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With reference to Soobramoney v Minister of Health (Kwazulu-Natal) (CCT^32 / 97) 1998 (1) SA 765 (CC) and Government of the Republic of South Africa and Others v Grootboom and Others 2002 (1) SA 46 (CC), discuss how a Court will evaluate whether and how to limit a socio-economic right, such as section 27 (the right to health care) in terms of the Constitution CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 11 / 00 THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA First Appellant THE PREMIER OF THE PROVINCE OF THE WESTERN CAPE Second Appellant CAPE METROPOLITAN COUNCIL Third Appellant OOSTENBERG MUNICIPALITY Fourth Appellant versus IRENE GROOTBOOM AND OTHERS Respondents Heard on : 11 May 2000 Decided on : 4 October 2000 JUDGMENT YACOOB J: A. Introduction [1] The people of South Africa are committed to the attainment of social justice and the improvement of the quality of life for everyone. The Preamble to our Constitution records this commitment. The Constitution declares the founding values of our society to be “[h]uman YACOOB J dignity, the achievement of equality and the advancement of human rights and freedoms.” 1 This case grapples with the realisation of these aspirations for it concerns the state’s constitutional obligations in relation to housing: a constitutional issue of fundamental importance to the development of South Africa’s new constitutional order. [2] The issues here remind us of the intolerable conditions under which many of our people are still living. The respondents are but a fraction of them. It is also a reminder that unless the plight of these communities is alleviated, people may be tempted to take the law into their own hands in order to escape these conditions. The case brings home the harsh reality that the Constitution’s promise of dignity and equality for all remains for many a distant dream. People should not be impelled by intolerable living conditions to resort to land invasions. Self-help of this kind cannot be tolerated, for the unavailability of land suitable for housing development is a key factor in the fight against the country’s housing shortage. [3] The group of people with whom we are concerned in these proceedings lived in appalling conditions, decided to move out and illegally occupied someone else’s land. They were evicted and left homeless. The root cause of their problems is the intolerable conditions under which they were living while waiting in the queue for their turn to be allocated low-cost housing. They are the people whose constitutional rights have to be determined in this case. 1 See section 1(a) of the Constitution. 2 YACOOB J [4] Mrs Irene Grootboom and the other respondents 2 were rendered homeless as a result of their eviction from their informal homes situated on private land earmarked for formal low-cost housing. They applied to the Cape of Good Hope High Court (the High Court) for an order requiring government to provide them with adequate basic shelter or housing until they obtained permanent accommodation and were granted certain relief. 3 The appellants were ordered to provide the respondents who were children and their parents with shelter. The judgment provisionally concluded that “tents, portable latrines and a regular supply of water (albeit 2 The respondents are 510 children and 390 adults. Mrs Irene Grootboom, the first respondent, brought the application before the High Court on behalf of all the respondents. 3 The judgment of Davis J in which Comrie J concurred is reported as Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR 277 (C). 3 YACOOB J transported) would constitute the bare minimum.” 4 The appellants who represent all spheres of government responsible for housing 5 challenge the correctness of that order. [5] At the hearing of this matter an offer was made by the appellants to ameliorate the immediate crisis situation in which the respondents were living. The offer was accepted by the respondents. This meant that the matter was not as urgent as it otherwise would have been. However some four months after argument, the respondents made an urgent application to this Court in which they revealed that the appellants had failed to comply with the terms of their offer. That application was set down for 21 September 2000. On that day the Court, after communication with the parties, crafted an order putting the municipality on terms to provide certain rudimentary services. 4 Id at 293A. 5 The first appellant is the Government of the Republic of South Africa (the national government); the second is the Premier of the Province of the Western Cape representing the Western Cape Provincial Government (the Western Cape government); the third appellant, the Cape Metropolitan Council (the Cape Metro) is the supervisory tier of local government in the area; and the fourth appellant is the Oostenberg Municipality (the municipality) which is a further tier of local government. All the appellants are organs of government. 4 YACOOB J [6] The cause of the acute housing shortage lies in apartheid. A central feature of that policy was a system of influx control that sought to limit African occupation of urban areas. 6 Influx control was rigorously enforced in the Western Cape, where government policy favoured the exclusion of African people in order to accord preference to the coloured community: a policy adopted in 1954 and referred to as the “coloured labour preference policy.” In consequence, the provision of family housing for African people in the Cape Peninsula was frozen in 1962. This freeze was extended to other urban areas in the Western Cape in 1968. Despite the harsh application of influx control in the Western Cape, African people continued to move to the area in search of jobs. Colonial dispossession and a rigidly enforced racial distribution of land in the rural areas had dislocated the rural economy and rendered sustainable and independent African farming increasingly precarious. Given the absence of formal housing, large numbers of people moved into informal settlements throughout the Cape peninsula. The cycle of the apartheid era, therefore, was one of untenable restrictions on the movement of African people into urban areas, the inexorable tide of the rural poor to the cities, inadequate housing, resultant overcrowding, mushrooming squatter settlements, constant harassment by officials and intermittent forced removals. 7 The legacy of influx control in the Western Cape is the acute housing shortage that exists there now. Although the precise extent is uncertain, the shortage stood at more than 100 000 units in the Cape Metro at the time of the inception of the interim Constitution in 1994. Hundreds of thousands of people in need of housing occupied rudimentary informal settlements 6 The background to this policy was set out fully in the majority judgment of this court in Ex Parte Western Cape Provincial Government and Others: In Re DVB Behuising (Pty) Ltd v North West Provincial Government and Another 2000 (4) BCLR 347 (CC) paras 41 - 47. 7 In 1985 when the coloured labour preference policy was finally abolished, it became possible for African people to acquire 99 -year leasehold tenure in the Western Cape (this form of tenure had been established in the rest of the country in 1978). The following year the government abandoned its policy of influx control 5 YACOOB J providing for minimal shelter, but little else. in its entirety. 6 YACOOB J [7] Mrs Grootboom and most of the other respondents previously lived in an informal squatter settlement called Wallacedene. It lies on the edge of the municipal area of Oostenberg, which in turn is on the eastern fringe of the Cape Metro. The conditions under which most of the residents of Wallacedene lived were lamentable. A quarter of the households of Wallacedene had no income at all, and more than two thirds earned less than R^500 per month. 8 About half the population were children; all lived in shacks. They had no water, sewage or refuse removal services and only 5% of the shacks had electricity. The area is partly waterlogged and lies dangerously close to a main thoroughfare. Mrs Grootboom lived with her family and her sister’s family in a shack about twenty metres square. [8] Many had applied for subsidised low-cost housing from the municipality and had been on the waiting list for as long as seven years. Despite numerous enquiries from the municipality no definite answer was given. Clearly it was going to be a long wait. Faced with the prospect of remaining in intolerable conditions indefinitely, the respondents began to move out of Wallacedene at the end of September 1998. They put up their shacks and shelters on vacant land that was privately owned and had been earmarked for low-cost housing. They called the land “New Rust.” 8 The figures appear from a needs assessment of the Wallacedene community compiled in December 1997 on behalf of the municipality. 7 YACOOB J [9] They did not have the consent of the owner and on 8 December 1998 he obtained an ejectment order against them in the magistrates’ court. The order was served on the occupants but they remained in occupation beyond the date by which they had been ordered to vacate. Mrs Grootboom says they had nowhere else to go: their former sites in Wallacedene had been filled by others. The eviction proceedings were renewed in March 1999. The respondents’ attorneys in this case were appointed by the magistrate to represent them on the return day of the provisional order of eviction. Negotiations resulted in the grant of an order requiring the occupants to vacate New Rust and authorising the sheriff to evict them and to dismantle and remove any of their structures remaining on the land on 19 May 1999. The magistrate also directed that the parties and the municipality mediate to identify alternative land for the permanent or temporary occupation of the New Rust residents. [10] The municipality had not been party to the proceedings but it had engaged attorneys to monitor them on its behalf. It is not clear whether the municipality was a party to the settlement and the agreement to mediate. Nor is it clear whether the eviction was in accordance with the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998. 9 The validity of the eviction order has never been challenged and must be accepted as 9 Section 4(6) provides: “If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.” Section 4(7) provides: 8 “If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available YACOOB J correct. However, no mediation took place and on 18 May 1999, at the beginning of the cold, windy and rainy Cape winter, the respondents were forcibly evicted at the municipality’s expense. This was done prematurely and inhumanely: reminiscent of apartheid-style evictions. The respondents’ homes were bulldozed and burnt and their possessions destroyed. Many of the residents who were not there could not even salvage their personal belongings. [11] The respondents went and sheltered on the Wallacedene sports field under such temporary structures as they could muster. Within a week the winter rains started and the plastic sheeting they had erected afforded scant protection. The next day the respondents’ attorney wrote to the municipality describing the intolerable conditions under which his clients were living and demanded that the municipality meet its constitutional obligations and provide temporary accommodation to the respondents. The respondents were not satisfied with the response of the municipality 10 and launched an urgent application in the High Court on 31 May 1999. As indicated above, the High Court granted relief to the respondents and the appellants now appeal against that relief. by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.” 10 The municipality responded on 27 May 1999 stating that it had supplied food and shelter at the Wallacedene Community Hall to the respondents and that it was approaching Western Cape government for assistance to resolve the problem. The respondents, however, considered that the Community Hall provided inadequate shelter as it could only house 80 people. 9 YACOOB J [12] In the remainder of this judgment, I first outline the reasoning adopted in the High Court judgment. Consideration is then given to the right of access to adequate housing in section 26 of the Constitution and the proper approach to be adopted to the application of that section. This is followed by evaluation of the housing programme adopted by the state in the light of the obligations imposed upon it by section 26. The respondents’ claim in terms of the rights of children in section 28 of the Constitution is thereafter considered. Finally, the respondents’ arguments concerning the conduct of the appellants towards them will be examined. B. The case in the High Court [13] Mrs Grootboom and the other respondents applied for an order directing the appellants forthwith to provide: (i) adequate basic temporary shelter or housing to the respondents and their children pending their obtaining permanent accommodation; (ii) or basic nutrition, shelter, healthcare and social services to the respondents who are children. 11 The respondents based their claim on two constitutional provisions. First, on section 26 of the Constitution which provides that everyone has the right of access to adequate housing. Section 11 Above n 3 at 280F-G. 10 YACOOB J 26(2) imposes an obligation upon the state to take reasonable legislative and other measures to ensure the progressive realisation of this right within its available resources. The section is fully considered later in this judgment. The second basis for their claim was section 28(1)(c) of the Constitution which provides that children have the right to shelter. [14] After conducting an inspection in loco , Josman AJ ordered that, pending the final determination of the application, temporary accommodation be provided for those of the respondents who were children and for one parent of each child who required supervision. Appellants furnished comprehensive answering affidavits to demonstrate that the state housing programme complied with their constitutional obligations. On the return day, the matter came before two judges. The High Court judgment consists of two separate parts. The first, under the heading “Housing” considered the claim in terms of section 26 of the Constitution. On this part of the claim the High Court concluded: “In short [appellants] are faced with a massive shortage in available housing and an extremely constrained budget. Furthermore in terms of the pressing demands and scarce resources [appellants] had implemented a housing programme in an attempt to maximise available resources to redress the housing shortage. For this reason it could not be said that [appellants] had not taken reasonable legislative and other measures within its available resources to achieve the progressive realisation of the right to have access to adequate housing.” 12 12 Above n 3 at 285A-B. 11 YACOOB J The court rejected an argument that the right of access to adequate housing under section 26 included a minimum core entitlement to shelter in terms of which the state was obliged to provide some form of shelter pending implementation of the programme to provide adequate housing. This submission was based on the provisions of certain international instruments that are discussed later. 13 [15] The second part of the judgment addressed the claim of the children for shelter in terms of section 28(1)(c). The court reasoned that the parents bore the primary obligation to provide shelter for their children, but that section 28(1)(c) imposed an obligation on the state to provide that shelter if parents could not. It went on to say that the shelter to be provided according to this obligation was a significantly more rudimentary form of protection from the elements than is provided by a house and falls short of adequate housing. The court concluded that: “an order which enforces a child’s right to shelter should take account of the need of the child to be accompanied by his or her parent. Such an approach would be in accordance with the spirit and purport of section 28 as a whole.” [16] In the result the court ordered as follows: “(2) It is declared, in terms of section 28 of the Constitution that; (a) the applicant children are entitled to be provided with shelter by the appropriate organ or department of state; 13 The International Covenant on Economic, Social and Cultural Rights, and the general comments issued by the United Nations Committee on Social and Economic Rights. 