open and responsive dialogue over the
meaning of socio-economic rights that both Liebenberg and myself
would like to see. In particular, I express concern over the manner in
which the current formulation of the reasonableness approach
appears to divert the bulk of the dialogue over the meaning of socioeconomic
rights to the political process, to silence the voices of
certain vital participants to the dialogue and to restrict the judicial
role in the overarching societal discussion over the means and ends of
transformation.
I hope that this expression of my concerns serves to strengthen
Liebenberg’s call for a more substantive judicial approach to
reasonableness, that builds on, or at least incorporates, a ‘more
principled and systematic interpretation of the content of the various
socio-economic rights, the values at stake in particular cases and the
impact of the denial of access to these rights on the complainant
group’. 6 I also hope to emphasise the need for such an approach to be
open and responsive to claims of individual entitlement.
2 Translation through dialogue: Mapping the field and the
players 7
In order for a dialogic approach to constitutional interpretation both
to ease separation of powers tensions inherent in judicial review and
to enhance participatory democracy, it is important to conceive
broadly of both the entities that are permitted to contribute to
dialogue over constitutional meaning and the venues where such
6 Liebenberg (n 3 above) 324.
7
In this section I reiterate and elaborate on points raised in Pieterse (n 5 above)
819-822.