Resuscitating Socio-Economic Rights: Constitutional Entitlements to Health Care Services

Abstract

Notwithstanding the Constitutional Court of South Africa’s rejection of a minimum core approach to the enforcement of the socio-economic rights in the Constitution of the Republic of South Africa, 1996, it is possible to interpret these rights as entailing individual entitlements that may in appropriate circumstances be claimed against the state. Such an entitlement-orientated approach is mandated by the rights-status and justiciability of socio-economic rights. It enables socio-economic rights to connect concretely to the needs that they purport to satisfy, contributes to individual empowerment and to the alleviation of individual hardship and facilitates more broadbased, structural transformation. Establishment of a minimum core is not the only, or necessarily the best, manner in which to identify and enforce individual entitlements underlying socio-economic rights. Focusing on the right to have access to health care services in s 27(1)(a) of the Constitution, it is shown that the Constitutional Court is starting to retreat from its stance against affirming and enforcing individual entitlements inherent to socio-economic rights. The Court has acknowledged the existence of equality-based entitlements to share in the benefits of socio-economic laws and policies, entitlements to the negative protection of socio-economic rights and entitlements to meaningful access to socio-economic amenities. It is argued that the recognition of more ‘positive’ entitlements, in appropriate circumstances, would not detract from the Court’s ‘reasonableness approach’ to the enforcement of socioeconomic rights. In fact, a notion of individual, positive entitlement is latent in the application of the reasonableness approach in the Treatment Action Campaign decision. This entitlement should be explicitly articulated and developed.