Interpreting and limiting the basic socio-economic rights of children in cases where they overlap with the socioeconomic rights of others

South African Journal on Human Rights

Volumn 24, Issue 3, 2008, Pages 565-592

  Stewart, Linda ^a  

^a NORTH WEST UNIVERSITY   (South Africa)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84865046989     PISSN: 02587203     EISSN: 19962126     Source Type: Journal    
DOI: 10.1080/19962126.2008.11864966     Document Type: Article

References (226)

1. S Liebenberg 'The Interpretation of Socio-economic Rights' in S Woolman et al (eds) Constitutional Law of South Africa 2 ed (2006) chap 33, 1;
2. D Brand 'Introduction to the socio-economic rights in the South African Constitution' in D Brand & C Heyns (eds) Socio-Economic Rights in South Africa (2005) 3.
3. Liebenberg distinguishes between three categories of socio-economic rights, namely socioeconomic rights that are qualified by an internal limitation, socio-economic rights that place a prohibition on state and private action and unqualified basic socio-economic rights. Examples of the latter are the rights of detained persons and prisoners to adequate accommodation, utrition, reading material and medical treatment (s 35(2)(e)); as well as the right to basic education including adult basic education (s 29(1)(a)). Ibid Ch 33 1. For purposes of this article only the unqualified basic socio-economic rights of children will be discussed. Brand draws a similar distinction between socio-economic rights. Ibid 3.
4. M Pieterse 'Reconstructing the Private/public Dichotomy? The Enforcement of Children's Constitutional Social Rights and Care Entitlements' (2003) 1 TSAR 1, 5.
5. The amici in the case of Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 72 (hereafter Grootboom) similarly argued that a distinction between housing on the one hand and shelter on the other must be drawn. They further contended that 'shelter is an attenuated form of housing and that the state is obliged to provide shelter to all children on demand'.
6. In Grootboom (note 4 above) para 72 'the respondents and the amici emphasise that the right of children to shelter is unqualified and that, the "reasonable measures" qualification embodied in sections 25(5) 26, 27 and 29 are markedly absent in relation to s 28(1)(c)'. See further Pieterse (note 3 above) 5; Liebenberg (note 1 above) 33-49; D Brand 'Food' in S Woolman et al (eds) (note 1 above) 56C-1-56C-8.
7. Liebenberg (note 1 above) 33-51.
8. Grootboom (note 4 above) para 74.
9. Section 5 of the Children's Act 38 of 2005 states: 'Recognising that competing social and economic needs exist, organs of state in the national, provincial and where applicable, local spheres of government must, in the implementation of this Act, take reasonable measures to the maximum extent of their available resources to achieve the realisation of the objects of this Act'.
10. Brand indicates that '[L]egislative interference with a statutory socio-economic right...... therefore breaches the constitutional socio-economic right that the statutory entitlement gives effect to and will only be constitutionally permissible if justifiable in terms of the appropriate standard of scrutiny' (note 1 above) 15.
11. The two-stage model of limitations usually applies where there is an explicit provision or provisions in the Bill of Rights which limits the rights in the Bill of Rights. An example thereof is s 36 of the South African Bill of Rights. The one-stage model usually applies where there are no limitations on the rights in the Bill of Rights. The application of the one-stage model does not provide for a distinction between the scope and limit of a right whereas in the case of the two-stage model provision is made for a distinction between the scope of the right and the limitation of the right.
12. G Van der Schyff Limitation of Rights: A Study of the European Convention and the South African Bill of Rights (2005) 11-12.
13. I Currie & J De Waal The Bill of Rights Handbook 5 ed (2005) 166;
14. IM Rautenbach 'The Limitation of Rights and Reasonableness in the Right to Just Administrative Action and the Right to Access to Adequate Housing, Health Services and Social Security' (2005) 4 TSAR 627- 628;
15. S Woolman & H Botha 'Limitations' 134-144;
16. Brand (note 1 above) 26;
17. K Iles 'Limiting Socio-economic Rights: Beyond the Internal Limitation Clause' (2004) 20 SAJHR 448-453;
18. van der Schyff (note 10 above) 11.
