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

4.2.3.3.3 The Internal Limitation of the Availability of Resources

According to De Vos, the availability of resources refers to the real resources of the country and not to the budgetary appropriations¹⁷¹. The availability of resources also refers to resources available from international co-operation and assistance. In order for the state to discharge its obligation on the ground of availability of resources, the Committee on ESCR obliges the state to demonstrate that it has strived to ensure the widest possible enjoyment of the rights¹⁷². Therefore, the limitation of resources constraint may be used by the state to avoid its obligation to ensure the full realisation of the rights. However, the state is nevertheless under an obligation to use all means to fulfill the enjoyment of the rights in question.

4.3 CONCLUSION

The above analysis seeks to clarify the nature of socio-economic rights and the judicial enforcement thereby. Socio-economic rights impose both a negative and positive duty on the state. Moreover, the study also showed the interconnectedness and interrelation between socio-economic rights and civil and political rights as well as the justiciability

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

171 De Vos 1997 SAJHR 99.

172 The UN Committee on ESCR General Comment N03 2009 HYPERLINK

http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+Comment+3 4 June.

According to the Committee on ESCR,» even where the availability of resources are demonstrably inadequate, the obligation remains for the state party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances. Moreover, the obligation to monitor the extent of the realisation, or more especially of the non-realisation, of economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resources constraints.».

of socio-economic rights¹⁷³. The most important issue is the effective realisation and protection of these rights. People need to know whether they can have access to the rights crafted in the Bill of Rights. According to Pieterse, What needs attention is the court?s approach to enforce socio-economic rights. In other words, legal scholars need to assist the court to give meaningful interpretation that will enable the full enjoyment of socio-economic rights¹⁷⁴.

173 See Mubangizi 2006 2 Afr J Legal Stud 4.

174 Pieterse 2007 Human Rights Quarterly 796-822.

CHAPTER5: THE REASONABLENESS CONCEPT VERSUS THE MINIMUN
CORE APPROACH IN THE ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS

In South Africa, the CC is the guardian of the Constitution and laws. It also has jurisdiction to interpret law in a view to simplify and narrow its understanding¹⁷⁵. At the same break, the inclusion of justiciable socio-economic rights in the Constitution also vests in the judiciary the role to enforce them. More specifically, section 172 of the 1996 Constitution enjoins the court to invalidate any law or conduct inconsistent with its provisions, spirit and purport¹⁷⁶.

Section 39 of the 1996 Constitution further enables the court to interpret any law with a view to promote the values that underline an open society based on human dignity, equality and freedom. With regard to socio-economic rights, it is the role of the court to interpret and to develop an appropriate approach that will foster their full realisation. In this regard, the CC has developed the reasonable approach as its method to give meaning and content for the fulfillment of these rights. This study explores the recommended approach to vindicate socio-economic rights as well as the reasoning of the court to reject this approach. It also focuses on the reasonable approach laid down by the CC to give effect to socio-economic rights.

175 In terms of section 167(3) of the 1996 Constitution, the CC: «(a) is the highest court in all constitutional

matters; (b) may decide only constitutional matters, and issues connected with decisions on. (c) makes the final decision whether a matter is a constitutional matter or whether constitutional matters; and an issue is connected with a decision on a constitutional matter. In terms of section 167(5) of the 1996 Constitution, the HC and the SCA are obliged to refer their judgments relating to the interpretation of the Constitution to the CC for confirmation.

176 Section 172 of the 1996 Constitution provides that: «(1) When deciding a constitutional mater within its

power, a court (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.».

5.1 RECOMMENDED APPROACH FOR ADJUDICATING SOCIO-ECONOMIC RIGHTS CLAIMS

Notwithstanding the fact that socio-economic rights are enforceable in South Africa, it is trite that to give content and meaning to these rights is an onerous task. In the words of Sachs, the problem facing the CC was how to find a secure jurisprudential foundation for responding to socio-economic rights and how to provide for a remedy consonant with the court?s limited institutional capacity that will bear meaningful enforcement¹⁷⁷. The approach suggested by parties to various litigations with regard to the enforcement of socio-economic rights mainly the minimum core obligation suggested by the amici curiae¹⁷⁸ and the reason for its rejection by the CC is discussed hereunder.

