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

6.2 THE DEVELOPMENT OF MINIMUM CORE OBLIGATION IN INTERPRETING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA

The UN Committee on ESCR has developed the content of socio-economic rights that comprises a minimum obligation upon the state. It is against this background that this study analyses the minimum core as an alternative approach for the interpretation and enforcement of socio-economic rights in South Africa. An attempt is made to explore the minimum core obligation as developed by the Committee on ESCR which South Africa can follow in interpreting socio-economic rights and to analyse the content of the minimum core approach.

6.2.1 THE DEVELOPMENT OF THE MINIMUM CORE APPROACH IN SOUTH AFRICA

The development of the minimum core approach to socio-economic rights has been conceived under the auspice of the Committee on ESCR mainly in its General Comment N03²⁴⁹. The Committee on ESCR is of the opinion that every state is compelled to fulfill a minimum core obligation by ensuring the satisfaction of «at least minimum essential levels»²⁵⁰ of socio-economic rights. The Committee on ESCR went on to say that a state in which a significant number of individuals is deprived of «essential foodstuffs, of essential primary health care, of basic shelter and housing or

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

of-resource-book/indexhtml 7 August.

249 The UN Committee on ESCR General Comment N03 2009 HYPERLINK

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

250 The UN Committee on ESCR General Comment N03 2009 HYPERLINK

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

the most basic forms of education» is prima facie not performing its obligations under the Covenant. The minimum core approach was developed to determine what is expected from each state in discharging its obligations under the Covenant. This expected minimum in the words of the Committee on ESCR, is arrived at on the «basis of the extensive experience gained by it over a period of more than a decade» and by having regard to the states? reports.

The minimum core obligation is therefore a threshold below which a state will be failing to honor its obligations as a party to the Covenant. However, this level might not nevertheless be reached due to resources constraints. In order for a state party to be able to justify its failure to meet at least its minimum core obligations because of a lack of available resources, «it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations».

The Committee on ESCR nevertheless attached importance to the minimum core obligation and affirms accordingly that «if the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d'être". It is clear from the above that, the enforcement and realisation of socioeconomic rights should be construed as comprising a minimum core obligation that has to be fulfilled by any state including South Africa. The next step is therefore, to determine the minimum core obligations of socio-economic rights.

6.2.2 DETERMINATION OF THE CONTENT OF THE MINIMUM CORE OBLIGATION IN INTERPRETING SOCIO-ECONOMIC RIGHTS

The Committee on ESCR based on its experiences over many years and reports from state parties recognises that socio-economic rights comprised a minimum core obligation immediately fulfilled by them. However, the Committee on ESCR does not determine the content of such minimum core obligation of these rights. Nevertheless, Bilchitz argues that the minimum core approach to socio-economic rights provides a

«key to providing clear content to these rights and ensuring»²⁵¹ that they are enforceable. The understanding of the minimum core obligation of socio-economic rights is developed mainly by Bilchitz who advocates for such an approach for the interpretation and enforcement of socio-economic rights. The author identifies two different obligations deriving from these rights which he terms levels of interests²⁵². Following his reasoning, the minimum core approach involves therefore two obligations. The first is to realise a minimum level of provision of socio-economic rights as a matter of priority. The second is to improve this minimum provision to reach a high level as time goes one. Therefore, the minimum core obligation should be understood in the light of these two interests to socio-economic rights.

6.2.2.1 Determination of the Minimum Core Obligation Through the Minimal Interest of the Rights

This minimal interest according to Bilchitz represents the basic interest that will enable people to survive²⁵³. It means that the provision of socio-economic rights needs to ensure minimal services to people. The minimum core obligation of socio-economic rights in this context must bear the fact that the minimal interest of such rights must be fulfilled without delay. It should be the priority of the state to ensure that those living in deplorable condition be provided with basic necessities. The minimal interest therefore, caters for the poor so that nobody should live below the threshold established with regard to a particular right. In the words of Bilchitz, «the minimal interest reflects the respect to people who are most vulnerable and most needy»²⁵⁴. Liebenberg concurs with Bilchitz when she concedes that the minimum core protects the survival interests of citizens²⁵⁵. It is also a benchmark against which the state?s action is measured in a

251 Bilchitz Fundamental Rights 184. See in this regard Liebenberg South Africa?s Evolving Jurisprudence

on Socio-Economic Rights: An Effective Tool in Challenging Poverty? 2002 CLC, UWC [Found on Internet]HYPERLINK http://www.communitylawcentre.org.za/Socio-Economic-Rights/2nd-ed-of-resourcebook/indexhtml.

