LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

82 Chapter 3
by the political organs and medical authorities whose responsibility it
is to deal with such matters’. 130 As a result, the Court endorsed as
rational a decision that scarce medical resources need not be
expended on chronically ill patients at the expense of patients with a
hope of recovery. The Constitutional Court has gone a step further by
invoking not rationality as the basis of justification, but
reasonableness. This is a standard expressly proclaimed by the
relevant provisions of the Constitution. The problem with the
approach of the Court, however, is that it does not require the state
to justify its programme as reasonable. Instead, the burden is on
whoever is contesting the state’s programme to demonstrate its
unreasonableness. The question therefore remains whether the
administrative law standard of judicial review takes the same
approach.
Does the Constitutional Court’s approach use an administrative
law standard?
The use of the ‘reasonableness’ concept in administrative law differs
from the way in which it has been used by the Constitutional Court in
socio-economic rights litigation. Most notable is the fact that
reasonableness in socio-economic rights litigation considers such
values as human dignity, equality and freedom in its assessment.
These values do not feature in the administrative law scrutiny. 131 It
cannot be denied, though, that there are some areas of commonality.
The first area of commonality is the principle that the state should be
given leeway to choose the most appropriate way of discharging its
legal obligations. The second is the contextual definition and
application of reasonableness. 132
The reasonableness test now used in administrative law originates
in English common law, as first set out in Associated Provincial Picture
Houses v Wednesbury Corporation. 133 In this case, it was held that a
court is entitled to interfere with the decision of an administrative
body only if the decision is so unreasonable that no reasonable body
would have taken such a decision. 134 The court held further that,
even in such a case, it is not the duty of the court to decide whether
a decision is or is not reasonable. The court said that this kind of
decision is an executive function, which requires that deference be
shown to the administrative authorities. The court’s duty is only to
130 Para 58.
131
Steinberg (n 13 above) 277. See also Port Elizabeth Municipality v Various
Occupiers 2005 1 SA 217 (CC) para 29.
132 Steinberg (n 13 above) 277.
133
[1947] 2 All ER 680 (Wednesbury case).
134 683 E.