A jurisprudential analysis of the enforceability of socio-economic rights in South Africa: a constitutional discourse

5.1.2.1 Limited Capacity of the State to Determine the Content of Minimum Core

The first argument leveled by the courts against the adoption of the minimum core approach is that it lacks the capacity to define the content of this concept. This argument reflects the objection that was submitted against the adjudication of socioeconomic rights by courts. The court is not institutionally equipped to make factual and political enquiries to determine what the minimum core is comprised of. In the words of the CC, courts «are ill-suited to adjudicate issues where the court orders could have multiple consequences for the community»¹⁸⁶. The CC concluded by stating that it does not have the necessary information to determine what would comprise the minimum core obligation¹⁸⁷. These findings of the CC are in line with the view expressed by Young for whom the minimum core is in search of content. After

185 Pieterse 2006 SAJHR 484. See also Bilchitz 2003 SAJHR 15, Bilchitz 2002 SALJ 485 and Pieterse

2004 Human Rights Quarterly 897.

186 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 1033 38.

187 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 33.

analysing all the concepts developed to determine the content of minimum core, Young argues that¹⁸⁸:

The virtue of disaggregating these approaches lies in understanding the root of the conceptual confusion. The resulting clarity helps us to distill several competing operations for the concept: in prescribing content, ranking obligations, signaling extraterritoriality, and introducing a new language of claiming. Many of these operations are not, in the end, suited to the concept of the minimum core.

In addition to the uncertainty to determine the content of the minimum core, another obstacle according to the CC is relating to the definition of minimum core with regard to the right to access to adequate housing in particular¹⁸⁹. The question is whether the minimum core obligation should be defined generally or with regard to specific groups of people. In the light of all these difficulties to define and determine the content of minimum core, the CC accordingly declined to adopt it as the approach to adjudicate socio-economic rights.

5.1.2.2 Rejection of the Minimum Core due to the Divergent Needs

Another critical element against the adoption of the minimum core is the diversity of
needs with regard to socio-economic rights. It is difficult to determine the minimum core
particularly with the right of access to adequate housing without identifying the needs

188 Young 2008 Yale Journal of International Law 175. Young concludes that «the essence, consensus,

and obligations approaches to the minimum core provide it with a paradoxical grounding. To restate, the essence approach fails to deliver a determinate core? to economic and social rights because of the inevitability of disagreement in the ordering of both values and needs, and because it is disengaged with the institutional background that impacts how legal rights are realised and enforced. While the normative inquiry and especially the focus on dignity is helpful in charting the substantive content of rights, it misfires when placed within the minimalist and rigid core? formulation. The consensus approach seeks to remove these shortcomings, yet produces only a vague and conservatively articulated core?, which conceals the troubling question of whose consensus counts and whose consensus (and disagreement) is peripheral. The obligations approach is incompatible with a core? designation, due to the polycentric obligations that correlate with each economic and social right, the relativity between their negative? and positive? formulations, and the danger of capture into vocabularies of institutional jurisdiction or justiciability.».

189 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 33.

and opportunities for the enjoyment of such right. For the CC, the adoption of such concept will depend on various factors such as income, availability of land and poverty¹⁹⁰. This stresses the fact that people have different needs with regard for example, to the right to adequate housing. Some might be in need of land; others may need loan or even need house and loan at the same time. Moreover, needs vary from one area to another and are different from rural area to the city. In this context, it is difficult to determine what the minimum core would be and according to the CC, it is not necessary and appropriate to do so¹⁹¹. The minimum core approach of the right to have access to health care services is also not easy to determine. In this perspective, Lehmann argues that the conceptual problems of the minimum approach are particularly noticeable with connection to the right to have access to health care services.

Lehmann further affirms that the court?s reluctance to adopt the minimum core approach is due to the fact that it has not yet fully been articulated and to avoid contradiction inherent to the concept¹⁹². For instance, the minimum core obligation would require the court to distinguish between essential and non essential levels of health care. According to the author, there is no clarity as to whether the conception of the minimum core is absolute or relative¹⁹³. In other words, the content of the minimum core differs from one country to another or there is a universal minimum threshold for all the right. All these uncertainties render difficult the adoption of the minimum core approach.

190 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 32.

191 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 33.

192 Lehmann 2006 am. u. int'l l. rev. 182. Citing Klare 1998 SAJHR 146, 161-64 and 187, the author

expresses the view that «There are significant conceptual flaws with the minimum core concept. I believe that the court?s unwillingness to adopt the minimum core approach stems from an intellectual discomfort that it has not yet fully been able to articulate, not for lack of candor, but for want of opportunity to reflect fully on the contradictions inherent in the concept, and from its reluctance to expose the starkly utilitarian choices that inform the allocation of resources among the beneficiaries of socio-economic rights».

