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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Towards a reasonable approach to the minimum core: laying the foundations for future socio-economic rights jurisprudence
Author:Bilchitz, DavidISNI
Year:2003
Periodical:South African Journal on Human Rights
Volume:19
Issue:1
Pages:1-26
Language:English
Geographic term:South Africa
Subjects:jurisprudence
social and economic rights
action groups
External link:https://doi.org/10.1080/19962126.2003.11865170
Abstract:South Africa's Constitutional Court has in a series of cases begun to develop its approach to adjudicating claims based on socioeconomic rights. This article focuses on the Court's recent decision in Minister of Health v Treatment Action Campaign (TAC) 2002 (5) SA 721 (CC). The issues in the TAC case arose as a result of government policy in relation to the provision of nevirapine, an antiretroviral drug, in the public sector. The article considers three main issues. First, it is argued that there is a need to supplement the Court's approach based on reasonableness with an analysis of the obligations imposed upon the government by socioeconomic rights. Second, an analysis of the obligations placed upon the government by socioeconomic rights should include what has been termed a minimum core obligation to realize without delay the most urgent survival interests protected by the right. Despite recent pronouncements by the Court, there is a way in which the minimum core approach can be rehabilitated. Finally, the article considers the Court's claim that a minimum core approach attempts to force the government to do the impossible, and argues that the Court has misconstrued this approach. In so doing, the article considers important conceptual questions concerning the nature of socioeconomic rights and the conditions under which they can be realized. Notes, ref., sum. [Journal abstract]
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