LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

80 Chapter 3
27(1) are to have ‘access’ to the services that the state is obliged to
provide in terms of sections 26(2) and 27(2). 119
The approach of the Constitutional Court in conflating the two
subsections has also rendered section 7(2) redundant. This is in as far
as the section obligates the state to respect and protect the rights.
Generally, these two obligations are not dependent on resources and
therefore may not be subjected to progressive realisation. 120 Reading
the two subsections holistically means that the duties to respect and
protect the rights in sections 26(1) and 27(1) are also subject to
progressive realisation and available resources. Yet, as long as the
content of the rights is not defined, it will be hard to determine
whether the means chosen to realise them are effective. Nonetheless,
even when the content has been defined, the courts have to develop
a sound approach for testing effectiveness of the means chosen. Thus
far, the reasonableness review approach has failed to do so, as is
discussed in the next section.
Interrogating the means and end: A proportionality test
The Constitutional Court has been criticised for adopting a weak
administrative law approach in interpreting socio-economic rights
instead of a full blown proportionality test. 121 Some scholars,
however, contend that the administrative law approach of the Court
is the most appropriate; it allows courts to strike a balance between
judicial activism and judicial deference. It has thus been submitted
that, by retreating to the comfort zone of administrative law, the
Court has ‘made an important conceptual gain - it has mapped out a
(what it considers appropriate) role for the judiciary in adjudicating
the often polycentric issues raised by social rights claims’. 122
119
Para 39.
120 See ch two sec 2.2.4.
121 Bilchitz (n 34 above) 2; see also Pieterse (n 8 above) 863 and Roux (n 12 above)
97.
122 Pieterse (n 8 above) 893. See also C Sunstein, Social and economic rights? Lessons
from South Africa (May 2001), Public Law Working Paper No 12; University of
Chicago Law & Economics, Olin Working Paper No 124, sourced at http://
papers.ssrn.com/paper.taf?abstract_id=269657 (accessed 27 July 2004). However,
Pieterse (n 8 above) 896 has endorsed criticism to the effect that the
Constitutional Court’s approach neither serves to prioritise certain forms of social
expenditure over others, nor to treat the social deprivation of citizens as
anything more than ancillary concerns to an inquiry that in essence amounts to an
insistence on coherence, flexibility, fairness, inclusiveness, and rationality in
social policy formulation and implementation. Pieterse is of the view that the
Constitutional Court’s approach does not offer South Africans any socio-economic
entitlements other than those they have always enjoyed under administrative
law, which have proved useless in alleviating poverty.