LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 77
another. 105 Subsection (2) should be used as the starting point to
justify the minimum core obligation as deriving from the notion of
progressive realisation. Subsection (1) would define the minimum
core content of the specific rights. A finding that an individual is
entitled to a minimum core of goods and services under subsection (1)
could still be vitiated under subsection (2). Sub-section (1) would also
be used to give normative content to the right.
3.2.2 Giving the rights normative content
Connected to rejection of the minimum core obligations approach is
the Constitutional Court’s failure to give content to the socioeconomic
rights in the Constitution. 106 In all three decisions,
Soobramoney, Grootboom and TAC, socio-economic rights have been
interpreted in a manner that only entitles the beneficiaries of the
rights granted in sections 26 and 27 to reasonable state action
undertaken to progressively realise these rights subject to the
available resources. 107 It is clear from subsection (2) of both sections
26 and 27 that what is required of the state is to realise the right
mentioned in subsection (1). To this extent, one agrees with the
Constitutional Court’s decision in the TAC case that the two
subsections must be read together. What the Court ignores, however,
is the fact that these sections establish a goal as well as the means
to achieve that goal. 108 The goal is that the rights in subsection (1)
have to be realised but only through the means stated in subsection
(2). If we take this further on the basis of what the Constitutional
Court says, that is, that the two subsections have to be read together,
it means that the means have to be understood in the context of the
goal. We cannot test the efficacy, or even reasonableness, of the
means used in realising the goal unless we know precisely what the
goal entails. 109 The Constitutional Court should have begun by getting
to grips with the content of the right; and only then would it have
105 While the ESCR Committee has read the minimum core into a number of
substantive rights in its General Comments, the notion itself has been derived
from art 2(1), which defines the obligations almost in the same manner as secs
26(2) and 27(2) of the South African Constitution. This means that the notion uses
art 2 as its basis for spreading out into the other articles of ICESCR.
106
See C Mbazira ‘Enforcement of socio-economic rights in South Africa:
Strengthening the reasonableness approach’ (2008) 28 Nordic Journal of Human
Rights 131. See also Pieterse (n 7 above) 96.
107
Brand (n 12 above) 38.
108 Bilchitz (n 34 above) 143.
109 Brand (n 12 above) 44. See also Bilchitz (n 34 above) 8; and D Bilchitz ‘Placing
basic needs at the centre of socio-economic rights jurisprudence’ (2003) 4 ESR
Review 3.