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Reply - Marius Pieterse 339
3 Minimum core, reasonableness and translation through
dialogue
As Liebenberg explains, South African scholarly debates over the
‘proper’ method of dealing with socio-economic rights claims have
predominantly boiled down to the expression of a preference for one
of two, seemingly opposed, approaches to the adjudication of the
positive duties implied by sections 26 and 27 of the Final Constitution.
On the one hand, much support has been expressed for a ‘minimum
core approach’. This approach turns on the identification and the
immediate enforcement of basic entitlements (corresponding with
human survival interests) inherent in socio-economic rights. 27
Arguments consistent with this approach (which has foundations in
international law) were raised by the amici curiae in the two most
high-profile socio-economic rights matters thus far heard by the
Constitutional Court: Government of the Republic of South Africa v
Grootboom (Grootboom) 28 and Minister of Health v Treatment Action
Campaign (TAC). 29 In both cases, the Constitutional Court rejected
these arguments. Instead it adopted a different approach, that of
‘reasonableness’. The ‘reasonableness approach’ is based on the
constitutional requirement that measures adopted in pursuit of the
progressive realisation of socio-economic rights must be reasonable
and involves the scrutiny of laws and polices aimed at giving effect to
the rights, for adherence to a number of requirements associated with
good governance. The ‘reasonableness approach’, which tends to be
criticised by proponents of a ‘minimum core approach’, 30 has also
attracted its fair share of supporters, most of whom justify their
preference for ‘reasonableness’ by referring to the shortcomings of
the ‘minimum core approach’. 31
27 For the most thorough theoretical defense of this approach in the South African
context, see D Bilchitz Poverty and fundamental rights: The justification and
enforcement of socio-economic rights (2007) 178-235.
28 2001 1 SA 46 (CC), 2000 11 BCLR 1169 (CC).
29
2002 5 SA 721 (CC), 2002 10 BCLR 1033 (CC).
30 See, eg, D Bilchitz ‘Towards a reasonable approach to the minimum core: Laying
the foundations for future socio-economic rights jurisprudence’ (2003) 19 South
African Journal on Human Rights 1. See also D Bilchitz ‘Health’ in S Woolman et
al (eds) Constitutional Law of South Africa (2nd Edition, OS, 2006) Chapter 56A.
31 See, eg, Steinberg (n 2 above); M Wesson ‘Grootboom and beyond: Reassessing
the socio-economic jurisprudence of the South African Constitutional Court’
(2004) 20 South African Journal on Human Rights 284.