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n South African Law Journal - Can reasonableness protect the poor? A review of South Africa's socio-economic rights jurisprudence

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Abstract

This paper argues that, contrary to criticisms put forward by proponents of the minimum core approach to the interpretation of socio-economic rights, the Constitutional Court's reasonableness approach provides a good doctrinal basis for a transformative interpretation of such rights. The argument is based on two legs. The first is that the minimum core approach underaccommodates the doctrine of the separation of powers, and thereby gives rise to concern about the institutional appropriateness and effectiveness of socio-economic rights adjudication. It seeks to define the content of socio-economic rights and this necessarily and inevitably draws the courts into formulating, rather than evaluating, policy. The reasonableness approach, on the other hand, is a form of judicial minimalism that is likely to realise lasting social reform precisely because it avoids defining socioeconomic rights. The second leg of the argument concerns the Constitutional Court's definition of 'reasonableness', and differentiates the use of reasonableness in socio-economic rights jurisprudence from its use in administrative law. The Constitutional Court has evolved a unique concept and standard of reasonableness in respect of socio-economic rights. Since reasonableness forms the basis of the standard of compliance against which government's obligations are measured, this is crucial to the judiciary's role in safeguarding the interests of the poor, even as it recognizes its limited role in the constitutional order.

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/content/ju_salj/123/2/EJC53695
2006-01-01
2016-12-03
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