12 YACOOB J (b) the applicant parents are entitled to be accommodated with their children in the aforegoing shelter; and (c) the appropriate organ or department of state is obliged to provide the applicant children, and their accompanying parents, with such shelter until such time as the parents are able to shelter their own children; (3) The several respondents are directed to present under oath a report or reports to this Court as to the implementation of paragraph (2) above within a period of three months from the date of this order; (4) The applicants shall have a period of one month, after presentation of the aforegoing report, to deliver their commentary thereon under oath; (5) The respondents shall have a further period of two weeks to deliver their replies under oath to the applicants’ commentary; (6) There will be no order as to costs of these proceedings up to the date of this judgment; (7) The case is postponed to a date to be fixed by the Registrar for consideration and determination of the aforesaid report, commentary and replies; (8) The order of Josman AJ dated 4 June 1999 will remain in force until such time as the further proceedings contemplated by the preceding paragraph have been completed.” 14 C. Argument in this Court [17] After the application for leave to appeal had been granted by this Court but before argument had been filed by any of the parties, the Human Rights Commission and the Community Law Centre of the University of the Western Cape applied to be admitted as amici curiae . That application was granted and the amici were permitted to present written and oral argument. Mr Budlender of the Legal Resources Centre submitted written argument and appeared on behalf of the amici at the hearing. We are grateful to him, the Human Rights 14 Above n 3 at 293H- 294C. 13 YACOOB J Commission and the Community Law Centre for a detailed, helpful and creative approach to the difficult and sensitive issues involved in this case. [18] Written argument submitted on behalf of the appellants and the respondents concentrated on the meaning and import of the shelter component and the obligations imposed upon the state by section 28(1)(c). The written argument filed on behalf of the amici sought to broaden the issues by contending that all the respondents, including those of the adult respondents without children, were entitled to shelter by reason of the minimum core obligation incurred by the state in terms of section 26 of the Constitution. It was further contended on behalf of the amici that the children’s right to shelter had been included in section 28(1)(c) to place the right of children to this minimum core beyond doubt. Respondents’ counsel filed further written contentions in which they supported and adopted these submissions. No objection was taken to the issues having been thus broadened. D. The relevant constitutional provisions and their justiciability [19] The key constitutional provisions at issue in this case are section 26 and section 28(1)(c). Section 26 provides: “(1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” 14 Section 28(1)(c) provides: YACOOB J “(1) Every child has the right - . . . (c) to basic nutrition, shelter, basic health care services and social services”. These rights need to be considered in the context of the cluster of socio-economic rights enshrined in the Constitution. They entrench the right of access to land, 15 to adequate housing and to health care, food, water and social security. 16 They also protect the rights of the child 17 and the right to education. 18 15 Section 25(5) provides: “The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.” 16 Section 27 provides: “(1) Everyone has the right to have access to— (a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. (3) No one may be refused emergency medical treatment.” 17 Section 28 provides: “(1) Every child has the right— (a) to a name and a nationality from birth; (b) to family care or parental care, or to appropriate alternative care when removed from the family environment; (c) to basic nutrition, shelter, basic health care services and social services; (d) to be protected from maltreatment, neglect, abuse or degradation; (e) to be protected from exploitative labour practices; (f) not to be required or permitted to perform work or provide services that— (i) are inappropriate for a person of that child’s age; or (ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development; 15 (g) not to be detained except as a matter of last resort, in which case, in addition to the rights the child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be— YACOOB J (i) kept separately from detained person over the age of 18 years; and (ii) treated in a manner, and kept in conditions, that take account of the child’s age; (h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and (i) not to be used directly in armed conflict, and to be protected in times of armed conflict. (2) A child’s best interests are of paramount importance in every matter concerning the child. (3) In this section “child” means a person under the age of 18 years.” 18 Section 29(1) provides: “(1) Everyone has the right— (a) to a basic education, including adult basic education, and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible. (2) Everyone has the right to receive education in the official language or languages of their choice in public education institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account— (a) equity; (b) practicability; and (c) the need to redress the results of past racially discriminatory laws and practices. (3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that— (a) do not discriminate on the basis of race; (b) are registered with the state; and (c) maintain standards that are of no inferior to standards at comparable public educational institutions.” 16 YACOOB J [20] While the justiciability of socio-economic rights has been the subject of considerable jurisprudential and political debate, 19 the issue of whether socio-economic rights are justiciable at all in South Africa has been put beyond question by the text of our Constitution as construed in the Certification judgment. 20 During the certification proceedings before this Court, it was contended that they were not justiciable and should therefore not have been included in the text of the new Constitution. In response to this argument, this Court held: “[T]hese rights are, at least to some extent, justiciable. As we have stated in the previous 19 Haysom “Constitutionalism, Majoritarian Democracy and Socio-Economic Rights” (1992) 8 SA Journal of Human Rights at 451; Mureinik “Beyond a Charter of Luxuries: Economic Rights in the Constitution” (1992) 8 SA Journal of Human Rights at 464; Davis “The Case Against the Inclusion of Socio-Economic Demands in a Bill of Rights Except as Directive Principles” (1992) 8 SA Journal of Human Rights at 475; Liebenberg “Social and Economic Rights: A Critical Challenge” in Liebenberg (ed) The Constitution of South Africa from a Gender Perspective (The Community Law Centre at the University of the Western Cape in association with David Philip Publishers, Cape Town 1995) at 79; Corder et al A Charter For Social Justice: A contribution to the South African Bill of Rights debate (University of Cape Town, Cape Town 1992) at 18; Scott and Macklem “Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution” (1992) 141 University of Pennsylvania Law Review at 1; De Villiers “Social and Economic Rights” in van Wyk, Dugard, De Villiers and Davis (eds) Rights and Constitutionalism: The New South African Legal Order (Juta, Cape Town, 1994) at 599; South African Law Commission Final Report on Group and Human Rights (Project 58, October 1994) at 179. 20 Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744; 1996 (10) BCLR 1253 (CC) at para 78. 17 YACOOB J paragraph, many of the civil and political rights entrenched in the [constitutional text before this Court for certification in that case] will give rise to similar budgetary implications without compromising their justiciability. The fact that socio-economic rights will almost inevitably give rise to such implications does not seem to us to be a bar to their justiciability. At the very minimum, socio-economic rights can be negatively protected from improper invasion.” Socio-economic rights are expressly included in the Bill of Rights; they cannot be said to exist on paper only. Section 7(2) of the Constitution requires the state “to respect, protect, promote and fulfil the rights in the Bill of Rights” and the courts are constitutionally bound to ensure that they are protected and fulfilled. The question is therefore not whether socio-economic rights are justiciable under our Constitution, but how to enforce them in a given case. 21 This is a very difficult issue which must be carefully explored on a case-by-case basis. To address the challenge raised in the present case, it is necessary first to consider the terms and context of the relevant constitutional provisions and their application to the circumstances of this case. Although the judgment of the High Court in favour of the appellants was based on the right to shelter (section 28(1)(c) of the Constitution), it is appropriate to consider the provisions of section 26 first so as to facilitate a contextual evaluation of section 28(1)(c). E. Obligations imposed upon the state by section 26 i) Approach to interpretation 21 Section 38 of the Constitution empowers the Court to grant appropriate relief for the infringement of any right entrenched in the Bill of Rights. 18 YACOOB J [21] Like all the other rights in Chapter 2 of the Constitution (which contains the Bill of Rights), section 26 must be construed in its context. The section has been carefully crafted. It contains three subsections. The first confers a general right of access to adequate housing. The second establishes and delimits the scope of the positive obligation imposed upon the state to promote access to adequate housing and has three key elements. The state is obliged: (a) to take reasonable legislative and other measures; (b) within its available resources; (c) to achieve the progressive realisation of this right. These elements are discussed later. The third subsection provides protection against arbitrary evictions. [22] Interpreting a right in its context requires the consideration of two types of context. On the one hand, rights must be understood in their textual setting. This will require a consideration of Chapter 2 and the Constitution as a whole. On the other hand, rights must also be understood in their social and historical context. [23] Our Constitution entrenches both civil and political rights and social and economic rights. All the rights in our Bill of Rights are inter-related and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined in Chapter 2. The realisation of these rights is also key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential. [24] The right of access to adequate housing cannot be seen in isolation. There is a close 19 YACOOB J relationship between it and the other socio-economic rights. Socio-economic rights must all be read together in the setting of the Constitution as a whole. The state is obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerable housing. Their interconnectedness needs to be taken into account in interpreting the socio-economic rights, and, in particular, in determining whether the state has met its obligations in terms of them. [25] Rights also need to be interpreted and understood in their social and historical context. The right to be free from unfair discrimination, for example, must be understood against our legacy of deep social inequality. 22 The context in which the Bill of Rights is to be interpreted was described by Chaskalson P in Soobramoney : 23 “We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.” 24 22 See, for example, Brink v Kitshoff NO 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC) ; Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC). For an application of this type of contextual interpretation, see also S v Makwanyane and Another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC); Shabalala and Others v Attorney-General, Transvaal and Another 1996 (1) SA 725 (CC); 1995 (12) BCLR 1593 (CC). 23 Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC) at para 8. 20 24 See also the comments of Mahomed DP in Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others 1996 (4) SA 671 (CC); 1996 (8) BCLR 1015 (CC) at para 43, YACOOB J ii) The relevant international law and its impact albeit in a different context. 21 YACOOB J [26] During argument, considerable weight was attached to the value of international law in interpreting section 26 of our Constitution. Section 39 of the Constitution 25 obliges a court to consider international law as a tool to interpretation of the Bill of Rights. In Makwanyane 26 Chaskalson P, in the context of section 35(1) of the interim Constitution, 27 said: 25 Section 39 of the Constitution provides: “(1) When interpreting the Bill of Rights, a court, tribunal or forum - (a) must promote the values that underlie and open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.” 26 S v Makwanyane and Another above n 22 at para 35. 27 Section 35(1) of the interim Constitution provides: “In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law.” 22 YACOOB J “. . . public international law would include non-binding as well as binding law. They may both be used under the section as tools of interpretation. International agreements and customary international law accordingly provide a framework within which [the Bill of Rights] can be evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable instruments, such as the United Nations Committee on Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the European Commission on Human Rights, and the European Court of Human Rights, and, in appropriate cases, reports of specialised agencies such as the International Labour Organisation, may provide guidance as to the correct interpretation of particular provisions of [the Bill of Rights].” (Footnotes omitted) The relevant international law can be a guide to interpretation but the weight to be attached to any particular principle or rule of international law will vary. However, where the relevant principle of international law binds South Africa, 28 it may be directly applicable. [27] The amici submitted that the International Covenant on Economic, Social and Cultural Rights (the Covenant) 29 is of significance in understanding the positive obligations created by the socio-economic rights in the Constitution. Article 11.1 of the Covenant provides: “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.” 28 See sections 231 - 235 of the Constitution which regulate the application of international law in detail. 29 The Covenant was signed by South Africa on 3 October 1994 but has as yet not been ratified. 23 YACOOB J This Article must be read with Article 2.1 which provides: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” [28] The differences between the relevant provisions of the Covenant and our Constitution are significant in determining the extent to which the provisions of the Covenant may be a guide to an interpretation of section 26. These differences, in so far as they relate to housing, are: (a) The Covenant provides for a right to adequate housing while section 26 provides for the right of access to adequate housing . (b) The Covenant obliges states parties to take appropriate steps which must include legislation while the Constitution obliges the South African state to take reasonable legislative and other measures. [29] The obligations undertaken by states parties to the Covenant are monitored by the United Nations Committee on Economic, Social and Cultural Rights (the committee). 30 The amici relied on the relevant general comments issued by the committee concerning the interpretation and application of the Covenant, and argued that these general comments constitute a significant 30 The committee consists of eighteen independent experts. Its purpose is to assist the United Nations Economic and Social Council to carry out its responsibilities relating to the implementation of the Covenant. See Craven The International Covenant on Economic, Social and Cultural Rights (Clarendon, Oxford 1995) at 1 and 42. 24 YACOOB J guide to the interpretation of section 26. In particular they argued that in interpreting this section, we should adopt an approach similar to that taken by the committee in paragraph 10 of general comment 3 issued in 1990, in which the committee found that socio-economic rights contain a minimum core: “10. On the basis of the extensive experience gained by the Committee, as well as by the body that preceded it, over a period of more than a decade of examining States parties’ reports the Committee is of the view that minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education, is prima facie , failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’etre. By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned. Article 2(1) obligates each State party to take the necessary steps “to the maximum of its available resources”. In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.” [30] It is clear from this extract that the committee considers that every state party is bound to fulfil a minimum core obligation by ensuring the satisfaction of a minimum essential level of the socio-economic rights, including the right to adequate housing. Accordingly, a state in which a significant number of individuals is deprived of basic shelter and housing is regarded as prima 25 YACOOB J facie in breach of its obligations under the Covenant. A state party must demonstrate that every effort has been made to use all the resources at its disposal to satisfy the minimum core of the right. However, it is to be noted that the general comment does not specify precisely what that minimum core is. [31] The concept of minimum core obligation was developed by the committee to describe the minimum expected of a state in order to comply with its obligation under the Covenant. It is the floor beneath which the conduct of the state must not drop if there is to be compliance with the obligation. Each right has a “minimum essential level” that must be satisfied by the states parties. The committee developed this concept based on “extensive experience gained by [it] . . . over a period of more than a decade of examining States parties’ reports.” The general comment is based on reports furnished by the reporting states and the general comment is therefore largely descriptive of how the states have complied with their obligations under the Covenant. The committee has also used the general comment “as a means of developing a common understanding of the norms by establishing a prescriptive definition.” 