252 Bilchitz 2002 SALJ; Bilchitz Fundamental Rights187.

253 Bilchitz 2003 SAJHR11.

254 Bilchitz 2002 SALJ 491. The author also affirms that the realisation of the first interest has the urgency

that most strongly justifies a peremptory demand in the form of a right.

255 Liebenberg South Africa?s Evolving Jurisprudence on Socio-Economic Rights: An Effective Tool in

Challenging Poverty? 2002 CLC, UWC [Found on Internet]

view to determine whether or not it has discharged its obligation. Moreover, the realisation of this minimal interest will embrace the constitutional values of freedom, equality and human dignity²⁵⁶. It would be intolerable and undignified for people to live in intolerable conditions. The minimal interest therefore, addresses this issue by providing to all as a matter of emergency services that will enable people to live an acceptable life. This interest is an attempt to free people from «threats, from severe physical suffering and to serious health risks»²⁵⁷.

A minimal interest in the right of access to adequate housing would entail for instance, the government to provide accommodation «that will protect people from the elements»²⁵⁸. The accommodation may comprise basic services such as running water, toilet and electricity. At the same break, the right to have access to health care services may comprise among other things, access to primary health care services, access to medication and first aid treatment. However, the fact that the minimal interest imposes a duty upon the state to provide immediately certain services to people does not mean that resource constraints are not taken into consideration. For Bilchitz, when the state cannot realise the minimum core of a right, it may not do so until resources are available. The non realisation of socio-economic rights in this context is just suspended until the availability of resources. This suspension operates like in contract clauses when its performance is delayed and depends on the realisation of a particular event. Therefore, resources constraints must not debar the state to fulfill its obligations. Its obligations are only on standby until resources are available to provide people with

HYPERLINK http://www.communitylawcentre.org.za/Socio-Economic-Rights/2nd-ed-of-resourcebook/indexhtml.

256 According to Liebenberg South Africa?s Evolving Jurisprudence on Socio-Economic Rights: An Effective

Tool in Challenging Poverty? 2002 CLC, UWC [Found on Internet]

HYPERLINK http://www.communitylawcentre.org.za/Socio-Economic-Rights/2nd-ed-of-resourcebook/indexhtml, the recognition of the minimum core obligation on the state is imperative in that it will enable the enjoyment of socio-economic rights entrenched in the 1996 Constitution. She further opines that without such recognition, the enjoyment of all other rights encapsulated in the Bill of Rights will be jeopardised.

257 Bilchitz 2002 SALJ 490. See in this regard Liebenberg South Africa?s Evolving Jurisprudence on Socio-

Economic Rights: An Effective Tool in Challenging Poverty? 2002 CLC, UWC [Found on Internet] HYPERLINK http://www.communitylawcentre.org.za/Socio-Economic-Rights/2nd-ed-of-resourcebook/indexhtml.

258 Bilchitz 2002 SALJ 488.

minimal services. Once all people are provided with minimal services which must be prioritised to other needs, the second interest of the minimum core comes into the play. 6.2.2.2 The Maximal Interest of the Minimum Core Approach

The maximal interest is the second interest of the minimum core obligation imposed upon the state. The maximal interest is a «medium-to long-term goal»²⁵⁹ that has to be realised by the state once the minimal right is enforced. It cannot therefore, be realised if the minimal interest is not achieved. The maximal interest is a step to further the minimal threshold of the rights. The first interest sets a threshold that the state has to fulfill. Once this threshold is achieved, the state takes some measures to improve this lower level so as to reach a maximal standard that has been set for each right.