19. Woolman & Botha (note 11 above) Ch 34 4-5;
20. Currie & De Waal (note 11 above) 166;
21. M Pieterse 'Towards a Useful Role for section 36 of the Constitution in Social Rights Cases? Residents of Bon Vista Mansions v Southern Metropolitan Local Council' (2003) 120 SALJ 41- 42.
22. Currie & De Wal (note 11 above) 145;
23. Van der Schyff (note 10 above) 123.
24. Rautenbach (note 11 above) 628;
25. Woolman & Botha (note 11 above) 34-36;
26. Currie & De Waal (note 11 above) 166;
27. Brand (note 1 above) 26;
28. Van der Schyff (note 10 above) 11-12.
29. Woolman & Botha (note 11 above) 34-6
30. Brand (note 1 above) 26
31. Pieterse P (note 12 above) 42.
32. Woolman & Botha (note 11 above) 34-19.
33. Section 7(2) of the Constitution. See Brand (note 1 above) 10-11 where he contends that this distinction is little more than a semantic distinction but remains important for strategic reasons because courts will be more willing to enforce negative than positive duties.
34. Liebenberg (note 1 above) Ch 33 17-18;
35. D Bilchitz 'Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socio-economic Rights Jurisprudence' (2003) 19 SAJHR 1, 7.
36. Jafta v Schoeman 2005 (2) SA 140 (CC) paras 31-33
37. Residents of Bon Vista Mansions v Southern Metropolitan Local Council 2002 (6) BCLR 625 (W) paras 15-18. Liebenberg (note 1 above) 33-18;
38. C Steinberg 'Can Reasonableness Protect the Poor? A Review of South Africa's Socio-economic Rights Jurisprudence' (2006) 123 SALJ 264- 267;
39. Iles (note 11 above) 460; Brand (note 5 above) 56C-7; Pieterse (note 12 above) 44.
40. Steinberg (note 19 above) 267.
41. According to Brand this duty 'requires the state to protect existing enjoyment of rights, and the capacity of people to enhance their enjoyment of rights or newly to gain access to the enjoyment of rights against third party interference' (note 1 above, 10).
42. 'The duty to fulfil requires the state to act, to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures, so that those that do not currently enjoy access to rights can gain access and so that existing enjoyment of rights is enhanced.' Brand (note 1 above) 10.
43. Grootboom (note 4 above) para 34.
44. See also Minister of Health v Treatment Action Campaign 2002 (5) SA 72 (CC) para 79 (hereafter TAC).
45. The socio-economic rights in ss 26(1) and 27(1) are the right to access to housing, food, water, health care and social security and social assistance. Brand (note 5 above) 56C-7;
46. Pieterse (note 12 above) 44.
47. 2000 (3) BCLR 277 (C).
48. 2000 (3) BCLR 277 (C)para 289 B.
49. 2000 (3) BCLR 277 (C) para 295 I-J.
50. 2000 (3) BCLR 277 (C)4 above.
51. Grootboom (note 4 above) para 73. The Court differed from the High Court judgment which argued that shelter is a rudimentary form of housing.
52. Grootboom (note 4 above) para 73. The Court differed from the High Court judgment which argued that shelter is a rudimentary form of housing para 74.
53. further Liebenberg (note 1 above) 3-50.
54. Grootboom (note 4 above) para 77. The Court differentiates between children with parents and children without parents. According to the Court the primary responsibility to provide children with socio-economic needs vests in the parents. In effect the Court gives preferential treatment to children without parents by implying that these children have a direct and immediate claim to the rights in s 28(1)(c). This distinction is typical of the private law/public law dichotomy. For a full discussion hereof see Pieterse (note 5 above) 2.
