LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

South Africa: Distributive or corrective justice 135
The realisation of socio-economic rights in contexts of scarce
resources requires careful redistribution of the resources to benefit
all in need of them. It is at this stage that the notion of distributive
justice becomes most relevant. The courts have to focus beyond the
needs of the individual and to consider the interests of society or
groups of people at large. Individual rights therefore have to be
balanced against collective welfare. 24 It has been submitted, for
instance, that it would have been senseless to extend expensive
treatment to Mr Soobramoney ‘at a time when many poor people …
had little or no access to any form of even primary health care
services’. 25 The Constitutional Court had to leave it up to the hospital
to decide how best to utilise the scarce medical resources in a
distributive manner without prioritising individual needs at the
expense of others who may need such resources.
It is on the basis of this approach that the Constitutional Court, as
seen in chapter three, 26 has rejected the submission that the socioeconomic
rights provisions in the Constitution confer individual
entitlements on demand. The Court has rejected the submission that
the Constitution be interpreted as establishing a minimum core which
entitles every individual to a minimum level of goods and services on
demand. 27 The Court has also rejected the submission that section 28
of the Constitution guarantees every child access to basic nutrition,
shelter and health care services irrespective of available resources.
Instead, the Court has chosen to locate the claims of all individuals,
adults and children within the broader dimension of society’s needs.
As seen in chapter three, the Court has held that all that the state is
obligated to do is to put in place a reasonable programme, reasonably
implemented to achieve the progressive realisation of socio-economic
rights, subject to the available resources. The programme must be
inclusive of the needs of all people and must address short, medium
and long-term needs.
The Constitution is also encrusted with what are considered to be
the values upon which democratic South Africa is based. 28 Indeed, the
24 Z Motala & C Ramaphosa Constitutional law: Analysis and cases (2002) 34.
25
De Vos (n 20 above) 259-260.
26 See sec 3.2.1.
27 See Government of the Republic of South Africa v Grootboom and Others
(Grootboom case) 2000 11 BCLR 1169 (CC); 2001 1 SA 46 (CC) para 32. See also
Minister of Health and Others v Treatment Action Campaign 2002 5 SA 721 (CC).
See ch three sec 3.2 for a detailed discussion of these cases.
28
Sec 1. The values include human dignity, the achievement of equality and
advancement of human rights and freedoms, non-racialism and non-sexism,
supremacy of the Constitution, and universal adult suffrage, a national common
voter’s roll, regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness and openness.