A BENEFIT-FOCUSED ANALYSIS OF CONSTITUTIONAL HEALTH RIGHTS Dissertation submitted by MARIUS PIETERSE Student number 0215058X in fulfillment of the requirements for the degree DOCTOR OF PHILOSOPHY in the School of Law at the University of the Witwatersrand DECEMBER 2005 Supervisors: Professors Iain Currie and Theunis Roux I declare that this dissertation is my own, unaided work. I further declare that this dissertation has never before been submitted for any degree or examination in any university. Marius Pieterse 1 December 2005 ACKNOWLEDGEMENTS I would like to thank my supervisors, Iain Currie and Theunis Roux, for their guidance, insight, time and patience. I am also grateful for the intellectual and emotional support of colleagues, family members and friends. Special thanks and much love to Elsje and Lea Bont huys for their endless encouragement, understanding, love and support. i A BENEFIT-FOCUSED ANALYSIS OF CONSTITUTIONAL HEALTH RIGHTS ABSTRACT: Socio-economic rights have the potential to contribute to the achievement of social justice through insisting on the satisfaction of vital material needs. However, their effectiveness in this regard is compromi sed when they are incapable of tangibly contributing to the satisfaction of the needs t hat they represent. By including justiciable socio-economic rights in the text of the 1996 South African Constitution, its drafters indicated that South Africans are entitled to demand effective relief that amounts to adequate reparation for the harm suffered through the non-satisfaction of their vital material needs. The legitimacy of the c onstitutional order partially depends on the ability of socio-economic rights to live up to this promise. This dissertation examines the extent of this promise and the extent to which it is currently being fulfilled, in relation to a discrete set of rights - those that operate together to achieve the highest attainable standard of physical and mental health. I argue that successful reliance on health- related rights in litigation must, in appropriate circumstances, produce tangible benefits for individual rights-bearers. I explore the extent to which constitutional health rights may realistically be expected to render tangible benefits, examine the degree to which this potential of health rights is realised through current judicial approaches to their vindication and suggest manners in which such approaches may be modified and/or supplemented in order for tangible benefits to result more readily from successful vindication of health rights. In doing this, I attempt to show that a benefit-orientated approach to the interpretation and enforcement of health rights is not only required, but also facilitated by the Bill of Rights in the 1996 Constitution. Moreover, the Bill of Rights enables South African courts to interpret and enforce health rights in accordance with their benefit-rendering potential, without overextending judicial capabilities or transgressing the institutional boundaries of the judicial function. Courts are accordingly implored to acknowledge and affirm the justiciable nature of health- related rights and to adopt interpretative, evaluative and remedial practices that enable their tangible vindication in appropriate circumstances. ii TABLE OF CONTENTS CHAPTER 1: INTRODUCTION 1.1 THE SIGNIFICANCE OF AWARDING RIGHTS - STATUS TO SOCIO - ECONOMIC CLAIMS 1 (a) Rights talk, needs talk and the challenge for socio-economic rights 1 (b) The inclusion of justiciable socio-economic rights in the South African Constitution 6 (c) Enforcing justiciable socio-economic rights 9 1.2 PREMISES AND OBJECTIVES OF THIS DISSERTATION 11 CHAPTER 2: CONTENT AND IMPLICATIONS OF THE INTERNATIONAL LAW RIGHT TO HEALTH 2.1 INTRODUCTION : THE RIGHT TO HEALTH 22 2.2 CONTENT OF THE HEALTH RIGHTS PACKAGE 27 (a) Health-related freedoms 28 (b) Health-related entitlements 29 (c) Equality 34 2.3 O BLIGATIONS IMPOSED BY THE RIGHT TO HEALTH 37 (a) The ?tripartite typology of interdependent duties? 39 (b) Minimum core obligations 41 2.4 SUMMARY : E NTITLEMENTS IMPLIED BY THE HEALTH RIGHTS PACKAGE 45 CHAPTER 3: HEALTH RIGHTS IN THE 1996 CONSTITUTION 3.1 B ASIC FEATURES OF THE B ILL OF RIGHTS AND A BENEFIT - FOCUSED APPROACH TO HEALTH RIGHTS 48 3.2 THE HEALTH RIGHTS PACKAGE IN THE B ILL OF RIGHTS 58 (a) Health-related freedoms 58 (b) Equality 61 (c) Health-related entitlements: Rights to determinants of health 65 iii (d) Health-related entitlements: Rights to health care goods, services and facilities 67 (i) The generic right of access to health care services 68 (ii) Priority-rights to specific health care services, goods and facilities 79 3.4 SUMMARY : THE POTENTIAL OF CONSTITUTIONAL HEALTH RIGHTS TO RENDER TANGIBLE BENE FITS 83 CHAPTER 4: HEALTH RIGHTS IN THE COURTS 4.1 G ENERAL 86 4.2 SOUTH A FRICAN HEALTH RIGHTS JURISPRUDENCE FROM A BENE FIT - FOCUSED PERSPECTIVE 87 (a) Decisions concerning the right to have access to health care services 89 (b) Decisions concerning the right to equality 110 (c) Decisions concerning the right not to be refused emergency medical treatment 111 (d) Decisions concerning the right of children to basic health care services 113 (e) Decisions concerning the right of detainees to adequate medical treatment 116 (f) Evaluation 119 4.3 POSSIBLE EXPLANATIONS FOR THE LIMITS OF SOUTH A FRICAN HEALTH RIGHTS JURISPRUDENCE 121 (a) Institutional constraints 122 (b) Beyond institutional constraints 132 CHAPTER 5: ALTERNATIVES A ND SUPPLEMENTS TO CURRENT JUDICIAL APPROACHES TO HEALTH RIGHTS 5.1 I NTRODUCTION : L OOKING BEYOND G ROOTBOOM REASONABLE N ESS 138 5.2 D IRECTLY REMEDYING INFRINGEMENTS OF HEALTH RIGHTS : TOWARDS ENFORCEABLE ENTITLEMENTS 140 5.3 G IVING EFFECT TO HEALTH RIGHTS THROUGH DEVELOPING THE COMMON LAW 150 iv (a) The common law and s 12(2) 153 (b) The common law and s 27(1)(a) 155 (i) Access to care 155 (ii) Quality of care 159 (c) The common law and s 27(3) 163 (d) The common law and s 28(1)(c) 167 (i) Parental responsibility for child health 167 (ii) Parental co-operation in facilitating children?s access to health care services 170 5.4 CONCLUSION : SUPPLEMENTING G R OOTBOOM REASONABLE N ESS 174 CHAPTER 6: THE IMPACT OF HEALTH RIGHTS 6.1 T HE SATISFACTION OF HEALTH - RELATED NEEDS AND THE SOCIO - ECONOMIC TRANSFORMATION OF SOUTH A FRICAN SOCIETY 175 6.2 T HE ? DIRECTIVE PRINCIPLE EFFECT ? OF CONSTITUTIONAL HEALTH RIGHTS 177 6.3 C ONSTITUTIONAL HEALTH RIGHTS AS TOOLS FOR ACHIEVEMENT OF THE RIGHT TO HEALTH : SUMMARY OF THE FINDINGS OF THIS DISSERTATION 184 6.4 T OWARDS A BENEFIT - ORIENTED APPROACH TO HEALTH RIGHTS : SUGGESTIONS FOR FURTHER RESEARCH 187 6.5 C ONCLUSION 194 ANNEXURE A: TEXT OF INTERNATIONAL AND REGIONAL HUMAN RIGHTS TREATY PROVISIONS SURVEYED IN CHAPTER 2 197 BIBLIOGRAPHY 202 TABLE OF CASES 225 CHRONOLOGICAL TABLE OF STATUTES 229 OTHER SOURCES 230 1On the use of liberal rights to frustrate social reform efforts, see Andre Du Toit ?Understanding rights discourses and ideological conflic ts in South Africa? in Hugh Corder (ed) Essays on Law and Social Practice in South Africa (1988) 237 at 252; 257; Morton J Horwitz ?Rights? (1988) 23 Harvard Civil Rights Civil Liberties LR 393 at 395; 398; 405-406; William H Simon ?Rights and redistribution in the welfare system? (1986) 38 Stanford LR 1431 at 1432- 1435; Robin West ?Rights, Capabilitie s and the Good Society? (2001) 69 Fordham LR 1901 at 1904-1907; 1914-1915. 2See, for instance, the ar guments of Frank I Michelm an ?The Supreme Court 1968 term: Foreword: On protecting the poor th rough the Fourteenth Amendment? (1969) 83 Harvard LR 7 at 7-8; 13-14; 33-39 in relation to the use of equal protection doctr ine in poverty-alleviation cases before the United States Supreme Court in the late 1960s. Michelman argued that the success of legal measures aimed at alleviating soci al hardship would depend on their ability to address the actual, physical needs of t he people that they aim to prot ect and advance. He showed that courts run the risk of rendering such needs extrin sic by demanding their incorporation in abstract and relational legal standards. Unless an approach was adopted t hat identified certain core social needs and attempted directly to satisfy t hem, he warned, legal tools aimed at alleviating social hardship would be only partially successful . This argument is appr opriated in the South African context by Danie Brand ?The proceduralisation of South African socio-economic rights jurisprudence, or ?what are socio-economic ri ghts for??? in Henk Botha et al (eds) Rights and Democracy in a Transformative Constitution (2003) 33 at 35-37; Andre van der Walt ?A South African reading of Frank Michelman? s theory of social justice? in Botha et al (ibid) 163 at 178; 182-183; 193; 196; 198-199. 1 CHAPTER 1 INTRODUCTION 1.1 THE SIGNIFICANCE OF AWARDING RIGHTS -STATUS TO SOCIO-ECONOMIC CLAIMS (a) Rights talk, needs talk and the challeng e for socio-economic rights The claim that human rights have the potential to alleviate socio-economic hardship, and hence to bring about meaning ful social change, has historically been received with a measure of skepticism. This is not only because liberal rights have often been utilised to thwart st ate efforts at social redistribution 1 but also because of the tendencies of rights discourse towards abstraction and proceduralisation, which often have the e ffect of removing the focus of rights- based litigation from the concrete experi ences of material deprivation at its centre. 2 For these reasons, among others, scholars affiliated to the Critical Legal Studies movement in the mid 1980s suggested that focusing on needs rather than rights would better serve t he quest for social justice and would be 3 See especially Mark Tushnet ?An essay on rights? (1984) 62 Texas LR 1363-1403. See also the summary of the CLS argument by Van der Walt op cit note 2 at 197. 4 See especially Patricia J Williams ?Alc hemical notes: Reconstructing ideals from deconstructed rights? (1987) 22 Harvard Civil Rights Civil Liberties LR 401 at 412-413. 5?[A] claim which can neither be establis hed as justified by some common decision procedure nor is capable of being enforced or protected as such , does not qualify as a ?right? in any serious sense?. Du Toit op cit note 1 at 256. See also Simon op cit note 1 at 1431. 6 Bruce A Ackerman Social Justice in the Liberal State (1980) at 5 conceives of rights as political tools with which to expr ess justified and legitimate claims to social goods within societal dialogues and power struggles. In its Dworkini an formulation, rights are accordingly depicted as ?trumps? over competing social claims. Ronald Dworkin Taking Rights Seriously (1977) at 199. See further Du Toit op ci t note 1 at 251-255; Horwitz op cit note 1 at 395; Alicia Ely Yamin ?Defining questions: Situating issues of power in the formulation of a right to health under international law? (1996) 18 Human Rights Quarterly 398 at 402-403. 7 Dworkin op cit note 6 at 200; 204; 269. See also generally David Bilchitz ?Towards a reasonable approach to the minimum core: Layi ng the foundations for future socio-economic rights jurisprudence? (2003) 19 SAJHR 1 at 23; Etienne Mureinik ?B eyond a charter of luxuries: Economic rights in the Constitution? (1992) 8 SAJHR 464 at 471-473. 8Mario Gomez ?Social economic rights and human rights commissions? (1995) 17 Human Rights Quarterly 155 at 167; Sheetal B Shah ?Illuminati ng the possible in the developing world: Guaranteeing the human right to health in India? (1999) 32 Vanderbilt J of Transnational Law 435 at 440-441; Van der Walt op cit note 2 at 197; Williams op cit note 4 at 411-412; 416; Yamin op cit note 6 at 398; 401-403. 2 more effective in securing discernible social benefits for poor and marginalised sectors of society. 3 But, in response, it has been show n that a mere articulation of need would more often than not be powerless to satisfy such need, in the absence of an effective political tool through whic h denial of need may be confronted. 4 Since the objects of rights may (unlike the satisfacti on of ?mere? needs) typically be demanded through the legal process, ri ghts discourse presents one of the only viable political tools in this respect. 5 Articulating claims to social goods as rights clothes the interests that the clai ms represent in a measure of political significance that is lacking in other interests which have not similarly been elevated to the status of right. 6 Rights entail enforceable obligations for those against whom they are claimed and demand justification for their non-fulfilment. 7 Rights-terminology is accordingly instru mental in reconceptualising needs as entitlements rather than aspi rations and in ensuring that the satisfaction of such needs becomes a societal priority. 8 In particular, socio-economic right s (which award entitlements to goods and services that are essential fo r human survival and flourishing) appear capable of effectively reconciling noti ons of right and need and accordingly of 9 The notion of socio-economic rights was in itially associated with socialist political ideology. Socio-economic rights are accordingl y depicted by opponents of socialism as inimical to the value of individual liberty and to respect for civil and political rights. This opposition resonates with contemporary depictions of soci o-economic rights in neo-liberal discourse as opposed to the structures of the free market, frustrative of economic growth and devaluing of civil liberties. For critical discussion of t hese arguments see, for example, Philip Alston ?Economic and social rights in the international arena? (1998) 1(2) ESR Review 2; AC Basson ?Die ontwikkeling van ekonomiese regte? (1994) 9 SA Public Law 94 at 97; 106-108; Matthew CR Craven The International Covenant on Economic, Soci al and Cultural Rights: A Perspective on its Development (1995) at 11; Asbj?rn Eide ?Freedom from want: Taking economic and social rights seriously? in Barend van der Heijden & Bahia Tahzib-Lie (eds) Reflections on the Universal Declaration of Human Rights: A Fiftieth Anniversary Anthology (1998) 121 at 126; Gomez op cit note 8 at 161; Marius Pieterse ?Beyond the welfare stat e: Globalization of neo-liberal culture and the constitutional protection of social and economic rights in South Africa? (2003) 14 Stellenbosch LR 3 at 5; 7; 12-13 and authorities cited there. 10Critically observed by Ro lf K?nnemann ?A coherent appr oach to human rights? (1995) 17 Human Rights Quarterly 323 at 333; Shah op cit note 8 at 445; Henry J Steiner & Philip Alston International Human Rights in Context: Law, Politics, Morals (2000) at 237. 11These distinctions are set out and defended by, for instance, Marc Bossuyt ?International human rights system s: Strengths and weaknesses? in Kathleen E Mahoney & Paul Mahoney Human Rights in the Twenty-first Century: A Global Challenge (1993) 47 at 52-55, who concludes from them that it is artificial and counter-productive to view socio-economic aspirations as rights. 3 contributing to the achievement of an ultima tely more just society, in which the human dignity of all citizens is equally respected and affirmed. However, the very notion of socio-economic rights has through the years encountered much ideological opposition 9 and discursive devaluation. In particular, socio-economic rights have often been characterised by opponents of their enforcement as moral aspirations rather than enforceable human rights 10 - the latter term typically being reserved for civil and politic al rights. This has historically been justified with reference to perceived di fferences between these two ?categories? of rights. It has for instance been ar gued that civil and political rights are ideologically neutral and conceptually certain, impose only duties of non- interference on states and do not entail any significa nt state expenses, whereas socio-economic rights embody vague, ideologically loaded and resource- intensive claims that require posit ive state action for their fulfillment. 11 These differences are, of course, fo r the most part fallacious. It has authoritatively been illustrat ed that both civil and po litical and socio-economic rights engender a mixture of positive and negative state- obligations and involve different degrees of policy-interference, budgetary priority-setting and cost- 12See Bertus De Villiers ?Socio-economic rights in a new constitution: Critical evaluation of the recommendations of the S outh African Law Commission? (1992) TSAR 421at 425-426; Pierre De Vos ?The economic and social right s of children and South Africa?s transitional Constitution? (1995) 10 SA Public Law 233 at 236-244; Pierre De Vos ?Pious wishes or directly enforceable human rights?: Social and economic rights in South Africa?s 1996 Constitution? (1997) 13 SAJHR 67 at 68-71; Asbj?rn Eide ?Economic , social and cultural rights as human rights? in Asbj?rn Eide et al (eds) Economic, Social and Cultural Rights: A Textbook (1995) at 22-23; Maria Green ?What we talk about when we talk about indicators: Current approaches to human rights measurement? (2001) 23 Human Rights Quarterly 1062 at 1076; Nicholas Haysom ?Constitutionalism, majoritarian democra cy and socio-economic rights? (1992) 8 SAJHR 451 at 457-458; Stephen Holmes & Cass R Sunstein The Cost of Rights (2000); K?nnemann op cit note 10 at 333; Sandra Liebenberg ?Socia l and economic rights: A crit ical challenge? in Sandra Liebenberg (ed) The Constitution of South Afri ca from a Gender Perspective (1995) 79 at 83-85; Mureinik op cit note 7 at 465-468; Geraldine Van Bueren ?Alleviating poverty through the Constitutional Court? (1999) 15 SAJHR 52 at 61; GJH Van Hoof ?T he legal nature of economic, social and cultural rights: A rebuttal of some tr aditional views? in P Alston & K Tomasevski (eds) The Right to Food (1984) 97 at 103-105. 13 See Haysom op cit note 12 at 452; Christ of Heyns & Danie Brand ?Introduction to socio-economic rights in the Sout h African Constitution? (1998) 2 Law, Democracy & Development 153 at 154; Mureinik op cit note 7 at 465; Craig Scott ?The interdependence and permeability of human rights norms: Towards a parti al fusion of the international covenants on human rights? (1989) 27 Osgoode Hall LJ 769 at 789-790; 798-799. 14 West op cit note 1 at 1902. See also Michelman op cit note 2 at 13-15 and Sandra Liebenberg ?The value of human dignity in inte rpreting socio-economic rights? (2005) 21 SAJHR 1 at 2-3; 7. 15This principle and its foundations in the va lue of human dignity are affirmed by the preambles of both the Inter national Covenant on Civil and Polit ical Rights (ICCPR) and the International Covenant of Economic, Social and Cu ltural Rights (ICESCR), which state that all 4 implications. 12 More fundamentally, the dichot omisation of the two ?categories? of rights ignores the realit y that the theoretical abilit y to claim civil and political rights offers little practical consolation to those who do not enjoy access to basic social and economic amenities. 13 It has convincingly been argued that a society which values human dignity must not only respect the moral agency of its citizens and safeguard such civil and political liberties as are necessary for their individual and collective pursuit of ?the good life?, but should also ?ensure some minimal level of well-being because such a th reshold is necessary if citizens are to live fully human lives and have the digni ty to which their humanity entitles them?. 14 In international human rights law and scholarship, this notion has found expression in the normative principle th at all human rights (ie civil and political rights as well as social, economic and cultural rights) are ?interdependent and indivisible?, in that they are incapable of being realised in isolation and that the values associated with their protection are indistinct. 