LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 89
Another case where the Court has applied the proportionality test
is Minister of Public Works and Others v Kyalami Ridge Environmental
Association and Another (Kyalami case). 165 In this case, the Court
applied the proportionality test to uphold the right of access to
adequate housing against the right to property. The Court held that,
although the property interests of the Kyalami residents was only a
factor, the interests of the flood victims and their constitutional right
of access to adequate housing was also a factor to be considered. 166
According to the Court, the fact that property values may be affected
by a low-cost housing development on neighbouring land is a fact that
is relevant, it is only a factor and could not in the circumstances of
the case stand in the way of the constitutional obligation that the
government has to address the needs of homeless people. 167
The test, as applied above, is very important because it
strengthens the remedies granted in socio-economic rights litigation.
The Kyalami case also shows how the proportionality test can be
applied to cases that invoke purely positive obligations. One cannot
therefore use the Khosa case to argue that the test is only applicable
to cases invoking negative violations. It should be noted that the use
of this test is the only way through which the undue burden imposed
on litigants in socio-economic rights cases to prove the
unreasonableness of the state’s measures can be shifted to the state.
This test compels the state to put before the courts adequate
evidence, which will allow them to make informed decisions. Indeed,
as will be seen in the next section, the Constitutional Court in the
Khosa case held that the state had an evidential burden to put all
relevant information before the court. This is especially so in cases
where court orders would have budgetary implications. Such evidence
may be necessary for the purpose of determining the most
appropriate remedy. A finding that the means are not proportionate
could be used by the court to determine the degree of intervention
required at the remedial stage.
Also part of the section 36 enquiry is a set of factors that have to
be considered in determining whether a limitation is reasonable and
which requires, amongst others, an examination of whether there are less
burdensome means that could have been adopted. See President of the Republic
of South Africa v Hugo 1997 4 SA 1 (CC); Pretoria City Council v Walker 1998 2 SA
363 (CC); and National Coalition for Gay & Lesbian Equality v Minister of Home
Affairs 2000 2 SA 1 (CC).
165 2001 3 SA 1151 (CC). For a detailed discussion of the facts and issue in this case,
see ch two sec 2.2.4
166
Para 106.
167 Para 107.