LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 63
basic needs for survival; that without satisfaction of these basic
needs, an individual's survival is directly threatened, which obviously
diminishes the individual's rights to life, personal security, and the
right to participate in the political and economic processes. 47
Nonetheless, in spite of the overwhelming support that the notion
of the minimum core has received, its implementation still poses a
number of challenges. For instance, it remains unclear as to whether
the minimum standards refer to individual enjoyment of a right or to
society-wide levels of enjoyment. 48 The ESCR Committee has said
that a state in which ‘a significant number of people is deprived of
essential [needs] is, prima facie, failing to discharge its
obligations’. 49 This might be taken to mean that the minimum core
does not establish individual rights but looks at society as a whole
from a relative perspective. 50 However, in several of its General
Comments, the ESCR Committee has indicated that the minimum core
refers to individual levels of enjoyment. For instance, in General
Comment No 15, the Committee has said that ‘[t]he water supply for
each person must be sufficient and continuous for personal and
domestic uses’. 51 The Committee has also said that ‘water facilities
and services have to be accessible to everyone without
discrimination’. 52
Additionally, at the international level, it remains unclear as to
whether the minimum core standards are international or statespecific.
53 The socio-economic contexts and needs of countries differ
from country to country. Socio-economic variations between
countries depend on factors such as economic and social history, the
nature of the economic system and the resources at the disposal of a
state. These variations will dictate that every country adopts that
approach that best realises the socio-economic needs of its people
47
See Inter-American Commission on Human Rights Annual Report, 1993 OEA/Ser.L/
V.85, February 1994, ch IV.
48 L Scott ‘Another step towards indivisibility: Identifying the key features of
violations of economic, social and cultural rights’ (1998) 20 Human Rights
Quarterly 81 101.
49 General Comment No 3 para 10.
50
M Wesson ‘Grootboom and beyond: Reassessing the socio-economic jurisprudence
of the South African Constitutional Court’ (2004) 20 South African Journal on
Human Rights 284 298.
51
Para 12(a).
52 Para 12(c) (my emphasis). One of the main reasons why the reasonableness
review approach, as it stands now, cannot lead to the realisation of the minimum
core is because of its failure to focus on the individual. Instead, the
reasonableness review approach emphasises society-wide levels of enjoyment by
requiring a comprehensive and inclusive programme that takes care of short,
medium and long-term needs. Although the Constitutional Court’s approach
requires that those in desperate need should be taken care of, it neither
guarantees them individual entitlements nor holds that their needs should take
priority over all other needs.
53 Craven (n 41 above) 141-2.