15 Respect for and human rights ?derive from the i nherent dignity of the human pers on? and that ?the ideal of human beings enjoying freedom from fear and want c an only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights?. 16 Sandra Liebenberg ?Socio-economic rights? in Matthew Chaskalson et al (eds) Constitutional Law of South Africa (RS5, 1999) ch 41 at 1. See also generally Scott op cit note 13 as well as Sandra Liebenberg ?Violations of so cio-economic rights: T he role of the South African Human Rights Commission? in Penelope Andrews & Stephen Ellmann (eds) The Post Apartheid Constitutions: Perspectives on South Africa?s Basic Law (2001) 405 at 410; Martin Scheinin ?Economic and social rights as legal rights? in Eide et al op cit note 12, 41 at 44; Craig Scott & Patrick Macklem ?Constitutional ropes of sand or justiciable guarantees? Social rights in a new South African constitution? (1992) 141 Univ Pennsylvania LR 1 at 86-87; Steiner & Alston op cit note 10 at 247. 17 Argued also by Mark Heywood ?Debunking ?C onglomo-talk?: A case study of the amicus curiae as an instrument for advoca cy, investigation and mobilisation? (2001) 5 Law, Democracy & Development 133 at 147; Liebenberg op cit note 14 at 18; Dikgang Moseneke ?The fourth Bram Fischer memorial lectur e: Transformative adjudication? (2002) 18 SAJHR 309 at 318. 5 affirmation of inherent human dignity acco rdingly requires the actualisation of civil and political rights as well as of socio-economic rights: ?If human rights represent deeply held values about the nature of human persons and their social interaction, the term ?interdependence? attempts to capture the idea that values seen as directly related to the full development of personhood cannot be protected and nurtured in isolation. [Interdependence] reflects an appreciation of the intimate connections between the personal, political and socio-economic dimensions of human dignity and well-being?. 16 However, a mere rhetorical acknowl edgment of the material dimensions of human dignity and personhood is ultimate ly as inimical to the value of interdependence as an exclusive focus on t he enforcement of civil and political rights. In order to achieve t he ideals associated with the value of interdependence, it is necessary that socio-economic rights are capable of realisation in practice as well as in theory. Furthermore, if socio-economic rights ar e effectively to function as legal tools through which denial of need ma y be confronted and remedied, their appropriation in particular factual circumst ances must connect concretely to the needs and experiences of their subjects. 17 The formulation of abstract legal standards measuring compliance with socio-economic obligations and the institutional settings within whic h these standards are conceived and implemented is at most of indirect and secondary impor tance to the beneficiaries of socio-economic rights, for whom the actual alleviati on of their hardship carries 18Brand op cit note 2 at 35-36, drawing from Mi chelman op cit note 2. See also Sandra Liebenberg ?The right to social assi stance: The implications of Grootboom for policy reform in South Africa? (2001) 17 SAJHR 232 at 235. 19 Sandra Liebenberg ?South Africa?s evolving jurisprudence on socio-economic rights: An effective tool in challenging poverty?? (2002) 6 Law, Democracy & Development 159. See also Thomas J Bollyky ?R if C > B + P: A paradigm for judicial remedies of socio-economic rights violations? (2002) 18 SAJHR 161 at 164; Dennis Davis ?Socio-e conomic rights in South Africa: The record of the Constitutional C ourt after ten years? (2004) 5(5) ESR Review 3 at 5; Liebenberg op cit note 18 at 233; JC Mubangizi ?Pro tection of human rights in South Africa: Public awareness and perceptions? (2004) 29(1) Journal for Juridical Science 62 at 80. 20Mark Heywood ?Preventing mother-to-ch ild HIV transmission in South Africa: Background, strategies and outco mes of the Treatment Action Campaign case against the Minister of Health? (2003) 19 SAJHR 278 at 300; Liebenberg op cit not e 19 at 176; Craig Scott & Philip Alston ?Adjudicating constitutional priori ties in a transnational context: A comment on Soobramoney ?s legacy and Grootboom ?s promise? (2000) 16 SAJHR 206 at 254-255. In essence, this argument holds also for soci o-economic rights litigat ion brought by NGOs and other public interest litigators, who will more often than not be mo tivated by the desire to secure tangible benefits for the groups of beneficiaries whose in terests they represent. 21Liebenberg op cit note 19 at 160. 6 priority. 18 Legal tools which fail to acknowledge and reflect this priority will not easily succeed in their aim to correct fo r the diminution of human dignity suffered as a result of such hardship. Moreover, socio-economic rights will be useful to rights-bearers only to the extent that the rights have the pot ential to tangibly improve the physical conditions of their lives - ?[i]f ... soci o-economic rights ... are to amount to more than paper promises, they must serve as useful tools in enabling people to gain access to the basic social services and resources needed to live a life consistent with human dignity?. 19 Accordingly, individuals may be expected to rely on socio- economic rights and the legal process for the alleviation of their personal hardship only if there is a distinct possi bility that they will concretely benefit, either directly or indire ctly, from the exercise. 20 If this is not the case, socio- economic rights (and, by implication, rights-discourse as a whole) will have failed in their purpose of effectiv ely confronting the denial of need, 21 and additional or alternative political tools for this purpose will have to be sought. ( b ) The inclusion of justicia b l e soci o-economic rights in the South African Constitut i o n Much academic debate surrounded the politic al decision to include justiciable 22As Nicholas Haysom wrote at the time: ?for a constitution to have a meaningful place in the hearts and minds of the citizenry, it must address t he pressing needs of ordinary people. It cannot be seen to instituti onalise and guarantee only political/c ivil rights and ignore the real survival needs of the people - it must promis e both bread and freedom. If it does not do so, it will find no lasting resonance amongst the true guardians of the constitution - which are not the courts but the citizens?. Haysom op cit note 12 at 454. See also Mureinik op cit note 7 at 465; Scott & Macklem op cit note 16 at 85. 23 See DM Davis ?The case against the inclus ion of socio-economic demands in a Bill of Rights except as directive principles? (1992) 8 SAJHR 475 at 480-481; 484-485; Mureinik op cit note 7 at 465; AJ Rycroft ?The pr otection of socio-economic rights? in Corder (ed) op cit note 1, 267 at 268. 24 The directive principles option was strongl y contended for, for t hese and other reasons, by Davis op cit note 23. See also Bertus De V illiers ?Directive principles of state policy and fundamental rights: The I ndian experience? (1992) 8 SAJHR 29 at 32-33; 39; Erika De Wet ?The 7 socio-economic rights in the text of t he Constitution of the Republic of South Africa, Act 108 of 1996 (?the Constituti on?). One the one hand, it was readily acknowledged that a new South Afri can constitution had to embody an unwavering commitment to the eradica tion of the inequalities occasioned by apartheid and to the socio-economic upliftm ent of the greater majority of the population. The only way in which a c onstitutional text could meaningfully reflect such a commitment, many felt, was for its Bill of Rights to include socio- economic rights alongside civil liberties. 22 But, others argued, to include socio- economic rights in a Constitution would ra ise unrealistic expectations that these rights could immediately be enforced. Were such ex pectations to be shattered (as, it was argued, was i nevitable), the legitimacy of not only the socio-economic rights in the Bill of Rights, but of the Bill of Rights as a whole and of the entire constitutional enterprise of which it formed part, would be severely tarnished. 23 One possible solution to the above pr oblem, strongly mooted at the time, was that the South Afric an Constitution should only give limited recognition to socio-economic rights, in the form of ?direc tive principles of state policy?. Such principles require ongoing political commi tment to social upliftment and inform the content of legislative and policy init iatives, but do not grant any enforceable entitlements to citizens. Formulating socio-economic rights thus, it was contended, would not only leav e intact the legitimacy of the Bill of Rights, but would also safeguard the institutional l egitimacy of the judiciary, who would otherwise face significant separati on of powers and counter-majoritarian tensions in having to decide on matters of socio-economic delivery. 24 enforceability of socioeconomic directive principles / legislative commands, with special reference to constitutional principle XI of the South African transitional Constitution? (1995) 112 SALJ 462 at 464; 477; Ziyad Motala ?Socioeconom ic rights, federalism and the courts: Comparative lessons for South Africa? (1995) 112 SALJ 61 at 63; 66; 69; 72; 74; 87. 25 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) at para 77. 26 Ibid para 78. For comment on these dicta, see Iain Currie ?Bill of rights jurisprudence? (2000) Annual Survey of SA Law 24 at 51-52; Johan De Waal; Iain Currie & Gerhard Erasmus The Bill of Rights Handbook ( 4 th ed 2001) at 434; Liebenberg (in Chaskalson et al) op cit note 16 at 5; Christa Van Wyk ?The enfor cement of the right of access to health care in the context of HIV/AIDS and its impact on the separation of powers? (2003) 66 THRHR 389 at 395. 8 The Constitutional Assembly thought di fferently and included a significant number of fully justiciable socio-economic rights in the draft text of the 1996 Constitution. This inclusion was opposed during the hearings preceding the certification of the text by the Cons titutional Court. It was argued that socio- economic rights should not be justiciable because of the budgetary consequences attached to their vindication, and because the notion of justiciable socio-economic rights woul d involve the illegitimate judicial encroachment on legislative and executive terrain. The Constitutional Court dismissed these objections, holding that ?it cannot be said that by including socio-economic rights within a bill of right s, a task is conferred upon the Courts so different from that ordinarily confe rred upon them by a bill of rights that it results in a breach of t he separation of powers?. 25 The Court further pointed out that civil and political ri ghts often have similar budgetar y consequences to socio- economic rights, and concluded that ?the fact that socio-economic rights will almost inevitably give rise to such imp lications does not seem to us to be a bar to their justiciability. At the very minimum, socio-economic rights can be negatively protected from improper invasion?. 26 When the 1996 Constitution consequently came into operation in February of 1997, its Bill of Rights in cluded both civil and political and socio- economic rights, without in principle di fferentiating between them on the basis of justiciability. The decision of the cons titutional drafters to include justiciable socio-economic rights in the Constitution, rather than non-justiciable directive principles of state policy, is significant. This is because rights, unlike directive principles, entail more than abstract guideli nes for judicial review - ?[r]ights are 27 West op cit note 1 at 1917. 28Dworkin op cit note 6 at 198-199; 269 29 Davis op cit note 23 at 480; Rycroft op cit note 23 at 268. 30 On the content of ?ubi ius ibi remedium?, see Minister of the Interior v Harris 1952 (4) SA 769 (A) at 780-781C; Administrator, Transvaal v Brydon 1993 (3) SA 1 (A) at 15G-16B; Jonathan Klaaren ?Judicial Remedies? in Chaskalson et al op cit note 16, ch 9 at 1. On the maxim?s application in relation to socio-economic rights, see Rycroft op cit note 23 at 279; Van der Walt op cit note 2 at 167. 9 morally grounded imperatives, not a list of suggestions for good governance?. 27 As Ronald Dworkin has shown in relation to civil and political rights, the granting of a right implies a societal acceptance of the social costs that will have to be incurred in order to enforce that right. 28 The recognition of a right is accordingly associated with a guarantee that it may be legally enforced. 29 The clear legislative intent behind t he entrenchment of justiciable socio- economic rights in the Constitution ther efore appears to be that citizens should in appropriate circumstances be able to enforce these rights against the State, or against others who threaten, disrupt or obstruct thei r exercise or enjoyment. When considered in light of the comm on law maxim ?ubi ius ibi remedium? (according to which a remedy forms an i nextricable part of a right to the extent that a right would be rendered meaningl ess in the absence of an effective remedy), the fact that citizens have been awarded socio-economic rights indicates that they are entitled to effect ive remedies in cases where their rights have unjustifiably been infringed. 30 It also appears, both from the entrenchment of justiciable socio-economic rights by the Constitutional Assembly and from the Constitutional Court?s dismissal of objecti ons to this entrenchment, that courts are appropriate and competent fora in which to seek such relief. ( c ) Enforcing justici a b l e socio-economi c rights The South African Constitutional Court? s approach to the enforcement of the socio-economic rights contained in the B ill of Rights of the 1996 Constitution has received a fair measure of praise for the manner in which it balances the need for judicial vigilance implied by the constitutional presence of socio-economic rights with the need for deference occasioned by its institutional role within a 31 See, for instance, Cass R Sunstein ?Socia l and economic rights? Lessons from South Africa? (2001) 11(4) Constitutional Forum 123; Frank I Michelman ?The constitution, social rights, and liberal political ju stification? (2003) 1 International J of Constitutional Law 13. 32 See chapter 4 below. 33 The central proponent of this argument is David Bilchitz, who advocates instead for the adoption of a minimum core approach to soci o-economic rights adjudication, akin to that followed in international law. See for instanc e David Bilchitz ?Giving socio-economic rights teeth: The minimum core and its importance? (2002) 119 SALJ 484; Bilchitz op cit note 7. 34 See Brand op cit note 2; Liebenberg op cit note 19; Liebenberg op cit note 14. 35 See Davis op cit note 19; Kameshni Pillay ?Implementation of Grootboom: Implications for the enforcement of soci o-economic rights? (2002) 6 Law, Democracy & Development 255; Theunis Roux ?Understanding Grootboom - a reply to Cass R Sunstein? (2002) 12(2) Constitutional Forum 41 at 50-51; Mia Swart ?Left out in the cold? Crafting constitutional remedies for the poorest of the poor? (2005) 21 SAJHR 215. 36 See Darrel Moellendorf ?Reasoning about resources: Soobramoney and the future of socio-economic rights claims? (1998) 14 SAJHR 327; Liebenberg op cit note 18 at 255. 10 constitutional system that refl ects the separation of powers. 31 However, the Court?s approach, which essentially amount s to a procedural inquiry into the reasonableness of laws and policies aimed at the progressive realisation of socio-economic rights, 32 has also attracted significant criticism. Certain scholars have expressed c oncern about the seemingly ad hoc, abstract and context-dependent nat ure of the inquiry wh ich, it has been argued, fails to award meaningful content to so cio-economic rights, to prioritise the satisfaction of certain basic and urgent socio-economic needs over others and to set consistent standards against whic h the adherence of government policies to constitutional obligations may be measured. 33 Other researchers have shown that the Court?s approach is, due to its focus on procedural and technical issues related to the content and implementation of socio-ec onomic policy rather than on the satisfaction of the survival in terests of poor and vulnerable sectors of society, at best of limited use to citizens in securi ng access to those goods and services to which they are entitled by virtue of their inherent human dignity. 34 Yet others have lamented the lack of rem edial vigor displayed by the Court?s socio-economic rights judgements, which appear to be shying away from awarding mandatory, struct ural and tangible relief. 35 Finally, concerns have been expressed that the Court is failing to subject state assertions of resource scarcity to sufficiently rigorous scrutiny. 36 What most of these critiques have in common is a concern that the Court seems to conceive of socio-economic ri ghts not as separatel y enforceable rights 3 7 See Bilchitz op cit note 7 at 22; Liebenberg op cit note 19 at 162. Michelman op cit note 31 at 17-18; 29; 32-34 regards the indirect, policy-direct ive effects of the Court?s approach as its main advantage. 38 See Iain Currie ?Bill of Rights jurisprudence? (2002) Annual Survey of SA Law 36 at 72. See also chapter 4 note 51 and accompanying text. 39 Davis op cit note 23 at 484-485. 11 to particular goods or services, but rather as a single, overarching guarantee that socio-economic policies may be abstr actly reviewed for their adherence to certain principles of good governance. Whereas many of the Court?s critics concede that such a guarantee holds im portant benefits for the policy-driven achievement of social justice in South Africa, 37 the substantive ?emptiness? of the Court?s predominantly procedural c onception of socio-economic rights 38 reminds most of the warning by Dennis Davis in the pre-constitutional debates that ?[t]o assert a right is to argue that another party has a duty to provide conditions in terms of which that right can be fulfilled. Once social and economic rights are included in a bill of rights, the constitution trumpets to the society at large that each is entitled to demand enforcement of such rights whether they be rights to housing, to employment, to medical care or to nutrition. To include these rights as being of equivalent status to first-generation rights is to raise expectations within a society that these rights can indeed be enjoyed by all. For members of society to then find that all that is entailed thereby is a process of negative constitutional review is to create a situation where expectations are raised only to be dashed on the rock of a technical legal review. ... Certainly Mr and Ms Citizen will demand more than review from a fully fledged right?. 39 The text of the Constitution clearly aw ards justiciable rights to have access to particular socio-economic amenities. It a ccordingly indicates that it should be possible to enforce these rights in a manner that entails the satisfaction of the material needs that they represent. To consistently interpret and ?enforce? these rights in a manner that denies this possib ility, diminishes t he potential of rights discourse to contribute meaningfully to the quest for social justice and threatens also to diminish the legitimacy of the Bill of Rights in the eyes of the majority of South Africans. 