31 Minimum core obligation is determined generally by having regard to the needs of the most vulnerable group that is entitled to the protection of the right in question. It is in this context that the concept of minimum core obligation must be understood in international law. [32] It is not possible to determine the minimum threshold for the progressive realisation of 31 Id at 91. 26 YACOOB J the right of access to adequate housing without first identifying the needs and opportunities for the enjoyment of such a right. These will vary according to factors such as income, unemployment, availability of land and poverty. The differences between city and rural communities will also determine the needs and opportunities for the enjoyment of this right. Variations ultimately depend on the economic and social history and circumstances of a country. All this illustrates the complexity of the task of determining a minimum core obligation for the progressive realisation of the right of access to adequate housing without having the requisite information on the needs and the opportunities for the enjoyment of this right. The committee developed the concept of minimum core over many years of examining reports by reporting states. This Court does not have comparable information. [33] The determination of a minimum core in the context of “the right to have access to adequate housing” presents difficult questions. This is so because the needs in the context of access to adequate housing are diverse: there are those who need land; others need both land and houses; yet others need financial assistance. There are difficult questions relating to the definition of minimum core in the context of a right to have access to adequate housing, in particular whether the minimum core obligation should be defined generally or with regard to specific groups of people. As will appear from the discussion below, the real question in terms of our Constitution is whether the measures taken by the state to realise the right afforded by section 26 are reasonable. There may be cases where it may be possible and appropriate to have regard to the content of a minimum core obligation to determine whether the measures taken by the state are reasonable. However, even if it were appropriate to do so, it could not be done unless sufficient information is placed before a court to enable it to determine the minimum core 27 YACOOB J in any given context. In this case, we do not have sufficient information to determine what would comprise the minimum core obligation in the context of our Constitution. It is not in any event necessary to decide whether it is appropriate for a court to determine in the first instance the minimum core content of a right. iii) Analysis of section 26 [34] I consider the meaning and scope of section 26 in its context. Its provisions are repeated for convenience: “(1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” Subsections (1) and (2) are related and must be read together. Subsection (1) aims at delineating the scope of the right. It is a right of everyone including children. Although the subsection does not expressly say so, there is, at the very least, a negative obligation placed upon the state and all other entities and persons to desist from preventing or impairing the right of access to adequate housing. 32 The negative right is further spelt out in subsection (3) which prohibits arbitrary evictions. Access to housing could also be promoted if steps are taken to make the rural areas of our country more viable so as to 32 See, in this regard, the Certification judgment, above para 20. 28 YACOOB J limit the inexorable migration of people from rural to urban areas in search of jobs. [35] The right delineated in section 26(1) is a right of “access to adequate housing” as distinct from the right to adequate housing encapsulated in the Covenant. This difference is significant. It recognises that housing entails more than bricks and mortar. It requires available land, appropriate services such as the provision of water and the removal of sewage and the financing of all of these, including the building of the house itself. For a person to have access to adequate housing all of these conditions need to be met: there must be land, there must be services, there must be a dwelling. Access to land for the purpose of housing is therefore included in the right of access to adequate housing in section 26. A right of access to adequate housing also suggests that it is not only the state who is responsible for the provision of houses, but that other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing. The state must create the conditions for access to adequate housing for people at all economic levels of our society. State policy dealing with housing must therefore take account of different economic levels in our society. [36] In this regard, there is a difference between the position of those who can afford to pay for housing, even if it is only basic though adequate housing, and those who cannot. For those who can afford to pay for adequate housing, the state’s primary obligation lies in unlocking the system, providing access to housing stock and a legislative framework to facilitate self-built houses through planning laws and access to finance. Issues of development and social welfare are raised in respect of those who cannot afford to provide themselves with housing. State policy needs to address both these groups. The poor are particularly vulnerable and their needs require 29 YACOOB J special attention. It is in this context that the relationship between sections 26 and 27 and the other socio-economic rights is most apparent. If under section 27 the state has in place programmes to provide adequate social assistance to those who are otherwise unable to support themselves and their dependants, that would be relevant to the state’s obligations in respect of other socio-economic rights. [37] The state’s obligation to provide access to adequate housing depends on context, and may differ from province to province, from city to city, from rural to urban areas and from person to person. Some may need access to land and no more; some may need access to land and building materials; some may need access to finance; some may need access to services such as water, sewage, electricity and roads. What might be appropriate in a rural area where people live together in communities engaging in subsistence farming may not be appropriate in an urban area where people are looking for employment and a place to live. [38] Subsection (2) speaks to the positive obligation imposed upon the state. It requires the state to devise a comprehensive and workable plan to meet its obligations in terms of the subsection. However subsection (2) also makes it clear that the obligation imposed upon the state is not an absolute or unqualified one. The extent of the state’s obligation is defined by three key elements that are considered separately: (a) the obligation to “take reasonable legislative and other measures”; (b) “to achieve the progressive realisation” of the right; and (c) “within available resources.” Reasonable legislative and other measures 30 YACOOB J [39] What constitutes reasonable legislative and other measures must be determined in the light of the fact that the Constitution creates different spheres of government: national government, provincial government and local government. 33 The last of these may, as it does in this case, comprise two tiers. 34 The Constitution allocates powers and functions amongst these different spheres emphasising their obligation to co-operate with one another in carrying out their constitutional tasks. In the case of housing, it is a function shared by both national and provincial government. 35 Local governments have an important obligation to ensure that services are provided in a sustainable manner to the communities they govern. 36 A reasonable programme therefore must clearly allocate responsibilities and tasks to the different spheres of government and ensure that the appropriate financial and human resources are available. 33 See Chapter 3 of the Constitution. 34 See sections 155(1)(b) and (c) of the Constitution as well as section 7(1)(b), read with sections 10B and 10C, of the Local Government Transition Act, 209 of 1993. 35 See schedule 4 of the Constitution. 36 See section 152(1)(b), read with sections 152(2) and 153(a). 31 YACOOB J [40] Thus, a co-ordinated state housing programme must be a comprehensive one determined by all three spheres of government in consultation with each other as contemplated by Chapter 3 of the Constitution. It may also require framework legislation at national level, a matter we need not consider further in this case as there is national framework legislation in place. Each sphere of government must accept responsibility for the implementation of particular parts of the programme but the national sphere of government must assume responsibility for ensuring that laws, policies, programmes and strategies are adequate to meet the state’s section 26 obligations. In particular, the national framework, if there is one, must be designed so that these obligations can be met. It should be emphasised that national government bears an important responsibility in relation to the allocation of national revenue to the provinces and local government on an equitable basis. 37 Furthermore, national and provincial government must ensure that executive obligations imposed by the housing legislation are met. 38 [41] The measures must establish a coherent public housing programme directed towards the progressive realisation of the right of access to adequate housing within the state’s available means. The programme must be capable of facilitating the realisation of the right. The precise 37 See section 214 of the Constitution, and, in particular, sections 214(2)(d) and (f). 38 See sections 100, 139 and 155(7) of the Constitution. 32 YACOOB J contours and content of the measures to be adopted are primarily a matter for the legislature and the executive. They must, however, ensure that the measures they adopt are reasonable. In any challenge based on section 26 in which it is argued that the state has failed to meet the positive obligations imposed upon it by section 26(2), the question will be whether the legislative and other measures taken by the state are reasonable. A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. It is necessary to recognise that a wide range of possible measures could be adopted by the state to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met. [42] The state is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The state is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed policies and programmes implemented by the executive. These policies and programmes must be reasonable both in their conception and their implementation. The formulation of a programme is only the first stage in meeting the state’s obligations. The programme must also be reasonably implemented. An otherwise reasonable programme that is not implemented reasonably will not constitute compliance with the state’s obligations. [43] In determining whether a set of measures is reasonable, it will be necessary to consider 33 YACOOB J housing problems in their social, economic and historical context and to consider the capacity of institutions responsible for implementing the programme. The programme must be balanced and flexible and make appropriate provision for attention to housing crises and to short, medium and long term needs. A programme that excludes a significant segment of society cannot be said to be reasonable. Conditions do not remain static and therefore the programme will require continuous review. [44] Reasonableness must also be understood in the context of the Bill of Rights as a whole. The right of access to adequate housing is entrenched because we value human beings and want to ensure that they are afforded their basic human needs. A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality. To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right. Furthermore, the Constitution requires that everyone must be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test. Progressive realisation of the right [45] The extent and content of the obligation consist in what must be achieved, that is, “the progressive realisation of this right.” It links subsections (1) and (2) by making it quite clear that the right referred to is the right of access to adequate housing. The term “progressive 34 YACOOB J realisation” shows that it was contemplated that the right could not be realised immediately. But the goal of the Constitution is that the basic needs of all in our society be effectively met and the requirement of progressive realisation means that the state must take steps to achieve this goal. It means that accessibility should be progressively facilitated: legal, administrative, operational and financial hurdles should be examined and, where possible, lowered over time. Housing must be made more accessible not only to a larger number of people but to a wider range of people as time progresses. The phrase is taken from international law and Article 2.1 of the Covenant in particular. 39 The committee has helpfully analysed this requirement in the context of housing as follows: 39 The text of Article 2.1 appears at para 27 above. 35 YACOOB J “Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être , of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.” 40 Although the committee’s analysis is intended to explain the scope of states parties’ obligations under the Covenant, it is also helpful in plumbing the meaning of “progressive realisation” in the context of our Constitution. The meaning ascribed to the phrase is in harmony with the context in which the phrase is used in our Constitution and there is no reason not to accept that it bears the same meaning in the Constitution as in the document from which it was so clearly derived. Within available resources [46] The third defining aspect of the obligation to take the requisite measures is that the obligation does not require the state to do more than its available resources permit. This means that both the content of the obligation in relation to the rate at which it is achieved as well as the reasonableness of the measures employed to achieve the result are governed by the availability of 40 Para 9 of general comment 3, 1990. 36 YACOOB J resources. Section 26 does not expect more of the state than is achievable within its available resources. As Chaskalson P said in Soobramoney : 41 “What is apparent from these provisions is that the obligations imposed on the State by ss 26 and 27 in regard to access to housing, health care, food, water, and social security are dependent upon the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources. Given this lack of resources and the significant demands on them that have already been referred to, an unqualified obligation to meet these needs would not presently be capable of being fulfilled.” There is a balance between goal and means. The measures must be calculated to attain the goal expeditiously and effectively but the availability of resources is an important factor in determining what is reasonable. F. Description and evaluation of the state housing programme 41 See n 23 above at para 11. 37 YACOOB J [47] In support of their contention that they had complied with the obligation imposed upon them by section 26, the appellants placed evidence before this Court of the legislative and other measures they had adopted. There is in place both national and provincial legislation concerned with housing. 