The maximal interest takes into account the progressive realisation of the rights since it seeks to improve the minimal interest. Bilchitz argues for instance, that the progressive realisation of the right to access to adequate housing means the improvement of some basic interests in housing to the realisation of the maximal interest²⁶⁰. In the words of Bilchitz²⁶¹:

Progressive realisation involves an improvement in the adequacy of housing for the meeting of human interests. It does not mean that some receive housing now, and others receive it later; rather, it means that each is now entitled to basic housing provision, which the government is required to improve gradually over time.

From the above quotation, it is quiet clear that the maximal interest seeks the
progressive improvement of the minimal interest that has been realised by the state.

259 Bilchitz 2002 SALJ 491.

260 Bilchitz 2002 SALJ 493. Bilchitz acknowledges the fact that socio-economic rights cannot be realised

immediately. He therefore responds to one of the objection of the CC in rejecting the adoption of the minimum core approach that is rigid and does not take into account resources constraints. The maximum interest of the minimum core obligation emphasises that once the threshold of a right is reached, the state must take appropriate measures to improve it to a higher standard that had been set.

261 Bilchitz 2002 SALJ 493.

The state is therefore compelled to take measures that will improve progressively the provision of services beyond the minimal threshold in a view to reach a high standard. This improvement should be done progressively over a period.

6.3 CONCLUSION

The CC?s reasonableness approach to interpreting and enforcing socio-economic rights was without severe critique. It has been mainly argued that this approach neither circumscribes the scope nor gives the content of these rights. Moreover, it does not provide room for individual claims. The opponents of the reasonableness doctrine have advocated for the adoption of the minimum core approach for the realisation of socioeconomic rights. The minimum core approach is comprised of two interests that are complementary. The first one caters for immediate provisions of services to all, while the second seeks to improve these services as time progresses.

There are in fact two stages in the realisation of minimum core approach that are interconnected and interdependent. The failure to fulfill the first interest diminishes the approach of its essence. This approach nevertheless would provide meaningful relief for those living in extreme need as a matter of emergency. However, this study continues to argue that all these arguments and counter arguments for and against minimum core or reasonableness do not solve the problem at hand. People need food, water, shelters, health care, education etc; and do not understand why the 1996 Constitution has made provision for certain rights that are not made available to them. Therefore the enquiry should be focused on how to realise these rights so that everyone can enjoy them to the fullest.

CHAPTER 7: CONCLUSION AND RECOMMENDATIONS

In view of the preceding discussion, South Africa like many other developing countries is facing challenges with regard to the deplorable conditions in which the vast majority of its population are living. This is mainly the result of apartheid policies which had largely discriminated against black majority²⁶². The new democratic era therefore, seeks to redress those past injustices. The Preamble of the 1996 Constitution for instance, acknowledges those past inequalities and aims at healing them. In order to address these inequalities, socio-economic rights are included in the 1996 Constitution.

However, the inclusion of justiciable socio-economic rights in the Constitution was the centre of a heated debate. There were arguments and counter arguments to the judicial enforcement of these rights which were finally put in rest in consequence of the CC judgments in South Africa. The next step was for the court to develop a suitable approach for the interpretation of socio-economic rights. The court in this context, adopted the reasonableness concept as its approach to the enforcement of socioeconomic rights, while it declined to follow the recommendation of legal scholars for the adoption of the minimum core approach. In view of the above, in the preceding chapters, the requirements of the reasonableness approach were fully dealt with. The above chapters also dealt with the requirements of the minimum core concept.

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See in this regard the finding of the Constitutional Court in Brink v Kitshoff No 1996 (4) 197 (CC) 40 that apartheid «systematically discriminated against black people in all aspect of social life. Black people were prevented from becoming owners of property or even residing in areas classified as white?, which constituted nearly 90 percent of the land mass of South Africa; senior jobs and access to established schools and universities were denied to them; civic amenities, including transport systems, public parks, libraries and many shops were also closed to black people. Instead, separate and inferior facilities were provided. The deep scars of this appalling programme are still visible in our society.».