Grootboom and Reassessing: Beyond the Socioeconomic Jurisprudence of the South African Constitutional Court

Abstract

This article reviews the emergent socio-economic jurisprudence of the South African Constitutional Court, focusing particularly on the seminal case of Grootboom. Th e first part disputes a particularly prevalent characterisation of the Court’s approach – namely, that it constitutes an administrative law approach the adjudication of socioeconomic rights – and suggests, instead, that Grootboom, TAC and Khosa might be more profitably read as ensuring that vulnerable sectors of society are not neglected, or overlooked. Grootboom is also, it is argued, best understood as establishing a relationship of collaboration between the state and judiciary, in terms of which each branchof government brings its particular skills to bear on the problem of remedying such omissions. Thereafter, the most prevalent criticism of the Court’s approach – its failure to embrace the minimum core – is considered. Despite the apparent advantages of the minimum core, and the fact that not all of the Court’s objections are entirely convincing, the article concludes that the Court is indeed correct to be wary of this idea. In particular, it emphasises that discussions of the minimum core tend to overlook the complicated relationship between core and non-core needs, and the difficulty of balancing these against one another. Finally, it is argued that, although the approach taken by the Court is, by and large, sound, supervisory jurisdiction is, in certain cases, essential if that approach is to achieve its full effect, and should be regarded as furthering the collaborative approach that Grootboom establishes.