Download this publication - PULP

Reply - Marius Pieterse 341
In any event, the Constitutional Court’s rejection of minimum
core arguments in Grootboom and, especially, TAC, seemed to be
motivated by more than concern about the dialogic disadvantages
that are arguably inherent to the approach. Consider, for instance,
the following statements in TAC:
It is impossible to give everyone access even to a ‘core’ service
immediately. All that is possible, and all that can be expected of the
state, is that it act reasonably to provide access to the socio-economic
rights identified in sections 26 and 27 on a progressive basis. 38
Section 27(1) of the Constitution does not give rise to a self-standing and
independent positive right enforceable irrespective of the considerations
mentioned in section 27(2). Sections 27(1) and 27(2) must be
read together as defining the scope of the positive rights that everyone
has and the corresponding obligations on the state to ‘respect, protect,
promote and fulfill’ such right. The rights conferred by sections 26(1)
and 27(1) are to have ‘access’ to the services that the state is obliged to
provide in terms of sections 26(2) and 27(2). 39
These passages suggest that the Court’s rejection of the minimum
core approach was at least partly motivated by an aversion to the
notion of individual entitlement. 40
This aversion was, in turn, also the driving force behind the
Court’s opting for the reasonableness approach. This conclusion
seems to be borne out by the fact that the approach appears to entail
little or no enforceable entitlement for the beneficiaries of socioeconomic
rights. 41 Indeed, both Liebenberg and minimum core
proponents’ main criticism of the ‘reasonableness approach’ is that it
fails to engage meaningfully with the content of the rights. 42
This ‘conceptual emptiness’ of socio-economic rights conceived in
terms of ‘reasonableness’ seems to indicate a potentially significant
drawback of the approach from a dialogic perspective. Indeed, it
38
TAC (n 29 above) para 35.
39 TAC (n 29 above) para 39. See also paras 31-32, 34 (‘the socio-economic rights of
the Constitution should not be construed as entitling everyone to demand that
the minimum core be provided to them’); 125 (‘[w]e have held that [the] policy
fails to meet constitutional standards. ... That does not mean that everyone can
immediately claim access to such treatment’). See further Grootboom (n 28
above) para 95 (‘neither section 26 nor section 28 entitles the respondents to
claim housing or shelter immediately upon demand’).
40 See also D Brand ‘The proceduralisation of South African socio-economic rights
jurisprudence, or “what are socio-economic rights for?”’ in H Botha et al (eds)
Rights and democracy in a transformative constitution (2003) 33 46; P de Vos ‘So
much to do, so little done: The right of access to anti-retroviral drugs post-
Grootboom’ (2003) 7 Law, Democracy & Development 83 89.
41 See I Currie ‘Bill of Rights jurisprudence’ (2002) Annual Survey of South African
Law 36 72; Pieterse (n 20 above) 487 and authorities cited there.
42
Liebenberg (n 3 above) 318-320. See also, eg, Bilchitz (n 30 above) 5-10; Pieterse
(n 21 above) 410-411 and authorities cited there.