Judicial Review in Practice: The Reasonableness Approach and its Shortcomings

David Bilchitz

in Poverty and Fundamental Rights

Published in print August 2008 | ISBN: 9780199552160
Published online January 2009 | e-ISBN: 9780191709456 | DOI:
 Judicial Review in Practice: The Reasonableness Approach and its Shortcomings

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This chapter focuses on the approach of the South African Constitutional Court towards enforcing socio-economic rights. South Africa has directly justiciable, express socio-economic rights in its Bill of Rights, and thus represents an important case study for considering the content of socio-economic rights and their implications for the policy of a government faced by significant poverty. The three most important decisions — Grootboom, Treatment Action Campaign and Khosa — are analysed in detail and shown to give expression to the ‘reasonableness approach’ of the Constitutional Court towards these rights. This approach is found wanting in several respects: perhaps the most important defects involve its failure to provide determinate content to such rights; the fact that it deflects the constitutional enquiry away from the urgent interests that are at stake in socio-economic rights cases; and its failure to provide a principled basis for intervention by the judiciary and allaying concerns relating to the separation of powers.

Keywords: South African Constitutional Court; directly justiciable; socio-economic rights; Grootboom; Treatment Action Campaign (TAC); Khosa; reasonableness approach; determinate content; urgent interests; separation of powers

Chapter.  22158 words. 

Subjects: Human Rights and Immigration

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