Theme 11

Question 1

Three standards of scrutiny when courts
apply ‘reasonableness review’

Answer 1

1) Rationality
2) Reasonableness
3) Proportionality

Question 2

What remedies can a court provide a litigant who successfully
establishes that either a positive or negative duty imposed by a
socio-economic right has been violated?

Answer 2

1)Ordering the state to adopt a programme or reformulate an unreasonable one
2) Meaningful engagement
3) Structural interdict
4) Constitutional damages

Question 3

This history has created disparities in:

Answer 3

1) Education infrastructure;
2) Health infrastructure;
3) Water infrastructure;
4) Electricity

Question 4

Arguments have been made that these rights are not “universally accepted
fundamental rights”

Answer 4

1) They argue that these decisions are hard to leave to the discretion of courts to decide
2) The debate is political as well as legal.
3) The nature of these rights extends beyond the scope that is currently considered in our present discussion

Question 5

Section 7(2) of the Constitution: Establishes that the rights in the Bill of Rights
impose a combination of negative and positive duties on the State

Answer 5

1) The “duty to respect” requires the State to refrain from law or conduct that directly or indirectly interferes with people’s enjoyment of socio-economic rights, for instance, refraining from arbitrary forced evictions of people from their homes
2) The “duty to protect” places a duty on the state to take legislative and other measures to protect the vulnerable group against violations of their rights by more powerful private parties
3) The “duty to promote” embraces awareness-raising and educational
measures for accessing the rights;
4) The “duty to fulfill” requires the state to take positive measures to ensure that those persons who currently lack access to the rights gain access to them.

Question 6

Progressive Realization Of Socio
And Economic Rights

Answer 6

1) The state must move towards the realization of socio-economic rights;

2) The state does not have a right to suspend efforts to ensure the full realization of socioeconomic rights;

3) The state has an obligation to begin to take full steps to fulfil its obligation to realize the rights;

4) Realization of the rights requires an effective utilization of available resources;
➢NB! Such realisation is not dependent on the increase in resources

Question 7

Justifiable Rights

Answer 7

1)Due to their unelected status, the role and expanse of the courts is constantly in question.

2) But this status insulates judges from the public, enabling them to protect individuals and groups while exercising objectivity.

3) There is an institutional bias toward preserving the public good over
individual rights because the latter creates a risk that may conflict with a public interest, a risk that public officials want to minimise.

4) Whereas public officials may base decisions on public approval, insulated
judges are distanced from public sentiments and can remain consistent in
their values and decisions.