The appropriateness of the reasonableness standard in ensuring the effective realisation of socio-economic rights in South Africa

Abstract

It has been over 22 years since the Grootboom matter was adjudicated by the Constitutional Court and not much transformation has been achieved. Millions of South Africans continue to live under extreme poverty due to inadequate provision of social services. This situation may be attributed, to some extent, to the way the Constitutional Court has interpreted and enforced socio economic rights.

Ngang explains that the court is faced with a challenge of enforcing socio-economic rights while respecting the separation of powers. This is precisely why the court adopted the reasonableness standard in Grootboom to adjudicate socio-economic rights, as opposed to scrutinising whether the measures adopted realise the rights.

Van der Berg argues that when the courts adjudicate socio-economic rights claims, they should scrutinise whether the state allocated a reasonable budget for the progressive realisation of the rights. The state priorities can be evaluated by assessing the adequacy and effectiveness of resource allocation to fulfil the rights. In that way, the court will ensure that the state allocates resources reasonably within its available resources to progressively achieve socio-economic rights. It is against the background of the criticism of the Constitutional Court’s approach in adjudicating socio-economic rights cases that the present study is undertaken.