55. D Brand 'The Proceduralisation of South African Socio-economic Rights Jurisprudence or "What are Socio-economic Rights for?"' in H Botha, A Van der Walt & J Van der Walt (eds) Rights and Democracy in a Transformative Constitution (2003) 33, 48.
56. TAC (note 23 above).
57. TAC (note 23 above) para 79.
58. TAC (note 23 above) See Liebenberg (note 1 above) 33-51; Brand (note 33 above) 48.
59. 37 2005 (6) SA 50 (T).
60. Section 28(1)(h) provides that every child has the right to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result. Although the right to legal representation is a typical civil right it places a positive obligation on the state and thus has budgetary implications.
61. Note 37 above, para 17.
62. Unreported case no. 19559/06 (T). For a full discussion of the case see L Jansen van Rensburg 'Kinders se reg op alternatiewe gepaste sorg. Centre of Child Law and others v The MEC for Education and others saak no. 19559/06 (T)' 2007 (1) SA Public L 273.
63. Grootboom (note 5 above) para 77, Centre of Child Law v MEC for Education (note 37 above); Centre for Child Law v Minister of Home Affairs (note 40 above).
64. TAC (note 23 above) para 79.
65. Liebenberg (note 1 above) 33-51.
66. Liebenberg (note 1 above)
67. Woolman & Botha (note 11 above) Ch 34 19.
68. Iles (note 11 above) 453; Van der Schyff (note 10 above) 24.
69. Brand (note 33 above) 47 criticises the Court's unwillingness to give substantive content to the socio-economic rights in the Soobramoney, Grootboom and TAC cases.
70. DM Davis 'Adjudicating the Socio-economic Rights in the South African Constitution: Towards "Deference Lite"?' (2006) 22 SAJHR 301, 312;
71. D Bilchitz 'Giving Socio-economic Rights Teeth: The Minimum Core and its Importance' (2002) 119 SALJ 484, 496;
72. Iles (note 11 above) 454;
73. M Pieterse 'Coming to Terms with Judicial Enforcement of Socio-economic Rights' (2004) 20 SAJHR 383, 387;
74. S Rosa & M Dutschke 'Child Rights at the Core: The Use of International Law in South African Cases on Children's Socio-economic Rights' (2006) 22 SAJHR 224, 249.
75. Own emphasis. Brand (note 33 above) 48. Bilchitz also criticises the Court in the TAC case for trying to sidestep the need to give content to the right in s 27(1)(a). He argues: 'Indeed, the judgment is notable for the virtual absence of any analysis of what the right to have access to health care services involves. What are the services to which one is entitled to claim access? Do these services involve preventative medicine, such as immunisations, or treatment for existing diseases, or both? Does the right entitle one to primary, secondary, or tertiary health care services, or all of these?' Bilchitz (note 18 above) 6.
76. The Court indicated that the state has two obligations towards children under parental care. The first is to provide a legal and administrative infrastructure necessary to ensure that children are accorded the protection contemplated by section 28. The provision of a legal and administrative infrastructure requires from the state to provide legislative and common-law structures that oblige parents to care for children at the risk of criminal and civil sanction, by legal and administrative structures aimed at enforcing parental maintenance obligations, by laws aimed at protecting children from abuse, maltreatment and degradation and by the existence of social welfare programs. Secondly, to provide families, and therefore children access to land (s 25), adequate housing (s 26) and health care, food, water and social security (s 27) subject to reasonable measures that must be progressively realized within available resources Grootboom (note 4 above) paras 75, 78.