42 It was explained that in 1994 the state inherited fragmented housing arrangements which involved thirteen statutory housing funds, seven ministries and housing departments, more than twenty subsidy systems and more than sixty national and regional parastatals operating on a racial basis. These have been rationalised. The national Housing Act provides a framework which establishes the responsibilities and functions of each sphere of government with regard to housing. The responsibility for implementation is generally given to the provinces. Provinces in turn have assigned certain implementation functions to local government structures in many cases. All spheres of government are intimately involved in housing delivery and the budget allocated by national government appears to be substantial. There is a single housing policy and a subsidy system that targets low-income earners regardless of race. The White Paper on Housing aims to stabilise the housing environment, establish institutional arrangements, protect consumers, rationalise institutional capacity within a sustainable long-term framework, facilitate the speedy release and servicing of land and co- ordinate and integrate the public sector investment in housing. In addition, various schemes are in place involving public/private partnerships aimed at ensuring that housing provision is effectively financed. 42 Examples of important legislation in this field include the Housing Act, 107 of 1997; the Housing Consumers Protection Measures Act, 95 of 1998; the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998; the Development Facilitation Act, 67 of 1995; and the Western Cape Housing Development Act, 6 of 1999. 38 YACOOB J [48] “Housing development” is defined in section 1 of the Housing Act as: “the establishment and maintenance of habitable, stable and sustainable public and private residential environments to ensure viable households and communities in areas allowing convenient access to economic opportunities, and to health, educational and social amenities in which all citizens and permanent residents of the Republic will, on a progressive basis, have access to— (a) permanent residential structures with secure tenure, ensuring internal and external privacy and providing adequate protection against the elements; and (b) potable water, adequate sanitary facilities and domestic energy supply . . .” “Housing development project” is defined as “any plan to undertake housing development as contemplated in any national housing programme.” [49] Section 2(1) of the Act sets out the general principles binding on national, provincial and local spheres of government. I set out those principles are that material to the determination of this case. All levels of government must: “(a) give priority to the needs of the poor in respect of housing development; (b) consult meaningfully with individuals and communities affected by housing development; (c) ensure that housing development— (i) provides as wide a choice of housing and tenure options as is reasonably possible; (ii) is economically, fiscally, socially and financially affordable and sustainable; (iii) is based on integrated development planning; and (iv) is administered in a transparent, accountable and equitable manner, and upholds the practice of good governance; . . . (e) promote— 39 (i) education and consumer protection in respect of housing development; YACOOB J (ii) conditions in which everyone meets their obligations in respect of housing development; (iii) the establishment, development and maintenance of socially and economically viable communities and of safe and healthy living conditions to ensure the elimination and prevention of slums and slum conditions; . . . (ix) the provision of community and recreational facilities in residential areas; (f) take due cognisance of the impact of housing development on the environment; . . . (h) in the administration of any matter relating to housing development— (i) respect, protect, promote and fulfil the rights in the Bill of Rights in Chapter 2 of the Constitution; (ii) observe and adhere to the principles of co-operative government and intergovernmental relations referred to in section 41 (1) of the Constitution; and (iii) comply with all other applicable provisions of the Constitution.” [50] Over and above these general principles, the Act sets out the functions of the national, provincial and local government in relation to housing. The functions of national government are set out in section 3 of the Act. 43 The function of provincial governments are set out in section 43 Section 3 provides: “(1) The national government acting through the Minister must, after consultation with every MEC and the national organisation representing municipalities as contemplated in section 163 (a) of the Constitution, establish and facilitate a sustainable national housing development process. (2) For the purposes of subsection (1) the Minister must— (a) determine national policy, including national norms and standards, in respect of housing development; 40 (b) set broad national housing delivery goals and facilitate the setting of YACOOB J 7 of the Act 44 and the functions of municipalities are set out in section 9 of the Act. 45 The provincial and, where appropriate, local government housing delivery goals in support thereof; (c) monitor the performance of the national government and, in co-operation with every MEC, the performance of provincial and local governments against housing delivery goals and budgetary goals; (d) assist provinces to develop the administrative capacity required for the effective exercise of their powers and performance of their duties in respect of housing development; (e) support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and perform their duties in respect of housing development; (f) promote consultation on matters regarding housing development between the national government and representatives of— (i) civil society; (ii) the sectors and subsectors supplying or financing housing goods or services; (iii) provincial and local governments; and (iv) any other stakeholder in housing development; (g) promote effective communication in respect of housing development. (3) For the purposes of subsection (2) (a) 'national norms and standards' includes norms and standards in respect of permanent residential structures, but are not limited thereto. (4) For the purposes of performing the duties imposed by subsections (1) and (2) the Minister may— (a) establish a national institutional and funding framework for housing development; (b) negotiate for the national apportionment of the state budget for housing development; (c) prepare and maintain a multi-year national plan in respect of housing development; (d) allocate funds for national housing programmes to provincial governments, including funds for national housing programmes administered by municipalities in terms of section 10; (e) allocate funds for national facilitative programmes for housing development; (f) obtain funds for land acquisition, infrastructure development, housing provision and end-user finance; (g) institute and finance national housing programmes; (h) establish and finance national institutions for the purposes of housing development, and supervise the execution of their mandate; (i) evaluate the performance of the housing sector against set goals and equitableness and effectiveness requirements; and (j) take any steps reasonably necessary to— (i) create an environment conducive to enabling provincial and local governments, the private sector, communities and individuals to achieve their respective goals in respect of housing development; and (ii) promote the effective functioning of the housing market. . . .” 41 44 Section 7 provides: YACOOB J “(1) Every provincial government must, after consultation with the provincial organisations representing municipalities as contemplated in section 163 (a) of the Constitution, do everything in its power to promote and facilitate the provision of adequate housing in its province within the framework of national housing policy. (2) For the purposes of subsection (1) every provincial government must— (a) determine provincial policy in respect of housing development; (b) promote the adoption of provincial legislation to ensure effective housing delivery; (c) take all reasonable and necessary steps to support and strengthen the capacity of municipalities to effectively exercise their powers and perform their duties in respect of housing development; (d) co-ordinate housing development in the province; (e) take all reasonable and necessary steps to support municipalities in the exercise of their powers and the performance of their duties in respect of housing development; (f) when a municipality cannot or does not perform a duty imposed by this Act, intervene by taking any appropriate steps in accordance with section 139 of the Constitution to ensure the performance of such duty; and (g) prepare and maintain a multi-year plan in respect of the execution in the province of every national housing programme and every provincial housing programme, which is consistent with national housing policy and section 3 (2) (b), in accordance with the guidelines that the Minister approves for the financing of such a plan with money from the Fund. . . .” 45 Section 9 provides: “(1) Every municipality must, as part of the municipality's process of integrated development planning, take all reasonable and necessary steps within the framework of national and provincial housing legislation and policy to— (a) ensure that— (i) the inhabitants of its area of jurisdiction have access to adequate housing on a progressive basis; (ii) conditions not conducive to the health and safety of the inhabitants of its area of jurisdiction are prevented or removed; (iii) services in respect of water, sanitation, electricity, roads, stormwater drainage and transport are provided in a manner which is economically efficient; (b) set housing delivery goals in respect of its area of jurisdiction; (c) identify and designate land for housing development; (d) create and maintain a public environment conducive to housing development which is financially and socially viable; (e) promote the resolution of conflicts arising in the housing development process; (f) initiate plan, co-ordinate, facilitate, promote and enable appropriate housing development in its area of jurisdiction; (g) provide bulk engineering services, and revenue generating services in so far as such services are not provided by specialist utility suppliers; and (h) plan and manage land use and development. 42 (2) (a) Any municipality may participate in a national housing programme in YACOOB J accordance with the rules applicable to such programme by- (i) promoting a housing development project by a developer; (ii) subject to paragraph (b), acting as developer in respect of the planning and execution of a housing development project on the basis of full pricing for cost and risk; (iii) entering into a joint venture contract with a developer in respect of a housing development project; (iv) establishing a separate business entity to execute a housing development project; 43 YACOOB J (v) administering any national housing programme in respect of its area of jurisdiction in accordance with section 10; (vi) facilitating and supporting the participation of other role players in the housing development process. (b) If a municipality has been accredited under section 10 (2) to administer national housing programmes in terms of which a housing development project is being planned and executed, such municipality may not act as developer, unless such project has been approved by the relevant provincial housing development board. (3) (a) A municipality may by notice in the Provincial Gazette expropriate any land required by it for the purposes of housing development in terms of any national housing programme, if— (i) it is unable to purchase the land on reasonable terms through negotiation with the owner thereof; (ii) it has obtained the permission of the MEC to expropriate such land before the notice of expropriation is published in the Provincial Gazette ; and (iii) such notice of expropriation is published within six months 44 YACOOB J responsibilities of local government in the Cape Metro, and in particular the relationship between of the date on which the permission of the MEC was granted. (b) Sections 1, 6 to 15 and 18 to 23 of the Expropriation Act, 1975 (Act No 63 of 1975), apply, with the changes required by the context, in respect of the expropriation of land by a municipality in terms of paragraph (a), and any reference in any of those sections— (i) to the “Minister” and the “State” must be construed as a reference to the chief executive officer of the relevant municipality and the relevant municipality, respectively; (ii) to “section 2” must be construed as a reference to this subsection; and (iii) to “this Act” must be construed as a reference to this Act.” 45 YACOOB J metropolitan government on the one hand and municipal government on the other, have been regulated by an agreement entered into between the Cape Metro and the municipalities within its jurisdiction. 46 [51] It emerges from the general principles read together with the functions of national, provincial and local government that the concept of housing development as defined is central to the Act. Housing development, as defined, seeks to provide citizens and permanent residents with access to permanent residential structures with secure tenure ensuring internal and external privacy and to provide adequate protection against the elements. What is more, it endeavours to ensure convenient access to economic opportunities and to health, educational and social amenities. All the policy documents before the Court are postulated on the need for housing development as defined. This is the central thrust of the housing development policy. [52] The definition of housing development as well as the general principles that are set out do not contemplate the provision of housing that falls short of the definition of housing development 46 The agreement is entitled “Agreement in respect of the allocation of powers, duties and functions entered into between Cape Metropolitan Council and The Metropolitan Local Councils of Cape Town, Eastern, Heidelberg, Northern, Southern, Tygerberg.” This agreement was entered into on 30 September 1996 in accordance with the provisions of the Cape Metropolitan Further Enactment, the Cape Metropolitan Negotiating Forum Agreement and the Local Government Transition Act. 46 YACOOB J in the Act. In other words there is no express provision to facilitate access to temporary relief for people who have no access to land, no roof over their heads, for people who are living in intolerable conditions and for people who are in crisis because of natural disasters such as floods and fires, or because their homes are under threat of demolition. These are people in desperate need. Their immediate need can be met by relief short of housing which fulfils the requisite standards of durability, habitability and stability encompassed by the definition of housing development in the Act. [53] What has been done in execution of this programme is a major achievement. Large sums of money have been spent and a significant number of houses has been built. 47 Considerable thought, energy, resources and expertise have been and continue to be devoted to the process of effective housing delivery. It is a programme that is aimed at achieving the progressive realisation of the right of access to adequate housing. [54] A question that nevertheless must be answered is whether the measures adopted are reasonable within the meaning of section 26 of the Constitution. Allocation of responsibilities and functions has been coherently and comprehensively addressed. The programme is not haphazard but represents a systematic response to a pressing social need. It takes account of the housing shortage in South Africa by seeking to build a large number of homes for those in need of better housing. The programme applies throughout South Africa and although there have been 47 Some 362 160 houses were built or under construction between March 1994 and September 1997, while an overall total of some 637 190 subsidies had been allocated for projects in various stages of planning or development by October 1997. 47 YACOOB J difficulties of implementation in some areas, the evidence suggests that the state is actively seeking to combat these difficulties. [55] Legislative measures have been taken at both the national and provincial levels. As we have seen, at the national level the Housing Act sets out the general principles applicable to housing development, defines the functions of the three spheres of government and addresses the financing of housing development. It thus provides a legislative framework within which the delivery of houses is to take place nationally. At the provincial level there is the Western Cape Housing Development Act, 1999. This statute also sets out the general principles applicable to housing development; the role of the provincial government; the role of local government; and other matters relating to housing development. Thus, like the Housing Act, this statute provides a legislative framework within which housing development at provincial level will take place. All of the measures described form part of the nationwide housing programme. [56] This Court must decide whether the nationwide housing programme is sufficiently flexible to respond to those in desperate need in our society and to cater appropriately for immediate and short-term requirements. This must be done in the context of the scope of the housing problem that must be addressed. This case is concerned with the situation in the Cape Metro and the municipality and the circumstances that prevailed there are therefore presented. [57] The housing shortage in the Cape Metro is acute. About 206 000 housing units are required and up to 25 000 housing opportunities are required in Oostenberg itself. Shack counts in the Cape Metro in general and in the area of the municipality in particular reveal an inordinate 48 YACOOB J problem. 