1.2 PREMISES AND OBJECTIVES OF THIS DISSERTATION Departing from the premises , first, that the meaningful enforcement of socio- economic rights is of integral import ance in a society concerned with the 40 By the notion of ?tangible benef it? I mean a perceptible outcome or necessary after effect of litigation in which a health-related ri ght was successfully vindicated, which firstly has a discernible impact on the life of individual right s-bearers (in the sense t hat they gain something which they did not have before the litigation, such as an item, access to a service, an enforceable claim against a third party, an assurance that future needs will be met, or compensation for losses suffered as a result of the non-satisfaction of past needs) and which secondly contributes at least partially to t he satisfaction of a particular health-related need or compensates for the hardship resu lting from its non-satisfaction. A particular need is in turn conceived of as being health-related where the satisfaction of the need is capable of leading to an improvement in, or of preventing a det erioration in, individual health status. 41 See Horwitz op cit note 1 at 399- 400; Kevin P Quinn ?Viewing health care as a common good: Looking beyond politic al liberalism? (2000) 73 Southern California LR 277 at 303- 304; Simon op cit note 1 at 1433; West op ci t note 1 at 1912-1915 and also generally Peter Gabel ?The phenomenology of rights-consciousne ss and the pact of the withdrawn selves? (1984) 62 Texas LR 1563-1599. 12 affirmation and protection of human dignity; secondly, that enfor cement of socio- economic rights must respond concretely to the needs of their beneficiaries; and, thirdly, that by virtue of their ri ghts-status, socio-economic rights must be capable of contributing perceptibly to the satisfaction of the needs they represent, this dissertation conducts a benefit-focused analysi s of health rights enshrined in the 1996 Constitution. I argue that successful reliance on health rights in litigation must, in appropria te circumstances, produce tangible benefits40 for individual rights-bearers. This is possible, first, because the relevant constitutional provisions are justiciable rights rather than directive principles of state policy, which m eans that they are inherently capable of resulting in direct and t angible relief and, secondly, because the Constitution allows courts to give tangible effe ct to these rights without transgressing institutional boundaries or depar ting radically from ?tradi tional? conceptions of the judicial role. Insofar as it argues for individual benefits, the dissertation is somewhat controversial. The Constitutional Court is on record as being opposed to an interpretation of socio-economic rights that confers immediately enforceable, individual socio-economic entitlements. Indeed, rights discourse is often criticised for its tendency to ?atomise? i ndividuals and thereby to divorce rights- claims from their social context, wh ich is considered counterproductive in bringing about large-scale social and economic reform. 41 It is certainly conceivable that vindicating individual socio-economic claims may upset 42 On the need to find a balance between individual and collective aspects of socio- economic rights claims in South Afri ca, see Bilchitz op cit note 7 at 22. 43 See remarks of Scott & Alston op cit note 20 at 252-253. 44 Liebenberg op cit note 14 at 12. See also ibid at 22. 45 Virginia Leary ?Implications of a right to health? in Mahoney & Mahoney (eds) op cit note 11, 481 at 482. 46 Ibid. 13 carefully crafted programmes aimed at communal social upliftment. It is accordingly necessary when dealing with socio-economic rights to attempt to balance communal and individual interests. 42 But this should not mean that legitima te individual entitlements are always sacrificed in favour of a vaguely-defined ?common good?. 43 Rights-based terminology is used in relation to social goods precisely to counter the self- defeatism of an ?all-or-nothing? communalist approach to social upliftment. It acknowledges that ?we are diminished as a society to the extent that any of our members are deprived of the opportunities to develop their basic capabilities to function as individual and social beings?. 44 A rights-based approach to health ?sees the welfare of an individual as an object of morality and as a legitimate purpose of a just society? 45 and, unlike a utilitarian approach (seeking to confer the greatest possible aggregate health-re lated benefit on society in general), paternalistic approach (viewing the dist ribution of health-related benefits as flowing from the benevolence of bureaucra ts and health care professionals who are deemed to have the best interests of society at heart) or market-based approach (according to which health-rela ted benefits are commodities capable of alienation and purchase) undeniably in volves the concept of individual entitlement. 46 This is not to say that indivi dual entitlements must always trump communal interests. Nor am I contendi ng that tangible benefit s must necessarily be conferred in every matter where a health-related right has apparently been infringed. There is certainly a signifi cant range of circumstances in which an infringement of a socio-econom ic right will either be justif iable or where it would be inappropriate to award direct, tangible relief to individual litigants. However, there will also be circumstances in which awarding tangible relief for an unjustifiable infringement for a socio- economic right is both appropriate and 4 7 Rather than attempting to formulate a singl e theory for the application, interpretation and limitation of health rights as a group, I contemplate alternativ e interpretative, evaluative and remedial judicial strategies that could maxi mise the tangible benefits resulting from different 14 possible. In such circumstances, I be lieve that courts are constitutionally obliged to give effect to the rights-bas ed status of health-related claims and to award such tangible relief as is appropriate in the circumstances. Moreover, I believe that the struct ure and content of the Bill of Rights requires of any court tasked with giving effe ct to a socio-economic right to start from the double premise that the right is in principl e enforceable and that the applicant is in principle entitled to the tangible relief she seeks. In circumstances where the interests of ju stice or some other compelling interest require that the extent of an applicant?s entitle ment be limited, or where it would for some institutional or other reason be inappropriate to award tangible relief, the court is required to indi cate whether, to what ext ent and for what reasons it should depart from this premise. I accordingly argue that the Consti tutional Court is mistaken in its opposition to an interpretation of socio-ec onomic rights that confers immediately enforceable entitlements upon claimant s. This opposition, I believe, unnecessarily restricts the benefit-renderi ng potential of socio-economic rights. While I concede that there ar e significant indirect benef its to be derived from the Court?s current approach to socio-economic rights, I am of the view that such benefits would also have resulted if soci o-economic rights were constitutionally included simply as directive principles of state policy. Given that they have instead been entrenched as justiciable rights, I contend that the benefits resulting from the enforcement of so cio-economic rights should, in appropriate circumstances, also be direct and tangible. The dissertation accordingly explores the extent to which constitutional health rights may realistically be expect ed to render tangible benefits, examines the degree to which the potential of health rights in this regard is realised through current judicial approaches to their enforcement and suggests ways in which such approaches may be modifi ed and/or supplemented in order for tangible benefits to result more readily from successful rights-vindication. 47 health-related rights in different settings. On the need for such a ?multistranded? or ?pluriform? theoretical approach to the intere sts implicated by socio-economic rights, see Van der Walt op cit note 2 at 204-205. 48 On the role of the SAHRC in this regar d, see s 184 of the Constitution and also Kenneth Creamer ?Finance and the realisation of socio-econom ic rights: Analysing the Human Rights Commission?s s 184(3) review of the financ ial authorities? in Centre for Human Rights Report on the Realisation of Socio-Economic Rights (2000) 13-28; Christof Heyns ?Taking socio- economic rights seriously: The ?domestic reporting procedure? and the role of the South African Human Rights Commission in terms of the new Constitution? (1999) 32 De Jure 195-226; Liebenberg (in Andrews & Ellmann) op cit note 16 at 405-443; Dwight G Newman ?Institutional monitoring of social and economic rights: A South African case study and a new research agenda? (2003) 19 SAJHR 189-216; Karrisha Pillay ?An interpretation of ?relevant organs of state? in section 184(3) of the Constituti on and their duty to provide information on socio- economic rights to the South Afric an Human Rights Commission? (1998) 2 Law, Democracy & 15 The focus of my research is pr edominantly on South African cases and literature pertaining to the interpre tation and enforcement of socio-economic rights (and, particularly, of health-related rights) in t he Constitution. Given that many of these rights have been m odelled on provisions contained in international law treaties, and in light of s 39(1)(b) of the Constitution?s determination that international law must be considered when interpreting the Bill of Rights, I also devote some attenti on to relevant treaty-provisions as well as to local and foreign academic deliberations on their meaning and implications. Furthermore, although a co mparative study of the protection of health rights is not undertaken, I al so rely occasionally on foreign (predominantly Anglo-Americ an) sources that illuminat e concepts which I regard as relevant to the protection and enforcement of health-related rights. My focus is further limited to benefits resulting from asserting constitutionally-based rights-claims within t he judicial process. This is not to underplay the importance of rights awarded and enforcement mechanisms created by legislation and/or executive policy, but I will refer to these only to the extent that they suppl ement and/or illuminate the benefit-rendering potential of relevant constitutional rights in the liti gation setting. Furthermore, at least one other institution, the South African Human Ri ghts Commission (SAHRC), is constitutionally implicated in the ac tualisation of socio-economic rights. Relevant SAHRC processes ma y therefore also produce tangible benefits for the beneficiaries of socio-economic rights, but these are beyond the scope of the dissertation. 48 Development 179-196. 49 I have discussed all of these obstacles in detail in Marius Pieterse ?Coming to terms with judicial enforcement of socio-economic rights? (2004) 20 SAJHR 383-417. See also the various authorities cited there. To the extent that these factors impact on South African courts? ability to interpret and enforce health rights in a manner that produces tangible benefits for beneficiaries, they will be cons idered in chapter 4 below. 50See for instance Gregg M Bloche ?The invention of health law? (2003) 91 California LR 249 at 270-271; Paul Gertle r & Jacques Van der Gaag The Willingness to Pay for Medical Care: Evidence from Two Developing Countries (1990) at 17; Mark A Hall & Gerard F Anderson ?Health insurers? assessment of medical necessity? (1992) 140 Univ Pennsylvania LR 1637 at 1650; 1675; 1698-1700; David Mechanic ?Professional judgment and the rationing of medical care? (1992) 140 Univ Pennsylvania LR 1713 at 1724-1725; 1727; John A Siliciano ?Wealth, equity, and the unitary medical malpractice standard? (1991) 77 Virginia LR 439 at 480. 16 It is necessary to acknowledge at the outset that the judicial process does not always present an ideal institutional setting for the actualisation of benefits implied by socio-economic rights. Socio-economic ri ghts matters often involve choice-sensitive and polycentric issues and often have significant resource implications. They are accordingly o ften depicted as falli ng predominantly within the realm of legislatures and policy-ma kers. Real or perceived counter- majoritarian and separation of powers- based concerns are therefore bound to impact on the effectiveness of the enforcement of soci o-economic rights through the judicial process. Difficulties experi enced by courts in this regard will likely further be compounded by the essentially formalist undertones of South African legal culture, as well as by individual judges? discomfort with using rights-based terminology to vindicate social claims. 49 Moreover, health rights matters are likely to involve the technically specialis t field of medicine, which is typically perceived as being beyond judicial expertise and as accordingly requiring respect for the decisions of health care professionals in a variety of contexts. 50 However, whereas the problems of institutional legitimacy and competence listed here must necessarily impact on t he manner in which courts give effect to health-related rights, I will argue that the obsta cles posed by them in this regard are not insurmountable, and that courts can give effect to health rights in a manner that holds tangible benefits for their subjects without radically departing from ?traditional? conceptions of their role or disrupting the functioning of the modern-day democratic state. When confronted with a claim that a health-related right has been 51Whereas this dissertation will not engage in a detailed study of the horizontal application of health rights, many of its observations pertain equa lly to their invocation against private entities. In particula r, I will argue that the benefit-rendering potential of health rights may significantly be increased by allowing for thei r indirect horizontal application in certain circumstances. 52In this sense, the benefit -focused approach adopted here is broader than the ?remedy- conscious? approach argued for by Jonathan Klaar en ?A remedial interpretation of the Treatment Action Campaign decision? (2003) 19 SAJHR 455-468. 17 infringed by the State or a private entity, 51 a court may be expected, first, to ascertain the ambit and scope of the right in question, thereafter to evaluate the challenged law or conduct in an attempt to establish whether the right has been unjustifiably infringed in the circumstances , and, if that is found to have been the case, to order that the infringement be remedied. Whereas the question of whether tangible benefits will re sult from an applicant?s victory in such a case would appear most obviously to be c ontingent on the nature of the remedy awarded, my focus extends beyond judicial remedial practices to contemplate the interpretation of health-related rights as well as the evaluation of respondents? compliance with the obli gations imposed by such rights. 52 Indeed, I will show that the manner in which c ourts carry out their interpretative and evaluative functions constrains the exerci se of their remedial function to the extent that the failure of health-rights cases to produce tangible benefits is as often ascribable to restrictive interpreta tive and evaluative practices, as to lack of remedial vigour. I devote a significant portion of the di ssertation to clarifying the content of the various health-related rights that form the object of my study. By doing this, I hope, in the first instance, to illu strate how a group of seemingly disparate rights operate together to further a particu lar social goal (in this case, individual and collective health-maximisation). Mo re importantly, I believe it to be necessary to ground any critique of current adjudicative practices in relation to socio-economic rights in a detailed and integrated understanding of the content of the rights in question. An unintended feature of t he academic response to the Constitutional Court?s socio-ec onomic rights judgments has been a disproportionate focus on institutional and procedural aspects of the judicial enforcement of socio-economic right s, rather than on their content and 53 See Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) at para 32; Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) at paras 37-38. 54 See, for example, Audrey R Chapman ?A ?violations approach? for monitoring the International Covenant on Economic, So cial and Cultural Rights? (1996) 18 Human Rights Quarterly 23 at 30; Matthew CR Craven ?The domestic application of the International Covenant on Economic, Social and Cultural Rights? (1993) 40 Netherlands International LR 367 at 367-368; K?nnemann op cit note 10 at 337; Scheinin op cit not e 16 at 42; 53; 62; Scott & Macklem op cit note 16 at 72-73; Shah op cit note 8 at 445; Steiner & Alston op ci t note 10 at 250; Van Hoof op cit note 12 at 99. 55As Geoff Budlender has argued, there needs to be a shift in thinking in South African socio-economic rights scholarship, away from instit utional issues, in order to ?find out how social and economic rights can be used to benefit real people in South Afri ca?. Geoff Budlender ?Socio- economic rights in South Africa: Facing the challenges of implement ation? (1999) 1(4) ESR Review 15 at 15-16. See also Van der Walt op cit note 2 at 166. 18 implications, even as scholar s lament the fact that the Court?s current approach sidelines the content of the rights. This is unfortunate, since the Court?s reluctance to adopt a more robust approac h to enforcing socio-economic rights is at least in part ascribable to a perception among its members that socio- economic rights suffer from a lack of conceptual clarity. 53 Lest South African socio-economic rights jurisprudence and scholarship be caught up in the debilitating chicken-and-egg sit uation that has for years hindered the effective enforcement of socio-economic rights in international and foreign law (where the supposed lack of conceptual clarity of socio-economic rights has been used to justify their limited enforce ment, which conversely has hindered the incremental fleshing out of their content thr ough application in concrete cases 54 ), we need to focus anew on the content and practical implications of socio-economic rights and of the obligations that they impose. 