LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 91
those means; the state would, therefore, have the discretion to
determine what it considers to be the best way of realising the
right(s). 175 All that the court would do is to ensure that the means
selected by the state are capable of realising the right(s). However,
where the means chosen by the state are demonstrably inadequate
and incapable of reasonably realising the right(s), then the court
should intervene. At this stage, the court should be entitled to be
prescriptive by detailing what in its opinion is the best way of realising
the right(s).
The above approach would not only allow enquiry into the
effectiveness of the means chosen, but would also compel the court
to give content to the rights. This is because there would be no way
the court could assess the effectiveness of the means chosen without
an understanding of the goal to be achieved, which is the realisation
of the right. This approach would also promote the constitutional
values of accountability, responsiveness and openness as it demands
for justification from the state. Similar standards of justification
could also be used in the available resources inquiry as discussed in
the next section. The conclusion of the court after interrogating the
effectiveness of the means chosen to realise the rights is relevant at
the stage of determining the most appropriate remedy. The court
would be able to determine the kind of remedy that effectively
compels the state to adopt measures that realise the rights.
3.2.3 Available resources and a justification inquiry
At both the international and South African levels, in realising socioeconomic
rights, the state can only do as much as its resources
permit. While ICESCR uses the phrase ‘to the maximum of … [a
state’s] available resources’ 176 and the South African Constitution
uses the phrase ‘within … [a state’s] available resources’, 177 as
already noted, 178 the differences between these two are, at best,
nomenclatural. In this section, the phrase ‘within the state’s
available resources’ is used because it is the one used in the South
African Constitution, but at the same time, reference is made to ‘the
maximum of the states’ available resources’, where necessary, to
illustrate standards at the international level.
175 This would quell fears that the courts are going to hide under the cloak of
choosing the most effective means to carry out functions that are reserved for
the executive and legislative organs of the state. See S Woolman ‘Limitation’ in M
Chaskalson et al (eds) (1996) Constitutional law of South Africa (1996) 12-8.
176 Art 2(1).
177
Secs 26(2) & 27(2).
178 Sec 3.1.