28 300 shacks were counted in the Cape Metro in January 1993. This number had grown to 59 854 in 1996 and to 72 140 by 1998. Shacks in this area increased by 111 percent during the period 1993 to 1996 and by 21 percent from then until 1998. There were 2121 shacks in the area of the municipality in 1993, 5701 (an increase of 168 percent) in 1996 and 7546 (an increase of 32 percent) in 1998. These are the results of a study commissioned by the Cape Metro. [58] The study concludes that the municipality “is the most critical local authority in terms of informal settlement shack growth at this point in time”, this despite the fact that, according to an affidavit by a representative of the municipality, 10 577 houses had been completed by 1997. The scope of the problem is perhaps most sharply illustrated by this: about 22 000 houses are built in the Western Cape each year while demand grows at a rate of 20 000 family units per year. The backlog is therefore likely to be reduced, resources permitting and, on the basis of the figures in this study, only by 2 000 houses a year. [59] The housing situation is desperate. The problem is compounded by rampant unemployment and poverty. As was pointed out earlier in this judgment, a quarter of the households in Wallacedene had no income at all, and more than two-thirds earned less than R^500 - 00 per month during 1997. As stated above, many of the families living in Wallacedene are living in intolerable conditions. In some cases, their shacks are permanently flooded during the winter rains, others are severely overcrowded and some are perilously close to busy roads. There is no suggestion that Wallacedene is unusual in this respect. It is these conditions which ultimately forced the respondents to leave their homes there. 49 YACOOB J [60] The Cape Metro has realised that this desperate situation requires government action that is different in nature from that encompassed by the housing development policy described earlier in this judgment. It drafted a programme (the Cape Metro land programme) in June 1999, some months after the respondents had been evicted. It wrote: “From the above, it is seen that there is a complete mismatch between demand and supply in the housing sector, resulting in a crisis in housing delivery. However, the existing housing situation cannot just be accepted, as there are many families living in crisis conditions, or alternatively, there are situations in the [Cape Metro] where local authorities need to undertake legal proceedings (evictions) in order to administer and implement housing projects. A new housing programme needed [sic] to cater for the crisis housing conditions in the [Cape Metro]. The proposed programme is called an ‘Accelerated Managed Land Settlement Programme’.” Later in the document, the programme is briefly described as follows: “The Accelerated Managed Land Settlement Programme (AMSLP) can therefore be described as the rapid release of land for families in crisis, with the progressive provision of services. This programme should benefit those families in situations of crisis. The programme does not offer any benefits to queue jumpers, as it is the Metropolitan Local Council who determines when the progressive upgrading of services will be taken. The Accelerated Managed Land Settlement Programme (AMSLP) includes the identification and purchase of land, planning, identification of the beneficiaries, township approval, pegging of the erven, construction of basic services, resettlement and the transfer of land to the beneficiaries.” 50 CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 32 / 97 THIAGRAJ SOOBRAMONEY Appellant versus MINSTER OF HEALTH (KWAZULU-NATAL) Respondent Heard on: 11 November 1997 Decided on: 27 November 1997 JUDGMENT CHASKALSON P: [1] The appellant, a 41 year old unemployed man, is a diabetic who suffers from ischaemic heart disease and cerebro-vascular disease which caused him to have a stroke during 1996. In 1996 his kidneys also failed. Sadly his condition is irreversible and he is now in the final stages of chronic renal failure. His life could be prolonged by means of regular renal dialysis. He has sought such treatment from the renal unit of the Addington state hospital in Durban. The hospital can, however, only provide dialysis treatment to a limited number of patients. The renal unit has 20 dialysis machines available to it, and some of these machines are in poor condition. Each treatment takes four hours and a further two hours have to be allowed for the cleaning of a machine, before it can be used again for other treatment. Because of the limited facilities that are available for kidney CHASKALSON P dialysis the hospital has been unable to provide the appellant with the treatment he has requested. [2] The reasons given by the hospital for this are set out in the respondent = s answering affidavit deposed to by Doctor Saraladevi Naicker, a specialist physician and nephrologist in the field of renal medicine who has worked at Addington Hospital for 18 years and who is currently the President of the South African Renal Society. In her affidavit Dr Naicker says that Addington Hospital does not have enough resources to provide dialysis treatment for all patients suffering from chronic renal failure. Additional dialysis machines and more trained nursing staff are required to enable it to do this, but the hospital budget does not make provision for such expenditure. The hospital would like to have its budget increased but it has been told by the provincial health department that funds are not available for this purpose. [3] Because of the shortage of resources the hospital follows a set policy in regard to the use of the dialysis resources. Only patients who suffer from acute renal failure, which can be treated and remedied 1 by renal dialysis are given automatic access to renal dialysis at the hospital. Those patients who, like the appellant, suffer from chronic renal failure which is irreversible are not admitted automatically to the renal programme. A set 1 Where the renal failure can be cured by dialysis this is usually achieved within a period of four to six weeks from the commencement of the treatment. 2 CHASKALSON P of guidelines has been drawn up and adopted to determine which applicants who have chronic renal failure will be given dialysis treatment. According to the guidelines the primary requirement for admission of such persons to the dialysis programme is that the patient must be eligible for a kidney transplant. A patient who is eligible for a transplant will be provided with dialysis treatment until an organ donor is found and a kidney transplant has been completed. [4] The guidelines provide that an applicant is not eligible for a transplant unless he or she is A [f]ree of significant vascular or cardiac disease. @ The medical criteria set out in the guidelines also provide that an applicant must be A Free of significant disease elsewhere e.g. ischaemic heart disease, cerebro-vascular disease, peripheral vascular disease, chronic liver disease, chronic lung disease. @ The appellant suffers from ischaemic heart disease and cerebro-vascular disease and he is therefore not eligible for a kidney transplant. [5] The appellant has made arrangements to receive dialysis treatment from private hospitals and doctors, but his finances have been depleted and he avers that he is no longer able to afford such treatment. In July 1997 he made an urgent application to the Durban and Coast Local Division of the High Court for an order directing the Addington Hospital to provide him with ongoing dialysis treatment and interdicting the Respondent 3 CHASKALSON P from refusing him admission to the renal unit of the hospital. The appellant claimed that in terms of the 1996 Constitution the Addington Hospital is obliged to make dialysis treatment available to him. The respondent opposed the application. The matter came before Combrinck J who dismissed the application. 2 [6] The appellant applied to the High Court for a certificate in terms of rule 18(e) of the Constitutional Court Rules. The certificate was granted and he applied to this Court in terms of Rule 18 for leave to appeal against the judgment of the High Court. The application for leave to appeal was set down for hearing as a matter of urgency. The respondent did not oppose the application and correctly acknowledged that the matter raised issues of importance on which a decision on the merits of the appeal should be given by this Court. The matter was dealt with on this basis, and counsel were required to deal only with the merits of the appeal, it being accepted by the parties and this Court that the appeal should be heard and decided. [7] The appellant based his claim on section 27(3) of the 1996 Constitution which provides: 2 Thiagraj Soobramoney v Minister of Health: Province of KwaZulu-Natal D&CLD 5846 / 97, 21 August 1997, unreported. 4 CHASKALSON P A No one may be refused emergency medical treatment @ and section 11 which stipulates A Everyone has the right to life. @ [8] We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring. [9] The constitutional commitment to address these conditions is expressed in the preamble which, after giving recognition to the injustices of the past, states: A We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to B Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; . . . . Improve the quality of life of all citizens and free the potential of each person @ . 5 CHASKALSON P This commitment is also reflected in various provisions of the bill of rights 3 and in particular in sections 26 and 27 which deal with housing, health care, food, water and social security. [10] Sections 26 and 27 contain the following provisions: A 26. Housing (1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) . . . . 27. Health care, food, water and social security (1) Everyone has the right to have access to B (a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. (3) No one may be refused emergency medical treatment. @ 3 For instance in section 7 where the bill of rights is described as the cornerstone of democracy in South Africa and as affirming A the democratic values of human dignity, equality and freedom @ , section 28 which deals with childrens = rights, and section 29 which deals with education. 6 CHASKALSON P [11] What is apparent from these provisions is that the obligations imposed on the state by sections 26 and 27 in regard to access to housing, health care, food, water and social security are dependent upon the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources. Given this lack of resources and the significant demands on them that have already been referred to, an unqualified obligation to meet these needs would not presently be capable of being fulfilled. This is the context within which section 27(3) must be construed. [12] The appellant urges us to hold that patients who suffer from terminal illnesses and require treatment such as renal dialysis to prolong their lives are entitled in terms of section 27(3) to be provided with such treatment by the state, and that the state is required to provide funding and resources necessary for the discharge of this obligation. [13] The words A emergency medical treatment @ may possibly be open to a broad construction which would include ongoing treatment of chronic illnesses for the purpose of prolonging life. But this is not their ordinary meaning, and if this had been the purpose which section 27(3) was intended to serve, one would have expected that to have been expressed in positive and specific terms. [14] Counsel for the appellant argued that section 27(3) should be construed 7 CHASKALSON P consistently with the right to life entrenched in section 11 of the Constitution and that everyone requiring life-saving treatment who is unable to pay for such treatment herself or himself is entitled to have the treatment provided at a state hospital without charge. [15] This Court has dealt with the right to life in the context of capital punishment but it has not yet been called upon to decide upon the parameters of the right to life or its relevance to the positive obligations imposed on the state under various provisions of the bill of rights. In India the Supreme Court has developed a jurisprudence around the right to life so as to impose positive obligations on the state in respect of the basic needs of its inhabitants. 4 Whilst the Indian jurisprudence on this subject contains valuable insights it is important to bear in mind that our Constitution is structured differently to the Indian Constitution. Unlike the Indian Constitution ours deals specifically in the bill of rights with certain positive obligations imposed on the state, and where it does so, it is our duty to apply the obligations as formulated in the Constitution and not to draw inferences that would be inconsistent therewith. [16] This should be done in accordance with the purposive approach to the interpretation of the Constitution which has been adopted by this Court. 5 Consistently 4 Basing itself on the right to life the Supreme Court of India has made orders requiring the state to provide medical treatment to those needing it, to provide legal aid to those who cannot afford it themselves, and to provide access between isolated areas and more developed areas. See generally in this regard VD Mahajan Constitutional Law of India 7 ed (Eastern Book Company, Lucknow 1991) at 230 B 234, and BL Hansaria Right to Life and Liberty under the Constitution (A Critical Analysis of Article 21) (NM Tripathi Private Ltd, Bombay 1993) at 24 B 40. 5 S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (4) BCLR 665 (CC) at para 9. 8 CHASKALSON P with this approach the rights which are in issue in the present case must not be construed in isolation A . . . but in [their] context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of [the bill of rights] of which [they are] part. @ 6 [17] The purposive approach will often be one which calls for a generous interpretation to be given to a right to ensure that individuals secure the full protection of the bill of rights, but this is not always the case, and the context may indicate that in order to give effect to the purpose of a particular provision A a narrower or specific meaning @ should be given to it. 7 [18] In developing his argument on the right to life counsel for the appellant relied upon a decision of a two-judge bench of the Supreme Court of India in Paschim Banga Khet 6 Id at para 10. 7 Id at para 325. See also the analysis of the right to freedom and security of the person by the majority of the Court in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC), and Hogg Constitutional Law of Canada 3 ed (Carswell, Scarborough 1992) at para 33.7(c). 9 CHASKALSON P Mazdoor Samity and others v State of West Bengal and another , 8 where it was said: 8 (1996) AIR SC 2426. 10 CHASKALSON P A The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. @ 9 These comments must be seen in the context of the facts of that case which are materially different to those of the present case. It was a case in which constitutional damages were claimed. The claimant had suffered serious head injuries and brain haemorrhage as a result of having fallen off a train. He was taken to various hospitals and turned away, either because the hospital did not have the necessary facilities for treatment, or on the grounds that it did not have room to accommodate him. As a result he had been obliged to secure the necessary treatment at a private hospital. It appeared from the judgment that the claimant could in fact have been accommodated in more than one of the hospitals which turned him away and that the persons responsible for that decision had been guilty of misconduct. This is precisely the sort of case which would fall within section 27(3). It is one in which emergency treatment was clearly necessary. The occurrence was 9 Id at 2429. 