55 My investigation into the benefit-relat ed content and implications of rights relevant to health-maximisation starts wit h their formulation in international law, which not only functioned as the blueprint for corresponding rights in the South African Constitution, but also remains the premier source of the content and benefit-related implications of socio-econom ic rights. Chapter 2 below surveys the formulation of the so-called ?right to health? in international human rights treaties, and shows that the right consists of an interrelated ?package of rights? that, exercised together, c ontribute to the highest attainable standard of human health. The constituent elements of this package includes both socio-economic 19 and civil and political elements, illustra ting that the enforcement of socio- economic rights is closely connect ed to, dependent on and an essential prerequisite for the effective protection of civil and political rights. In an attempt to derive a rounded understanding of the various benefits that may realistically be expected to result from successful enf orcement of health-related rights, the chapter also considers prominent academ ic and institutional elaborations on the content of the rights consisting this ?pa ckage? as well as of the obligations that they impose. Chapter 3 then moves the focus of the study to the South African constitutional setting. It commences by illustrating that the Bill of Rights in the 1996 Constitution, in addition to contai ning justiciable socio-economic rights alongside civil and political rights, enables a benefit-centered approach to health-related rights through awarding courts sufficient interpretative leeway and remedial flexibility to balance the interests served by the rights with the public interest. It is therefore possible, in appropriate circumstances, to enforce health-related rights in a manner that renders tangible benefit s. I subsequently show that all constituent el ements of the right to health in international law find adequate protection in the Sout h African Bill of Rights. I identify constitutional provisions that correspond to the various constituent elements of the right to health and indicate the extent of their pot ential to render tangible benefits to a range of persons in a variety of ci rcumstances. In doing so, I propose interpretations of the relevant constituti onal provisions that I believe best reflects their purpose and best enables them to adequately respond to the needs they represent, while at the same time rema ining true to their textual formulation. In chapter 4, I evaluate the approach of South African courts to certain of the health-related rights in the 1996 Cons titution. Through integrating the various critiques of South African so cio-economic rights jurisprudence, I show that, while current judicial approaches ar e capable of resulting in a measure of tangible benefits for rights-bearers, t hey often unduly limit the potential of constitutional health rights in this regar d. Shortcomings in current judicial practices are identified and possible instit utional and other reasons for these are 20 considered. In the main, I argue that the Constitutional Court?s denial that socio- economic rights embody enforceable individual claims, as well as its alternative focus on the reasonableness of socio-econom ic policies, has served to strip these rights of discernible content and has removed the focus of the Court?s inquiry from the needs that the rights ai m to satisfy. However, there remain indications in the jurisprudence of t he Constitutional Court, supported by a number of High Court judgment s, that certain interest s served by health-related rights may yet be tangibly vindicated as South African socio-economic rights jurisprudence develops. I also show tha t, contrary to the assertions of the Constitutional Court and its defenders, the overly restrictive elements of its current approach to health-related rights ar e not necessitated by the institutional constraints typically associated with t he judicial vindication of socio-economic rights. Building on the conclusions reached in chapter 4, chapter 5 illustrates that there exist viable alte rnative and supplementary judi cial approaches to the enforcement of health-relat ed rights, which would be more conducive to tangible benefits than the Constitutional Court? s current approach. Adopting such approaches would neither preclude cour ts from conducting a ?reasonableness analysis? in appropriate circumstances, nor require of them to depart drastically from the manner in which they typica lly conduct themselves in socio-economic rights matters. The chapter argues, firs t, for the identification and enforcement of core-like interests underlying rights to health and, secondly, for the increased indirect application of health rights to a variety of public and private disputes, through the development of the common law in accordance with the spirit, purport and objects of the Constitution. Finally, chapter 6 situates the enforcement of constitutional health rights within the overarching social and ec onomic transformation ?project? envisaged by the preamble of the 1996 Constitution. I argue that, by virtue of their justiciability, health rights have the potential to contribut e to this transformation project not only through their ?directive principle effect?, but also through enabling vulnerable sectors of South Af rican society to demand the tangible 21 satisfaction of their health-related needs. Summarising and integrating the findings of the dissertation, the chapter points out that this potential remains largely unrealised. I argue that courts should acknowledge and affirm the rights- based nature of health right s by adopting interpretative, evaluative and remedial practices that enable the vi ndication of the claims t hey represent in appropriate circumstances. I also indicate areas in which further research is required in order to overcome theoretic al lacunae which continue to inhibit the potential of health rights to render tangible benef its through the judicial process. Overall, I aim to illustrate that there are circumstances in which it is not only permissible, but both possible and appr opriate to enforce health-related rights (and, by implication, all socio-economic rights) in a manner that confers tangible benefits on their beneficiaries. It is hoped that this dissertation will provide increased clarity on the content and implications of health-related rights and on the manner in which they intera ct, and also that the benefit-focused perspective adopted here will shed new light on their remedial potential and will suggest useful approaches to their enforcement. 1Ren? Descartes famously claimed that health -preservation is ?chief of all goods? and should be pursued at all cost. R Descartes Discourse on Method (trans A Wollaston, 1960) at 85, as quoted and discussed by Michael Walzer ?Welfare, membership and need? in Michael J Sandel (ed) Liberalism and its Critics (1984) 200 at 200-201. Walzer himself argues that pursuit of health belongs to ?a separate sphere of just ice? and that community efforts and goods aimed at health preservation should be equally distri buted. Ibid at 213-217. Whereas these observations do not necessarily hold true for all health-related needs and the goods and services with which they may be satisfied (as convincingl y shown by Ronald Dworkin ?Justice in the distribution of health care? (1993) 38 McGill LJ 883 at 885-888), they appear to indicate significant consensus on the notion that hum an health is a highly valued social good and that its preservation relates intricately to respect for individual and communal dignity. See also Kevin P Quinn ?Viewing health care as a common good: Looking beyond political liberalism? (2000) 73 Southern California LR 277 at 286; 289; 325; 357. 22 CHAPTER 2 CONTENT AND IMPLICATIONS OF THE INTERNATIONAL LAW RIGHT TO HEALTH 2.1 INTRODUCTION: THE RIGHT TO HEALTH In this chapter, I provide an overview of the protection of and interaction between various health-related rights in international and regional human rights law. Through this overview, I hope to identify the various health-related interests that must be affirmed and protected in order for a rights-based approach to health-maximisation to be effe ctive. I would also like to draw attention to the existence of a detail ed elaboration of the content of health- related rights, the obligations they im pose and the benefits they imply on the international law level, which I believe to be instructive for domestic courts tasked with awarding meaningful content to corresponding provisions in the South African Constitution. It is universally accepted that the pur suit of physical and mental health is a legitimate individual and societal goal 1 and that human dignity is compromised when members of society ar e denied the means with which to participate in this pursuit. As Michael Walzer has re marked in relation to health care: ?Were medical care a luxury, these discrepancies [in access thereto] would not matter much; but as soon as medical care becomes a socially recognized need, and as soon as the community invests in its provision, they matter a great deal. For then deprivation is a double loss - to one?s health and to one?s social 2Walzer op cit note 1 at 214-215. 3 See remarks of Alicia Ely Yamin ?Defining ques tions: Situating issues of power in the formulation of a right to health under international law? (1996) 18 Human Rights Quarterly 398 at 407-408. The goal of health-maximisation is also largely incapable of self-fulfillment. Population health necessarily depends, at least in part, on sustained, state-driven, community- wide efforts, which explains why the safeguardi ng and protection of public health is a central goal of all modern states. See Rene Bows er & Lawrence O Gostin ?Managed care and the health of a nation? (1999) 72 Southern Californian LR 1209 at 1210-1211; Knut Erik Tranoy ?Vital needs, human rights, health care law? (1996) 15 Medicine & Law 183 at 186. 4 Apart from the latter, these are usually refe rred to as ?determinants of health?, which are typically sub-classified into biological, behavioural (ie lifestyle related), structural (ie health- system-related), socio-economic, socio-cultural and (physical, biological, social and economic) environmental determinants of health. See for instance Carol Barker The Health Care Policy Process (1996) at 108-116; Sundrasagaran Nadasen Public Health Law in South Africa: An Introduction (2000) at 3-8. 23 standing. Doctors and hospitals have become such massively important features of contemporary life that to be cut off from the help they provide is not only dangerous but also degrading?. 2 It would thus appear that the intrinsic importance of human health and its close connection to the value of human dignity justifies adopting a rights-based approach in relation to claims for equal participation in the quest for health- maximisation, as well as claims to such social goods and services that may assist in this quest. Of course, the main problem with adopting a rights-based approach towards health-maximisation is that a state of ?perfect? (or ?su fficient?, or ?good?, or ?acceptable?) human health, in addi tion to defying exact and universal definition, is incapable of co mplete and lasting achievement. 3 The success of exercising a right to heal th-maximisation will accordi ngly always only be partial. It will also vary from individual to individual and will depend on the particular circumstances in which the right is assert ed. Individual health status is impacted by a complex interaction of several variable factors, such as genetics, the operation of social power structures, individual lifestyle and behaviour, the physical environment, age, gender, the state of science and technology, the state of the health system and, beyond all of these, coincidence. 4 Exercising a right (or rights) to health -maximisation will impact at most partially on certain of these determinants and may have no influence whatsoever on others. To the extent that health stat us is impacted by socio-economic 5On the ?matrix of vulnerability? occasi oned by the intersection of vulnerabilities associated with determinants such as gender, ra ce, age and social status, and its impact on and interaction with individual and communal health stat us, see, for example, Cathi Albertyn ?Using rights and the law to reduce women?s vulnerability to HIV/AIDS? (2001) 5 Law, Democracy & Development 179 at 179-184; Barker op cit not e 4 at 104; 112-113; Lynn P Freedman ?Reflections on emerging frameworks of health and human rights? in Jonathan M Mann et al (eds) Health and Human Rights: A Reader (1999) 227-252; Linda J Jones The Social Context of Health and Health Work (1994) at 24; 27; 230; 251-253; 306; 313-316; Barbara Klugman ?Mainstreaming gender equality in health policy? (1999) Agenda Monologue 48-70; L Walker & L Gilbert ?HIV/AIDS: South Afri can women at risk? (2002) 1 African J of AIDS Research 75 at 75; 77; Susan L Waysdorf ?Fighting for their lives: Wo men, poverty, and the hist orical role of United States law in shaping access to women?s health care? (1995-96) 84 Kentucky LJ 745; Lisa K Whittle & Marcia C Inhorn ?Rethinking difference: A feminist reframing of gender/race/class for the improvement of women? s health research? (2001) 31 International J of Health Services 147- 165; Yamin op cit note 3 at 409-411; 415. 24 vulnerability and the operation of social power structures, 5 the success or otherwise of exercising right(s) to heal th-maximisation is further contingent on the dismantling of such structures in the quest for substantive equality and on the simultaneous satisfaction of othe r, equally compelling, socio-economic needs. Accordingly, the ability to exer cise right(s) to heal th may be but one of several capacities required for the effective maximisation of individual and collective health. A wide array of ?goods?, which differ si gnificantly in nature, contribute in different ways to the various needs associated with health-maximisation and may all be required in order for an individual to enjoy the maximum attainable level of health. It would be virtually impossible to formulate a single, specific right that simultaneously and practicably caters for all of these needs. Rather, achievement of the ?right to health? (a s the conglomeration of these needs is often referred to) requires the exercise of a variety of complementing rights to the various social goods that contri bute to the highest attainable standard of health. One of the earliest concept ualisations of a ?right to health? in international law is found in the 1946 Constitution of the World Health Organisation (WHO), the preamble of which proc laims that ?the enjoyment of the highest attainable standard of health is one of the fundament al rights of every human being without distinction of race, religion, political belief, economic or social condition?. The preamble further defines ?health? as ?a state of complete physical, mental and 6 See Audrey R Chapman ?Core obligations re lated to the right to health and their relevance for South Africa? in Danie Brand & Sage Russell (eds) Exploring the Core Content of Socio-economic Rights: South Afri can and International Perspectives (2002) 35 at 39-40; Danwood Mzikenge Chirwa ?The right to health in in ternational law: Its implications for the obligations of state and non-state actors in ensuring access to essential medicine? (2003) 19 SAJHR 541 at 545; Jones op cit note 5 at 6; Virginia Leary ?Implications of a right to health? in Kathleen E Mahoney & Paul Mahoney Human Rights in the Twenty-first Century: A Global Challenge (1993) 481 at 481; 484; Charles Ngwena ?Acce ss to antiretroviral therapy to prevent mother-to-child transmission of HIV as a socio- economic right: An application of section 27 of the Constitution? (2003) 18 SA Public Law 83 at 97; Brigit Toebes ?Towards an improved understanding of the international human right to health? (1999) 21 Human Rights Quarterly 661 at 662. 7 See Chirwa op cit note 6 at 545; Aart Hendr iks & Brigit Toebes ?Towards a universal definition of the right to health?? (1998) 17 Medicine & Law 319 at 321; Paul Hunt Reclaiming Social Rights: International and Comparative Perspectives (1996) 108; Toebes op cit note 6 at 663. 8UNCESCR General Comment 14 The Right to the Highest Attainable Standard of Health (article 12 of the International Co venant on Economic, Social and Cultural Rights) (2000) at paras 1; 3-4; 7-9. See also Hendriks & Toebes op cit note 7 at 325; Ngwena op cit note 6 at 97; Brigit Toebes The Right to Health as a Human Right in International Law (1999) at 19; Geraldine Van Bueren ?Health? in MH Cheadle et al (eds) South African Constitutional Law: The 25 social well-being and not merely the abs ence of disease and infirmity?. This definition has been criticised for its e ssentially idealist and unworkable nature, given that a ?state of complete ph ysical, mental and social well-being? is unattainable by most persons and that its achievement would certainly seem beyond the reach of law. 6 However, given that it is not a human right to this state of well-being that is proclaimed, but rather one to the ?highest attainable? degree of such a state, the WHO definition of health, as well as its concomitant understanding of a right to health, may be regarded as sufficiently flexible to incorporate diverse health-related concerns . This said, the relative vagueness of the standard clearly calls for further clarification. 7 In its General Comment on the content of the right to health as enshrined in the International Covenant on Ec onomic, Social and Cultural Rights (ICESCR), the UN Committee on Econom ic Social and Cultural Rights (UNCESCR) emphasised that the phrase ?right to heal th? should not be read as implying a right to be healthy, since heal th status is influenced by various personal and environmental factors. Rat her, it determined that the right may best be understood as encompassing a pa ckage of interrelated and mutually supporting rights, that operate jointly to enable the achievement of the highest attainable standard of physical and mental health. 8 Bill of Rights (2002) 491 at 494. 9 See for instance the Limburg Principles on the Im plementation of the ICESCR UN Doc. E/CN.4/1987/17/Annex ( 1987) (?Limburg Principles?); the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997) reprinted in (1998) 20 Human Rights Quarterly 691- 704 (?Maastricht Guidelines?) as well as the various General Comments by the UNCESCR. 10Provisions surveyed, in addition to art 12 of the ICESCR, are: Article 12 of the Convention on Elimination of all forms of Discr imination Against Women (CEDAW); art 5(e)(iv) of the Convention on the E limination of all forms of Racial Discrimination (CERD); art 24 of the UN Convention on the Rights of the Child ( CRC); arts 11 and 13(1) of the European Social Charter (ESC); art 11 of the American Declarat ion on the Rights and Duties of Man (?American Declaration?); art 10 of the A dditional Protocol to the Amer ican Convention on Human Rights in the Area of Economic, Social and Cultural Rights (? San Salvador Protocol?), art 16 of the African Charter on Human and Peoples? Rights (?African C harter?) and art 14 of the African Charter on the Rights and Welfare of the Ch ild (ACRWC). All provisions surveyed are quoted in full in Annexure A to this dissertation. 26 Section 2.2 below aims to tease out the constituent elements of this package through a cursory survey of the formulation of the right to health and related entitlements in leading inte rnational and regional human rights instruments. My predominant focus is on the formulation of the right in article 12 of the ICESCR, since that is the mo st authoritative international treaty on socio-economic rights and since its provis ions have been the subject of several high-profile and authoritativ e institutional attempts at norm-clarification. 9 In particular, I rely heavily on UNCESCR?s elaboration of the content of the ICESCR?s formulation of the right to heal th, in its 14th General Comment. In addition, I will engage with the formulations of the right to health and related aspects in several other prominent UN tr eaties as well as in the prime regional human rights instruments. 10 These all bind different st ates in different ways and are all enforced differently, but thes e technical and procedural aspects of international health rights protection and enforcement do not concern me here. My intention is merely to identify ce rtain common elements evident from these formulations, in order to arri ve at a fairly tangible ?pa ckage of rights? that may be said to constitute, or at least to contri bute to, achievement of the right to health. Furthermore, an important f eature of international human rights law is the demarcation of state respons ibility under relevant trea ties and the concomitant development of workable and realistic standards according to which state compliance with rights may be ascertained, monitored and ensured. While I do not intend to elaborate on t he procedural aspects of t hese obligations or their 11Of course, the international human rights fram ework does not currently provide for the direct enforcement of socio-ec onomic rights by individuals agains t states. Instead, compliance with relevant treaty-obligations is typically monitored through complex reporting mechanisms. The various weaknesses of these, as well as t he prominent institutional attempts to overcome them (and hence to make the rights more effect ively enforceable at international level) do not concern me here. For my purposes, it is sufficient to note the extent to which these instruments regard the relevant obligat ions as binding on states. 