LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 81
The question, however, is whether the reasonableness review
approach is an administrative law approach, as has been
suggested. 123 As is demonstrated later, the reasonableness review
approach has established standards of scrutiny that are quite
different from those established by administrative law. 124
According to Fredman, in an administrative law case an agency
has a duty of accountability, which means that it must explain why it
has adopted a particular allocation of resources and not another. 125
In such a case, the duty of the court becomes one of guarding against
arbitrariness in resource allocation. 126 The burden imposed on the
state in this case would be one of justification. In the context of
sections 26 and 27, the state would have to justify its programmes as
reasonable and undertaken ‘within the available resources’. This
approach is akin to what was suggested by Mureinik as to how the Bill
of Rights could be reviewed to quell fears that judicial review is
countermajoritarian. 127 Mureinik’s suggested approach was intended
to ensure that government decisions are rational, while at the same
time restricting the court’s intrusiveness by allowing the state a wide
margin of discretion. Mureinik suggested that all that the state would
have to do was to justify its decisions; such decisions would only be
struck down by the court if the state ‘could not offer a plausible
justification for the programme it has chosen’. 128 Mureinik contended
that ‘any decision maker who is aware … of the risk of being required
to justify a decision will always consider it more closely than if there
was no risk’. 129
Mureinik’s form of constitutional review fares partly in the
Soobramoney case. In this case, the Constitutional Court held that it
‘will be slow to interfere with rational decisions taken in good faith
123 See C Sunstein Designing democracy: What constitutions do (2001) 224. See also
Bilchitz (n 81 above) 56A-11.
124
See Wesson (n 50 above) 287; and Steinberg (n 13 above) 277.
125 S Fredman ‘Providing equality: Substantive equality and the positive duty to
provide’ (2005) 21 South African Journal on Human Rights 163 176. See also Davis
(n 9 above) 304.
126 Sunstein (n 123 above) 224-37.
127 E Mureinik ‘Beyond a charter of luxuries: Economic rights in the Constitution’
(1992) 8 South African Journal on Human Rights 464.
128 Mureinik (n 127 above) 471. In a subsequent article, Mureinik describes the new
constitutional order as a bridge from a culture of authoritarianism, that
characterised apartheid, to a culture of justification; a culture in which every
exercise of public power is supposed to be justified. E Mureinik ‘A bridge to
where? Introduction to the interim Bill of Rights’ (1994) 10 South African Journal
on Human Rights 31. See also generally K Karl ‘Legal culture and transformative
constitutionalism’ (1998) 14 South African Journal of Human Rights 147.
129 Mureinik (n 127 above) 471. He submits that such decision maker is put under
pressure consciously to consider and meet all the objections and thoughtfully to
discard all the alternatives to the decision contemplated.