LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 67
Provision of a minimum core therefore can be justified only in
circumstances where non-provision cannot be ‘justified by the state
and where it is appropriate in the circumstances to order that the
claimant be provided with the benefit’. 66 The state could still argue
that it does not have the resources to meet the minimum core
immediately. This, however, would not mean that the state is
completely exculpated; it has to ensure maximum protection of the
rights in the circumstances. This point is discussed in more detail
later.
In addition to the problem of resources, one of the reasons why
the Constitutional Court has declined to define the minimum core
obligation is because of a conviction that people’s needs vary. This
links to the problem of polycentricism as discussed in chapter two. 67
The Court has, for instance, observed that determination of a
minimum core in the context of ‘the right to have access to adequate
housing’ presents difficult questions. According to the Court, this is so
because the needs 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.’ 68
This means that the minimum core is oblivious to context and the
diversified needs that context gives rise to. The Constitutional Court’s
concerns have been broadened and endorsed by Liebenberg. She
submits that the minimum core closes down debate and artificially
curtails the evolution of standards of defining social needs as
struggles around them unfold. 69 Liebenberg perceives the minimum
core as setting rigid standards as to what the basic needs are; these
standards ‘would be insensitive to the varying circumstances of
differently situated groups in society’. 70 This is what has motivated
Liebenberg to retract her support for the minimum core obligations
approach and to give backing to the reasonableness review approach.
She submits that the reasonableness review approach is more suited
for contextual application because of its flexibility arising from its
66 M Pieterse ‘Resuscitating socio-economic rights: Constitutional entitlement to
health services’ (2006) 22 South African Journal on Human Rights 473 483.
67 Sec 2.3.4.
68 Para 33.
69
S Liebenberg ‘Needs rights and transformation: Adjudicating social rights’ (2005)
Centre for Human Rights and Global Justice Working Paper No 8 27 sourced at
http://www.nyuhr.org/docs/wp/Liebenberg%20%20Needs,%20Rights%20and%20Tr
ansformation.pdf (accessed 23 March 2006). Also published in (2006) 17
Stellenbosch Law Review 5.
70 S Liebenberg, ‘The value of human dignity in interpreting socio-economic rights’
(2005) 21 South African Journal on Human Rights 24. See also Pieterse (n 56
above) 491.