12UNCESCR General Comment 14 op cit note 8 at para 9. See also para 8. 13 Ibid at paras 18-19. 27 various associated compliance-measuring standards, it is necessary for a proper understanding of the content of the ?health rights pack age? to contemplate also some of the institutional elaborations on the content of obligations flowing from health rights. These are relevant especially insofar as they shed light on the extent to which the entit lements implied by the health rights package may realistically be enforced against states at any given time. 11 Section 2.3 below briefly examines the terms of article 2.1 of the ICESCR (which determines in essence that states must take appropriate steps to facilitate progressively the full realisation of socio-economic rights within the maximum of their available resources), as well as two of the t heoretical approaches aimed at clarifying various aspects of this generic obligation, namely the ?tripartite typology of interdependent duties? and the ?minimum co re obligation? approach, both of which are of particular relevance to the content of the right to health. 2.2 CONTENT OF THE HEALTH RIGHTS PACKAGE Acknowledging the multi-dimensional nature of health as a social good, UNCESCR understands the right to health as encompassing both health-related freedoms and health-related entitlements that afford citizens ?the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health?. 12 It further affirms that, like most other human right s, the right to health is underscored by a guarantee of equality and non-discriminati on which, substantively c onceived, also requires a policy commitment to prioritising the heal th rights of socially and economically vulnerable sectors of society. 13 It is accordingly clear that the pursuit of the 14 Dieter Giesen ?A right to health care? A comparative perspective? (1994) 4(2) Health Matrix 277 at 280. 15Yamin op cit note 3 at 415. 16 UNCESCR General Comment 14 op cit note 8 at para 8. 28 highest attainable standard of health require s the concurrent exercise of civil liberties and social rights. The right to health, thus conceived, affirms and embodies the principle that human rights are interdependent and indivisible. UNCESCR?s typology of the c onstituent elements of the right to health presents a useful starting point for an investigation into the cont ent of the right. Following this typology, this section now elaborates on the content of each of the central components of the ?right to health?. ( a ) Health-related freedom s Just as ?individuals require a minimum level of health and physical well-being in order to develop autonomously their life-styles and to fulfill their goals in accordance with their value-commitments?, 14 individuals must possess sufficient autonomy to pursue optimal health through exercising informed choices relating to their lifestyle and their exposure to the risk of disease, to seek medical attention in the event of sickness and to participate meaningfully in medical and other decisions that concern their health and well-being. Therefore, ?a right to health must refer to a right to gain control over one?s sense of physical and psychological well-being?. 15 The package of rights constituting the right to health accordingly includes a number of autonomy-related rights. In General Comment 14, UNCESCR lists the following freedoms as forming part of the right to health : ?The right to control one?s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non- consensual medical treatm ent and experimentation?. 16 These liberty-interests broadly correspond to those protected by rights to security of the person and to freedom from degrading treatment (i ncluding freedom from medical experimentation without c onsent) under the Internat ional Covenant on Civil and 17 See arts 7 and 9 of the ICCP R. On the freedom to control health and body, see Maria Green ?What we talk about when we talk about indicators: Current approaches to human rights measurement? (2001) 23 Human Rights Quarterly 1062 at 1074. On the overlap between protection of the right to health and protection of physical integrity in international law, see Toebes op cit note 8 at 264-269. 18See art 16(1)(e) of CEDAW. 19 On the importance of such information fo r the autonomous pursuit of good health, see Barker op cit note 4 at 112-113. 20See Albertyn op cit note 5 at 187; Barker op cit note 4 at 113; Aart C Hendriks ?Patients? rights and access to health care? (2001) 20 Medicine & Law 371 at 375; Jones op cit note 5 at 27; Sheetal B Shah ?Illuminating t he possible in the developing world: Guaranteeing the human right to health in India? (1999) 32 Vanderbilt J of Transnational Law 435 at 461; Walker & Gilbert op cit note 5 at 76; Yamin op cit note 3 at 407; 411; 417. 21UNCESCR General Comment 14 op cit note 8 at para 8. 29 Political Rights (ICCPR). 17 Given its importance for the pursuit of substantive gender equality, reproductive freedom further finds explicit protection under the Convention on the Elimination of all fo rms of Discrimination against Women (CEDAW). 18 However, meaningful exercise of thes e liberties not only requires that people have access to sufficient health-related information, 19 but also depends almost entirely on their material ability to exercise the choices to which their autonomy entitles them. If people lack access to goods and services that facilitate the exercise of autonomous, health-conducive choices, the choices are for all practical purposes beyond their reach. 20 Accordingly, the exercise of health-related freedoms is closely relat ed to the objects of health-related entitlements, to which I now turn. ( b ) Health-relate d entitl e m e n t s Since the societal goal of health-ma ximisation is best achieved through structured, community-wide efforts, G eneral Comment 14 regar ds the existence of a national system of health protec tion, within which the achievement of various constituent elements of the right to health may be facilitated, as the primary entitlement to flow from the right. 21 Accordingly, the right to health may be understood as mandating at least t he existence of a health system, an overarching legislative and policy fram ework facilitating health protection and 22General Comment 14 (ibid) at paras 53-56 acknowledges that it is not feasible to dictate the contents of such syst ems, legislation, policy, fram eworks and plans, since these must respond to the specific health needs of every population and will necessarily depend on the economic, structural and social realities of each society. Broad policy guidelines, including principles of non-discrimination, community participation in health policy formulation, transparency and accountabilit y, are however listed. 23 See art 12(1) of the ICESCR; art 24(1) of the CRC; art 10(1) of the San Salvador Protocol; art 16(1) of the African Charter. 24 UNCESCR General Comment 14 op cit note 8 at paras 7; 13. 25Ibid para 14. Similarly, art 12(2) of the CEDAW requires ?appropriate services in connection with pregnancy, confinem ent and the post-natal period?, whereas art 24(2)(a) of the CRC mandates measures aimed at diminishing in fant and child mortalit y and at ensuring that mothers receive appropriate pre- and post-natal care. See also art 24(2)(d) of the CRC. 30 promotion, as well as a national health strategy and plan of action. 22 More tangible individual entitlements to health-conducive social amenities (which may be viewed as legitimate cl aims against particular health systems and their functionaries) may be derived from further engagement with the formulation of the right to health in internati onal and regional human rights instruments. Most of these proclaim the right in broad terms similar to that of the WHO definition, 23 but then proceed to award more tangible content to the right by listing a variety of sub-rights or sub-obli gations that are under stood to flow from it. For instance, whereas article 12( 1) of the ICESCR emulates the WHO?s idealistic formulation of the right, arti cle 12(2) prescribes an open-ended list of steps to be taken in pursuit of the ?h ighest attainable standard of physical and mental health?. These are: ?(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness?. General Comment 14 emphasises that th is list is not exhaustive, and may be viewed as representing a list of separate, subservient ?rights? to particular aspects of health, which form part of the overarching right to health. 24 The first of these is a right to adequate maternal, child and reproductive health services and information derived from article 12(2)(a). 25 This may be understood as an elaboration on a more general right to health care services (to 26 UNCESCR General Comment 14 op cit note 8 at para 15. 27 Ibid paras 4; 11. See also Chapman op ci t note 6 at 36; Chirwa op cit note 6 at 547; Green op cit note 17 at 1074; Hunt op cit note 7 at 111; Toebes op cit note 6 at 676. These are discussed in more detail in Toebes op cit note 8 at 254-259. 28On occupational health, see art 3 of the ESC ; art 7(e) of the San Salvador Protocol, as well as the myriad of standar ds contained in the conventi ons of the International Labour Organisation (ILO) (see for example ILO Convention 155 on Occupational Safety and Health and the Working Environment (1983); ILO Conv ention 161 on Occupational Health Services (1988). For an overview of relevant ILO treaties, see Nadasen op cit note 4 at 107-110). Environmental health and social goods that impac t on health status are viewed as flowing from the ?right to health? by for instance art 24 of the CRC (adequate nutriti on; clean drinking water; healthy environment), art 12 of t he American Declaration (food, clothing, housing), arts 11 and 12(1) of the San Salvador Protocol (health y environment; adequate nutrition); art 14 of the ACRWC (adequate nutrition; safe drinking water) and art 11(1) of the ESC. While not directly included in art 16 of the African Charter, t he African Commission on Human and Peoples? Rights has held that failure to provide ?basic servic es? (such as safe drinking water) and shortage of medicine amounts to a violation of art 16 (see Union Inter-africaines des Droits de ?l?Homme v Zaire Communication No. 100/93; discussed by Vincent O Orlu Nmehielle The African Human Rights System: Its Laws, Practice, and Institutions (2001) at 127) and t hat the deliberate pollution of water, soil and air violates ar t 16, which was found to bar governments from deliberately engaging in health-harming activities (see Social and Economic Rights Action 31 be discussed below), that entitles pregnant women and new -born children to the context-specific care necessitated by their peculiar health-related vulnerabilities. A right to have access to adequate reproducti ve health care services may further be justified by virtue of the fact that su ch access is essential for the effective exercise of reproductive freedom and fo r the achievement of substantive gender equality. According to General Comment 14 , article 12(2)(b) may be understood as implying two broad entitlem ents - firstly, a right to occupational health, safety and hygiene, and secondly a right to environmental determinants of health including a healthy physical environment, safe drinking water and adequate sanitation services. 26 This resonates with General Comment 14's assertion that the phrase ?state of complete physi cal, mental and social well-being? encompasses ?a wide range of socio-econom ic factors that promote conditions whereby people can lead a healthy life?, which also implies protection of underlying determinants of health such as adequate nutrition, access to safe drinking water, adequate housing conditi ons as well as health-conducive working and environmental conditions. 27 Such entitlements are also recognised, with greater or lesser specif icity, in most of the other human rights documents surveyed here. 28 Viewed together, these seem to represent essential Centre and the Centre for Economic and Social Rights v Nigeria Communication No. 55 of 1996, discussed by Danwood Mzikenge Chirwa ?A fresh commitment to implementing economic, social and cultural rights in Africa? (2002) 3(2) ESR Review 19-21). 29 See arts 55(b) and 62(1) of the UN Charte r; art 25 of the Universal Declaration. 30 UNCESCR General Comment 14 op cit note 8 at para 16. 31 See for instance WHO Ottawa Charter for Health Promotion (1986). The provisions of the Ottawa Charter and the WHO?s approach to health promotion are discussed by Nadasen op cit note 4 at 8-9. Health promotion and health protection initiatives measures are similarly viewed as mandated by the right to health by ar ts 24(2)(c) and (e)-(f) of the CRC, arts 10(2)(c)- (e) of the San Salvador Protocol and art 16 of the African Charter. 32 See also art 24(1) of the CRC; art 2( 1)(c) of CERD and art 12 of the American Declaration. 32 components of the right to a standard of living conducive to health and well- being enshrined in the 1945 UN Charter and in the Universal Declaration of Human Rights. 29 For my purposes, they ma y be grouped together as elements of an overarching right to determinants of health, which may be understood as consisting of rights to occupational health, environmental health and to have access to non-medicinal, health-enhancing social goods. Article 12(2)(c) of the ICESCR, according to General Comment 14, implies a right to disease prevention, treatment and control and requires the establishment and maintainance of di sease-prevention and health-education programmes, as well as of a responsive public health system that effectively combats the spread of infectious epidemic and endemic diseases. 30 As such, it corresponds to the right of health prom otion and protection in article 11 of the ESC and seems to reflect the WHO?s under standing of ?health promotion? as a broad policy objective encompassing t he conception and implementation of health-enhancing public policy measures, as well as the encouragement and empowerment of individuals and co mmunities to lead healthy lives. 31 From a benefit-focused perspective, the only tangibl e entitlements that may conceivably flow from a right to health promotion and protection would seem to be to those goods, facilities or services (such as i mmunisation services, quarantine facilities or medicines specifically required to combat particula r epidemics) that form part of a responsive public health system. Finally, a right to have access to health care facilities, goods and services is implied by article 12(2)(d) of the ICESCR. 32 This right may be viewed as an elaboration on the more vague entitlement to medical attention in the event of 3 3 See arts 55(b) and 62(1) of t he UN Charter; art 25 of the Universal Declaration; art 24(2)(b) of the CRC; art 13(1) of t he ESC; art 16 of the African Charter. 34 See art 24(2)(b) of the CRC, art 10(2)(a) of the San Salvador Protocol and arts 14(2)(b) and (d) of the ACRWC. Primary health care aims to satisfy basic health needs through prevention and treatment services for comm only encountered medical conditions. Secondary health care involves prevention and treatment of less common conditions that require more specialised treatment, whereas tertiary health care refers to highly specialised medical interventions requiring advanced facilit ies, drugs and knowledge. See WHO Glossary of Terms (1984) paras 2-30, as well as discussions of t he typology by Gina Bekker ?Introduction to the rights concerning health care in the South African Constitution? in Gina Bekker (ed) A Compilation of Essential Documents on the Rights to Health Care (2000) 1 at 9; Nadasen op cit note 4 at 13; Karrisha Pillay ?Tra cking South Africa?s progress on health care rights: Are we any closer to achieving the goal?? (2003) 7 Law, Democracy & Development 55 at 61; Toebes op cit note 8 at 247; HJ Van Rensburg ?Primary health care in disadvantaged communities in South Africa? (1994) 13 Medicine & Law 133 at 134. The impor tance of the provis ion of primary health care services is further discussed under 2.3(b) below. 35 UNCESCR General Comment 14 op cit note 8 at para 17. The reference to ?essential drugs? is best understood as referring to the WHO?s list of ?essential drugs?, a term which it has through time defined as medicines ?of utmost importance, basic, indispensable and necessary for the health needs of the populat ion? that ?should be availabl e within the functioning health systems at all times in adequate amounts, in appropriate dosage forms, with assured quality and at a price that individuals and the community can afford?, and which have been selected ?with due regard to disease prevalence, evidence on efficacy and safety, and comparative cost- effectiveness?. This is a conglomeration of va rious definitions of the term to be found in WHO Technical Reports through the years, se t out by Chirwa op cit note 6 at 554-555. 33 illness guaranteed by several other human rights instruments. 33 The treaty provisions surveyed here typically do not themselves define what is meant by ?health care goods and services?, save fo r indicating that these relate both to physical and mental health. Several of the provisions however emphasise the provision of primary health care servic es, goods and facilities, in line with the WHO?s distinction between primary, secondary and tertiary health care. 34 The extent of the article 12( 2)(d) entitlement has been cl arified by General Comment 14, which understands it to require ?the provision of equal and timely access to basic preventative, curative, rehabilitat ive health services and health education; regular screening programmes; appropriate treatment of prevalent diseases, illnesses, injuries and disabilities, prefer ably at community level; the provision of essential drugs; and appropriate m ental health treatment and care?. 35 General Comment 14 further determines that compliance with the right to have access to health care facilities, goods and services should be assessed with reference to the availability, acce ssibility, acceptability and quality of the facilities, goods, and services. Each of these determinants seemingly represents an essential element of t he right to have access to health care 3 6 UNCESCR General Comment 14 op cit note 8 at para 12. See further Chapman op cit note 6 at 45; Green op cit note 17 at 1073; T oebes op cit note 8 at 287-288. Similarly, the Council of Europe?s Committee of Ministers has i ndicated that ESC art 11 implies an obligation to ensure that health care services are ?f inancially accessible?. Council of Europe, Recommendation R (86)5 of the Committee of Ministers (1986), quoted and discussed by Katarina Tomasevski ?Health rights? in Asbj?rn Eide et al (eds) Economic, Social and Cultural Rights: A Textbook (1995) 125 at 133. 