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

7.1 THE RELATIONSHIP BETWEEN THE REASONABLENESS CONCEPT AND THE MINIMUM CORE APPROACH

This study examined the arguments for and against the reasonableness approach and the minimum core obligation. It is submitted that the proponents and opponents of both approaches are missing two points. This study argues that their differences to some extent are not holding grounds. In fact, both approaches emphasise on immediate relief for people living in appalling conditions²⁶³. This requirement is the key element without which the reasonableness test is meaningless. A program may pass the other elements but fails the test if this key requirement is not met. On the contrary, if a program fails the other requirements and passes this essential one, it may pass the test. The minimum core obligation also requires that those who are in need, be prioritised with minimal provision of services.

Although the CC?s reasonableness test does not make explicit reference for emergency provision of services to poor people, the urgency or priority of this category of people may nevertheless be inferred from the wording of the court. If a program is unreasonable because it does not cater for short term relief, it simply means that the test implicitly requires all people living in deplorable conditions to be prioritised. The difference according to this study is a semantic problem rather than a substantive one. These approaches both seek for emergency provision of services to people whose life is at stake. Another relationship feature lies in the fact that the court in the Grootboom case concurred with the Committee on ESCR on its interpretation of the notion of progressive reaslisation of socio-economic rights. It was mainly argued that the provision of services can not be provided immediately or over night. These approaches also take into consideration the resource constraints that may affect the implementation of socio-economic rights. They all provide for the progressive realisation of socio-economic rights. Therefore, and with regard to the above analysis,

263 Bilchitz 2002 SALJ. For the author, the fact that the reasonableness approach emphasises on short term

relief for people living in desperation signifies that this approach recognises the minimum core concept.

this study opts for the adoption of a combined model approach to interpreting socioeconomic rights²⁶⁴.

7.2 RECOMMENDATIONS

The adoption of a combined approach that incorporates the reasonableness and the minimum core obligation is plausible for the interpretation of socio-economic rights. This new approach will mainly tackle the shortcomings inherent in the other approaches. It is trite that one of the critiques leveled against those approaches is their failure to give meaningful content to the rights. This approach is a palliative measure to give content to the right. In fact, the state designs a program which incorporates a minimum core of the right that has short term provision of services for people living in desperation conditions.

This program delineates the rights that are expected from the state to realise. The implementation of the right to have access to housing for instance, provides for different level of services. Firstly, everyone should receive a house with basic necessities that will protect him or her from avert climatic conditions. It means that the program should prioritise homeless people and secondly, improved the state of the house in a view to upgrade the living conditions of the owners. This approach merges the minimum core approach within the program designed to implement socio-economic rights at the same time given content of these rights. The program is later assessed against the reasonableness test as to whether the state?s program (which contains a

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See also RAY 2009 HYPERLINK http www.googlescholar.co.za html 7 August. The author proposes the adoption of a combined approach described as a policentric form of review? which provides that the court shares it interpretive authority with other spheres of government. This approach requires that the Constitution should be regarded as having both political and legal interpretation. He argues that this concept will serve both the interest of all spheres of government and the court so that no encroachment of separation of powers will occur. Further that the policentric form of review will enhance the enforcement of socio-economic rights. However, this study declines to follows this route arguing that the interpretation of laws is the prerogative domain of the judicial. Allowing another branch of government the interpretive role is also an encroachment of the doctrine of separation of powers and a violation of our constitutional values.

threshold rights that is immediately realised) in implementing socio-economic rights is reasonable.