LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 101
means that have been chosen to realise the rights. The means cannot
be assessed without an understanding of the goal to be realised,
which is the content of the rights. It is only when the Court has given
content to the rights that it will then be able to subject the state’s
measures to a proportionality and rational connection test as
suggested in this chapter. 215
This chapter has also shown how useful a proportionality test,
similar to the one applied under the general limitation clause, can be
to socio-economic rights litigation. In socio-economic rights litigation,
courts would have to weigh up the competing interests as brought to
the fore by the state’s assertions that providing a particular service
would prejudice certain legitimate interests. This is in addition to
questioning whether there is a rational connection between the
means chosen by the state to realise the rights and the goal to be
realised. The courts would also have to be convinced that there are
no less damaging means by which the rights could have been limited.
This approach imposes a higher burden of justification on the state
and puts the government under pressure to adopt the most
appropriate means of realising the rights in each case. It is only such
an approach that can translate socio-economic rights from mere
abstract paper rights to concrete rights capable of improving the
conditions of the vulnerable. This approach will compel the courts to
reflect on their remedial approach and to grant those remedies that
guarantee the concrete nature of the rights. The adoption of this
approach does not suggest in any manner that the court is being
disrespectful to the elected branches of the state; rather, it
reinforces the constitutional values of accountability, responsiveness
and openness.
A similar standard of justification would be used to enable the
courts to effectively interrogate the reasonableness of the resources
allocated to the realisation of socio-economic rights. At the moment,
the Constitutional Court’s approach to the issue of resources is still
deficient. The Court has mostly deferred to the state to decide the
most appropriate way of using resources. However, while courts
cannot assume the role of appropriating budgets and resources, they
may require the state to justify its budgetary allocations. 216 A burden
would be imposed on the state to prove not only that its resources are
limited, but also that the existing resources have been applied
appropriately. 217 In certain circumstances, the state would have to
215 Sec 4.2.3.2 above.
216 Fredman (n 25 above) 182 has argued that the existence of a right does not mean
that courts need to make primary decisions about the allocation of resources;
instead, it requires the courts to insist that decision makers take responsibility for
the decisions ‘by providing open, transparent, and reasonable reasons, based on
proper evidence rather than generalisation or assumptions’.
217 See Russell (n 40 above) 16.