34 services and it therefore makes sense to view them as separately enforceable entitlements. An entitlem ent to the availability of services, goods and facilities would accordingly require that particu lar treatment options as well as the personnel, facilities and medicines requi red to effect these are physically available, in sufficient quantities, in the health sector c oncerned. The standard of accessibility in turn demands that heal th care facilities, goods and services are physically and geographically accessible to all citizens and are within the financial means of all (implying an addi tional standard of a ffordability), whereas the standard of acceptability requires t hat health care facilities, goods and services are culturally appropriate and adhere to relevant medical ethics and standards. Finally, an entitlement to care of adequate quality requires that health services, goods and facilities are ? scientifically and medically appropriate?, and implies further entitlements to a ccess to trained medical professionals, scientifically approved and safe medica tion and medical equipment, as well as of safe drinking water and adequate sanitation at health care facilities. 36 To summarise, the entitlements imp lied by the right to health may be subdivided into two categories. The firs t is a right to determinants of health, which implies entitlements to occupat ional health, environmental health and to various non-medicinal, health-enhancing soci al goods. The second is a right to available, accessible, and acceptable heal th care goods, services and facilities of sufficient quality. The latter right pertains to a large range of health care services, facilities and products, but specif ically includes at least primary health care services, maternal and reproduc tive health care services and health protection services. ( c ) Equality 3 7 W H O Equity in Health and Health Care (1996) 1, quoted from Bekker op cit note 34 at 10. 38 Clair Apodaca ?Measuring women?s economic and social rights achievement? (1998) 20 Human Rights Quarterly 139 at 144; Alicia Ely Yamin & D eborah P Maine ?Maternal mortality as a human rights issue: Measuring compliance with international treat y obligations? (1999) 21 Human Rights Quarterly 563 at 601. 39 UNCESCR General Comment 14 op cit note 8 at para 18, which lists the following grounds upon which such discrimination is prohibi ted: ?race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, po litical, social or other status?. 35 The egalitarian undertones of the right to health are evident firstly from its phrasing in the preamble of the WHO C onstitution (which explicitly determines that its enjoyment may not be impeded by discrimination) and secondly from the WHO?s policy of equity in health care pr ovision (which is aimed at reducing ?avoidable gaps in health status and health services between groups with different levels of social privilege?). 37 The implementation of all rights in the ICESCR is similarly underscored by a guarant ee of equality. Article 2(2) of the ICESCR determines that ?the rights enunc iated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status?. A further emphasis on gender equality is to be found in article 3, which requires states to ?ensure t he equal right of men and women to the enjoyment of all economic, social and cu ltural rights...?. Measures taken in pursuit of the right to health may t herefore not be discr iminatory and should emphasise the need to target gender-discr epancies in the enjoyment of the right. 38 The equality component of the right to health may accordingly be said to entail an uncompromising guar antee against unfair discrimi nation from public or private sources, in the provision of health-related goods and services, where such discrimination ?has the intention or effect of nullifyi ng or impairing the equal enjoyment or exercise of the right to health?. 39 In slightly broader terms, the core entitlement conferred by the equality-co mponent of the right to health is one against arbitrary or discriminatory exclus ion from the ambit of laws, policies or programmes which confer health-related benefits. Successfully enforcing this right would thus entitle the beneficiary to share equally in the benefits conferred 40 Ibid paras 18-19. A right of substantive equality of access is also evident from art 2(1)(c) of CERD; art 12 of CEDAW; art 2 of the CRC; art 13(2) of the ESC and art 3 read with arts 10(2)(b) and (f) of the San Salvador Prot ocol. See also UNCESCR General Comment 3 The Nature of State Parties? Obligati ons (Art. 2, para. 1 of the Covenant) (1990) at para 1; Limburg Principles 14; 37-39; Matthew CR Craven The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1995) at 117; Brigitte I Hamm ?A human rights approach to development? (2001) 23 Human Rights Quarterly 1005 at 1024; Hunt op cit note 7 at 119; Leary op cit note 6 at 489; Sandra Liebenberg ?The International Covenant on Economic, Social and Cultural Rights and its implications for South Africa? (1995) 11 SAJHR 359 at 364. 41 UNCESCR General Comment 14 op cit note 8 at paras 20-21 (mandating special attention for the specific health needs of women); 22 (requiring special measures aimed at addressing children?s health needs as represented by art 24 of the CRC); 25 (special measures aimed at satisfying health needs of older persons ); 26 (need for measures aimed at eradicating de facto discrimination against persons with di sabilities); 27 (need for appropriate measures responding to specific health needs of indi genous peoples). Article 5(e)(iv) of CERD emphasises the need for substantive racial equality in relation to enjoyment of the right to health, whereas women?s health needs are emphasised by arts 12 and 14(2)(b) of CEDAW (the latter of which requires specific attention for the health needs of rural women). 36 by the law, programme or policy. On a somewhat more abstract le vel, General Comment 14 further determines that the ICESCR?s anti-discr imination provisions must be understood as endeavouring to ensure substantively equal access to health care services, goods and facilities. Beyond an obligation immediately to abolish all instances of de jure discrimination in health care policy and/or practices and to refrain from such discrimination, this also require s a commitment on the part of states to eradicate de facto discrimination, o ccasioned by unequal enjoyment of health rights. States must t herefore endeavour to bring about the substantively equal enjoyment of relevant goods and services. 40 This necessitates the active targeting and dismantling of those so cial structures and associated vulnerabilities that impact perniciously on the health status of particular groups in society. One way of achieving th is is through the adoption of special measures that aim to address the specif ic health needs of socially vulnerable and/or marginalised groups, such as women (especially rural women), children (especially girl children), members of minority or historically oppressed racial groups, the elderly, the dis abled and indigenous communities. 41 Beyond sharing in the benefits implied by health-relat ed laws, policies and programmes aimed at the general population, the equality- component of the right to health thus entitles members of such vulnerable groups to special consideration for their 42 ?Related interdependence? involves viewing right s as ?mutually reinforcing or mutually dependant, but distinct?. Craig Scott ?The interdependenc e and permeability of human rights norms: Towards a partial fusion of the inte rnational covenants on human rights? (1989) 27 Osgoode Hall LJ 769 at 782-783. The UN Human Right s Committee has, in considering individual complaints under the ICCPR, showed a willingness to apply the ICCPR?s equal protection clause also to legislation awarding benefits associated with ICES CR rights. See Scott (ibid) at 851-859 and the authorit ies cited there; also Scott Leckie ?Another step towards indivisibility: Identifying the key features of violations of ec onomic, social and cultural rights? (1998) 20 Human Rights Quarterly 81 at 104-105; Henry J Steiner & Philip Alston International Human Rights in Context: Law, Politics, Morals (2000) at 247. 43 As shown by Frank I Michelman ?The Supreme Court 1968 term: Foreword: On protecting the poor through the Fourteenth Amendm ent? (1969) 83 Harvard LR 7-59. For example, the right to equality is of little assist ance in circumstances where all groups in society are equally deprived of access to health-related goods or services, or where benefits are equally conferred by relevant laws, policies or progr ammes but are inadequate to satisfy urgent health- related needs. 37 particular health-related needs and vulnerabilities. Non-compliance with both the formal and more substantive obligations implied by the equality com ponent of the right to heal th may be depicted not only as a violation of the right to health but also as an infringement of the right to equality. As such, the interaction bet ween articles 2(2) and 3 of the ICESCR and the right to equality in article 26 of the ICCPR is one of the most typically cited examples of the ?related inter dependence? of civil and political and socio- economic rights. 42 Although the right to equalit y would often be incapable of directly remedying hardship occasioned by substantial deprivation of health- related needs, due to the relational nature of an inquiry into compliance with the right, 43 it could usefully be appropriated in circumstances where a ?typical? infringement thereof coinci des with non-compliance with t he right to health. This is so especially since the right to equality typically enjoys stronger and more immediate protection in most societies than do more direct rights to health- related goods, services or facilities. 2.3 OBLIGATIONS IMPOSED BY THE RIGHT TO HEALTH The international community has rec ognised the unfortunate reality that, due firstly to the extent of socio-ec onomic need and secondly to the significant resource implications of satisfying su ch need, expecting of states immediately to comply with all the obligations impos ed by socio-economic rights would simply 4 4 See Pierre De Vos ?Pious wishes or di rectly enforceable human rights?: Social and economic rights in South Africa ?s 1996 Constitution? (1997) 13 SAJHR 67 at 96; Johan De Waal; Iain Currie & Gerhard Erasmus The Bill of Rights Handbook ( 4 th ed 2001) at 441; Andrea Gabriel ?Socio-economic rights in the B ill of Rights: Comparative less ons from India? (1997) 1(6) Human Rights and Constitutional LJ of Southern Africa 8 at 10; Sandra Li ebenberg ?Socio-economic rights? in Matthew Chaskalson et al (eds) Constitutional Law of South Africa (RS5, 1999) ch 41 at 39-40. 45 See also for instance art 4 of the CRC and art 1 of the San Salvador Protocol. The terms of art 2.1 of the ICESCR are discussed in detail by Craven op cit note 40 at 114-116; 125- 144. Chapter 3 below will further engage with t he meaning of the progressive realisation standard and the resource limitati on, as they are phrased in t he South African Constitution. 46 See for instance the critical discussions of the art 2.1 standards by Audrey R Chapman ?A ?violations approach? for monitoring the International Covenant on Economic, Social and Cultural Rights? (1996) 18 Human Rights Quarterly 23 at 31; 36-39; Audrey R Chapman ?Monitoring socio-economic rights: A ?violations approach?? (1998) 1(3) ESR Review 2-4; Craven op cit note 40 at 130-131; Robert E Robertson ?Meas uring state complianc e with the obligation to devote the ?maximum available resources? to realizing economic, social and cultural rights? (1994) 16 Human Rights Quarterly 693 at 694; Geraldine van Bueren ?Alleviating poverty through the Constitutional Court? (1999) 15 SAJHR 52 at 60; Geraldine van Bueren ?Combating child poverty - human rights approaches? (1999) 21 Human Rights Quarterly 680 at 690-691. 38 be unrealistic. 44 Accordingly, like several ot her international and regional human rights instruments, article 2.1 of the ICESCR affirms t hat there are limits on the extent to which socio-economic rights may be enforced at any given time. It determines that states must take deliberate steps, through all appropriate measures and to the maximum of their available resources, in order to achieve progressively the full enjoyment of all socio-economic rights. 45 Despite purporting to capture the ur gency with which states must pursue the socio-economic upliftment of their populations, article 2.1 (and particularly the progressive realisation standard and resource-limitation it contains) has been criticised for failing to articulate sufficiently concrete standards against which state compliance with the obligati ons imposed by socio-economic rights may be measured. 46 Accordingly, its terms have often been appropriated to fuel perceptions that socio-economic ri ghts amount to perpetually unachievable ideals, rather than to enforceable rights. Much institutional and academic ener gy has been spent on countering such perceptions. As UNCESCR stat ed in its third General Comment: ?the fact that realisation over time, or in other words progressively, is foreseen under the Covenant should not be misinter preted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realisation of economic, social and cultural rights. On 4 7 UNCESCR General Comment 3 op cit note 40 at para 9. 48 See Limburg Principle 35; Maastricht Guideline 11; UNCESCR General Comment 14 op cit note 8 at para 30. 49 Shue first developed the typology in Basic Rights: Subsist ence, Affluence and U.S Foreign Policy (1980). I rely here on his subsequent el aboration on the typology in Henry Shue 39 the other hand, the phrase must be read in the light of the overall objective, indeed the raison d?etre , of the Covenant which is to establish clear obligations for State parties in respect of the full realisation of the rights in question?. 47 There have been several attempts to clar ify the obligations imposed by socio- economic rights and to show that cert ain of their elements are capable of immediate enforcement, not withstanding the limits im posed by the progressive realisation standard and t he resource limitation. It has for instance been shown that the equality-guarantee underlying protection of rights such as the right to health is immediately enforceable and accordingly operates unaffected by re source-availability or progressive realisation. 48 Due to their resonance with aut onomy rights protected under the ICCPR (which does not contain a claus e equivalent to article 2.1 of the ICESCR), the same may be said for the health-related freedoms discussed above. As to health-related entitlements, this section of the chapter briefly considers two theoretical approaches to rights in the ICESCR which distinguish between different categories of obligations flowing fr om socio-economic rights. I attempt here to indicate the extent to which these obligations (and their correlative entitlements) are capable of immediate enforce ment and thereby to illuminate and further clarify the content of several of the entitlements forming part of the health rights package. ( a ) The ?tripar t i t e typolo g y of interd e p e n d e n t duties ? The ?tripartite typology of interdependent dut ies? was first conceived of by Henry Shue, who argued that all ri ghts impose obligations on states, first, to avoid depriving citizens of existing enjoyment of rights, secondly, to protect them from violations of their rights by third parties and, thirdly, to aid the deprived. These have since been recast as duties to res pect, protect and fulfill all human rights. 49 ?The interdependence of duties? in P Alston & K Tomasevski (eds) The Right to Food (1984) at 83-95. The typology indicates unequivocally that socio-economic rights are capable of imposing concrete standards against which compliance ma y be measured. Hunt op cit note 7 at 133; Craig Scott & Patrick Macklem ?Constitutional ropes of sand or just iciable guarantees? Social rights in a new South African Constitution? (1992) 141 Univ Pennsylvania LR 1 at 73. Whereas a degree of vagueness still hampers effective moni toring of the obligation to fulfill socio- economic rights, the typology indicates a tangibl e theoretical basis for enforcing the obligations to respect and protect them. Second, the typol ogy counteracts the di stinction between socio- economic and civil and political rights by showing that both entail ?positiv e? and ?negative? state obligations. Craven op cit note 40 at 110; Hunt op cit note 7 at 133; T oebes op cit note 6 at 677; GJH Van Hoof ?The legal nature of economic, so cial and cultural rights: A rebuttal of some traditional views? in Alston & Tomasevski (this note) 97 at 107. 50Maastricht Guideline 6. See further Cr aven op cit note 40 at 109-114; Victor Dankwa, Cees Flinterman & Scott Leckie ?Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights? (1998) 20 Human Rights Quarterly 705 at 713-715; Hendriks & Toebes op cit note 7 at 330; Rolf K?nnemann ?A coherent approach to human rights? (1995) 17 Human Rights Quarterly 323 at 327-328; Scott & Macklem op cit note 49 at 73-77; Van Hoof op cit note 49 at 106. 51UNCESCR General Comment 14 op cit note 8 at para 33. 40 In relation to socio-economic rights, the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights descri be the ?duty to respect? as entailing an immediately enforceable obligation on stat es to refrain from interfering with existing enjoyment of socio-economic right s, the ?duty to protect? as requiring states to act immediately in order to pr event third parties from infringing socio- economic rights and the duty to fulfill as requiring the adoption of ?appropriate legislative, administrative, budgetary, j udicial and other measures towards the full realization of [socio-economic] rights?. 50 In General Comment 14, UNCESCR adopt ed the tripartite typology in relation to the obligations imposed by article 12 of the ICESCR, and has elaborated on the ?right to health?-specific content of each of the obligations. The obligation to respect the right, a ccording to UNCESCR, ?requires States to refrain from interfering directly or indi rectly with the enjoyment of the right to health?. 51 This means that citizens are awarded immediately enforceable entitlements to non-disruption of existing access to health-related goods, services and facilities and to the removal of arbitrary barriers to access. In addition, UNCESCR?s understanding of the ob ligation to respect the right to health affirms the right to autonomy in health-related decisionmaking (by forbidding coercive treatm ent and the withholding of vi tal health information), as well as rights to equality of access and not to be discriminated against in health 52Ibid paras 34; 50. See also Limburg Princi ple 72; Maastricht Guidelines 14(a); 15(g). For further deliberation on the obligation to re spect implied by the right to health, see Toebes op cit note 8 at 312-313; 316-326. 53 UNCESCR General Comment 14 op cit note 8 at para 33. 54 Ibid paras 35; 51. See also Maastricht Gu ideline 15(d). The obligation to protect the right to health is further contempl ated by Toebes op cit note 8 at 326-332. 55See Bekker op cit note 34 at 14; Craven op cit note 40 at 113-114; Christof Heyns & Danie Brand ?Introduction to socio-economic rights in the South African Constitution? (1998) 2 Law, Democracy & Development 153 at 158; Karrisha Pillay ?South Africa?s commitment to health rights in the spotlight: Do we meet t he international standard?? in Brand & Russell op cit note 6, 61 at 64; Sage Russell ?M inimum state obligations: Inte rnational dimensions? in Brand & Russell (ibid) 11 at 19. 41 care provision (by requiring of states to abstain from various discriminatory practices and from impeding equal access to care). It also illuminates rights to quality of care (by mandating that states refrain from marketing unsafe drugs), to reproductive health care services (by mandating that states refrain from limiting access to contraceptives and ot her reproductive health services) and to environmental health (by forbidding willful pollution). 