The Grootboom case heard by the Constitutional Court involved about 500 squatters who brought an application for relief in terms of Section 26 of the Constitution — the right of access to housing. The applicants were successful in that an offer by the counsel for the government was made an order of the Constitutional Court, in terms of which these squatters could expect to obtain adequate shelter.
The court established a key principle concerning the scope of the socio-economic rights enshrined in the Constitution — namely, that if the most vulnerable were not included in a government plan, the court could declare that the government had acted unreasonably and violated, in this case, applicants’ right to housing.
Significantly, the court eschewed the argument that it grant a supervisory interdict, by which it would retain a form of control over the manner in which the government discharged the order so granted.
Some commentators praised the court for applying a deferential approach to these rights by asserting that they were justiciable, but then granting the government wide latitude to so implement. In this fashion, it was argued, the court had struck a neat balance between rights and policy.
More than three years later, the same squatters appear to continue to live in parlous conditions, despite their much heralded court victory. It is thus only appropriate, in the light of the first 10 years of constitutional democracy, that the effect of this part of the court’s jurisprudence be carefully evaluated.
The court’s approach to Section 26 in Grootboom was path-breaking in that it was required to give effect to a national Constitution that entrenches socio-economic rights.
But in employing a test of reasonableness to give content to these rights and by refusing to provide a supervisory role over the implementation of the order granted, the court has acted in a very cautious way. Some may well say that it has treaded too gingerly around the government and thus weakened the power of these rights to change the lives of right-bearers in any meaningful way. To what extent is this criticism justified?
In the few cases after Grootboom that have been litigated in the area of socio-economic rights, the court has confirmed that the determination of policy choice is for the other arms of government and that the court’s role is equivalent to that of the exercise of a power of review.
In other words, the court will evaluate the government’s reasoning for a policy choice. If the evidence indicates that the choice is based on reason, the court will not interfere — even if there is another choice that appears to be preferable to the court.
On this basis the court has refused to define a minimum content for any of these socio-economic rights and, to date, has not supported the idea of exercising supervisory jurisdiction over the order granted in favour of an applicant. The development of a weak right to health care or housing is prudential jurisprudence in that it allows the court to give meaning to rights that appear in few, if any, national Constitutions without undermining the relative autonomy of a democratically elected government. But in the weak remedy provided, the court has not done true justice to poor applicants like Grootboom’s, who need it to guard over the implementation of hard-won legal victories.
That is not to place the blame on the court for the parlous position of Grootboom. But the court has arguably been too deferential to the government in its granting of so weak a remedy. Accordingly, it has partially failed to cement the principle that the Constitution contains distributional commitments, which the government must fulfil before it moves to implement other policies.