11 CHASKALSON P sudden, the patient had no opportunity of making arrangements in advance for the treatment that was required, and there was urgency in securing the treatment in order to stabilise his condition. The treatment was available but denied. [19] In our Constitution the right to medical treatment does not have to be inferred from the nature of the state established by the Constitution or from the right to life which it guarantees. It is dealt with directly in section 27. If section 27(3) were to be construed in accordance with the appellant = s contention it would make it substantially more difficult for the state to fulfill its primary obligations under sections 27(1) and (2) to provide health care services to A everyone @ within its available resources. It would also have the consequence of prioritising the treatment of terminal illnesses over other forms of medical care and would reduce the resources available to the state for purposes such as preventative health care and medical treatment for persons suffering from illnesses or bodily infirmities which are not life threatening. In my view much clearer language than that used in section 27(3) would be required to justify such a conclusion. [20] Section 27(3) itself is couched in negative terms B it is a right not to be refused emergency treatment. The purpose of the right seems to be to ensure that treatment be given in an emergency, and is not frustrated by reason of bureaucratic requirements or other formalities. A person who suffers a sudden catastrophe which calls for immediate medical attention, such as the injured person in Paschim Banga Khet Mazdoor Samity v 12 CHASKALSON P State of West Bengal , should not be refused ambulance or other emergency services which are available and should not be turned away from a hospital which is able to provide the necessary treatment. 10 What the section requires is that remedial treatment that is necessary and available be given immediately to avert that harm. [21] The applicant suffers from chronic renal failure. To be kept alive by dialysis he would require such treatment two to three times a week. This is not an emergency which calls for immediate remedial treatment. It is an ongoing state of affairs resulting from a deterioration of the applicant = s renal function which is incurable. In my view section 27(3) does not apply to these facts. [22] The appellant = s demand to receive dialysis treatment at a state hospital must be determined in accordance with the provisions of sections 27(1) and (2) and not section 27(3). These sections entitle everyone to have access to health care services provided by the state A within its available resources @ . 10 We have only recently emerged from a system of government in which the provision of health services depended on race. On occasions seriously injured persons were refused access to ambulance services or admission to the nearest or best equipped hospital on racial grounds. 13 CHASKALSON P [23] In the Court a quo Combrinck J held that A [i]n this case the respondent has conclusively proved that there are no funds available to provide patients such as the applicant with the necessary treatment. @ 11 This finding was not disputed by the appellant, but it was argued that the state could make additional funds available to the renal clinic and that it was obliged to do so to enable the clinic to provide life saving treatment to the appellant and others suffering from chronic renal failure. [24] At present the Department of Health in KwaZulu-Natal does not have sufficient funds to cover the cost of the services which are being provided to the public. In 1996 B 1997 it overspent its budget by R^152 million, and in the current year it is anticipated that the overspending will be R^700 million rand unless a serious cutback is made in the services which it provides. The renal unit at the Addington Hospital has to serve the whole of KwaZulu-Natal and also takes patients from parts of the Eastern Cape. There are many more patients suffering from chronic renal failure than there are dialysis machines to treat such patients. This is a nation-wide problem and resources are stretched in all renal clinics throughout the land. Guidelines have therefore been established to assist the persons working in these clinics to make the agonising choices which have to be made in deciding who should receive treatment, and who not. These guidelines were applied in the present case. 11 Above n 2 at 17. 14 CHASKALSON P [25] By using the available dialysis machines in accordance with the guidelines more patients are benefited than would be the case if they were used to keep alive persons with chronic renal failure, and the outcome of the treatment is also likely to be more beneficial because it is directed to curing patients, and not simply to maintaining them in a chronically ill condition. It has not been suggested that these guidelines are unreasonable or that they were not applied fairly and rationally when the decision was taken by the Addington Hospital that the appellant did not qualify for dialysis. [26] Ideally the dialysis machines available at the Addington Hospital should handle no more than about 60 patients. At present they are being used to treat 85 patients and the hospital can barely accommodate those who meet its guidelines. The nurse-patient ratio in the renal unit is 1:4.5 instead of the recommended ratio of 1:2.5. According to Dr Naicker, if the hospital were required to treat all persons who, like the appellant, are suffering from chronic renal failure, it would be unable to do so. She says that if the appellant were to be admitted to the programme it would result in other patients who comply with the guidelines being put at risk. Only about 30% of the patients suffering from chronic renal failure meet the guidelines for admission to the dialysis programme. If everyone in the same condition as the appellant were to be admitted the carefully tailored programme would collapse and no one would benefit from that. 15 CHASKALSON P [27] The appellant avers in his affidavits that better use could be made of the dialysis machines at the Addington Hospital by keeping the clinic open for longer hours. He says that some of the nurses A moonlight @ at other hospitals after their normal working hours in order to earn extra income, and that if they were given overtime opportunities at the Addington Hospital more people could be treated. [28] The appellant = s case must be seen in the context of the needs which the health services have to meet, for if treatment has to be provided to the appellant it would also have to be provided to all other persons similarly placed. Although the renal clinic could be kept open for longer hours, it would involve additional expense in having to pay the clinic personnel at overtime rates, or in having to employ additional personnel working on a shift basis. It would also put a great strain on the existing dialysis machines which are already showing signs of wear. It is estimated that the cost to the state of treating one chronically ill patient by means of renal dialysis provided twice a week at a state hospital is approximately R^60 000 per annum. If all the persons in South Africa who suffer from chronic renal failure were to be provided with dialysis treatment B and many of them, as the appellant does, would require treatment three times a week B the cost of doing so would make substantial inroads into the health budget. And if this principle were to be applied to all patients claiming access to expensive medical treatment or expensive drugs, the health budget would have to be dramatically increased to the prejudice of other needs which the state has to meet. 16 CHASKALSON P [29] The provincial administration which is responsible for health services in KwaZulu- Natal has to make decisions about the funding that should be made available for health care and how such funds should be spent. These choices involve difficult decisions to be taken at the political level in fixing the health budget, and at the functional level in deciding upon the priorities to be met. A court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters. [30] Although the problem of scarce resources is particularly acute in South Africa this is not a peculiarly South African problem. It is a problem which hospital administrators and doctors have had to confront in other parts of the world, and in which they have had to take similar decisions. In his judgment in this case Combrinck J refers to decisions of the English courts in which it has been held to be undesirable for a court to make an order as to how scarce medical resources should be applied, and to the danger of making any order that the resources be used for a particular patient, which might have the effect of denying those resources to other patients to whom they might more advantageously be devoted. 12 The dilemma confronting health authorities faced with such cases was 12 Re J (a minor) [1992] 4 All ER 614 (CA) at 625g; Airedale NHS Trust v Bland [1993] 1 All ER 821 (CA) at 857b. 17 CHASKALSON P described by Sir Thomas Bingham MR in a passage cited by Combrinck J from the judgment in R v Cambridge Health Authority, ex parte B : 13 A I have no doubt that in a perfect world any treatment which a patient, or a patient = s family, sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one = s eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. @ [31] One cannot but have sympathy for the appellant and his family, who face the cruel dilemma of having to impoverish themselves in order to secure the treatment that the appellant seeks in order to prolong his life. The hard and unpalatable fact is that if the appellant were a wealthy man he would be able to procure such treatment from private sources; he is not and has to look to the state to provide him with the treatment. But the state = s resources are limited and the appellant does not meet the criteria for admission to the renal dialysis programme. Unfortunately, this is true not only of the appellant but of 13 [1995] 2 All ER 129 (CA) at 137d B f. 18 CHASKALSON P many others who need access to renal dialysis units or to other health services. There are also those who need access to housing, food and water, employment opportunities, and social security. These too are aspects of the right to A . . . human life: the right to live as a human being, to be part of a broader community, to share in the experience of humanity. @ 14 The state has to manage its limited resources in order to address all these claims. There will be times when this requires it to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals within society. [32] In his concurring judgment in this matter Madala J refers to the possibility of the appellant being treated by Continuing Ambulatory Peritoneal Dialysis (CAPD). This treatment is dealt with fully by Dr Naicker in a supplementary affidavit lodged by her in response to an averment made by the appellant in his replying affidavit that there is treatment, other than renal dialysis, which would be of benefit to him, but had not been offered to him by the Addington Hospital. [33] Dr Naicker explains that CAPD treatment makes patients vulnerable to infections 14 Per O = Regan J in S v Makwanyane above n 5 at para 326. 19 CHASKALSON P and leads to patients having to be put on dialysis for two to three months when such infections occur. If an infection occurs frequently or is severe the patient has to be put onto dialysis permanently. A study undertaken at the hospital shows that over 60% of the patients treated at the hospital by CAPD have had to be placed on dialysis permanently. The cost of the treatment is high B the fluids used in the treatment call for an expenditure of approximately R^4000 per month B and there is the additional cost of having to accommodate the patient at the hospital and treat him or her in the surgery. Because of the high cost of the treatment and the demands that it makes on hospital resources including dialysis facilities, the hospital has also set criteria for treating patients by CAPD. Only patients who are candidates for transplant are placed on CAPD and approximately 130 such patients are being treated in this way at the hospital. The appellant is not a candidate for a transplant and accordingly does not meet the criteria for CAPD treatment. [34] Counsel for the appellant, correctly in my view, appreciated that there was no material difference between the appellant = s claim to be placed on dialysis (which is his preferred option) and the alternative of being treated by CAPD. Neither form of treatment is A emergency treatment @ , neither is accessible to all patients suffering from chronic renal failure and because of the limited resources both are subject to criteria which the appellant does not meet. 20 CHASKALSON P [35] I should add that I do not consider it appropriate to comment on the attitude of the private medical sector to CAPD treatment. No evidence was placed before us in that regard and there is nothing on the papers to show that patients treated privately do not receive proper advice in regard to the availability, risks and costs of such treatment. [36] The state has a constitutional duty to comply with the obligations imposed on it by section 27 of the Constitution. It has not been shown in the present case, however, that the state = s failure to provide renal dialysis facilities for all persons suffering from chronic renal failure constitutes a breach of those obligations. In the circumstances the appellant is not entitled to the relief that he seeks in these proceedings and his appeal against the decision of Combrinck J must fail. This is not an appropriate case for an order for costs to be made and the respondent correctly does not seek such an order. [37] The following order is made. The appeal against the order made by Combrinck J is dismissed. No order is made as to costs. Langa DP, Ackermann J, Didcott J, Goldstone J, Kriegler J, Mokgoro J, O = Regan J, and Sachs J concur in the judgment of Chaskalson P 21 MADALA J CHASKALSON P / MADALA J MADALA J: [38] I have had the benefit of reading the judgment prepared by Chaskalson P and the concurring judgment of Sachs J in this matter. I am in agreement with Chaskalson P = s very incisive analysis of the provisions of section 27 and in particular his conclusion that section 27(3) envisages a dramatic, sudden situation or event which is of a passing nature in terms of time. There is some suddenness and at times even an element of unexpectedness in the concept A emergency medical treatment @ . I accordingly also agree that on that score the appellant = s case must fail since he has not persuaded us that section 27(3) applies. I, however, seek to make my own further observations about this case and now do so briefly. It is not necessary for me to restate the facts of the case as they have been set out succinctly in the judgment of Chaskalson P. Nor do I see the need to repeat in any detail the arguments that were advanced in the appeal. [39] In the oral submissions addressed to us, Mr Jacobs, who appeared on behalf of the appellant, placed reliance, among others, on the provisions of section 11 of the Constitution B the right to life. In this case life is indeed potentially at stake and this Court is enjoined therefore not only to find a humane and morally justified solution to the problem at hand, but also to examine assiduously the process by which the solution is reached and the legal foundation on which it rests. The state undoubtedly has a strong 22 MADALA J interest in protecting and preserving the life and health of its citizens and to that end must do all in its power to protect and preserve life. [40] In another sense the appeal before us brings into sharp focus the dichotomy in which a changing society finds itself and in particular the problems attendant upon trying to distribute scarce resources on the one hand, and satisfying the designs of the Constitution with regard to the provision of health services on the other. It puts us in the very painful situation in which medical practitioners must find themselves daily when the question arises: A Should a doctor ever allow a patient to die when that patient has a treatable condition? @ In the context of this case, the question to be answered is whether everybody has the right of access to kidney dialysis machines even where resources are scarce or limited. [41] Chapter 2 of the Constitution sets out the fundamental rights to which every person is entitled and also contains provisions dealing with the manner in which the chapter is to be interpreted by the courts. Kentridge AJ, who delivered the judgment of the Court in S v Zuma and Others , 1 referred with approval 2 to the judgment of Dickson J (later CJC) in R v Big M Drug Mart Ltd 3 and to the following passage in particular: 1 S v Zuma and Others 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC). 2 Id at para 15. 3 (1985) 18 DLR (4th) 321 at 359 B 60. 