LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

76 Chapter 3
behind the protection of human rights’. 100 While this approach
realises socio-economic rights and gives them content as individual
rights; situating the minimum core solely in subsection (1) fails to
integrate the inadequacy of resources as a possible defence for failure
to satisfy the minimum core obligations. 101
As indicated above, a country can rely on inadequacy of resources
to justify its failure to meet the minimum core obligations. 102 Reading
the sections as proposed above suggests that the limitations in
subsection (2), including inadequacy of resources, would only apply at
the second level of progressive improvements from the minimum
core. This means that if resource limitations are to be invoked as a
defence, then this has to be derived from the notion of minimum core
itself and not subsection (2). However, this is problematic: Since
inadequacy of resources is expressly integrated in the Constitution, it
would only be logical for this defence to derive from subsection (2).
One would argue, though, that interpreting subsections (1) and (2)
holistically would subject the minimum core to the notion of
progressive realisation, thereby denying it meaning. However, this
argument does not stand since the minimum core itself derives from
the notion of progressive realisation. 103
The minimum core approach stresses the point that, in spite of the
fact that countries may realise the rights progressively, certain
obligations have to be met immediately as a matter of priority. 104 It
also emphasises the point that if the core content is not provided,
irrespective of progressive realisation and acting within available
resources, the rights would be rendered useless. On the basis of this,
therefore, the minimum core can only be derived from reading
subsection (1) together with (2), and not to isolate one from
100 Bilchitz (n 34 above) 12. Bilchitz contends further that sects 26 and 27 protect
two kinds of interests which are linked by the notion of progressive realisation.
The first is that, at a minimum level, people need to survive and for this they
require basic goods and services; the second is the interest that people have in
being provided with the conditions that enable them to pursue their own projects
and live a good life by their own rights (10-11).
101 As discussed in the next section, this reading was rejected by the Constitutional
Court in the TAC case.
102 See also Pieterse (n 56 above) 480.
103 Though not expressly, Bilchitz (n 58 above) 56A-36, appears to have abandoned
his initial suggestions that the two subsections be read as giving rise to two
different and self-standing obligations. He has submitted that the notion of
progressive realisation should be read as involving two components: The first
component is a minimum core, to realise, as a matter of priority, the minimally
adequate provision required to meet basic needs; the second component is the
duty to take steps to improve the adequacy of the provisions of resources over
time.
104 Chapman & Russell (n 44 above) 6.