LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

100 Chapter 3
All that the courts would have to do is demand justification from the
state. In doing this, the courts would be guided by principles such as
reasonableness, proportionality and the content of the rights. 213 This
is in addition to the promotion of the constitutional values of
accountability, openness and responsiveness.
3.3 Conclusion
This chapter has shown that, while the reasonableness review
approach has the potential to lead to the realisation of socioeconomic
rights, it has a number of loopholes that have to be plugged.
The court must appreciate the fact that resources play a role in
determining whether the minimum core obligation has been
discharged and provides the state with a possible defence. This,
though, would shift the burden to the state to show that every effort
is being made to provide for basic needs in the circumstances. This
approach would compel the state to be more responsive to the needs
of the poor, by directing resources to those living below the minimum
core standard. It is true that the minimum core approach poses a
danger of defining socio-economic rights rigidly and a-contextually,
which means imposing rigid standards irrespective of the context.
Nonetheless, this danger can be obviated by defining the minimum
core using broad parameters which are then made applicable on a
case-by-case basis. This is in addition to giving a margin of discretion
to the state to choose the most effective means of realising the
minimum core in each context.
The Constitutional Court’s reasonableness review approach has
also failed to give content to the rights, most especially as guaranteed
by sections 26(1) and 27(1). Without any analysis of the content of the
rights, the Court rushes to consider the obligation to take reasonable
measures to progressively realise the rights within the available
resources as stipulated in sections 26(2) and 27(2). This has left the
beneficiaries of the rights without any clue as to the nature of the
services to which they are entitled. Going by the approach of the
Constitutional Court, all that the claimants can demand from the
state is a reasonable programme undertaken within available
resources to progressively realise the rights. This poses the danger of
the reasonableness review approach degenerating into ‘a weak and
toothless standard’. 214 The Court’s approach has also left it without
any tools that could be used to interrogate the effectiveness of the
213 This is consistent with the values of accountability, responsiveness and openness,
as well as with the spirit of the Constitution as a bridge from a culture of
authoritarianism to a culture of justification; a culture in which all exercise of
public power has to be justified. See Mureinik (n 128 above).
214
S Liebenberg ‘Making a pro-poor Constitution’ Mail & Guardian 12-18 May 2006
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