77. Pieterse (note 3 above) 10.
78. In TAC the Court followed the approach used in the Grootboom case and inquired into the reasonableness of the policy. TAC (note 23 above) para 79,
79. Liebenberg (note 1 above) Ch 33 51.
80. Grootboom (note 4 above) para 74. See Van der Schyff (note 10 above) 103: 'The Court seemingly chose to interpret the qualifications outlined in s 26(2) as factors to be employed during the first stage of the two-stage model that are to be utilised in influencing the guarantee of the right. This is also clear as the balancing of competing interest was conducted without any reference having been made to the general limitations in section 36'.
81. Van der Schyff (note 10 above) 121 argues that a proper application of the first stage requires a wide interpretation of the rights in question. The reason for such an approach is that it enhances the purpose of a bill of rights as an instrument guaranteeing freedom and enhancing the constitutionalisation of society.
82. The content must also firstly be established before the availability of resources is considered. As in the case of reasonableness, the availability of resources relates to the measures and not the right itself. Bilchitz (note 18 above) 20; D Bilchitz Poverty and Fundamental Rights (2007) 143.
83. Bilchitz suggests that the Court should firstly attempt to understand the content of the right and then the Court should engage in an inquiry into the reasonableness of the measures. Bilchitz (note 18 above) 9. He further argues that 'reasonableness' qualifies the measures and not the right itself. Bilchitz (note 47 above) 496; Bilchitz (note 53 above) 143. I agree with this approach. However s 28(1)(c) does not contain an internal limitation clause and the second step in the case of basic socio-economic rights should be an investigation into whether these rights may be reasonably limited in terms of the general limitation clause in the Constitution. See further below where the limitation of these rights is discussed. See further Davis (note 47 above) 305; Rautenbach (note 11 above) 628; Iles (note 11 above) 452. This also supports a disjunctive reading of the socio-economic rights of everyone in sections 26 and 27. Bilchitz (note 47 above) 488; Bilchitz (note 18 above) 9.
84. Brand (note 33 above) 48;
85. Bilchitz (note 53 above) 162.
86. In the following section the reasonableness test will be discussed in more detail.
87. Bilchitz (note 47 above) 487,
88. Pieterse (note 47 above) 395-406.
89. F Viljoen 'Children's Rights: A Response from the South African Perspective' in D Brand & S Russel (eds) Exploring the Core Content of Socio-economic Rights: South African and International Perspectives (2002) 201, 203.
90. C Alston & P Scott 'Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney Legacy and Grootboom's Promise' (2000) 16 SAJHR 206, 260.
91. Viljoen (note 57 above) 203, 206.
92. Steinberg (note 19 above) 264.
93. A Pillay 'Reviewing Reasonableness: An Appropriate Standard for Evaluating State Action and Inaction' (2005) 122 SALJ 419, 419.
94. Davis (note 47 above) 319-321 who criticises this approach. Pieterse (note 47 above) 417. A more appropriate approach to the idea of deference should be 'A judicial willingness to appreciate the legitimate and constitutionally-ordained province of administrative agencies; to admit the expertise of such agencies in policy-laden or polycentric issues; to accord their interpretation of fact and law due respect; and to be sensitive in general to the interest legitimately pursued by administrative bodies and the practical and financial constraints under which they operate':
95. C Hoexter 'Administrative Justice: A Cornerstone of South Africa's Democracy' (2000) 117 SALJ 484-519.
96. C Hoexter Administrative Law in South Africa (2007) 138-139.
97. Pieterse (note 47 above) 392
98. T Roux 'Legitimating Transformation Political Resource Allocation in the South African Constitutional Court' (2003) 10 Democratisation 92, 92.
