LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

68 Chapter 3
refusal to impose an absolute standard of performance. 71 Similar
sentiments have been expressed by Steinberg, who submits that the
minimum core approach would result in actual and perceived
restrictions on the legislature. He endorses the reasonableness review
approach as being standard-based rather than rule-based as the
minimum core would be. Steinberg submits that the minimum core
closes down the space to argue, for example, that to postpone other
interests, such as promoting economic growth and job creation, is not
the most legitimate interpretation of the Constitution. 72
However, in my opinion, these concerns about the rigidity of the
minimum core approach are taken care of by Liebenberg’s suggestions
in earlier writings. She has suggested elsewhere that acceptance of
the minimum core does not require the court to define, in the
abstract, the basket of goods and services that must be provided.
Instead, the court could define the general principles underlying the
concept of minimum core obligations in relation to socio-economic
rights. These principles, so she argues, would then be applied by the
courts on a case-by-case basis to define the content of the rights in
the circumstances. 73 The court would indicate the general principles
of what is required to remedy the breach while leaving a margin of
discretion to the state to decide the most appropriate means of
71 Liebenberg (n 36 above) 24. See also S Liebenberg, ‘Enforcing positive socioeconomic
rights claims: The South African model of reasonableness’ in J Squires
et al (eds) The road to a remedy: Current issues in the litigation of economic,
social and cultural rights (2005) 73 81.
72 Steinberg (n 13 above) 273.
73
S Liebenberg ‘South Africa’s evolving jurisprudence on socio-economic rights: An
effective tool in challenging poverty’ (2002) 6 Law, Democracy and Development
159 175. See also Liebenberg (n 36 above) 33-31. Bilchitz (n 58 above) 487 has
suggested that the duty of the courts is to identify general principles that specify
the obligations of government or individuals which apply beyond the facts of each
case. Bilchitz also contends that, in giving content to these socio-economic
rights, a court engages in a process of specifying general principles that define
the obligations placed upon the state by the right. One could submit that this
would give a chance to those with the ‘sharpest elbows’ who make it to the
courts to have their minimum core met at the expense of those who cannot
access the courts. However, it is submitted in ch four that this depends on the
form of justice that the court adopts. If the court adopts distributive, as opposed
to corrective justice, it will be able to address the interests of similarly situated
people as the applicants in a specific case (see sec 4.2.2 of ch four).