LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 85
proportionality between ends and means, benefits and detriments.
Hoexter adds that a reasonable decision must have reasonable effects
as well as a rational structure and that proportionality, a principle
that is more specific than bald ‘reasonableness’, indicates more
clearly than the latter term the sort of conduct it seeks to prevent. 148
There is no similar test in the Constitutional Court’s
reasonableness review approach. The Court has not enquired whether
the means chosen by the government are rationally connected to the
purpose of realising the rights. While the reasonableness review
approach may result in the court questioning the connection between
the policy, which is the means, and the right, which is the goal, the
inquiry has not yet been carried out as a prerequisite under the
reasonableness review approach. 149 This is because there is no
principle that imposes a burden on the state to prove this
connection. 150
The most viable approach would be one that questions the
effectiveness of the means chosen by the state. In addition to PAJA,
this approach has also been used effectively in the general limitation
clause inquiry set out in section 36 of the Constitution. Section 36
provides that the rights in the Bill of Rights may be limited only in
terms of law of general application to the extent that the limitation
is reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom, taking into account all
relevant factors, including (a) the nature of the right; (b) the
importance of the purpose of the limitation; (c) the nature and extent
of the limitation; (d) the relation between the limitation and its
purpose; and less restrictive means to achieve the purpose. As is
demonstrated below, it is for this reason that the section 36(1)
approach could play an important role in socio-economic rights
litigation. While it is not appropriate to apply section 36 directly when
148 C Hoexter ‘The future of judicial review in South African administrative law’
(2000) 117 South African Law Journal 511.
149 Brand (n 12 above) 39. Roux (n 12 above) 97 submits that the Constitutional
Court’s reasonableness review standard is clearly stricter than the rational basis
standard applied under sec 9(1) of the Constitution. The requirement that a
programme be comprehensive, balanced and flexible means that the court must
do more than inquire whether the legislation or policy at issue is rationally
related to a legitimate government purpose; the court has to assess whether the
social programme unreasonably excludes the segment of society to which the
claimant belongs. However, Roux’s position rests on shaky ground. In the first
place, there is no evidence in the judgments to suggest that exclusion of certain
segments of society may be reasonable in some circumstances. Most importantly,
this approach still fails to interrogate the effectiveness of the means chosen to
realise the rights. It only supports the Soobramoney case’s rationality test by
insisting that a court, in determining whether an action is justified, will have to
consider whether the exclusion of a group is justified.
150
D Brand ‘Introduction to socio-economic rights in the South African Constitution’
in D Brand & C Heyns (eds) Socio-economic rights in South Africa (2005) 45.