23 MADALA J A The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. In my view, this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be . . . a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter = s protection. @ [42] The Constitution is forward-looking and guarantees to every citizen fundamental rights in such a manner that the ordinary person-in-the-street, who is aware of these guarantees, immediately claims them without further ado B and assumes that every right so guaranteed is available to him or her on demand. Some rights in the Constitution are the ideal and something to be strived for. They amount to a promise, in some cases, and an indication of what a democratic society aiming to salvage lost dignity, freedom and equality should embark upon. They are values which the Constitution seeks to provide, nurture and protect for a future South Africa. [43] However, the guarantees of the Constitution are not absolute but may be limited in one way or another. In some instances, the Constitution states in so many words that the state must take reasonable legislative and other measures, within its available resources 24 MADALA J A to achieve the progressive realisation of each of these rights. @ 4 In its language, the Constitution accepts that it cannot solve all of our society = s woes overnight, but must go on trying to resolve these problems. One of the limiting factors to the attainment of the Constitution = s guarantees is that of limited or scarce resources. In the present case the limited haemodialysis facilities, inclusive of haemodialysis machines, beds and trained staff constitute the limited or scarce facilities. 4 Section 27(2). See also sections 25, 26, 29 and 32. 25 MADALA J [44] The applicant, aware of his rights under the Constitution, sought to claim in the court a quo, his right to emergency medical treatment under section 27(3). He averred that with haemodialysis he could live for a long time, without it his life would be brief. The application was turned down by Combrink J. It is that refusal to grant an order directing the respondent to cause the rendering of on-going dialysis which has precipitated this appeal. The appellant contended that the refusal by the renal unit to give him the dialysis treatment he requires in order to keep alive was unreasonable, unjust and not equitable in a just and open democratic society and was a flagrant violation of his rights. He also averred in his papers that by refusing him this treatment, the respondent was discriminating against him. This latter averment was not followed up in argument at the hearing, and I accordingly take it no further. Suffice to observe that in the light of this Court = s approach to equality, the appellant = s argument in that regard could not stand. 5 [45] The fundamental issue is whether this Court, as the guardian of the Constitution, as 5 Harksen v Lane NO and Others CCT 9 / 97, 7 October 1997, as yet unreported; President of the Republic of South Africa and another v Hugo 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC); Prinsloo v Van der Linde and another 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC); and Brink v Kitshoff NO 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC). 26 MADALA J the protector of human rights and as the upholder of democracy, should in this case require a health authority, acting through its authorised medical practitioner, to adopt a course of treatment which in the bona fide clinical and incisive judgment of the practitioner will not cure the patient but merely prolong his life for some time. Dr Naicker = s qualifications as head of the Renal Unit at Addington Hospital are undoubted and her 18 years experience as a specialist physician in the field of renal medicine puts her in a singular position when it comes to the exercise by her of her own professional judgment on renal matters. She states in her affidavit in the present matter that patients who suffer from chronic renal failure, the condition which has afflicted the appellant, have as their only hope, either an organ transplant or long-term dialysis. It is always envisaged when such patients are put on the dialysis programme, that in due course a suitable cadaver transplant may be carried out or that organ donation may be made by a suitable living person. The appellant is not a suitable candidate for renal transplant; also he does not qualify for long-term dialysis because of the scarcity of facilities and his state of health. [46] It appears that because the appellant is suffering from, inter alia, coronary artery disease, ischaemic heart disease which caused him to have a stroke in 1996, hypertension and diabetes, he is not a suitable candidate for kidney transplant. The results of the angiogram indicated that he has to be excluded from the dialysis programme. It appears that barring a kidney transplant, haemodialysis is the most efficacious treatment of end- 27 MADALA J stage renal failure. It appears also that the renal unit at the said hospital cannot render treatment to all end-stage renal failure patients, including the appellant, unless they satisfy the guidelines which are accepted throughout South Africa as the minimum standards to be met for admission to the dialysis programme, the main criterion of which is the patient = s suitability for a renal transplant. It was not suggested on the papers before us nor in argument at the hearing that the applicant has ever considered seeking the less expensive treatment known as Continuing Ambulatory Peritoneal Dialysis (CAPD) or indeed that he was not eligible for that treatment as well. It appears that this form of treatment has been resorted to by many patients as a result of the lack of haemodialysis facilities and that while it cannot be equated to renal transplant or haemodialysis, it nonetheless prolongs life expectancy to some extent. In countries like the United Kingdom the prevalence of renal failure and the scarcity of resources has resulted in an increase in the number of patients who resort to CAPD. [47] The appellant was initially dialysed in the private sector at the rate of approximately R^1 000 per treatment and required two or three treatments per week but could not continue with this treatment when his funds ran out and he found himself owing the private clinic approximately R^25 000. [48] Private hospitals and clinics which offer haemodialysis programmes play an important role in cases such as the present. They do afford end-stage renal failure patients 28 MADALA J / SACHS J with haemodialysis treatment where the public sector cannot. The private sector criteria for acceptance onto a dialysis programme are not as strict, but naturally the patient must have the funds in order to sustain treatment. It seems to me that it would alleviate the problem of the public sector if more patients were given by the private sector alternative possible treatment of providing catheters and bags which go with CAPD. The appellant in this case alleges that he was never advised about this option. If this were so, it would, in my view, be a serious indictment for the private sector which offers private renal dialysis programmes. However, the private sector is not before us and we cannot condemn it without hearing it. [49] Perhaps a solution might be to embark upon a massive education campaign to inform the citizens generally about the causes of renal failure, hypertension and diabetes and the diet which persons afflicted by renal failure could resort to in order to prolong their life expectancy. SACHS J: [50] I am in full agreement with the eloquent, forceful and well-focused judgment of Chaskalson P and wish merely to add certain considerations which I regard as relevant. 29 MADALA J / SACHS J [51] The special attention given by section 27(3) to non-refusal of emergency medical treatment relates to the particular sense of shock to our notions of human solidarity occasioned by the turning away from hospital of people battered and bleeding or of those who fall victim to sudden and unexpected collapse. It provides reassurance to all members of society that accident and emergency departments will be available to deal with the unforeseeable catastrophes which could befall any person, anywhere and at any time. 1 The values protected by section 27(3) would, accordingly, be undermined rather than reinforced by any unwarranted conflation of emergency and non-emergency treatment such as that argued for by the appellant. [52] In a case such as the present which engages our compassion to the full, I feel it necessary to underline the fact that Chaskalson P = s judgment, as I understand it, does not merely A toll the bell of lack of resources @ . 2 In all the open and democratic societies based 1 See B New The Rationing Agenda in the NHS (King = s Fund Policy Institute, London 1996) at 9. 2 Quoted in R v Cambridge Health Authority, ex parte B [1995] 2 All ER 129 (CA) at 137c B d. In that case the judge in the Court a quo quashed the decision of a local health authority refusing to provide expensive treatment for a seriously ill child saying that A . . . the responsible authority . . . must do more than toll the bell of tight resources @ . The appeal Court overturned his decision. 30 SACHS J upon dignity, freedom and equality with which I am familiar, 3 the rationing of access to life-prolonging resources is regarded as integral to, rather than incompatible with, a human rights approach to health care. [53] Indeed, while each claimant seeking access to public medical resources is entitled to individualised consideration, the lack of principled criteria for regulating such access could be more open to challenge than the existence and application of such criteria. As a UNESCO publication put it: 3 Section 39(1)(a) of the Constitution requires us, when interpreting the bill of rights, to A promote the values that underlie an open and democratic society based on human dignity, equality and freedom @ . 31 SACHS J A Even in the industrialized nations where public tax-supported research has made a private biomedical technology industry possible, the literal provision of equal access to high-technology care, utilized most often by the elderly, would inevitably raise the level of spending to a point which would preclude investment in preventive care for the young, and maintenance care for working adults. That is why most national health systems do not offer, or severely ration (under a variety of disguises), expensive technological care such as renal dialysis or organ transplants. @ 4 The inescapable fact is that if governments were unable to confer any benefit on any person unless it conferred an identical benefit on all, the only viable option would be to confer no benefit on anybody. 5 4 Brody Biomedical Technology and Human Rights (UNESCO, Paris 1993) at 233. South Africa is a middle income country where A despite their high profile, modern lifesaving medical treatments are only available on a limited scale @ , Benatar A History of Medical Ethics: Africa @ Encyclopaedia of Bioethics Vol 3 Revised ed (Macmillan, New York 1995) 1465 at 1467. 5 See Brown v British Columbia (Minister of Health) (1990) 48 CRR 137 at 157 B 8. 32 SACHS J [54] Health care rights by their very nature have to be considered not only in a traditional legal context structured around the ideas of human autonomy but in a new analytical framework based on the notion of human interdependence. A healthy life depends upon social interdependence: the quality of air, water, and sanitation which the state maintains for the public good; the quality of one = s caring relationships, which are highly correlated to health; as well as the quality of health care and support furnished officially by medical institutions and provided informally by family, friends, and the community. 6 As Minow put it: A Interdependence is not a social ideal, but an inescapable fact; the scarcity of resources forces it on us. Who gets to use dialysis equipment? Who goes to the front of the line for the kidney transplant? @ 7 Traditional rights analyses accordingly have to be adapted so as to take account of the special problems created by the need to provide a broad framework of constitutional principles governing the right of access to scarce resources and to adjudicate between competing rights bearers. When rights by their very nature are shared and inter- dependent, striking appropriate balances between the equally valid entitlements or expectations of a multitude of claimants should not be seen as imposing limits on those 6 Minow, participating in an interdisciplinary discussion held at Harvard Law School in 1993, A Session I: Applying Rights Rhetoric to Economic and Social Claims @ Economic and Social Rights and the Right to Health (Harvard Law School Human Rights Program, Cambridge MA 1995) 1 at 3. 7 Id. 33 SACHS J rights (which would then have to be justified in terms of section 36), but as defining the circumstances in which the rights may most fairly and effectively be enjoyed. [55] I conclude with some observations on the questions raised relating to section 11 of the Constitution which states that A [e]veryone has the right to life. @ The present case does not necessitate any attempt to give a definitive answer to all these questions. Yet it does point to the need to establish what Dworkin has in his book Life = s Dominion, called the A relative importance of the natural and human contributions to the sanctity of life @ . 8 He concludes his study with the eloquent reminder that if people are to A retain the self consciousness and self respect that is the greatest achievement of our species, they will let neither science nor nature simply take its course, but will struggle to express, in the laws they make as citizens and the choices they make as people, the best understanding they can reach of why human life is sacred, and of the proper place of freedom in its dominion. @ 9 [56] A [T]he timing of death B once solely a matter of fate B is now increasingly becoming a matter of human choice. @ 10 In the United States, eighty percent of the two million people who die each year, die in hospitals and long term care institutions, and 8 Dworkin Life = s Dominion: An Argument about Abortion and Euthanasia (Harper Collins, London 1993) at 240. 9 Id at 241. 10 Office of Technology Assessment Task Force, Life Sustaining Technologies and the Elderly 41 (1988), quoted by Brennan J (dissenting) in Cruzan v Director, Missouri Department of Health, et al 497 US 261, 302 (1990). That case involved terminating rather than having access to expensive equipment. 34 SACHS J approximately seventy percent of those after a decision to forego life sustaining treatment has been made. 11 The words of Brennan J of the US Supreme Court, writing in a different context, have resonance: 11 Id at 302 B 3. 35 SACHS J A Nearly every death involves a decision whether to undertake some medical procedure that could prolong the process of dying. Such decisions are difficult and personal. They must be made on the basis of individual values, informed by medical realities, yet within a framework governed by law. The role of the courts is confined to defining that framework, delineating the ways in which government may and may not participate in such decisions. @ 12 (My emphasis.) [57] However the right to life may come to be defined in South Africa, there is in reality no meaningful way in which it can constitutionally be extended to encompass the right indefinitely to evade death. As Stevens J put it: dying is part of life, its completion rather than its opposite. 13 We can, however, influence the manner in which we come to terms with our mortality. It is precisely here, where scarce artificial life-prolonging resources have to be called upon, that tragic medical choices have to be made. 12 Id at 303. 13 Id at 343. 36 SACHS J [58] Courts are not the proper place to resolve the agonising personal and medical problems that underlie these choices. Important though our review functions are, there are areas where institutional incapacity and appropriate constitutional modesty require us to be especially cautious. Our country = s legal system simply A cannot replace the more intimate struggle that must be borne by the patient, those caring for the patient, and those who care about the patient. @ 14 The provisions of the bill of rights should furthermore not be interpreted in a way which results in courts feeling themselves unduly pressurised by the fear of gambling with the lives of claimants into ordering hospitals to furnish the most expensive and improbable procedures, thereby diverting scarce medical resources and prejudicing the claims of others. 15 [59] The applicant in this case presented his claim in a most dignified manner and showed manifest appreciation for the situation of the many other persons in the same harsh circumstances as himself. If resources were co-extensive with compassion, I have no doubt as to what my decision would have been. Unfortunately, the resources are 14 In re Jobes 529 A^2d 434 at 451 (NJ SCt, 1987). And see Lo et al A Family Decision-making on Trial: Who Decides for Incompetent Patients? @ (1990) 322 New England Journal of Medicine 1228 at 1231. 15 Gostin commenting in A Session II Defining the Right to Adequate Health @ Economic and Social Rights and the Right to Health: An Interdisciplinary Discussion Held at Harvard Law School in September, 1993 (Harvard Law School Human Rights Program, Cambridge MA 1995) 17 at 20. 37 SACHS J limited, and I can find no reason to interfere with the allocation undertaken by those better equipped than I to deal with the agonising choices that had to be made. 38 39 Counsel for the Appellant : MA Jacobs instructed by Vijay Kooblal and Associates. Counsel for the Respondent : CJ Pammenter SC and JS Moodley instructed by the State Attorney, KwaZulu-Natal.

