LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

56 Chapter 3
which he refers to as a ‘discretionary gap’, to avoid interpretations
that would lead to confrontation. 12
Some scholars have described the Constitutional Court’s approach
as ‘minimalist’ in the sense that it only decides what is necessary in a
particular case and avoids laying down any abstract rules and
theories. This approach is considered ideal in protecting democracy,
because it leaves contentious issues open for democratic
deliberation. 13 The Court’s approach is therefore perceived as
capable of both respecting the separation of powers and realising the
transformative vision of the Constitution. 14 Indeed, the Constitutional
Court’s confirmation that socio-economic rights are justiciable and
the development of its reasonableness review approach as a means of
assessing the state’s obligations has strengthened the position of the
advocates of socio-economic rights in both domestic and international
arenas. This approach not only has confirmed that socio-economic
rights are capable of constitutional protection, but also that they are
amenable to judicial enforcement. 15
In spite of this, the Court has been criticised for construing socioeconomic
rights as abstract rights, whose beneficiaries are only
entitled to reasonable programmes instead of concrete goods and
services. The Court not only has failed to give content to these rights,
but has also failed to interrogate the effectiveness of the means
chosen to realise them. This is in addition to the failure to interrogate
the reasonableness of the resources deployed for the purpose of
realising the rights and to question whether there are efforts to raise
and allocate more resources to the rights.
This chapter demonstrates, however, that the reasonableness
review approach could be strengthened to give normative content to
the rights. A proportionality test, equivalent to the one used in the
general limitations clause inquiry, is proposed. This would enable the
Court to interrogate the reasonableness of the means chosen on the
basis of their ability to realise the right(s) in issue. The chapter also
advocates interrogation of the reasonableness of the resources
allocated to the realisation of the rights. The burden should be cast
12 T Roux ‘Legitimating transformation: Political resource allocation in the South
African Constitutional Court’ (2003) 10 Democratisation 92 96. 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 51.
13 C Steinberg ‘Can reasonableness protect the poor? A review of South Africa’s
socio-economic rights jurisprudence’ (2006) 123 South African Law Journal 264
269, quoting from C Sunstein One case at a time: Judicial minimalism on the
Supreme Court (1999) 9.
14 Steinberg (n 13 above) 276.
15
See In re Certification of the Constitution of the Republic of South Africa 1996 10
BCLR 1253 (CC) (First Certification case).