Reasonableness, subsidiarity and service delivery : a case discussion : case notes

• Author: Amanda Pieterse-Spies
• DOI: 10.10520/EJC153203
• Published date: 01 January 2011
• Date: 01 January 2011
• Pages: 329-340

Reasonableness, subsidiarity and service

delivery: A case discussion

1Introduction

Since the Constitutional Court’s groundbreaking decision in Government of the

Republic of South Africa v Grootboom,

1

there have been a number of judgments

in which the Court has expanded on its obligations in terms of section 26 and 27

of the Constitution.

2

The most striking from all the decisions interpreting socio-economic rights

was the development of the so-called reasonableness test, which measures

government’s action or inaction in fulfilling its constitutional obligations, and the

rejection of attaching the so-called minimum core content to socio-economic

rights.

3

In essence, the reasonableness test laid down in the relevant case law

means that a government programme must be capable of facilitating the

realisation of the right; it must be comprehensive, coherent and co-ordinated;

there should be appropriate financial and human resources; balanced and flexible

provision for short-, medium- and long-term needs; it must be reasonably

conceived and implemented, transparent, and it must make short-term provision

1

Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC); (Grootboom).

2

These include, but are not limited to, Soobramoney v Minister of Health (KwaZulu-Natal) 1998 1

SA 46 (CC) (which preceded Grootboom), Minister of Health v Treatment Action Campaign (No 2)

2002 5 SA 721 (CC) (TAC), Khosa v Minister of Social Development; Mahlaule v Minster of Social

Development 2004 6 SA 505 (CC), Occupiers of 51 Olivia Road, Berea Township and 197 Main

Street, Johannesburg v City of Johannesburg 2008 3 SA 208 (CC), Residents of Joe Slovo

Community, Western Cape v Thubelisha Homes 2009 9 BCLR 847 (CC), Mazibuko v City of

Johannesburg 2010 3 BCLR 239 (CC).

3

The court’s major objection against adopting a minimum core content to rights was the fact that

groups are differently situated and their needs will, therefore, vary according to their context, a

context which according to the Court it is not in a position to ascertain. The arguments for the

adoption of a minimum core standard and reasons for its rejection were discussed in Grootboom (n

1) paras 29-33 and TAC (n 2) paras 26-39. The reasons for rejecting this concept is aptly

summarised in Liebenberg ‘The value of human dignity in interpreting socio-economic rights’ (2005)

SAJHR 1 at 17. These reasons include the assumed inflexibility of the minimum core, the lack of

institutional competence for determining minimum standards and the impossibility of the South

African government being able to give everyone immediate access to even core needs.