LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 99
whether it was justified in limiting the existing service on the ground
of resources. For instance, in the Khosa case, the Constitutional Court
said that the exclusion of the applicants from the social assistance
scheme on the grounds of lack of resources was not justified. This is
because their inclusion would lead to a very small proportional
increment, two percent, in the entire social grants budget. 209 As
already mentioned, the Court based this conclusion on very scanty
and speculative evidence adduced by the state on the impact that the
inclusion of the applicants would have on the budget. 210 The state
estimated that extending the benefits to qualifying permanent
residents would lead to an increase of between R240 million and R672
million in the social assistance budget. 211 The Constitutional Court
applied a proportionality test to conclude that the rights of the
applicants were very important; such a minimal increment in the
budget could not justify their exclusion. The Court also based its
decision on the fact that there was an anticipated increment of
expenditure on social grants by R18,4 billion over the next three years
without making provision for permanent residents.
A similar approach was followed by the Canadian Supreme Court
in Eldridge and Others v British Columbia (Attorney General) and
Others. 212 This was a case of unfair discrimination brought by a deaf
patient who contended that the failure of the province of British
Columbia to provide interpretation services for deaf patients in public
hospitals was discriminatory as it denied deaf patients access to
health services. The Court rejected the defence of lack of resources
because the proportional increment brought about by the provision of
sign language interpretation to the entire health budget of the
province was negligible: It was only 0,0025 percent.
It is important that the approach in the Khosa case be carried to
future cases in which resources are implicated. There is no doubt that
it is the state that controls all public resources and is in possession of
all the information relating to their use. It, therefore, makes sense
that the state be required to put information relating to the existing
resources and their use before the courts. This makes the work of the
courts much easier and, to a large extent, saves them from getting
entangled in complex resource issues without adequate information.
209 Para 62.
210 Para 61.
211
Para 62.
212 [1997] 3 SCR 624, 151 D.L.R. (4th) 577.