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Reply - Marius Pieterse 347
with an equality-analysis, where an alleged infringement of a socioeconomic
right coincided with an allegation of unfair
discrimination. 58 In Jaftha v Schoeman; Van Rooyen v Stoltz, it
adopted a more ‘traditional’ two-stage approach, including a FC
section 36 limitations analysis, in relation to the negative duties
implied by socio-economic rights. 59 Whereas the dialogic contribution
of each of these approaches is, perhaps, debatable, the institutional
flexibility implied by this experimentation is to be welcomed.
As Liebenberg has reminded us elsewhere, courts must ‘remain
open to new and innovative interpretations of socio-economic rights
that better protect the interests and values underpinning these rights’
even though ‘[t]his may entail a measure of sacrifice of the ideals of
stability and certainty’. 60 This new approach could involve the
substantive expansion of the reasonableness approach, its variation
according to the demands of different contexts or its substitution in
appropriate circumstances. Whatever approach is adopted in the
circumstances of a particular case, it should aim to translate socioeconomic
rights in a manner that responds to the needs of their
beneficiaries and in a way that maximises the transformative
potential of the courtroom as a venue for dialogue.
58 2004 6 SA 505 (CC), 2004 6 BCLR 569 (CC). For critical analysis, see Bilchitz (n 27
59
above) 166-173.
2005 2 SA 140 (CC), 2005 1 BCLR 78 (CC). See the concluding section of
Liebenberg (n 3 above) for a critical view of the continued distinction between
60
the negative and positive obligations imposed by socio-economic rights.
Liebenberg (n 17 above) 6.