Adjudicating Socio-Economic Rights - Transforming South African Society?

It is trite to say that the adjudication of socio-economic rights is a new enterprise in South African jurisprudence, as it is to the jurisprudence of many other jurisdictions. Professor van Rensburg’s paper seeks to analyse the influence of political, socio-economic and cultural considerations on the interpretation and application of socio-economic rights in the Bill of Rights. The pivots for discussion are the decisions of the Constitutional Court in the Soobramoney, Grootboom and Treatment Action Campaign cases which, thus far, are the only cases in which the Constitutional Court has substantively determined the nature and parameters of socio-economic rights and obligations under the South African Constitution. My response is somewhat deferential in that I largely concur with many of the observations that Professor van Rensburg makes. In some respects, however, I have attempted to bring into the analysis of Soobramoney, Grootboom and Treatment Action Campaign not so much new insights, but rather different emphases. Likewise, my response is constructed around the three cases. I begin with Soobramoney.

To a large extent, Soobramoney is a somewhat unfair template upon which to construct any analysis of the approach of the Constitutional Court to socio-economic adjudication primarily because it is the very first case that the Court, with virtually no institutional experience in socio-economic adjudication, was being asked to chart new territory. Nonetheless, the Court’s interpretation of section 27 can scarcely escape criticism.

Professor van Rensburg is right in lamenting the extent to which the Court interpreted section 27(3). The Court unduly minimised the relevance of section 11 – the right to life – to the section 27(3) argument that the state had a duty not to refuse the appellant medical treatment. The Court also categorically interpreted section 27(3) as a negative rather than a positive right to the extent of perhaps undermining the import of the duties of health care providers. Even conceding that chronic renal failure of the type that the appellant was afflicted with did not constitute a medical emergency as contemplated by section 27(3), the effect of the Court’s interpretation was to cast the provisions of the Bill of Rights as atomistic elements rather than units of an interconnected web. Indeed, it is not inappropriate to interpret the Court’s approach to section 27(3) as legalistic to the extent that it detracted from the generous purposive/contextual approach to constitutional interpretation that is out of synchrony with the Courts own professed approach or human rights jurisprudence in general. Fear that a holistic line of interpretation might lead to consumers of health care services making additional demand on the state should not have dissuaded the Court from interpreting section 27(3) as a positive right that is in part animated by section 11 – the right to life. Socio-economic rights draw sustenance from the imposition of positive obligations. It means precious little say that no one may be refused emergency medical treatment and yet decline to impose on health care providers a positive duty to make such treatment available. Scott and Alston have described the Courts approach as constituting “negative textual inferentialism”.

The proper way to limit the appellants demand for renal dialysis should not have been an attempt to resurrect a literal approach but an application of section 27(2) which renders the provision of health care resources subject to available resources.