193 Lehmann 2006 am. u. int'l l. rev. 182.

5.1.2.3 The Rejection of the Minimum Core due to its rigidity

This stance raises the point that the minimum core obligation is not flexible. It provides for individual claims with regard to socio-economic rights. The CC was firm in affirming that, due to the scarcity of resources, the state could not fulfill everyone?s needs. It concluded that «the Constitution does not give rise to a self standing and independent positive right enforceable». When arguing that the court has charged the minimum core approach of being rigid and not taking into consideration the limitation of resources, Bilchitz concedes that¹⁹⁴:

The minimum core approach does require us to take a rigid stance in one respect: it requires us to recognise that it is simply unacceptable for any human being to have to live without sufficient resources to maintain their survival. A state must do everything within its power to rectify such a situation and we must not be intolerant of such living conditions. Such rigidity may indeed be a feature of the minimum core approach but such rigidity occurs in exactly the right place.

In view of the above, the CC accordingly, declined to adopt the minimum core approach to interpret socio-economic rights. The CC rather stated that the real question is whether the measures applied by the state to realise socio-economic rights are reasonable¹⁹⁵. The reasonable approach developed by the court is discussed hereunder.

194 Bilchitz 2003 SAJHR 15.

195 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 33. The court held that:

«As will appear from the discussion below, the real question in terms of our Constitution is whether the measures taken by the state to realise the right afforded by section 26 are reasonable. There may be cases where it may be possible and appropriate to have regard to the content of a minimum core obligation to determine whether the measures taken by the state are reasonable. However, even if it were appropriate to do so, it could not be done unless sufficient information is placed before a court to enable it to determine the minimum core in any given context.»

5.2 THE DEVELOPMENT OF THE REASONABLENESS APPROACH FOR THE INTERPRETATION AND ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA

Many decisions have been held by the CC for the enforcement of socio-economic rights. However, it is submitted that it was in the Grootboom case that the CC laid down its jurisprudential foundation for future adjudication of socio-economic rights¹⁹⁶. Therefore, the reasonable approach is analysed with emphasis to the Grootboom case since other cases decided later simply referred to Grootboom case¹⁹⁷.

5.2.1 REQUIREMENTS FOR THE REASONABLENESS APPROACH

The CC in Grootboom case laid down the principles or factors of reasonableness and the requirements against which this approach is assessed. At the outset, the CC held that the test of reasonableness does not seek to enquire whether an alternative option was available or not¹⁹⁸. The test rather focuses on the analysis of the program or policy. In TAC case for instance, the CC held that the question in terms of the Constitution is whether the measure taken by the state to realise the right was reasonable¹⁹⁹. Moreover, the program is assessed at its conception and at its

196 Wesson 2004 SAJHR 285.

197 See in this regard the more recent case of Resident Joe Slovo Community Western Cape v Thubelisha

Home CCT 22/08 2009 ZACC 16. The applicants challenged their eviction from their homes. The court per Jacoob J when examining the eviction order of the HC, quoted Grootboom requirements of reasonableness. The court held that «it must be remembered in relation to the requirements of reasonableness that the measures must establish a coherent public housing program directed towards the progressive realisation of the right of access to adequate housing within the State's available means...? and « eviction is a reasonable measure to facilitate the housing development program. In addition, all the factors discussed in relation to the question whether it is just and equitable to grant the eviction order also justify a conclusion that the eviction is, in the circumstances, reasonable.» 115-116.

198 In Khosa and v Minister of Social Development ; Mahlaule v Minister of Social Development (CCT 13/03 and 14/03) 48, Mokgoro J held that when «considering the reasonableness of legislative or other measures taken by the state will not enquire into whether other more desirable or favourable measures could have been adopted, or whether public resources could have been better spent. A wide range of possible measures could be adopted by the state to meet its obligations and many of these may meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement would be met.».

199 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 47.

implementation phase. A policy must therefore meet the following requirements of the reasonableness concept.

5.2.1.1 The Program must be Comprehensive and Co-ordinated

The program must be co-ordinated and comprehensive with allocation of tasks to all spheres of government. A reasonable program in the words of the CC «clearly allocates responsibilities to different spheres of government and ensures that appropriate» financial and human resources are available²⁰⁰. Health care services are for instance, concurrent function of the national and provincial government²⁰¹. Therefore, both spheres of government must share responsibility and ensure that services are provided in a sustainable manner to the communities. This means that allocation of responsibility and function has to be coherently and comprehensively addressed²⁰². The CC went on to say that although each sphere of government has the duty to implement part of the program, the national government bears however, the responsibility for ensuring that the program is adequate to meet its constitutional obligation²⁰³. Moreover, the program must represent a «systematic response to pressing social needs»²⁰⁴. Similarly in TAC, the contention of the applicant raised the

200 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 39.

