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

6.1 CRITIQUE OF THE REASONABLE APPROACH INTERPRETATION OF SOCIOECONOMIC RIGHTS

A number of legal scholars in support of the minimum core approach are critical of the court?s rejection of the concept and found the court?s reasoning in declining the minimum core unpersuasive. It is generally argued that the reasonableness approach endorsed by the CC is not easy of definition or application. According Liebenberg, the component of the reasonableness test that requires government to provide short term relief for people living in appalling conditions is «vague and leave many questions unanswered»²²⁴. Another critical element is the court?s failure to provide mandatory judgment and to interfere in government policy in the disguise of the doctrine of separation of powers. According to Bilchitz, the court?s approach diminishes its constitutional mandate²²⁵.

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

of-resource-book/indexhtml 7 August.

225 Bilchitz 2003 SAJHR 10. Section 172 of the 1996 Constitution mandates the CC to declare invalid any

law or conduct inconsistent with the Constitution to the extent of its inconsistency and to make any order that is just and equitable. This order may be mandatory or prohibitory. A mandatory order enjoins the state to fulfill its constitutional obligation. Bilchitz argues therefore, that the CC diminishes its constitutional function when it does not grant proper order and this cannot be justifiable under the doctrine of separation of powers.

However, the critique leveled against the CC doctrinal approach to socio-economic rights can be grouped in two categories. First, the argument is about the lack of content in the reasonableness concept. Secondly, the ruling of the CC is that socio-economic rights do not provide for individual entitlement. These two arguments are examined hereunder.

6.1.1 THE EMPTINESS OF THE REASONABLENESS APPROACH

Some writers have expressed their dissatisfaction with the abstract and vagueness of the reasonableness concept. It has been argued that this approach fails to award meaningful content to socio-economic rights crafted in the 1996 Constitution. For Iles and Bilchitz, the problem with South African socio-economic rights jurisprudence lies with the court?s reluctance to define the scope and content of the rights or leaving it to be developed on a case-by-case basis²²⁶. Bilchitz is more specific when he asserts that the judgment in TAC²²⁷ is notable for the absence of any analysis of what the right to have access to health care services involves. He went on to ask the following questions²²⁸:

What are the services to which one is entitled to claim access? Do these services involve preventive medicine, such as immunization, or treatment for existing diseases, or both? Does the right entitle one to primary, secondary, or tertiary health care services, or all of these?

It is quiet clear that the reasonableness approach as developed by the CC cannot
provide meaningful answers to the above questions²²⁹. Moreover, the CC does not

226 Iles 2004 SAJHR 454; Bilchitz 2003 SAJHR 6. The author states that «the problem with the court?s

approach in TAC case is that it attempts to sidestep the need to give content to the right in 27(1)».

227 2002 (5) SA 721 (CC), 2002 10 BCLR.

228 Bilchitz 2003 SAJHR 6. The author concedes in the footnote that he does not suggest the court to

answer all these questions but the court is required to analyse the right in order to reach the conclusion it did mainly that access to nevirapine fell within the entitlements conferred upon people by section 27 (1)(a) of the 1996 Constitution.

229 Although in the context of the right to have access to adequate housing, the court in Government of the

Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), held that «housing entails more than bricks and mortar. It requires available land, appropriate services such as the provision of water and the

define its reasonableness concept²³⁰. According to Bilchitz, the emptiness of this concept derives from the fact that the court is unable to integrate sections 26(1) and 27(1) of the 1996 Constitution. According to the author, the CC focuses the whole enquiry on sections 26(2) and 27(2) of the 1996 Constitution without taking into consideration sections 26(1) and 27(1) of the 1996 Constitution²³¹. This approach distorts the meaning and content of the right crafted in sections 26(1) and 27(1) of the 1996 Constitution. In the words of Bilchitz, «section 27(1) is in fact the right, and the obligations flow from what a person is entitled to by virtue of having the right in question»²³².