52 The obligation to protect the right to health is understood by UNCESCR as requiring the adoption of measures that prevent third parties from infringing upon article 12. 53 This immediately entitles ci tizens to demand the availability of effective remedies that protect them against private violations of their health- related rights. UNCESCR?s understanding of the ?obligation to protect? also further clarifies the qualit y-dimension of the right to access health care, by requiring measures that ensure the acceptability and quality of privately available health care products and servic es, as well as measures ensuring that health care professionals act ethically and that their conduct meets appropriate standards of competence and skill. 54 Apart from affirming the rights to health protection and equal access to determinants of health, few directly enforceable entitlements may be derived from General Comment 14's elaboration on the obligation to fulfill the right to health. This is in line with predominant academic opinion that the obligation to fulfill represents mainly those aspects of the right that are to be realised progressively. 55 Accordingly, General Co mment 14 elaborates on the progressive elements of rights to determinants of health (by mandating measures that ensure increased populat ion access to non-medicinal, health- 56 UNCESCR General Comment 14 op cit note 8 at paras 33; 36-37; 52. See also Toebes op cit note 8 at 332-336. 57 These aspects of minimum core are explai ned by David Bilchitz ?Towards a reasonable approach to the minimum core: Laying the f oundations for future socio-economic rights jurisprudence? (2003) 19 SAJHR 1 at 11-18; Thomas J Bollyky ?R if C > B + P: A paradigm for 42 conducive social amenities), the availability and quality of health services (by requiring ongoing efforts to increase the number of health care facilities, especially in rural areas, as well as ongoing training of medical professionals) and affordable care (by requiring the pr ovision of a public or private health insurance system). UNCESCR?s understanding of the ?obligation to fulfill? also includes a programmatic (ie not directly benef it-related) element in that it obliges states to attempt the realisation of the right to health through adopting measures aimed at health care provision and health promotion. It also requires states to adopt benchmarks and timeframes with whic h to measure progress towards full realisation of the right to health. 56 ( b ) Minimum core obliga t i o n s The development of a ?minimum core approach? to the substantive rights enshrined in the ICESCR has served both to clarify the content of these rights and to expound the standard of progressive realisation, through prioritising certain basic needs over others (thereby indicating both a logical starting point and a temporal framework for progressive realisation). In line with the premise that human dignity is denied those who ar e forced to subsist without access to even the most basic of so cio-economic amenities, the concept of ?minimum core obligation? entails that t here are minimum levels of socio-economic subsistence below which no-one should be allowed to exist, regardless of state-resource constraints. Aimed at protecting the mo st vulnerable members of society, the minimum core approach involves identifying such subsistence levels in respect of each socio-economic right and insisting that the provision of ?minimum core? goods and services enjoys immediate priority . The minimum core of a right thus represents a ?floor? of immediately enforceable ent itlements from which progressive realisation should proceed. 57 judicial remedies of socio-ec onomic rights violations? (2002) 18 SAJHR 161 at 184; Chapman op cit note 6 at 37; Iain Currie ?B ill of Rights jurisprudence? (2000) Annual Survey of SA Law 24 at 57; Dankwa; Flinterman & Leckie op cit note 50 at 717-718; Pierre De Vos ?The economic and social rights of children and South Africa ?s transitional Constitution? (1995) 10 SA Public Law 233 at 251; Leckie op cit note 42 at 101-102; Liebenberg op cit note 44 at 43; Caroline MA Nicholson ?The right to health care, the best interests of the child and AIDS in South Africa and Malawi? (2002) 35 CILSA 351 at 360; Russell op cit note 55 at 15; Craig Scott & Philip Alston ?Adjudicating constitutional priorities in a transnational context: A comment on Soobramoney ?s legacy and Grootboom ?s promise? (2000) 16 SAJHR 206 at 250; Scott & Macklem op cit note 49 at 77; Toebes op cit note 6 at 676-677; Geraldine van Bueren ?On floors and ceilings: Minimum core obligations and children? in Brand & Russel op cit note 6, 183 at 185. 58Bilchitz op cit note 57 at 11-12; Sandra Liebenberg ?The value of human dignity in interpreting socio-economic rights? (2005) 21 SAJHR 1 at 18; Sandra Liebenberg ?The interpretation of socio-economic rights? in Stuart Woolman (ed) Constitutional Law of South Africa (2ed; 2003) ch 33 at 28-29. 59 See Dworkin op cit note 1 at 886; 888-894, who argues for a Rawlsian exercise of public deliberation through which society determi nes which health-related needs are most vital and accordingly prioritises their satisfacti on over other, less vital, health-related needs. 60 UNCESCR General Comment 3 op cit note 40 at para 10. See also Limburg Principle 72; Maastricht Guideline 15(i). 61 That states must emphasise the provision of primary health care is also echoed by art 24 of the CRC and art 10(2)(b) of the San Salvador Protocol. 43 The moral and practical importance of a minimum core approach to the obligations imposed by socio-economic ri ghts lies in its acknowledgement that certain socio-economic needs are of ex treme vitalness and urgency, and that their satisfaction should accordingly be prio ritised over the satisfaction of other, less urgent and vital, needs. 58 This distinction is espec ially useful in relation to the right to health, due to the substantia l variations in urgency and vitalness of health-related needs and in the cost and effectiveness with which such needs may be satisfied. 59 UNCESCR embraced the minimum core concept in its third general comment, where it stated that ?a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant?. 60 Of course, this affirmation of the existence and implications of minimum core obligations sheds little light on their content in relation to specific rights. For instance, all that is said about the right to health is that depr ivation of ?essential primary health care? would amount to non-compliance therewith. 61 62 WHO Declaration of Alma-Ata (1978) para VI. Primary health care forms the crux of the WHO?s ?Health for All? strategy, and its impor tance is also emphasised by arts 24(2)(b)-(c) of the CRC and art 10(2)(a) of the San Salvador Pr otocol. On the usefulness of the ?primary health care? concept in fleshing out the mimimu m core content of the right to health, see Hendriks & Toebes op cit note 7 at 326; Nichols on op cit note 57 at 360-361; Toebes op cit note 6 at 676; Toebes op cit note 8 at 283-284. On viewing provision of essential medicines as part of the minimum core of the right to heal th, see Chirwa op cit note 6 at 542; 549; 565. 63 Bekker op cit note 34 at 9. See also N adasen op cit note 4 at 12-14; Nicholson op cit note 57 at 360-361. 44 Accordingly, greater clar ity on the core content of the right to health may be gained by engaging with the WHO?s underst anding of the concept of primary health care, defined in its Declaration of Alma-Ata as ?essential health care based on practical, scientifically sound and socially acceptable methods and technology made universally available to individuals and families in the community through their full participation and at a cost that the community and country can afford to maintain at every stage of their development in the spirit of self-reliance and self-determination?. 62 Essential elements of primary health care identified at Alma-Ata include ?promotion of food supply and proper nutrition; basic sanitation and safe wate r; provision of essential drugs and maternal and child care, including family planning; education regarding prevailing health problems; prevention and control of locally endemic diseases; appropriate treatment of common diseases and injuries; and immunization against major infectious diseases?. 63 Much-needed further clarity on the mini mum core content of the right to health has been provided by UNCESCR, which in General Comment 14 provided a list of obligations comprising the core content of article 12 of the ICESCR. These are: ?(1) to ensure the right of access to health facilities, goods and services on a non-discriminatory basis especially for vulnerable or marginalized groups; (2) to ensure access to the minimum essential food which is sufficient, nutritionally adequate and safe, to ensure freedom from hunger to everyone; (3) to ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water; (4) to provide essential drugs, as from time to time defined by the WHO?s Action Programme on Essential Drugs; (5) to ensure equitable distribution of all health facilities, goods and services; (6) to adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the 6 4 UNCESCR General Comment 14 op cit note 8 at para 43, which also contains a list of minimum characteristics to whic h public health strategies should adhere. 65 Ibid para 44. These lists of core and co mparable obligations are discussed in more detail by Bekker op cit note 34 at 15-16; Chapm an op cit note 6 at 49-50; 54; Karrisha Pillay ?South Africa?s commitment to health rights in the spotlight? (2000) 2(3) ESR Review 1 at 2-3; Pillay op cit note 55 at 65-66. 45 whole population...?. 64 An additional list of obligations, c onsidered by UNCESCR as being ?of comparable priority? to minimum core obligations, is also furnished, namely: ?(1) to ensure reproductive, maternal (pre-natal as well as post-natal) and child health care; (2) to provide immunization against the co mmunity?s major infectious diseases; (3) to take measures to prevent, treat and control epidemic and endemic diseases; (4) to provide education and access to information concerning the main health problems in the community, including methods of preventing and controlling them; (5) to provide appropriate training for health personnel, including education on health and human rights?. 65 It would thus seem that the minimum co re of the right to health, rather than adding entitlements and/or obli gations to those already identified above, affirms the importance of certain of those entitlements (such as that to equality and non- discrimination and the adopti on of a public health strategy) while indicating essential elements of others. In particula r, the core of the right to health care services, goods and facilities encompasses the provision of essential drugs, reproductive health care services, child health care and immunisation against infectious diseases, whereas core aspects of non-medicinal determinants of health (illuminated elsewhere in relation to specific rights to housing, food, etc) should similarly be prioritised. In principle, a minimum core appr oach to the obligations imposed by socio-economic rights entails that citi zens should generally be able to demand to be provided with the goods, facilities and services that comprise the minimum core of a right such as the right to heal th. This is the case notwithstanding the dictates of progressive realisation and despite the resource implications of providing minimum core goods and servic es, although states may nevertheless justify non-provision of core goods and serv ices by showing that complying with 6 6 According to Maastricht Guideline 9, minimum core obligations generally apply ?irrespective of the availability of resources ... or any other factors and difficulties?. UNCESCR nevertheless indicated that non-fu lfillment of core obligations could be justified by resource scarcity, but only where states can demonstrate that ?every e ffort has been made? to use all available resources in order to satisfy the core obligations ?as a matter of priority?. UNCESCR General Comment 3 op cit note 40 at para 10. It further emphasised that, even in times of economic crisis, states must do all in their pow er to ensure that rights are afforded the ?widest possible enjoyment ... under the circumstances? and should prioritise meeting the needs of the most vulnerable sectors of society. Ibid at par as 11-12. See also Lim burg Principles 25-28; 72 as well as discussions on limitation of core inte rests in international law by Chapman op cit note 6 at 37; Craven op cit note 40 at 143; Liebenber g op cit note 40 at 366-367; Robertson op cit note 46 at 701-702. 67 Philip W Bates ?Health law, ethics and policy: Challenges and new avenues for the 21 st century and new millennium? (1999) 18 Medicine & Law 13 at 21. 46 their core obligations is objectively impo ssible, or demonstrab ly outside of their resource capacity. 66 2.4 SUMMARY: ENTITLEMENTS IMPLIED BY THE HEALTH RIGHTS PACKAGE It is clear that the right to health, in addition to representing ?an aspirational ethical ideal for the international community, which is intrinsically valuable?, 67 also encompasses tangible human right s standards and imposes a network of enforceable obligations on states. T hese derive from an interrelated package of rights that together ensure maximum po ssible enjoyment of the right to health. This chapter has identified the cont ributing elements to this package from authoritative formulations of health-relat ed rights in several international human rights instruments. Understandings of health rights emerging from this survey were integrated with instit utional and academic elaborat ions on their content as well as on the content of t he obligations they generate. Three strands of rights emerged from the survey. The right to health, it may be said, consists first of a group of freedom rights (such as freedom from coercive treatment, the right to bodily in tegrity, the right to reproductive freedom and the right not to be treated without consent), which may immediately be enforced in the same way as other ci vil liberties. Second, there is an immediately enforceable entitlement to equal enjoyment of the right to health. This in turn implies an ent itlement not to be arbitrar ily or unfairly excluded from health-related services and/or benefits. Citizens should thus be able to demand 68 For a discussion of some of these, see Fons Coomans ?Revie wing implementation of social and economic rights: An assessment of the ?reasonableness? test as developed by the South African Constitutional Court? (2005) 65 Heidelberg J of International Law 167 at 185. 47 that their health-related liberties are re spected in a variety of settings, to be included in the ambit of laws, policie s and programmes that confer health- related benefits and to receive such benefits where these are being withheld arbitrarily or due to unfair discrimination. Third, the right to health awards a number of entitlements to health- conducive social goods and services. These may be subdivided into two groups: On the one hand, the right to health encompasses rights to determinants of health (in turn consisting of right s to occupational health, to environmental health and to non-medicinal, health-conducive social goods such as housing, food, water and sanitation that are typica lly the subjects of separate socio- economic rights). These all consist of immediately enforceable core elements (which may be derived from lit erature relating specifica lly to the separate rights they represent) and of non-co re elements which are to be realised progressively. On the other hand, the right to health imp lies a right to available, accessible and acceptable health care services, products and facilities of adequat e quality. The immediately enforceable core of this right consists of the provision of essential medicines, primary health care, reproducti ve health care and services necessary for health protection (such as immunisation services). In relation to other (non- core) services, products and facilities, citizens at least possess enforceable entitlements to non-disruption of existi ng access and to have arbitrary barriers in the way of access removed. There are of course important in stitutional differences between the international human rights framework upon which the survey conducted in this chapter has been based and the domestic legal setting. 68 In particular, the possibility of individuals actually enfor cing their rights against their state, and therefore of deriving tangible benefit from the exercise of their rights, is real on the domestic level. The focus of the rema inder of this dissertation is therefore on the extent to which the elements of t he health rights package identified in this chapter find recognition and protection in the South African Constitution and on 48 the extent to which the benef its that they imply have in fact accrued from their invocation in South African constitutional litigation. 1Thomas J Bollyky ?R if C > B + P: A paradigm for judicial remedies of socio-economic rights violations? (2002) 18 SAJHR 161 at 180-181; Pierre De Vos ?Pious wishes or directly enforceable human rights?: Social and economic rights in South Africa?s 1996 Constitution? (1997) 13 SAJHR 67 at 70; Christof Heyns & Danie Br and ?Introduction to socio-economic rights in the South African Constitution? (1998) 2 Law, Democracy & Development 153 at 157; Marius Olivier ?Constitutional perspectives on the enforce ment of socio-economic rights: Recent South African experiences? (2002) 33 Victoria Univ of Wellington LR 117 at 135; Craig Scott & Philip Alston ?Adjudicating constitutional priorities in a transnational context: A comment on Soobramoney ?s legacy and Grootboom ?s promise? (2000) 16 SAJHR 206 at 214. 48 CHAPTER 3 HEALTH RIGHTS IN THE 1996 CONSTITUTION 3.1 BASIC FEATURES OF THE BILL OF RIGHTS AND A BENEFIT-FOCUSED APPROACH TO HEALTH RIGHTS By including justiciable socio-economic rights alongside civil and political rights, the Bill of Rights in chapter 2 of the 1996 Constitution affirms the principle of interdependence and indivisibility of human rights. 1 The apparent equal justiciability of socio-economic rights and civil and political rights means that, unlike constitutional systems where soci o-economic rights are not included in a bill of rights or are included as non-enfor ceable directive principles of state policy, there is no textual impediment in the South African Bill of Rights to tangible benefits being claimed in, and result ing from, litigation involving socio- economic rights. This chapter first discu sses basic features of the Bill of Rights that facilitate and impact on a benefit -centered approach to health rights. Thereafter, I engage with the formulation of substantive health rights in the Bill of Rights and illustrate that the benefits implied by t he health rights package in international law are also capable of resu lting from South African Bill of Rights litigation. According to s 39(1) of the Consti tution, courts must promote the underlying values of an open and democrati c society, must take international law into account and may also have r egard to foreign law when interpreting rights in the Bill of Rights. This pr ovision appears to mandate consideration of interpretations of the right to health in international law when interpreting rights 2See Audrey R Chapman ?Core obligations re lated to the right to health and their relevance for South Africa? in Danie Brand & Sage Russell (eds) Exploring the Core Content of Socio-economic Rights: South Afri can and International Perspectives (2002) 35 at 50-51; Chrystal Chetty ?The right to health care serv ices: Interpreting section 27 of the Constitution? (2002) 17 SA Public Law 453 at 454; Olivier op cit note 1 at 123-124; Karrisha Pillay ?South Africa?s commitment to health rights in the spot light: Do we meet the international standard?? in Brand & Russell (this note) 61 at 62-63; Sage Russe ll ?Minimum state obligations: International dimensions? in Brand & Russell (this note) 11 at 14; Scott & Alston op cit note 1 at 222. Notwithstanding the fact that South Africa has not ratified the ICESCR, its provisions and the various deliberations on the m eaning thereof remain important in terms of s 39(1), especially since many socio-economic rights in the 1996 C onstitution were clearly modeled on provisions of the ICESCR. See Sandra Li ebenberg ?The interpretation of soci o-economic rights? in Stuart Woolman (ed) Constitutional Law of South Africa (2ed; 2003) ch 33 at 11. In any event, while not incurring any obligations in terms of the IC ESCR, South Africa indi cated its agreement with the substantive terms thereof by signing the treaty, and has ra tified several of the treaties that recognise the right to health in terms not dissimila r to that of art 12 of the ICESCR, such as the CEDAW, the CERD, the CRC, the African Charter and the ACRWC. 