LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

66 Chapter 3
the state cannot afford it. 62 It is, however, evident that the Court’s
conclusion is not based on any evidence adduced by the state to prove
that it is impossible on its part to satisfy the minimum core. Contrary
to the assertion in the Grootboom case that the Court cannot define
the minimum core without sufficient information before it, the
Constitutional Court in the TAC case, without any evidence, closes the
possibility of the minimum core by describing it as something that is
impossible to realise.
The Court ignores the fact that there is an evidential burden on
the state not only to prove that the resources are inadequate, but also
that it is striving to ensure the widest possible enjoyment of the rights
in the circumstances. 63 The Constitutional Court ignores the need for
this evidential burden and makes its own assumptions, unsupported
by evidence, that the state does not have the resources to satisfy the
minimum core. The state should also have been required to show that
every effort is being exhausted towards meeting the basic needs in
the circumstances. 64 This is because the notion of minimum core does
not require that minimum levels of goods and services be provided
irrespective of circumstances that may make this impossible. 65
62 During the hearing of the case, one of the judges, Justice Sachs, engaged counsel
in questions that sent the message that the minimum core was impossible. Justice
Sachs asked counsel whether the minimum core meant that somebody living in
the mountains could come to court and say that he wants water from a tap, even
if the money spent on this demand would furnish water for 10 000 people on the
lower plain. See A Sachs ‘The judicial enforcement of socio-economic rights: The
Grootboom case’ in J Peris & S Kristian (eds) Democratising development: The
politics of socio-economic rights in South Africa (2005) 150. However, this is a
total disregard of the views of the ESCR Committee that ‘resources play [a role]
in assessing whether or not a country has discharged its minimum core obligations
and that a state could attribute its failure to discharge the obligation to
inadequacy of resources’.
63
The ESCR Committee has said that the availability of resources plays a role in
determining whether a state has violated its minimum core obligations. However,
a state must ‘demonstrate that every effort has been made to use all resources
that are at its disposition in an effort to satisfy, as a matter of priority, those
minimum obligations’. General Comment No 3 para 10. The ESCR Committee has
added that ‘even where the available resources are demonstrably inadequate,
the obligation remains for the state party to strive to ensure the widest possible
enjoyment of the relevant rights under the prevailing circumstances’ (para 11).
The Committee goes on to state that, moreover, the obligations to monitor the
extent of the realisation, or more especially of the non-realisation, of socioeconomic
rights and to devise strategies and programmes for their promotion, are
not in any way eliminated as a result of resource constraints (para 11). See also S
Liebenberg ‘Violations of socio-economic rights: The role of the South African
Human Rights Commission’ in P Andrews & S Ellman (eds) The post-apartheid
constitutions: Perspectives on South Africa’s basic law (2001) 419.
64
Wesson (n 50 above) 302. According to Pieterse (n 8 above), the Constitutional
Court’s rejection of the minimum core on the assumption that it would always
lead to immediately enforceable entitlements against the state seems to indicate
an ignorance of the function of the minimum core in international law, which
expressly situates the concept within an overarching framework of progressive
realisation and indicates that there may be circumstances in which noncompliance
with the core obligations may be justified.
65 Pieterse (n 7 above) 142.