South Africa’s Reasonableness Test and its Rejection of the United Nations’ Minimum Core Concept
Authors Adedokun Ogunfolu, Oluwatomilola Adewoye
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 68 – 93
The reasonableness test, developed by South Africa’s Constitutional Court in the adjudication of socio-economic rights to health care, housing, and water supply under the 1996 South African Constitution, represents a paradigm shift towards improved accountability in public governance. But the court has also struggled to justify its rejection of the minimum core concept of the United Nations Committee on Economic, Social and Cultural Rights. The court would rather hide behind a purported inability of access to information to interpret the core contents of the socio-economic rights. There is need for an improvement in the effectiveness of socio-economic rights litigation, especially by eliciting comprehensive evidence that reflects what the minimum core of a particular right should be. Focus should also be on providing sufficient proof that the Government has resources which it can deploy to meet the urgent socio-economic needs, and show that a current policy or programme of the Government is unreasonable in the light of available resources. Such strategic litigation, coupled with the willingness of the court to give effective remedies will go a long way in the promotion of socio-economic rights in South Africa.