LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 57
on the state to prove that it has allocated reasonable resources to the
rights. In case of resource limitations, the state should prove its plans
of improving on the resources in addition to proving that it is
employing the available resources maximally.
3.2 An appraisal of the Constitutional Court’s reasonableness
review approach
The Constitutional Court has held that in socio-economic rights
litigation, the question should not always be one of whether or not
these rights are justiciable but how to enforce them in a given case. 16
The Court has dismissed submissions that socio-economic rights
cannot be justiciable because they have budgetary implications. In
the Court’s opinion, when the courts enforce socio-economic rights,
the task conferred upon them is no different from the one conferred
on them when they enforce civil and political rights. According to the
Court, this is because, just like socio-economic rights, orders to
enforce civil and political rights may have budgetary implications. 17
The Court has also held that the inclusion of socio-economic rights in
the Constitution does not result in the violation of the doctrine of
separation of powers and that, at the very minimum, socio-economic
rights can be negatively protected from improper invasion. 18
On the basis of the above, the Constitutional Court has had no
problem enforcing the socio-economic rights in the Constitution. The
first case to engage directly with the enforcement of these rights was
Soobramoney v Minister of Health, KwaZulu-Natal. 19 This case was
instituted by a patient who had been denied access to dialysis
treatment under a policy that excluded patients of his status because
of the limited resources at the disposal of the hospital. 20 The Court
found that, while the state was under a duty to provide Mr
Soobramoney with access to health care services, it had been
established that the state did not have sufficient resources to provide
16 Government of the Republic of South Africa v Grootboom & Others 2000 11 BCLR
1169 (CC); 2001 1 SA 46 (CC) (Grootboom case) para 20.
17 First Certification case (n 15 above) para 77.
18 First Certification case (n 15 above) para 78.
19
1998 1 SA 765 (CC); 1997 12 BCLR 1696 (CC) (Soobramoney case).
20 Mr Soobramoney relied on the sec 27(3) right not to be denied emergency medical
care and the sec 11 right to life. The Court found that Mr. Soobramoney could not
base his case on sec 27(3) because his case was not an emergency. In the
Constitutionall Court’s opinion, an emergency occurs when ‘[a] person suffers a
sudden catastrophe which calls for immediate medical attention’ (para 20). Mr
Soobramoney’s case was not an emergency; it was ‘an ongoing state of affairs
resulting from a deterioration of ‘[his] renal function which is incurable’ (para
21). Having failed to be treated as an emergency under sec 27(3), Mr
Soobramoney’s case could be dealt with only in terms of sec 27(1) and (2) of the
Constitution.