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123 S. African L.J. 264 (2006)
Can Reasonableness Protect the Poor - A Review of South Africa's Socio-Economic Rights Jurisprudence

handle is hein.journals/soaf123 and id is 268 raw text is: CAN REASONABLENESS PROTECT THE POOR? A REVIEW OF SOUTH AFRICA'S SOCIO-ECONOMIC RIGHTS JURISPRUDENCE CAROL STEINBERG* Pupil at theJohannesbutg Bar I INTRODUCTION 'The way you have interpreted the Constitution', the amici curiae' in Minister of Health v Treatment Action Campaign (No 2) 2 told the Constitutional Court, 'nobody has a right to anything in particular, and therefore, everyone has a right to nothing at all'.3 Since the amici made their arguments, the court's socio-economic rights jurisprudence4 has been criticized for failing to protect the interests of the poor. The minimum core approach, as advanced by the anici and in various other forms, has been set up in opposition to the court's reasonableness approach as the doctrinal paradigm that will best harness the transformative potential of the Constitution.5 I shall argue that the reasonableness approach is capable of providing a good doctrinal basis for a transformative interpretation of socio-econonic rights. My argument will be based on two legs. First I shall argue that the minimum core approach under-accommodates the doctrine of the separa- tion of powers and that the primary concern this raises in the context of socio-econonic rights is one of institutional appropriateness and effective- ness. Simply put, when judges are involved in policy-making they may well get it wrong, and even if they are right, an overly intrusive ruling may have unintended adverse consequences. It may prevent the deliberation, learning and compromise that tend to accompany lasting social reform. It may also activate opposing forces, not least of all the other branches of government. Defining the content of socio-econoic rights, I shall argue, necessarily and inevitably draws the court into formulating, rather than evaluating, policy. I shall argue that the reasonableness approach should be understood as a form * BA MA (Dramatic Art) LLB (Witwatersrand). My thanks to Cora Hoexter for her detailed and incisive comments on this paper. The views expressed remain my own. I Community Law Centre and IDASA, represented by Wim Trengove, SC. 2 2002 (5) SA 721 (CC). Hereafter referred to as 'TAC'. Quoted in Jonny Steinberg 'Obeying letter rather than spirit of the law?' Business Day 8 May 2002. ' The socio-economic rights of the Constitution are s 26 (the right to housing) and s 27 (the right to health care, food, water and social security). ' Constitution of the Republic of South Africa Act 108 of 1996.

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