LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

78 Chapter 3
been able to determine whether the measures adopted are
reasonable methods of realising the right. 110 The failure of the Court
to adopt this approach has serious implications for the efficacy of the
remedies the Court may have chosen to address a violation. 111 It has
been submitted that, in order to work out which considerations are
relevant to a determination of reasonableness in each context, it is
necessary to have a prior understanding of the general obligations
government is under by virtue of having to realise the rights in
question. Accordingly, the context-bound nature of a determination
of reasonableness requires that one at least has some specification of
standards they wish to be met in order to appraise the government's
actions in a variety of contexts in terms of their potential to meet
these standards. 112
It should be noted further that the failure of the Court to give
content to the rights leaves the government without guidance as to
what is expected of it in implementing the rights. 113 It is not enough
for the state to be told that it has to put in place an all-inclusive
programme, without being told what that programme should set as its
goal. It also makes it difficult for the court in its remedial orders to
prescribe in precise terms what the government should do to remedy
a violation. This lack of precision makes the task of enforcing court
orders very difficult, since enforcers cannot point precisely to what
needs to be done to remedy the violation. In this regard, Davis has
submitted that if the Constitutional Court does not define these rights
with any precision, the burden placed upon the executive by the
courts is significantly increased. 114
110 Bilchitz (n 109 above) 9; Bilchitz (n 58 above) 496; and M Pieterse ‘Coming to
terms with judicial enforcement of socio-economic rights’ (2004) 20 South
African Journal on Human Rights 383 407. Pieterse has submitted that, where the
reasonableness analysis is undertaken separately from an understanding of the
content of various socio-economic rights and the obligations they impose, it may
fail to develop a sound socio-economic rights jurisprudence (410).
111 Wells and Eaton have argued that in order to resolve issues related to
constitutional remedies, courts need to identify the goals they seek to achieve in
this area of law. They add that in this way, a court can evaluate the alternatives
by asking which of them will better achieve the policies at stake. M Wells &
E Eaton Constitutional remedies: A reference book for the United States
Constitution (2002) xxv.
112 Bilchitz (n 34 above) 10. In Bilchitz’s opinion, at present, the reasonableness
review approach lacks a principled basis upon which decisions on socio-economic
rights cases can be based. He submits that this heightens the attack on the
legitimacy of the decisions of the court since it has not set out any principled
standards upon which its decisions are based (10). See also Pieterse (n 110 above)
410. Elsewhere, Bilchitz (n 34 above) 3 has argued that one of the advantages of
an approach that gives content to a right is that it places the interests that are
affected under the spotlight and also questions the extent to which government
policy detrimentally impacts upon these interests.
113 K Iles ‘Limiting socio-economic rights: Beyond the internal limitation clauses’
(2004) 20 South African Journal on Human Rights 448 454.
114 Davis (n 9 above) 304.