LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Conclusions and recommendations 233
The reasonableness review approach is also inadequate, to the
extent that it does not interrogate the means chosen by the state to
determine whether they are capable of realising the rights. It is
indeed doubtful whether the reasonableness review approach can be
described as ‘a means-end test’, as has been suggested by some
authors. 25 The approach does not require a court to question whether
state action is rationally connected to the purpose for which it was
taken. The government is not required to demonstrate that its
programme, policy or legislation is capable of realising the targeted
right(s). It is because of this shortcoming that I have suggested the use
of a rational connection test similar in some respects to the one used
in the section 36 general limitations inquiry. The burden would be
cast on the government to prove not only that the intended measures
would realise the rights, but also that they are the least restrictive.
Measures not reasonably capable of realising the rights, or which are
not the least restrictive, would be condemned by the court. To avoid
separation of powers-based criticisms, however, the court would not
immediately substitute its own measures for the government’s
condemned measures. Instead, the court would defer to the
government on the most appropriate means, while giving guidance on
the basic contents of any selected measures.
The need to prove a rational connection between the measures
and the rights is also important, because it would force the courts to
give content to the rights. This is because the rights represent the
goal to be attained; unless the goal (which is the realisation of the
right) is defined with precision, it may not be possible to assess the
means selected for this.
7.2 Overcoming separation of powers-based objections
Other than the normative nature of the rights, as discussed above, the
Constitutional Court’s approach in adjudicating socio-economic rights
could be explained by the need to maintain the doctrine of separation
of powers. The Court has avoided constructions that would lead to
confrontation with other organs of state. This includes constructions
that would, for instance, impose what may be perceived by the
government to be unreasonable resource burdens.
The objection to the judicial enforcement of socio-economic
rights on the basis of the separation of powers has assumed two
dimensions. First, it is contended that socio-economic rights litigation
25 See Brand (n 23 above) 221. See also D Brand ‘The proceduralisation of South
African socio-economic rights jurisprudence, or “what are socio-economic rights
for”’ in H Botha et al (eds) Rights and democracy in a transformative constitution
(2003) 33-56.