n South African Law Journal - Feasibility constraints and the South African Bill of Rights : fulfilling the Constitution's promise in conditions of scarce resources

Volume 129, Issue 2
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



South African organs of state often respond to litigation by pleading infeasibility. A plea of infeasibility is the claim that the relief sought is either impossible to provide or too costly. Despite the increasing frequency of such pleas, our courts have not yet developed a principled basis for addressing the problem of infeasibility. The first part of this article analyses the most important judgments addressing the question of infeasibility. It draws attention to nine principles that have been affirmed by the South African courts. These principles provide a jurisprudential framework for approaching the problem of infeasibility. The second part of the article argues that that there is increasing reason for courts to interrogate pleas of infeasibility and resource allocations by organs of state rigorously, and in appropriate cases, to reject such pleas and consider setting aside budgetary allocations. In the light of lavish expenditure of public resources on luxuries for state officials and underspending of budgetary allocations, it is essential for courts closely to scrutinise claims of infeasibility by the state.

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