5.1.1 ANALYSIS OF THE ARGUMENTS SUGGESTED FOR INTERPRETING SOCIOECONOMIC RIGHTS

As indicated above, the judicial interpretation of socio-economic rights is recent in South Africa. The socio-economic rights are the «fruit» of the new constitutional dispensation that seeks to redress the imbalances of the past. The judiciary was therefore not acquainted with such litigation process. In a case involving the adjudication of socio-economic rights, the CC was to establish its jurisprudential foundation for future socio-economic rights disputes. In the same footing, parties to the litigation also provide their own interpretation. For instance, in Government of the Republic of South Africa v Grootboom¹⁷⁹ and Minister of Health v Treatment Action Campaign¹⁸⁰ (Grootboom and TAC), the CC was urged to adopt the concept of

177 Sachs 2009 HYPERLINK http:/www.googleschorlar/controversialnatureofsocio-ecomomicrights.html 2

April.

178 In Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) the South African

Human Rights Commission and the Community Law Centre of the University of the Western Cape were amici curiae. In Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 1033, the amici curiae were the Institute for Democracy in South Africa, the Community Law Centre and the Cotlands Baby Sanctuary. Amicus curiae means friend of the court. It is a civil organisation which joins a court case to assist the court which its knowledge.

179 2001 (1) SA 46 (CC).

180 2002 (5) SA 721 (CC), 2002 10 BCLR 1033.

minimum core of the rights as developed by the UN Committee on ESCR¹⁸¹. More precisely, in Grootboom, the amici submitted that the CESCR is of paramount importance in «understanding the positive obligations created by the socio-economic rights in the Constitution"¹⁸². The amici further argued that since the CESCR is monitored by the Committee on ESCR, and therefore, it?s General Comments constitute a significant guide to the interpretation of socio-economic rights. Furthermore, the amici suggested the adoption of similar approach taken by the Committee on ESCR in which socio-economic rights contained a minimum core obligation. For Liebenberg, the amici argue that section 26(1) (2) of the 1996 Constitution imposes a minimum core obligation on the state to ensure that those who are in difficult situation receive some rudimentary form of shelter¹⁸³.

In a similar vein, in TAC case, it was contended on behalf of two of the amici that, the right to access to health care comprises a minimum core. However, it was argued that this right establishes an individual entitlement to everyone¹⁸⁴. It is quiet clear in the light of the above cases, and from their submissions to the CC, that the content of socioeconomic rights comprises a minimum core as developed by the Committee on ESCR in General Comment N03. Therefore, and according to the amici, the jurisprudential foundation of socio-economic rights should be developed in the light of the minimum core approach. Despite these submissions, the CC was not of the opinion to receive the minimum core as its approach to interpret socio-economic rights.

181 The minimum core obligation is explored in chapter 5 of this study. It is outlined here only as indicative of

a suggested approach to the court in determining a suitable approach to adjudicating socio-economic rights.

182 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) 29.

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

of-resource-book/indexhtml 7 August. Quoting the head of argument on behalf of the amici, the author states that the amici located the core within a continuum of positive obligations imposed on the state in section 26(1) and (2) of the 1996 Constitution. «This does not imply that only the core? is subject to adjudication or that meeting the minimum core requirements would satisfy all of the obligations of the state... The core? provides a level of minimum compliance, to which resources have to be devoted as a matter of priority. This duty clearly has to be balanced with the obligation to put into operation programs aimed at full realisation of the right, and to move progressively towards full realisation.».

184 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 1033 26.

5.1.2 THE REJECTION OF MINIMUM CORE APPROACH SUGGESTED TO INTERPRET SOCIO-ECONOMIC RIGHTS

This study also analyses the reasoning of the CC in rejecting the minimum core approach. Many authors have expressed their dissatisfaction with the rejection of the minimum core concept by the CC. For instance, Pieterse states that in Grootboom and TAC cases, the CC was requested to interpret the right of access to adequate housing as comprising a minimum core immediately enforceable but declined to do so¹⁸⁵. In declining to adopt the minimum core, the CC argues firstly that it is difficult to define the content of minimum core and it lacks the capacity to determine this content. Secondly, the diversity of needs with regard to the right of access to adequate housing militates against the adoption of such approach and lastly, minimum core provides for individual claims and is rigid.