LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 65
unemployment, availability of land and poverty, in addition to the
differences between city and rural communities. 57
However, the quotation above suggests that the Court left the
possibility of adopting the minimum core approach open. 58 It seems
as if it declined to define it simply because it did not have adequate
information to enable it to do so. 59 This meant that in future, should
the Constitutional Court muster sufficient experience and have
adequate information before it, just like the Committee, it would be
prepared to define the minimum core. 60 This notwithstanding, the
approach of the Court subsequently pours cold water on this
possibility. The Court later held that imposing a minimum core
obligation on the state was imposing an impossible duty:
It is impossible to give everyone access even to a ‘core’ service
immediately. All that is possible, and all that can be expected of the
state, is that it acts reasonably to provide access to the socio-economic
rights identified in sections 26 and 27 on a progressive basis. 61
This quotation suggests that the Constitutional Court considers
immediate realisation of the minimum core to be impossible because
57
Grootboom case (n 16 above) para 32. In respect of the right of access to
adequate housing, the Constitutional Court said that the determination of a
minimum core for this right presents difficult questions. This is because the needs
of people in the context of access to adequate housing are diverse: There are
those who need land; others need both land and houses; yet others need financial
assistance. There are also difficult questions relating to the definition of the
minimum core in the context of a right to have access to adequate housing; in
particular, whether the minimum core obligation should be defined generally or
with regard to specific groups of people.
58 D Bilchitz ‘Giving socio-economic rights teeth: The minimum core and its
importance’ (2002) 119 South African Law Journal 485.
59
See paras 31-33. It has been suggested by Chapman & Russell (n 44 above) 18-19
that the minimum core obligations approach is woven through the Grootboom
judgment, both explicitly and implicitly. They base this view on the statement in
the judgment to the effect that a society must seek to ensure that the basic
necessities of life are provided for all if it is to be a society based on human
dignity, freedom and equality (Grootboom case, para 44). In my opinion, however,
it is clear from the rest of the judgment that, at best, the Constitutional Court
only applied the minimum core obligations approach in a pseudo manner. This is
when it emphasised that a reasonable programme must make provision for those
in desperate need. While this is an element of the minimum core of the right of
access to housing and all other rights as based on non-discrimination, the manner
in which it was applied by the Constitutional Court is incomplete. The Court does
not define the needs of such desperate people as taking priority over all other
needs. Yet the Court does not define, in precise terms, what the needs of the
vulnerable are in relation to the right of access to adequate housing.
60
See TAC case (n 32 above) para 33.
61 TAC case (n 32 above) para 35.