A Constitutional challenge to the Supplementary Budget II: What are the prospects of success of a socio-economic rights challenge?
16 July 2020
This brief is part of a series on whether a constitutional challenge to the supplementary budget can succeed. The first brief in this series addresses whether our courts, within the context of the separation of powers, will entertain a direct constitutional challenge to the supplementary budget. This brief considers the likely success of a challenge based on socio-economic rights.
A recent Constitutional Court judgment recognised that “the fulfilment of many of the rights promises made by our Constitution depends on sound and continued economic development of our country.” This is particularly true for socio-economic rights. Scarcity and mismanagement of resources, including spectacular corruption in the last decade, have long impeded government’s ability to meet its constitutional obligations to fulfil socio-economic rights. Our economic position has now been dramatically worsened by the COVID-19 pandemic.
In his budget speech, the Minister Mboweni announced that the South African economy is expected to contract by an alarming 7.2% in 2020. In addition, a revenue shortfall of R304.1 billion for the period 2020-2021 is expected. This, he said, would place constraints on government expenditure. Government is constrained by these economic realities in its attempts to fulfil its socio-economic obligations. It is thus necessary to consider the extent to which these economic constraints will impact on government’s decisions in the fulfilment of its obligations with regard to socio-economic rights.
QUALIFIED SOCIO-ECONOMIC RIGHTS
The Constitution enshrines the right of access to housing (section 26) and the right of access to health care services, sufficient food and water, and social security (section 27). These rights are qualified in that they are subject to resource limitations. Even while, the Constitution provides that “the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of these rights.
Nevertheless, the State has an obligation to respect these rights by not taking deliberately retrogressive measures that diminish existing access to or enjoyment of these rights. Limitation of socio-economic rights through retrogressive measures must be justified under section 36 of the Constitution (the general limitations clause). This means that these rights may only be limited “in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society”. This is a relatively high bar for justification and the onus is on government to justify the limitation.
It is the State’s positive obligation to fulfil these socio-economic rights – by taking steps to increase access to and enhance enjoyment of these rights – that is subject to resource limitation. The Constitutional Court has consistently resisted requests in cases like Grootboom and Treatment Action Campaign II to give these qualified socio-economic rights content through development of a “minimum core obligation”, which would entitle all individuals to essential levels of goods and services, and which would be immediately enforceable. In adjudicating cases predicated on qualified socio-economic rights, the courts instead apply a reasonableness standard of review, which recognises the real difficulties that the State faces in ensuring the realisation of even a minimum core of these rights immediately.
THE OBLIGATION NOT TO TAKE RETROGRESSIVE MEASURES
Budgetary cutbacks on spending on socio-economic rights clearly constitute a retrogressive measure, but failure to provide additional budgetary allocations may also be seen as a retrogressive measure. Maintaining existing levels of access to and enjoyment of socio-economic rights in the midst of a crisis, such as the COVID-19 pandemic, may require additional budgetary allocations.
Retrogressive measures clearly limit our socio-economic rights. Nevertheless, it may be open to government to attempt to justify its failure to maintain existing levels of access to and enjoyment of socio-economic rights under the general limitations clause by showing that this failure is due to a genuine lack of resources. A leading academic, Sandra Liebenberg, suggests that in adjudicating justifications based on resource constraints, our courts should follow the Canadian approach as set out in the Eldridge case. On this approach, the State will have to demonstrate that the cost of allocating additional resources would impose an “undue hardship” on the State’s resources and prejudice the other needs that the State has to meet.
In a more recent Canadian case, Newfoundland, the Supreme Court of Canada accepted the Canadian government’s justification for retrogressive measures in light of a fiscal crisis. The infringement of the right to equality was held to be justifiable under the Canadian equivalent of our general limitations clause. In reaching this conclusion, the Supreme Court of Canada said: “[C]ourts will continue to look with strong scepticism at attempts to justify infringements of Charter rights on the basis of budgetary constraints. To do otherwise would devalue the Charter because there are always budgetary constraints and there are always other pressing government priorities. Nevertheless, the courts cannot close their eyes to the periodic occurrence of financial emergencies when measures must be taken to juggle priorities to see a government through the crisis.”