99. Grootboom (note 4 above) para 73.
100. As outlined by Bilchitz (note 47 above) 486-487;
101. Roux (note 62 above) 96.
102. TAC (note 23 above) paras 26-39.
103. Bilchitz (note 47 above) 486-489;
104. Bilchitz (note 18 above) 1-26;
105. Pieterse (note 47 above) 392-396;
106. Steinberg (note 19 above) 264-284;
107. Pillay (note 61 above) 419-412;
108. Davis (note 47 above) 311;
109. M Wesson 'Grootboom and Beyond: Reassessing the Socio-economic Jurisprudence of the South African Constitutional Court' (2004) 20 SAJHR 284, 299-305;
110. Iles (note 11 above) 450.
111. Own emphasis. TAC (note 23 above) para 99.
112. Pieterse (note 47 above) 392;
113. Iles (note 11 above) 455.
114. Pieterse (note 47 above) 395.
115. M Wiechers 'Quo vadis geregtelike hersiening van administratiefregtelike handeling? (2005) 3 TSAR 469, 474-475.
116. Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC) para 104. Bilchitz (note 47 above) 487, Pieterse (note 47 above) 406; Davis (note 47 above) 320.
117. Bilchitz (note 42 above) 8;
118. Bilchitz (note 53 above) 158.
119. Section 39 of the Constitution reads: 'When interpreting the Bill of Rights, a Court, tribunal or forum - (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law'.
120. The preamble of the Constitution provides that the Constitution is aimed to inter alia improve the quality of life of all citizens.
121. S Liebenberg 'The Value of Human Dignity in Interpreting Socio-economic Rights' (2005) 21 SAJHR 1-31;
122. Alston & Scott (note 58 above) 220,
123. Wiechers (note 70 above) 474;
124. Pieterse O (note 47 above) 406;
125. Davis(note 47 above) 319.
126. Khosa v Minister of Social Development 2004 (6) SA 505 (CC) (hereafter Khosa) paras 40, 41, 52, 72.
127. TAC (note 23 above) para 28; Bilchitz (note 53 above) 146-149.
128. White Paper on Reconstruction and Development GN 1954 of 23 November 1994 (RDP).
129. White Paper for Social Welfare GN 1108 of 8 September 1997 (White Paper for Social Welfare).
130. The 1992 and 1998 regulations are still in operation in terms of s 33(2) of the SAA. Regulations were published after the enactment of the new act. See GN R162 of 22 February 2005. The perception existed that these regulations were in force. The Minister of Social Development however, in GN R1280 of 11 December 2006 indicated that these regulations were only draft regulations and that no regulations in terms of the Act had been promulgated. All references to draft regulations refer to the above-mentioned draft regulations in terms of the SAA.
131. The only reference to social services is in s 2 of the Act where the objects of the Act are explained.
132. Named after its chairperson, Prof Vivienne Taylor. This Commission was appointed on the basis of a decision by the South African Cabinet and charged with developing recommendations on the establishment of a comprehensive social security system for South Africa.
133. Department of Social Development Transforming the present - Protecting the future: Report of the Commission of Inquiry into a Comprehensive System of Social Security for South Africa (2002)
134. Most of the proposals made by the Commissions (with the exception of the basic income grant) have been positively acknowledged by government. Reforms to address some of these recommendations are currently contained in a number of policy documents. See National Treasury Budget Review (2007) 100; National Treasury Social Security and Retirement Reform Second Discussion Paper (2007) 1-8; Restructuring of the Road Accident Fund as Compulsory Social Insurance in relation to the Comprehensive Social Security System, GN 1315 of 8 September 2006.
135. M Dutschke 'Children's Right to Social Services in South Africa' (2006) 7 (1) ESR Review 6-8 for an extensive list of what social services may entail.
136. Section 28(2) of the Constitution.
137. Section 39(1)(b) of the Constitution. Davis argues that '[T]he Court's approach does not reflect an ignorance of international jurisprudence nor a lack of cognisance of the implications of s 26(1) and 27(1) of the text, but rather the knowledge that the text itself holds out a promise of a kind of society predicated on a very different approach to economics from that which currently prevails in the Ministry of Finance and which holds sway over government policy. Were the Court to be more activist, it would have run the risk of placing itself in an increasing level of conflict with the state'.
