Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socio-Economic Rights Jurisprudence

Abstract

The Constitutional Court has in a series of cases begun to develop its approach to adjudicating claims based on socio-economic rights. This article focuses on the Court’s recent decision in Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) and considers three main issues. First, it is argued that there is a need to supplement the Court’s approach based on reasonableness with an analysis of the obligations imposed upon the government by socio-economic rights. Secondly, an analysis of the obligations placed upon the government by socio-economic rights should include what has been termed a minimum core obligation to realise without delay the most urgent survival interests protected by the right. Despite recent pronouncements by the Court, there is a way in which the minimum core approach can be rehabilitated. Finally, this article considers the Court’s claim that a minimum core approach attempts to force the government to do the impossible, and argues that the Court has misconstrued this approach. In so doing, the article considers important conceptual questions concerning the nature of socio-economic rights and the conditions under which they can be realised.

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