Ray, on the other hand, relying on Brand points out that the court?s current approach discourages «future socio-economic rights litigation» because it provides little instrument to the court to deal with future socio-economic rights cases²³³. The reasonableness approach further weakness lies in the fact that it focuses more on procedural and technical issues not related to the content of socio-economic rights rather than on the realisation and the enjoyment by every one of the various rights²³⁴. Furthermore, the CC approach to socio-economic rights mainly analyses the structures of government policies. It enquires among other things the coherency, the flexibility and

removal of sewage and the financing of all of these, including the building of the house itself. For a person to have access to adequate housing all of these conditions need to be met: there must be land, there must be services, there must be a dwelling.».

230 An attempt of the definition is provided by Cora Hoexter quoted by Bilchitz «Giving socio-economic rights

teeth: The Minimum Core and its Importance» 2002 (119) (1-4) SALJ saying that: «the notion of reasonableness is designed to refer to what which lies within the limits of the reason? and allows for a diversity of views. What is reasonable is not only that which is correct but refers to decisions that lie in between correctness and capriciousness. A reasonable decision is one that is supported by reasons and evidence, that is rationally connected to purpose and is objectively capable of furthering that purpose. A reasonable decision generally also reveals proportionality between ends and means, benefits and detriments» the author went on to say that the notion of reasonableness is thus designed to allow scope for the substantive judicial review of decisions by another branch of the government whilst retaining a sense that there is a margin of appreciation which the original deciding body has in making a decision.

231 Bilchitz 2003 SAJHR 9. The author is concerned with the fact that the reasonable approach does not give content to socio-economic rights entrenched in the 1996 Constitution. It focuses its enquiry on the internal limitation of progressive realisation of the right rather than to analyse the right in question. Section 26 provides for instance the right to have access to adequate housing. What is expected from the CC is to interpret and provide how this right may be realised and what is the component of this right.

232 Bilchitz 2003 SAJHR 9

233 RAY 2009 HYPERLINK http www.googlescholar.co.za html 7 August; Danie Brand «The

Proceduralisation of South African Socio-Economic Rights Jurisprudence, or `What Are Socio-Economic Rights For?" in Henk Botha, et al eds Rights And Democracy In A Transformative Constitution (2003).

234 Pieterse 2007 Human Right Quarterly 811.

the transparency of such policies rather than to enquire on the substance of these rights. According to Iles, the consequence of such interpretation is that government is given no instructions «as to what will be expected of it in the implementation of socioeconomic rights»²³⁵. Bilchitz concurs with Iles when he asserts that the fact that there is no clarity of the state?s obligations towards socio-economic rights leaves the government with «an amorphous standard with which to judge its own conduct»²³⁶. He goes on to say that the current reasonableness concept does not provide a «clear and principled basis» for the evaluation of the government?s conduct in future socioeconomic rights cases.

This is to say that, even if the executive is willing to realise a right, it cannot simply because it does not know the scope and content of the right it would like to enforce. The reasonableness approach therefore, lacks the content to determine any matter in relation to socio-economic rights and its vagueness does not provide any answer to the nature of the government?s obligations in terms of the Constitution²³⁷. Bilchitz concludes therefore, that the CC should not waste all its «interpreting energy» to develop the reasonableness concept but rather supplement it by the determination of the state?s socio-economic rights obligations. Pieterse demonstrates the emptiness of the reasonable approach to socio-economic rights in a three acts drama which in essence demonstrate how citizens do not enjoy the rights they have fought for in the

235 Iles 2004 SAJHR 454.

236 Bilchitz 2003 SAJHR 10.

237 Bilchitz Fundamental Rights 172 and 176. The author further asserts that the reasonableness standard

to some extent creates confusion between the scope and content of socio-economic rights as illustrated in the decision of Khosa v Minister of Social Development 2004 (6) SA 505 (CC). He affirms in this regard that: «The reasoning of the majority in khosa is curious: the reasonableness approach that had previously been applied to the question of the normative content of the socio-economic rights is here applied to the question of who is entitled to such rights. The sheer vagueness of reasonableness suggests that it can provide the solution to a range of enquiries. However, the overarching nature of the enquiry can lead to confusion between distinct issues... A closer analysis of the reasoning in this case compared to that of Grootboom and TAC cases exhibits their differences. In the latter cases, the holding appeared to be that the subjects of the rights are entitled to reasonable government action to realise their socio-economic rights. The structure of reasoning would be that X (the subject of the right) is entitled to Y (reasonable government action) from Z (the government). In Khosa, the question concerned the ambit of X: who is entitled to the reasonable government action? The court answers this by saying that the enquiry concerning Y (what one is entitled to) will determine X (who is the subject of the right). The majority in Khosa thus appears to conflate two separated questions: the question of scope and the question of content.».