138. Davis (note 47 above) 316.
139. Bilchitz (note 53 above) 158.
140. The Covenant has been signed by South Africa but not ratified.
141. South Africa ratified the Convention on 16 June 1995, without entering any reservations.
142. UN Committee on Economic, Social and Cultural Rights General Comment 3 'The nature of state parties obligations'.
143. General Comment 3 'The nature of state parties obligations'; General Comment 4 'The right to housing'; General Comment 14 'The right to the highest attainable standard of health'.
144. L Jansen van Rensburg & L Lamarche 'The Right to Social Security and Social Assistance' in D Brand & C Heyns (eds) Socio-economic Rights in South Africa (2005) 209, 218.
145. Rosa & Dutschke (note 47 above) 233.
146. Comments thus far are: General Comment 1: The Aims of Education - on the quality and content of education that should be provided (2001); General Comment 2: The role of independent national human rights institutions in the promotion and protection of the rights of the child (2002); General Comment 3: HIV/AIDS and the rights of the child (2003); General Comment 4: Adolescent Health and Development in the Context of the CRC (2003); General Comment 5: General measures of implementation of the Convention on the Rights of the Child (2003);General Comment 6: Treatment of unaccompanied and separated children outside their country of origin (2005); General Comment 7: Implementing child rights in early childhood (2005).
147. Rosa & Dutschke (note 47 above) 288-229, 249.
148. Bilchitz (note 53 above) 159.
149. General Comment 14 'The right to the highest attainable standard of health' para 16.
150. Other terms used for this concept is constructive dialogue or inter-institutional cooperative interaction.
151. Pieterse (note 47 above) 395-396.
152. Woolman & Botha (note 11 above) 34-38.
153. Pieterse (note 47 above) 395-396.
154. Section 7(3) of the Constitution reads 'The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill'. Van der Schyff argues that the two-stage model of constitutional analysis is apparent when reading s 7(3). Van der Schyff (note 10 above) 22. Van der Schyff distinguishes between a one-stage - and two-stage model of constitutional analysis. The one-stage model does not provide for a distinction between scope and limit while the two-stage model do provide for such a distinction. Van der Schyff (note 10 above) 11-12.
155. Section 36(1) reads: '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.'
156. Rautenbach (note 11 above) 627-654.
157. Woolman & Botha (note 11 above) Ch 34-6;
158. Rautenbach (note 11 above) 627;
159. Brand (note 1 above) 27.
160. Note 76 above.
161. In a minority judgment Ngcobo J expressed the same concern and questioned whether measures taken by the state may be 'reasonable' for s 27(2) but not 'reasonable and justifiable' under s 36. Ibid para 105.
162. Ngcobo J in his dissenting judgment also refrained from addressing this problem. He contends that the outcome will be the same irrespective of whether one begins with a s 27 inquiry and moves to a s 36 enquiry or whether one begins and ends the enquiry in s 27. Ibid para 107.
163. Woolman & Botha (note 11 above) Ch 34-37;
164. Rautenbach (note 11 above) 653.
165. Brand however argues that the absence of an internal limitation with respect to children's nutritional rights makes these rights subject to a higher level of scrutiny, and that the state will have greater difficulty in justifying a possible infringement of the s 28(1)(c) rights. Brand (note 5 above) Ch 56C-8.
166. And the content of reasonableness.
167. Iles argues that the internal limitation analysis should take place during the first stage of constitutional analysis to prevent Courts from placing obligations that are unreasonable and unenforceable on the state. He further argues that after the internal limitation clause is applied during the first stage the general limitation clause should be applied. As already indicated above, I argue that rights should not be limited during the first stage of constitutional interpretation. See Iles (note 11 above)
168. Woolman & Botha (note 11 above) Ch 34-21;
169. Rautenbach (note 11 above) 628 in support of this argument.
170. Rautenbach (note 11 above) 628.
171. Rautenbach (note 11 above) 628;
172. Iles (note 11 above) 454.
173. Woolman & Botha (note 11 above) Ch 34-33
174. Van der Schyff (note 10 above) 105, 123 contends that it not clear whether 'the Court balance competing interest to narrow down the right to positive state action at the first stage, as seems to be the case; or does the Court engage in balancing in order to limit a right to positive state action at the second stage'. He argues that the effective realization of these rights should ideally be addressed in the context of the two-stage approach to constitutional analysis.
