Liebenberg

courts should promote Human Rights

HR are there to protect the poor's social and eco. interests, the courts must promote these rights

HR are not in the court's control - separation of powers

Soobramoney:

s27(3) = the rights against the refusal of emergency medial treatment

Chaskalson: link between poverty & constitutional values

"socio-eco rights are indispensable to constitutional democracy"

restricted to immediate medical emergencies

Link

within resources

democracy

Grootboom: High Court

Adults + children was removed from land, then stayed on sports field. Group did not have materials for adequate housing, as it was taken away from them.
Court decided there is no violation of s26; rational housing program was presented.
Court turned to s28(1)(c) ; children has unqualified right to shelter. Court must provide shelter for parent as well because it would not be in the best interest of the child if the family split up.

High Court was prepared to impose a duty on the government in defined circumstances.

Constitutional Court

s28(1)(c) excludes parents without children= s26 must be considered.

s26 (1) & (2) imposes a min. core obligation on the state.
The 'core' provides a min. level of compliance, to which resources have to be devoted as a matter of priority. = those in need receive resources first.

"Foundational values of our society- human dignity, equality and freedom - are denied to those who lack access to socio- eco rights.

Court was reluctant to impose min. core obligation in relation to s26.

  1. it would be impossible to determine min. core obligations due to varying conditions
    2: text of s26 & s27 did not impose a min. core obligation
    3: it is outside of the court's jurisdiction (separation of powers)