streets and obtained in courts²³⁸. From Pieterse?s drama, it is quiet clear that the justiciability of socio-economic rights achieves little if people can not enjoy them to the fullest. Moreover, if the court wishes to vindicate socio-economic rights, it must give content to these rights in a view to delineate state?s obligations. Another objection of the CC approach is considered hereunder.

6.1.2 THE REJECTION OF INDIVIDUAL CLAIMS TO SOCIO-ECONOMIC RIGHTS

This objection contends the fact that the CC rejected individual claims to socioeconomic rights. This view relies on the 1996 Constitution which provides in its provisions encapsulated in the Bill of Rights that «everyone has the rights to...». It is further submitted that the word «everyone» means that individual has a right to benefit from the right recognised in Chapter 2 of the 1996 Constitution.

Moreover, and according to Pieterse, the structure of the Bill of Rights requires an entitlement-orientated approach to socio-economic rights?²³⁹. The author further asserts that sections 8²⁴⁰ and 38²⁴¹ of the 1996 Constitution provide locus standi to individual and groups to enforce socio-economic rights. Individuals may therefore, legitimately institute legal proceedings against the state in a view to claim the realisation of any right including socio-economic rights they are entitled to. This locus standi is however,

238 Pieterse 2007 Human Right Quarterly 817.

239 Pieterse 2006 SAJHR 478.

240 Section 8 of the 1996 Constitution reads as follows: «(1) The Bill of Rights applies to all law, and binds

the legislature, the executive, the .judiciary and all organs of state. (2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. (3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36 (1). (4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person».

241 Section 38 of the 1996 Constitution provides that: «Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are (a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d) anyone acting in the public interest; and (e) an association acting in the interest of its members.

subjected to the general limitation provided in section 36²⁴² of the 1996 Constitution. Pieterse concedes in this regard that²⁴³:

The Bill of Rights appears to require of any court tasked with giving effect to a socio-economic right to depart from the double premise that the right is in principle enforceable and that the applicant is in principle entitled to the tangible relief she seeks. In circumstances where the interests of justice or some other compelling interest require that the extent of an applicant?s entitlement be limited, or where it would for some institutional or other reason be inappropriate to award tangible relief, the court is required to indicate whether, to what extent and for what reasons it should divert from this premise.

For Liebenberg, the court?s reasonableness approach will «make it difficult for individuals»²⁴⁴ living in deplorable conditions to use judicial remedies to gain access to a particular right. Pieterse concurs with Liebenberg when he argues that the rejection of the minimum core obligation by the court does not debar meaningful individual enforcement of socio-economic rights in appropriate circumstances²⁴⁵. He concedes that the pursuit of social justice will be enhanced by giving individual entitlements to socio-economic rights²⁴⁶. Moreover, individuals and groups may rely on socioeconomic rights and the legal process to lift their social conditions. Liebenberg concludes by affirming that if socio-economic rights are to «amount to more than paper promises»²⁴⁷, they must enable people to gain access to the basic resources needed to

242 Section 36 of the 1996 Constitution reads as follows: «(1) The rights in the Bill of Rights may be limited

only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.».

243 Pieterse 2006 SAJHR 479.

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

resource-book/indexhtml 7 August. According to Wesson, 2004 SAJHR, the reasonableness approach constitutes an administrative law approach to the adjudication of socio-economic rights.

245 Pieterse 2006 SAJHR 475.

246 Pieterse 2006 SAJHR 477.

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

resource-book/indexhtml 7 August.

live a decent life²⁴⁸. In view of the above analyses, it has been argued that the reasonableness approach fails to give content to socio-economic rights and for rejecting individual?s entitlement to these rights. This study examines hereunder the minimum approach as an alternative to interpreting and enforcing socio-economic rights.