175. Woolman & Botha (note 11 above) 34-33, 34-46
176. Brand (note 1 above) 29;
177. Brand (note 5 above) 56C-58C.
178. Liebenberg (note 75 above) 23.
179. Rautenbach (note 11 above) 627
180. Woolman & Botha (note 11 above) 34-44
181. Currie & De Waal (note 11 above) 166;
182. Brand (note 1 above) 29
183. Liebenberg (note 75 above) 23
184. Liebenberg contends that in the case of s 26 and 27 socio-economic rights the applicants should be given the benefit of a presumption of unreasonableness.
185. Liebenberg (note 1 above) 33-55.
186. Except where it is argued that s 28(1)(b) and s 28(1)(c) must be read together as the Court did in the Grootboom case where it held that the duty to provide for children primarily rest on the parents.
187. Grootboom (note 4 above) para 77.
188. Woolman & Botha (note 11 above) 34-41.
189. In Grootboom and TAC the Court evaluated policies and programmes on housing and health care, while in Khosa the Court evaluated legislation.
190. Woolman & Botha (note 11 above) 34-53.
191. Liebenberg (note 75 above) 28.
192. Brand (note 5 above) 56C-57C;
193. Woolman & Botha (note 11 above) 34-53.
194. Woolman & Botha (note 11 above) Ch 34 48-51.
195. Currie & De Waal (note 11 above) 169-170;
196. President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC).
197. Woolman & Botha (note 11 above) Ch 34 51-54.
198. Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC). Hereafter Soobramoney.
199. Roux (note 62 above) 97; Brand (note 1 above) 27-28;
200. Liebenberg (note 1 above) 33-31;
201. Brand (note 5 above) Ch 56C-7.
202. Grootboom (note 4 above) paras 39-45.
203. Brand (note 33 above) 41; Brand (note 1 above) 45-46.
204. TAC (note 23 above) paras 38 and 123.
205. Brand (note 33 above) 41.
206. Brand (note 33 above) 42-43
207. Roux (note 62 above) 97. Liebenberg contends that the test entails more than 'relative inclusion'. It also makes provision for cases where the state has failed to adopt measures to realise socioeconomic rights.
208. Liebenberg (note 76 above) para 82.
209. Brand (note 33 above) 42.
210. Brand (note 1 above) 45.
211. Brand (note 1 above) 27-28;
212. Liebenberg (note 1 above) 33-1;
213. Brand (note 5 above) 56C-57C.
214. In the Grootboom case (note 4 above) para 22 the Court held that it would not enquire whether other measures could have been adopted or whether the budget could have been better spent. Brand (note 1 above) 28; Roux (note 62 above) 97.
215. Brand (note 33 above) 40. In Grootboom (note 4 above) para 41 the Court described the test as follows: 'The programme must be capable of facilitating the realisation of the right'. 144 Brand (note 33 above) 49.
216. Brand (note 33 above) 37. I fully agree with Brand's contention that the Constitutional Court has proceduralised its adjudication of socio-economic rights.
217. Brand (note 1 above) 27;
218. Liebenberg (note 1 above) Ch 33 1.
219. Brand (note 5 above) Ch 56C 7.
220. Brand (note 1 above) 27.
221. Iles (note 11 above) 456.
222. Liebenberg (note 75 above) 29.
223. Liebenberg (note 75 above) 25.
224. Pieterse (note 12 above) 47.
225. Liebenberg (note 75 above) 23.
226. Liebenberg (note 75 above)26.