LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

44 Chapter 2
that these will vary according to factors such as income,
unemployment, availability of land and poverty. The differences
between city and rural communities will also determine the needs and
opportunities for the enjoyment of this right. Variations ultimately
depend on the economic and social history and circumstances of a
country. The Court said that, unlike the ESCR Committee, it did not
have access to the information that would enable it to define the
minimum core. 141
It is necessary for courts enforcing socio-economic rights to
confront the problem of polycentricism. Appreciation of the extent of
the polycentric nature of a socio-economic rights case will be a factor
to consider when designing an ‘appropriate just and equitable relief’.
This is important because ‘[t]he harm caused by violating
constitutional rights is not merely a harm to an individual applicant,
but a harm to society as a whole’. 142 Constitutional litigation against
the state in most cases arises from violations of a structural nature
implicating a number of interests. Addressing such structural
violations calls for significant structural and institutional changes not
only involving, but also affecting persons other than the parties. 143 As
a result of this, the appropriateness of a remedy will be affected
unless the court considers all the interests implicated by a case.
Socio-economic rights cases are believed to be polycentric in
nature, firstly, because of the conception that they have budgetary
consequences. 144 It is submitted that each decision to allocate a
particular sum of money for a specified purpose implies less money for
other purposes. 145 According to Davis, a case involving a person’s
right to a house would not only impact on that person and the state,
but also on interests of other citizens. The interests of other citizens
would raise questions such as whether the money should be used to
build a crèche, a hospital or sporting stadium. 146
141 Paras 32-33.
142 Currie & De Waal (n 95 above) 196.
143
Sturm (n 116 above) 1364. Fiss gives the example of a structural order to reform
the practices of a police department as having an effect upon all the individual
police officers, present and future. O Fiss ‘Foreword: The forms of justice’ (1979)
93 Harvard Law Review 1 49.
144 Budgets, it is believed, are finite in nature and have a multitude of ways in which
to be distributed. See Pieterse (n 78 above) 393.
145
K O'Regan ‘Introducing socio-economic rights’ (1999) 1 ESR Review 2. Currie & De
Waal (n 95 above) 570 give Soobramoney v Minister of Health (KwaZulu-Natal)
1998 1 SA 765 (CC) (Soobramoney case) as an example of a polycentric case.
According to Currie and De Waal, if the Constitutional Court had decided that
Soobramoney was entitled to dialysis treatment, the decision would not only have
affected the individual, but also the complex web of mutually interacting
resource allocations.
146 Davis (n 72 above) 478.