201 Schedule 4 of the 1996 Constitution. Other functional areas of concurrent national and provincial

legislative competence are inter alia administration of indigenous forests, agriculture, airports other than international and national airports, animal control and diseases casinos, racing, gambling and wagering, excluding lotteries and sports pools, consumer protection, cultural matters, disaster management, education at all levels, excluding tertiary education, environment and housing.

202 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 54.

203 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 40. Thus, a co-ordinated

state housing program must be a comprehensive one determined by all three spheres of government in consultation with each other as contemplated by Chapter 3 of the Constitution. It may also require framework legislation at national level, a matter we need not consider further in this case as there is national framework legislation in place. Each sphere of government must accept responsibility for the implementation of particular parts of the program but the national sphere of government must assume responsibility for ensuring that laws, policies, programs and strategies are adequate to meet the state?s section 26 obligations. In particular, the national framework, if there is one, must be designed so that these obligations can be met. It should be emphasised that national government bears an important responsibility in relation to the allocation of national revenue to the provinces and local government on an equitable basis. Furthermore, national and provincial government must ensure that executive obligations imposed by the housing legislation are met.

204 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 54.

question as to whether the government has a comprehensive policy for preventing mother to child transmission of HIV/AIDS²⁰⁵.

5.2.1.2 The Program must Realise the Right Progressively

The program established to realise socio-economic rights must be directed towards the progressive implementation of the rights within the availability of resources. The program must therefore facilitate the enjoyment of the rights entrenched in the Bill of Rights. However, the measure adopted must be reasonable. The CC held that, the term «progressive realisation» means that the «rights could not be realised immediately» and that state must take steps to achieve these rights. The requirement of progressive realisation obliges the state to ensure that the «basic needs of all in our society must effectively» be fulfilled. Most importantly, the rights should benefit not only a «large number but a wide range of people as time progresses»²⁰⁶. The availability of resources means that the content of the right «in relation to the rate at which it is achieved as well as the reasonableness of the measures employed to achieve the result are governed by the availability of resources»²⁰⁷.

5.2.1.3 The Program must be Flexible and Balanced

A program will pass the test of reasonableness if it is flexible, balanced and take into account medium, long and short term needs. In TAC case for instance, the CC found that the policy of restricting the provision of nevirapine to research sites was inflexible and did not take into consideration the need of a particular vulnerable group²⁰⁸. The CC further held that, the rigidity of the government?s approach affected its policy as a

205 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 47.

206 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 45.

207 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 45.

208 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 80. Government

policy was an inflexible one that denied mothers and their newborn children at public hospital and clinics outside the research and training sites the opportunity of receiving a single dose of nevirapine at the time of the birth of the child. A potentially lifesaving drug was an offer and where testing and counseling facilities were available it could have been administered within the available resources of the state without any known harm to mother or child.

whole²⁰⁹. It was therefore, unreasonable to restrict the use of nevirapine to researches and training sites. It is clear that, the reasonable approach enjoins the program to be flexible and balance.

5.2.1.4 The Program must Respond to Urgent Relief

According to the CC, a reasonable program though well designed may still not meet the requirements of reasonableness if it does not make provision for people in desperate needs²¹⁰. The program must provide short term provision of services for those living in appalling conditions. Therefore, a significant number of needy people will be afforded relief through proper planning, monitoring and budgeting²¹¹. The CC held in this regard that²¹²:

Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right. Furthermore, the Constitution requires that everyone must be treated with care and concern.

Moreover, the program must enquire whether it is sufficiently flexible to respond to urgent solution and «cater appropriately for immediate and short term»²¹³ relief. This last component is justified with the values that the 1996 Constitution attached to human dignity, equality and freedoms inherent to human beings²¹⁴. In Grootboom case, after

209 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 95.

210 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 68.

211 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 68.

212 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 44.

213 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 56. When assessing the

housing program, the court held that: «to determine whether the nationwide housing program as applied in the Cape Metro is reasonable within the meaning the section, one must consider whether the absence of a component catering for those in desperate need is reasonable in the circumstances. It is common cause that, except for the Cape Metro Land Program, there is no provision in the nationwide housing program as applied within the Cape Metro for people in desperate need.».

