LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 73
especially of those who are in dire need. 91 Progressive improvement
for those who already have a minimum level has to wait until
everyone has had access to the basic needs. 92 But this does not mean
that the state does not have any obligations towards those living
above the minimum level. The state should avoid creating conditions
that cripple the ability of those living above minimum levels to meet
their needs on their own. The creation of such negative conditions
would amount to retrogressive measures which are in themselves
prima facie violations. 93
The problem with the Grootboom case is that, while it requires
protection of the needs of the most vulnerable, it does not require
that provision for such needs should be high on the agenda. 94 All the
Constitutional Court says is that the needs of such people should not
be ignored by measures intended to realise the right for all in the long
run. The Court demands that there should be a programme which is
inclusive and possibly spreads resources to meet the short, medium
and long-term needs simultaneously. 95 This approach therefore is
about inclusiveness without compulsion that the state gives high
priority to the needs of the most vulnerable. Indeed, in a recent
paper, Liebenberg has described the reasonableness approach as a
91
According to Bilchitz (n 34 above) 15, the minimum core is a means of specifying
priorities. It involves an injunction that priority must be given to those in a
condition where their survival is threatened. He adds that any government
programme must consider the needs of people in such a situation and assist them
as a matter of priority. Blichitz adds further that the state cannot treat such
people as representing one problem to be dealt with amongst others.
92
According to Liebenberg (n 70 above), the best approach would be one that in the
first place requires the state to ensure that everyone has access to the minimum
core and then, in the second place, the state must over time improve the quality
of socio-economic rights to which individuals have access.
93 The ESCR Committee has said that any deliberate retrogressive measures would
require the most careful consideration and would need to be fully justified by
reference to the totality of the rights provided for in the Covenant and in the
context of the full use of the maximum available resources. General Comment No
3 (para 3).
94 See Roux (n 83 above) 42 47. Roux has said that, even if the South African
government takes the Grootboom order seriously, this will only have an impact on
the state’s budget, but will not have an impact on the temporal order in which
competing needs are met. In Roux’s opinion, it is only the wholesome adoption of
paragraph 10 of General Comment No 3 that would have required the government
to devote all available resources to meet the needs of those without any kind of
shelter before moving on to improving the life condition of everyone (47). See
also Pieterse (n 8 above) 896. Roux has argued in another paper that had the
Court required the government to prioritise the needs of those who need a
minimum core over those who do not, it would have put itself in direct
confrontation with the political branches whose duty it is to make budgetary
allocations, that this is because the Court would have been substituting its views
on resource allocation for those of the political branches (Roux (n 12 above) 97-
98). However, it is submitted in this chapter that the minimum core could still be
implemented in a manner that gives appropriate deference to the political
branches. As mentioned above, the Court would have to define the minimum core
using broad parameters and leave it to the state to choose the most appropriate
means for its realisation.
95 See para 43 of the case.