Download this publication - PULP

346 Chapter 19
the current version of the reasonableness approach runs the risk of
impoverishing the translation of socio-economic rights, first, by
restricting the terms of courtroom dialogue over their content,
secondly, by silencing voices that may meaningfully contribute to the
dialogue and, thirdly, by diverting much of the dialogue to the
political arena. Such restriction, silence and diversion may not only
deflate the possibilities of dialogue over constitutional meaning but
also unnecessarily restrict the judicial contribution to the overarching
dialogue over transformation.
Liebenberg is right to contend that the reasonableness approach
can accommodate a more direct engagement with the content of
socio-economic rights. As I have argued elsewhere, a latent notion of
entitlement may already be lurking within the reasonableness
approach. 56 But it would probably be even more useful if an approach
aimed at ascertaining compliance with socio-economic obligations
were, conceptually, to separate the deliberation over the content of
a right from the question of whether measures that aim to give effect
to the right are reasonable in light of that content. This need not
amount to a minimum core approach or to a similarly dialoguemonopolising
exercise of interpretation. On the contrary, the
context-specific, open and flexible deliberation over the content of
specific entitlements, their limits and the appropriateness of
suggested remedies for their vindication may ultimately enrich
deliberative dialogue over the translation of socio-economic rights.
As a matter of fact, there is no need for courts to adopt a single,
one-size-fits-all approach to socio-economic rights adjudication.
Indeed, the fixation of academic scholarship (including this reply) on
the strengths and the shortcomings of the reasonableness approach
should not blind us to the fact that the Constitutional Court has itself
flirted with different approaches in relation to different kinds of
allegations of non-compliance with socio-economic rights. In
Soobramoney v Minister of Health, KwaZulu Natal, it focused on the
rationality and bona fides of an executive directive which rationed
the availability of certain forms of tertiary medical care. 57 In Khosa v
Minister of Social Development; Mahlaule v Minister of Social
Development, it appeared to combine the reasonableness approach
56 Pieterse (n 20 above) 497-500.
57
1998 1 SA 765 (CC), 1997 12 BCLR 1696 (CC). For a critical discussion, see D
Moellendorf ‘Reasoning about resources: Soobramoney and the future of socioeconomic
rights claims’ (1998) 14 South African Journal on Human Rights 327; M
Pieterse ‘Health care rights, resources and rationing’ (2007) 124 South African
Law Journal 514 527-535.