The need for a capabilities-based standard of review for the adjudication of State resource allocation decisions

Authors Shanelle van der Berg

ISSN: 1996-2126
Affiliations: Mellon Early Research Career Fellow, SERAJ, Stellenbosch University
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 330 – 356


The realisation of socio-economic rights constitutes a critical prerequisite in the struggle to eradicate poverty and inequality in South Africa. State resource allocation lies at the heart of the realisation of socio-economic rights. Courts will often be called upon to adjudicate complex, polycentric prioritisation decisions taken by the state. An appropriate review paradigm can aid courts in performing this onerous task. Capabilities, as the substantive freedom to choose the lives we have reason to value, resonate strongly with the socio-economic rights enshrined in the Constitution of the Republic of South Africa, 1996. The capabilities approach can therefore be developed to constitute a capabilities-based standard of review for the adjudication of state resource allocation decisions. The need for such a theoretically justified standard of review becomes apparent from the Constitutional Court’s insufficient focus on the content of socio-economic rights, and from the maintenance of a rigid distinction between the positive and negative duties imposed upon the state by socio-economic rights.