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Answer

Full Solution Locked

Step 1:
Identify the Constitutional Right and Limitation

Section 27 of the South African Constitution guarantees everyone the right to have access to health care services, but this right is subject to the state's obligation to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right.

Step 2:
Examine Soobramoney v Minister of Health (Kwazulu-Natal)

In Soobramoney, the Court held that the state's obligation to provide health care is limited by available resources. The Court refused to order the state to provide ongoing dialysis to the applicant, emphasizing that the Constitution does not impose an unqualified obligation, and that resource constraints and competing needs must be considered.

Step 3:
Examine Government of RSA v Grootboom

In Grootboom, the Court clarified that socio-economic rights are justiciable, but the state is only required to take reasonable measures within available resources to progressively realise these rights. The Court emphasized that reasonableness is the standard for evaluating state action, and that measures must be comprehensive, coherent, and flexible enough to address urgent needs.

Step 4:
Summarize the Court's Approach to Limiting Socio-Economic Rights

The Court will evaluate whether the state has taken reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right. The Court does not require the state to provide immediate fulfillment of the right to everyone, but expects a reasonable plan that is responsive to urgent needs and is implemented effectively.

Step 5:
State the Key Criteria for Limiting Socio-Economic Rights

The Court considers: (1) whether the state has a reasonable and comprehensive plan; (2) whether the plan is implemented reasonably; (3) whether the plan is flexible and responsive to urgent needs; (4) whether the plan is within available resources; and (5) whether the plan treats the most vulnerable with care and concern.

Final Answer

A Court will limit a socio-economic right such as section 27 by assessing if the state has taken reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right. The Court does not require immediate or absolute fulfillment, but demands a reasonable, flexible, and inclusive approach that addresses urgent needs and is implemented effectively.

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QuestionLaw

Answer

Full Solution Locked

Step 1:
Identify the Constitutional Right and Limitation

Step 2:
Examine Soobramoney v Minister of Health (Kwazulu-Natal)

Step 3:
Examine Government of RSA v Grootboom

Step 4:
Summarize the Court's Approach to Limiting Socio-Economic Rights

Step 5:
State the Key Criteria for Limiting Socio-Economic Rights

Final Answer

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QQuestionLaw

AnswerHelpful

Full Solution Locked

Step 1:Identify the Constitutional Right and Limitation

Step 2:Examine Soobramoney v Minister of Health (Kwazulu-Natal)

Step 3:Examine Government of RSA v Grootboom

Step 4:Summarize the Court's Approach to Limiting Socio-Economic Rights

Step 5:State the Key Criteria for Limiting Socio-Economic Rights

Final Answer

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QuestionLaw

Answer

Step 1:
Identify the Constitutional Right and Limitation

Step 2:
Examine Soobramoney v Minister of Health (Kwazulu-Natal)

Step 3:
Examine Government of RSA v Grootboom

Step 4:
Summarize the Court's Approach to Limiting Socio-Economic Rights

Step 5:
State the Key Criteria for Limiting Socio-Economic Rights