A challenge based on retrogressive measures may bear some prospects of success. However, if our courts follow a similar approach to that of the Canadian Supreme Court in Newfoundland, the government may be able to justify taking retrogressive measures based on the economic crisis, which has followed in the wake of the COVID-19 pandemic.
THE OBLIGATION TO REALISE SOCIO-ECONOMIC RIGHTS WITHIN AVAILABLE RESOURCES
The extent of the State’s positive obligations to increase access and enhance enjoyment of qualified socio-economic rights is tied to the resources available for these purposes. The Constitutional Court has said that these socio-economic rights are “themselves limited by reason of lack of resources”. The reasonableness of the steps taken by the State to realise these rights is therefore assessed in light of the availability of resources for this purpose.
During the early phase of our socio-economic rights jurisprudence, the Constitutional Court was circumspect in scrutinising the government’s claims that it faced financial constraints that impeded its ability to fulfil socio-economic rights. However, in subsequent cases the Constitutional Court has not shied away from enforcing socio-economic rights even where such enforcement has significant budgetary implications. In Treatment Action Campaign II, the Constitutional Court emphasised that the government is constitutionally bound to give effect to orders in socio-economic rights cases that have budgetary implications and “has to find the resources to do so.”
The clearest example of the Constitutional Court’s willingness to scrutinise budgetary matters is Blue Moonlight. In Blue Moonlight the City of Johannesburg was ordered to provide emergency housing for people facing homelessness as a result of eviction by private property owners. The City contended that it lacked the resources to provide emergency housing. The City had not budgeted for this expense and contended that it was not obliged to go beyond its available budgeted resources to provide access to housing. The Constitutional Court firmly rejected this contention. It said that “it is not good enough for the City to state that it has not budgeted for something, if it should indeed have planned and budgeted for it in the fulfilment of its obligations.”
This case demonstrates that our courts will scrutinise the government’s claims that it lacks resources in adjudicating claims based on socio-economic rights, and that in doing so, they will look beyond the amount budgeted for a specific purpose by the government. The effect of the Constitutional Court’s order was to require the City to rearrange its budget. Nevertheless, the Constitutional Court did emphasise that the City’s claims about resource constraints deserved consideration, because it would be inappropriate to order the City to do something that was impossible.
The government would likely meet a constitutional challenge based on its failure to allocate more resources to increasing access to or enhancing enjoyment of socio-economic rights with the claim that it does not have the resources to do so.
Government must take its socio-economic obligations seriously – mustering all available resources to avoid retrogressive measures and to move expeditiously towards the full realisation of socio-economic rights. However, effective engagement with government is likely to be more successful than a court challenge in this case.
By Catherine Kruyer, Legal Researcher, HSF, 16 July 2020
This contrasts with basic socio-economic rights. Basic socio-economic rights are the rights of children to basic nutrition, shelter, health care and social services (section 28(1)(c)), the right to basic education (section 29(1)(a)), and the rights of detained persons adequate accommodation, nutrition, reading material and medical treatment (section 35(2)(e)). These rights may only be limited under section 36 of the Constitution.
 In Lawyers for Human Rights v Minister of Home Affairs  ZACC 22; 2017 (10) BCLR 1242 (CC); 2017 (5) SA 480 (CC) (Lawyers for Human Rights), in the context of a limitation of the right not to be arbitrarily deprived of freedom, the Constitutional Court held that the justification for a limitation of rights under section 36 cannot be based on a mere increase in costs.
Liebenberg “The Interpretation Socio-Economic Rights” inWoolman et al (Eds) Constitutional Law of South Africa OS 12-03 at 55-7; and Eldridge v British Columbia (Attorney General) (1997) 151 DLR (4th) 577 (SC) (Eldridge).
In Soobramoneyid, a case which concerned the right of access to health care under section 27 of the Constitution, the Constitutional Court accepted the provincial government’s claim that it lacked resources to provide persons in the position of Mr. Soobramoney with expensive medical treatments.
Minister of Health v Treatment Action Campaign (No 2)  ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (Treatment Action Campaign II). The case concerned government’s obligation to devise and implement a programme to progressively realise the rights of pregnant women and new-born children to have access to health services to combat mother-to-child transmission of HIV.