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22 Chapter 1
immediately enforce. Liebenberg’s and Pieterse’s colloquy breathes
new life into this debate.
Professor Liebenberg contends that the major problem with a
minimum core approach is that it stifles dialogue: It relies on a single
top-down decision of what a socio-economic right requires. It
therefore closes down further debate — in government and in civil
society — about the content of the socio-economic rights found in FC
sections 25, 26, 27, 28, 29 and 35. Liebenberg further argues that the
alleged clarity of a minimum-core approach is illusory. It is illusory
because it traps us in programs focused solely on survival — from
which we may never escape — and eschews equally hard decisions
about how to transform South African society in a number of equally
important non-survival settings. Liebenberg thus concludes that ‘the
minimum core approach is in danger of encouraging minimalism in
social provisioning when the context may in fact render such
minimalism unnecessary and inappropriate.’
On the other hand, reasonableness review allows a contextsensitive
test that is responsive to democratic dialogue. The major
drawback of this approach, as Liebenberg notes, is that it collapses
the traditional two-stage rights analysis and does not properly engage
‘with the content, scope and underlying values of the relevant rights’.
Liebenberg suggests argues that a reasonableness approach might
overcome this deficiency if courts were to conduct more substantive
evaluations of the content of socio-economic rights. Moreover, the
reasonableness approach already possesses some of the strengths of
the minimum-core argument by requiring a higher level of scrutiny
where the very lives of the complainants are on the line. 38
Professor Marius Pieterse’s response focuses on Liebenberg’s
belief that both extant reasonableness review and minimum core
doctrines stifle dialogue about the content and the contours of
existing socio-economic rights doctrine and discourse. Pieterse
stresses the importance of this dialogue in ‘translating’ socioeconomic
rights from ‘conceptually empty, abstract principles into
more concrete, claimable entitlements.’ This dialogue must occur not
only between the judiciary and the other branches of government,
but between other players in the ‘constitutional community’ —
NGO’s, social movements, and, ultimately, the citizenry at large.
Each of these players has different strengths and different roles to
play. Social movements, for example, provide a voice for the people
who are most in need of socio-economic rights. Academics offer
38 See further S Liebenberg ‘The interpretation of socio-economic rights’ in S
Woolman et al (eds) Constitutional Law of South Africa (2nd Edition, OS, 2007)
Chapter 33 (CD track 10); S Liebenberg Adjudicating fundamental rights under a
transformative constitution (2008).