214 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 44.

analysing the housing program, the CC held that the housing development policy as «set out in the Act is in itself laudable. It has medium and long term objectives that cannot be criticised»²¹⁵?. However, the court found that²¹⁶:

there is no express provision to facilitate access to temporary relief for people who have no access to land, no roof over their heads, for people who are living in intolerable conditions and for people who are in crisis because of natural disasters such as floods and fires, or because their homes are under threat of demolition. These are people in desperate need. Their immediate need can be met by relief short of housing which fulfils the requisite standards of durability, habitability and stability encompassed by the definition of housing development in the Act.

The CC concluded that the national housing program did not provide «relief for people who have no access to land, no roof, over their heads and who are living in intolerable conditions or crisis situations»²¹⁷.

5.2.1.5 The Program must be Transparent

The 1996 Constitution advocates for transparency in all spheres of government. For instance, administrators are required to be transparent and to provide the public with timely, accessible and accurate information²¹⁸. Moreover, the principles of co-operative government require communication and the facilitation of flow of information between the three spheres of government and among department within one sphere of government²¹⁹. It is in this context that, transparency is an additional requirement of reasonableness.

215 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 64. Elsewhere in the

judgment, the court held that «What has been done in execution of this program is a major achievement. Large sums of money have been spent and a significant number of houses have been built. Considerable thought, energy, resources and expertise have been and continue to be devoted to the process of effective housing delivery. It is a program that is aimed at achieving the progressive realisation of the right of access to adequate housing.».

216 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 52.

217 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 99.

218 See in this regard sections 32 and 195 (1) (g) of the 1996 Constitution.

219 Burns and Beukes Administrative Law 45. According to the authors, co-operative government may take

place vertically between all spheres of government, or horizontally within each sphere of government.

According to Liebenberg, it is a welcome feature²²⁰. Furthermore, it was submitted in TAC case that, the threat of HIV/AIDS in the country calls for a «concerted, coordinated and co-operative national effort»²²¹ in which all spheres of government must communicate efficiently. The CC noticed however, that no programs have been «publicly announced to realise progressively the rights of pregnant women and their newborn babies to have access to nevirapine»²²². It concluded that transparency is indeed a constitutional requirement of reasonableness.

5.3 CONCLUSION

It is evident from the above that, the new dispensation provides for enforceable socioeconomic rights. However, no indication is given on the manner in which such rights must be interpreted for their enforcement. The interpretation of the Constitution is the province of the CC which, in this context, has to develop a suitable approach for socioeconomic rights vindication. In this regard, legal scholars have also suggested the adoption of the minimum core obligation for the interpretation of socio-economic rights. As indicated above, the CC declined to follow this recommendation mainly because it is not easy of application.

For instance, it objected that the rigidity of this approach gives rise to individual claims to socio-economic rights notwithstanding the resource constraints and the progressive realisation inherent in such rights. The CC instead adopted the reasonableness approach that enquires whether or not a program designed to implement socioeconomic rights is reasonable. In terms of this enquiry, the reasonableness of a program must be assessed with regard to its coherency, comprehension, balance, flexibility and transparency. Most importantly, the program must include vulnerable people in the community who need urgent relief. Despite the fact that the CC has

220 Liebenberg 2009 HYPERLINK http// www.communitylawcentre.org.za/Socio-Economic-Rights/2nd-ed-of-

resource-book/indexhtml 7 August.

221 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 123.

222 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 123.

reiterated the reasonableness approach in subsequent cases²²³, critics are still questioning this concept. They raise some concerns as to the effectiveness of the reasonableness doctrine to realise socio-economic rights. They urge for the adoption of the minimum approach as developed by the Committee on ESCR. This approach together with the shortcomings of the reasonableness theory is examined below as an alternative approach to interpret and enforce socio-economic rights.

223 Occupiers of 51 Olivia Road v City of Johannesburg 2008 CCT 24/07 10. The court held that: «in

Grootboom this Court said, on the relationship between reasonable state action and the need to treat human beings with the appropriate respect and care for their dignity to which they have a right as members of humanity.». See also Resident Joe Slovo Community Western Cape v Thubelisha Home CCT 22/08 2009 ZACC 16. The CC quoted Grootbom case in analysing the applicants application appeal against their eviction.

CHAPTER 6: THE MINIMUM CORE APPROACH: ALTERNATIVE APPROACH TO SOCIO-ECONOMIC RIGHTS INTERPRETATION

The CC of South Africa has developed the reasonableness approach to interpret and enforce socio-economic rights. This approach has not received great support among legal scholars. In fact, much critique has been leveled against the reasonableness concept. Many legal scholars advocate for the minimum core approach that the court has however, continuously declined to adopt. This study analyses the critique against the reasonableness theory and explores the minimum core approach as alternative for the enforceability of socio-economic rights.