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340 Chapter 19
Through the years, Liebenberg has engaged critically with
features of both of these approaches. 32 In her current paper, she
evaluates both from a dialogic perspective and concludes that, while
a minimum core approach valuably captures part of the content of
socio-economic rights and ‘imposes a high burden of justification in
contexts where people are deprived of the basic necessities of life’, 33
a reasonableness approach is better suited to a society committed to
translation through dialogue. A reasonableness approach ‘avoids
closure and creates the on-going possibility of challenging various
forms of socio-economic deprivations in the different contexts in
which they arise’. 34
In relation to minimum core, Liebenberg explains how the onceoff
judicial formulation and enforcement of a comprehensive core
standard can frustrate dialogue over the content of socio-economic
rights. She shows, convincingly, that a minimum core approach may
operate to ‘stifle institutional conversation and collaboration
between the three branches of government’, may result in over- or
under-inclusive specification of obligations, may invite undue
reductionism and/or minimalism in need–definition, may ‘exclude or
marginalise the needs of various groups that do not fit the background
norms informing the definition of core obligations’ and may
oversimplify the interaction between and co-dependence of
interconnected socio-economic needs of varying levels of complexity,
urgency, and cost. 35
I agree that the adoption of a minimum core approach may
amount to the once-off, ‘top-down’ imposition of a singular,
contested, point of view that denies and precludes reasonable
disagreement over its conceptual foundations, contextual appropriateness,
feasibility and logic. 36 But, to be fair to minimum core
proponents, it need not engender such outcomes. It should be
possible for courts to engage in a far more gradual, open-ended,
context-specific and contingent process of case-by-case elaboration
of the essential minimum content of rights, in a manner that invites,
rather than forestalls, dialogue. 37
32 See, eg, S Liebenberg ‘South Africa’s evolving jurisprudence on socio-economic
rights: An effective tool in challenging poverty?’ (2002) 6 Law, Democracy &
Development 159; S Liebenberg ‘The interpretation of socio-economic rights’ in S
Woolman et al (eds) Constitutional Law of South Africa (2nd Edition, OS, 2003)
Chapter 33; S Liebenberg ‘The value of human dignity in interpreting socioeconomic
rights’ (2005) 21 South African Journal on Human Rights 1.
33 Liebenberg (n 3 above) 324.
34 Liebenberg (n 3 above) 320.
35
Liebenberg (n 3 above) 309-318. See also Dixon (n 2 above) 416-418; Steinberg (n
2 above) 274-276; Wesson (n 31 above) 303-305.
36 See Pieterse (n 20 above) 490-491 and authorities cited there.
37
Pieterse (n 20 above) 491. See further Bilchitz (n 27 above) 160; Woolman &
Botha (n 8 above ) 34-104 — 34-113.