3 With the exception that s 7( 2) adds a separate obligation to promote rights, which in international law is viewed as part of the ob ligation to fulfill. See UNCESCR General Comment 14 The Right to the Highest Attainable Standard of Health (article 12 of the International Covenant on Economic, Social and Cultural Rights) (2000) at paras 33; 37. 4 See Gina Bekker ?Introduction to the rights c oncerning health care in the South African Constitution? in Gina Bekker (ed) A Compilation of Essential Documents on the Rights to Health Care (2000) 1 at 14; Danwood Mzikenge Chirwa ?The right to health in international law: Its implications for the obligations of state and non-state actors in ensuring access to essential 49 in the Bill of Rights that correspond to elements of the health rights package. While not requiring that such interp retations be followed regardless of differences between the domesti c and international formulati on of rights or in the institutional setting within which these are translated into reality, s 39(1) allows courts to rely on an extensive body of theory which considers the content and implications of relevant rights and standards in detail. 2 For example, s 7(2) of the Constitu tion determines that ?[t]he state must respect, protect, promote and fulfil the right s in the Bill of Rights?. Clearly a domestic recasting of the ?triparti te typology of interdependent duties?, 3 this subsection opens the door for UNCESCR?s deliberation of the obligations derived from the right to health to enter South African courts? interpretations of constitutional health rights. For exampl e, South African courts may recognise that the obligation to respect health rights implies entitlements to the continuation and non-disruption of t heir existing enjoyment, whereas the obligation to protect health rights r equires that individuals have access to effective remedies that pr event or compensate for priv ate infringements of their rights. 4 medicine? (2003) 19 SAJHR 541 at 559-560; De Vos op cit note 1 at 79-80; 83; Pierre De Vos ? Grootboom , the right of access to housing and subs tantive equality as c ontextual fairness? (2001) 17 SAJHR 258 at 273; Stephen Ellmann ?A constitu tional confluence: American ?State- action? law and the application of South Africa?s socio-economic rights guarantees to private actors? in Penelope Andrews & Stephen Ellmann (eds) The Post-Apartheid Constitutions: Perspectives on South Africa?s Basic Law (2001) 444 at 448; Heyns & Brand op cit note 1 at 158; Sandra Liebenberg ?Socio-economic rights? in Matthew Chaskalson et al (eds) Constitutional Law of South Africa (RS5, 1999) ch 41 at 27-28; 31-32; Sandra Liebenberg ?Violations of socio- economic rights: The role of the South Af rican Human Rights Commission? in Andrews & Ellmann (this note) 405 at 411; 414-415; Olivier op cit note 1 at 137-138; Kate O?Regan ?Introducing socio-economic rights? (1999) 1(4) ESR Review 2; Pillay op cit note 2 at 64; 67; Karrisha Pillay ?Rights concerning health? in Centre for Human Rights Report on the Realisation of Socio-economic Rights (2000) 51 at 54; Russell op cit note 2 at 18-19; Craig Scott & Patrick Macklem ?Constitutional ropes of sand or justic iable guarantees? Social rights in a new South African constitution? (1992) 141 Univ Pennsylvania LR 1 at 74. 5See UNCESCR General Comment 14 op cit note 3 at paras 35; 42. 6 See for instance Jooste v Botha 2000 (2) BCLR 187 (T) at 196I-197D re s 28(1)(b) of the Constitution; Modderklip Boerdery v Modder East Squatters 2001 (4) SA 385 (W) at 394G- 395(B) and Theewaterskloof Holdings v Jacobs 2002 (3) SA 401 (LCC) at para 18 re s 26(1) of the Constitution; also Halton Cheadle & Dennis Davis ?The application of the 1996 Constitution in the private sphere? (1997) 13 SAJHR 44 at 59-60; Alfred Cockrell ?Private Law and the Bill of Rights: A threshold issue of ?horizontality?? in Butterworths Bill of Rights Compendium (RS13 October 2003) ch 3A at 13; Rolf K?nnemann ?A coherent approac h to human rights? (1995) 17 Human Rights Quarterly 323 at 339-340. 7 On the capacity of private entities to infringe socio-ec onomic rights and the need to hold them responsible for such infringements, see Maastricht Guideline 18; Danwood Mzikenge Chirwa ?Non-state actors? responsibility for socio- economic rights: The natur e of their obligations under the South African Constitution? (2002) 3(3) ESR Review 2 at 4; Chirwa op cit note 4 at 561-562; KD Ewing ?Social rights and constitutional law? (1999) Public Law 104 at 119; Mark Heywood ?Debunking ?Conglomo-talk?: A case study of the amicus curiae as an instrument for advocacy, investigation and mobilisation? (2001) 5 Law, Democracy & Development 133 at 134- 135; Scott Leckie ?Another step towards indivisibilit y: Identifying the key f eatures of violations 50 The duty to protect socio-economic rights further clearly requires the recognition, regulation and enforcement of private socio-economic obligations. 5 This appears to imply at least a measur e of horizontal application of socio- economic rights, the possibilit y of which is often denied or overlooked by courts and academic commentators alike. 6 Whereas the constitutional text seems to indicate that only the State bears the duty to progressively realise socio- economic rights, this need not mean that it is the only actor implicated in socio- economic rights matters, nor that socio- economic rights are i nherently incapable of horizontal application. Certainly, private entities appear as capable of harming the enjoyment of socio-economic ri ghts as the State. Given that the satisfaction of many health-related needs is often frustrated through the conduct of private entities, health rights will frequently be meaningless to their beneficiaries unless they are capable of in vocation also against such entities. 7 of economic, social and cultural rights? (1998) 20 Human Rights Quarterly 81 at 108; 111; Liebenberg (in Andrews & Ellmann) op cit not e 4 at 414; Jordan J Paust ?Human rights responsibilities of privat e corporations? (2002) 35 Vanderbilt J of Transnational Law 801 at 802; Marius Pieterse ?Beyond the welfare state: Globalization of neo-liberal culture and the constitutional protection of social and ec onomic rights in South Africa? (2003) 14 Stellenbosch LR 3 at 25-26; Steven R Ratner ?Corporations and human rights: A theory of legal responsibility? (2001) 111 Yale LJ 443 at 462; Johan van der Walt ? Progressive indirect horizontal application of the Bill of Rights: Towards a co-operat ive relation between common-law and constitutional jurisprudence? (2001) 17 SAJHR 341 at 353. 8Johan De Waal; Iain Currie & Gerhard Erasmus The Bill of Rights Handbook ( 4 th ed 2001) at 55; Ellmann op cit note 4 at 451-452; 461; Liebenberg (in C haskalson et al) op cit note 4 at 45. 9 Cockrell op cit note 6 at 13. In determining the extent to which a private entity should be bound by a particular socio-economic obligation, it is useful to consi der the nature and extent of the power exercised by the entity, the degree to which it em ulates state power and the manner in which exercising the power impacts on the enj oyment of socio-econom ic rights. Examples 51 Application of the Bill of Rights is regulated by s 8 of the Constitution, which determines in relevant part: ?(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. (2) A provision of the Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. (3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court - (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the ext ent that legislation does not give effect to that right; and (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1)?. Socio-economic rights are nowhere excluded from horizontal application. What is acknowledged by s 8, however, is that application of a right to a private dispute will depend on the nature of the ri ght and on the nature of the duties it imposes - indicating that not every right, and not all duties imposed by a particular right, will find horizontal application. 8 In addition, it may be argued that a third factor, namely the nature or identity of t he actor against whom/which the right is applied, is significant, since not all actors have equal capacity to comply with the various obligations im posed by a socio-economic right. It may accordingly be argued that s 8(2) ?proceeds on the assumption that constitutional rights might be agent-relative and context-sensitive, inasmuch as their direct application agains t private agencies will depend on the circumstances of the case and the char acteristics of the particular person?. 9 of private entities that may be considered bound by health rights because of the nature and impact of the power they wield include private hospitals, pharma ceutical companies and private health care practitioners. Otherwise, it ma y be argued that private entities should be regarded as socio-economic duty-bearers in contexts where a ?special relationship? may be said to exist between them and the relevant right s-bearers. Examples include the doctor-patient relationship, the employer-employee relationshi p, the parent-child relationshi p, spousal relationships and a variety of contractual relationships such as that between individuals and their medical aid schemes. See Ellmann op cit note 4 at 444; 446; 462-467; also Chirwa op cit note 7 at 4; 6; James W Nickel ?How human rights generate dut ies to protect and provide? (1993) 15 Human Rights Quarterly 76 at 78; 81-82; Ratner op cit note 7 at 497-511; 524-525; Henry Shue ?The interdependence of duties? in P Alston & K Tomasevski (eds) The Right to Food (1984) 83 at 90. 10See De Waal; Currie & Erasmus op cit note 8 at 37 and also the separate concurring remarks of Sachs J in Du Plessis v De Klerk 1996 (3) SA 850 (CC) at para 187. 11Liebenberg (in Chaskalson et al) op cit note 4 at 46. On possibilities in this regard, see generally Pieter Carstens & Anton Kok ?An asse ssment of the use of disclaimers by South African hospitals in view of constitutional dem ands, foreign law and medico-legal considerations? (2003) 18 SA Public Law 430 at 441; De Vos op cit note 1 at 100-101; Pieterse op cit note 7 at 26. 52 Section 8(3) proceeds to indicate t hat rights would seldom directly apply to a private dispute. The preferred m anner to vindicate them in the private sphere would be by way of legislat ive enactment or through developing the common law, which would generate more e ffective remedies for private rights- infringements. 10 Given the plethora of relevant legislative provisions regulating social service delivery and the vast body of common law that may be developed to give effect to socio-economic rights, direct reliance on socio-economic rights in a private dispute will likely be a rare o ccurrence. Fears of overzealous private application are further allayed by the determination that rules of common law may be developed to limit the pr ivate application of a right. 11 Notwithstanding the manner in which the Bill of Rights is applied to a particular dispute, all rights can be limi ted by the State in accordance with the general limitations provisi on contained in s 36 of the Constitution, which reads: ?(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including - (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights?. 12For a more detailed exposition of the ?t wo-stage? approach, see De Waal; Currie & Erasmus op cit note 8 at 145-147. 13 See Liebenberg op cit note 2 at 55 and authorities there cited. 14 Accordingly, the Constitutional Court has on several occasions indicated that it would adopt a generous and purposive approach to interpreta tion of rights in the Bill of Rights. A generous approach to Bill of Rights interpretation involves preferring as wide and inclusive an interpretation of a right as is possible within the parameters of the constitutional text. De Waal; Currie & Erasmus op cit note 8 at 132-133. Purpos ive interpretation ?aims to tease out the core values underpinning listed fundam ental rights in an open and democratic society based on human dignity, equality and freedom and then to prefer the interpretation of a provision that best supports and protects those values?. Ibid at 130-131. 53 Given that s 36 affords the State an o pportunity to show that there are valid reasons why a limitation on the enforcement of a particular right should be upheld in particular circumstances, cour ts have adopted a so-called ?two stage? approach to Bill of Rights adjudi cation. This involves broadly that a court, first, determines whether an infri ngement of a right has occurred by defining the ambit and scope of that right and, thereafter, if an infringement is indeed found, that the respondent is called upon to justify such infringement in terms of s 36. 12 In addition to promoting accountability by in sisting that the State publicly define and justify the extent to whic h it seeks to limit rights, 13 the two-stage approach affords courts the luxury of being able to generously and permissively award content to a particular right through the process of interpretation without being hindered by the fact that there must i nevitably be limits to the extent of its enforcement, since these may properly be deliberated in t he limitation-stage of proceedings. 14 Section 36 is of significance to a benefit-centered approach to health rights not only because it facilitates the unfettered development of their content in this manner but specif ically because, through essentially mandating that a proportionality analysis be conducted in dec iding whether or not to allow a particular limitation, it allows courts to perform the inevitable balancing act of weighing individual interests in obtaini ng tangible benefit from a particular health-related right against competing indivi dual or societal interests. Through its consistent invocation on a case-by-ca se basis, s 36 can therefore assist in the development of a coherent theory on the circumstances in which health rights may legitimately render the benefits that they promise. 15See John C Mubangizi ?Public health, the S outh Arican Bill of Rights and the socio- economic polemic? (2002) TSAR 343 at 349 and in general Tembek a Ngcukaitobi ?The evolution of standing rules in South Africa and their signi ficance in promoting social justice? (2002) 18 SAJHR 590-613. 54 Finally, s 38 of the Constitution, whic h is simultaneously the Bill of Rights? standing provision and its primary remedial clause, is of particular importance for a benefit-focused analysis of health rights. It determines: ?Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are- a) anyone acting in their own interest; b) anyone acting on behalf of another person who cannot act in their own name; c) anyone acting as a member of, or in the interest of, a group or class of persons; d) anyone acting in the public interest; and e) an association acting in the interest of its members?. Section 38 drastically relaxed standing ru les in South Africa, where previously litigants had to prove that they had a per sonal interest in a matter before they could bring it before a court. Its scope furthers the cause of social justice by enabling socio-economic rights-based liti gation on behalf of poor and otherwise marginalised persons who would ordinarily not be in a position to assert their rights themselves. 15 Even more significant for a benefit-focused approach is that s 38 clearly allows individuals to approach a court for individual relief where their socio-economic rights have been infringed or threatened. Argum ents that socio- economic rights should only function as group rights and should generally not result in the granting of individual re lief due to their polycentric nature are thus without constitutional foundation. As to its remedial aspect, s 38's affirmation that courts may grant ?appropriate relief? in the event of an infr ingement of a right in the Bill of Rights is augmented by s 172(1) of the Constitu tion's determination that courts ?(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of it s inconsistency; and (b) may make any order that is just and equitable...?. Appropriateness, justness and equity are thus the only constitutionally derived limits on the remedi al power of the judiciary in Bill of 16 See Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) at paras 18-19; National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at para 165; Hoffmann v South African Airways 2001 (1) SA 1 (CC) at para 42; Jonathan Klaaren ?Structures of government in the 1996 Consti tution: Putting democracy back into human rights? (1997) 13 SAJHR 3 at 11; Jonathan Klaaren ?Judicial Rem edies? in Chaskalson et al op cit note 4, ch 9 at 2-4; 29; Liebenberg (i n Chaskalson et al) op cit note 4 at 10; 52; Olivier op cit note 1 at 132; 146-147; Kameshni P illay ?Implementation of Grootboom : Implications for the enforcement of socio-economic rights? (2002) 6 Law, Democracy & Development 255 at 257- 258; Scott & Alston op cit note 1 at 224; Wim Trengove ?Judicial remedies for violations of socio- economic rights? (1999) 1(4) ESR Review 8. 17 These are considered for instance in Fose op cit note 16 at paras 19; 96; Hoffmann op cit note 16 at para 45 and by Howard Va rney ?Forging new tools: A note on Fose v Minister of Safety and Security CCT 14/96' (1998) 14 SAJHR 336 at 340-343. 18See for instance S v Bhulwana 1996 (1) SA 388 (CC) at para 32; Mistry v Interim Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC) at para 35; National Coalition for Gay and Lesbian Equality op cit note 16 at paras 82; 94 as well as discussion of these principles by De Waal, Currie & Erasmus op cit note 8 at 174; 183. 19 See chapter 1 note 30 and accompanying text. 20UNCESCR General Comment 14 op cit note 3 at para 59. 55 Rights cases. 16 An inquiry into the justness and appr opriateness of a particular remedy in the circumstances of a particular case is necessarily a context-specific one and is impacted by various practica l, legal, institutional and moral considerations. These pertinently incl ude that relief must sufficiently address the wrong caused by the constitutional in fringement and must be effective, fair, flexible and capable of being enforced. 17 Courts should further take account of the principles that successful litigants must generally obtain the relief that they seek and that relief should generally not be confined only to such litigants, but should extend also to all others who are similarly situated, unless this would be inappropriate or unjust. 18 I have argued in chapter 1 that the ju sticiable nature of socio-economic rights, read with the common law maxim of ?ubi ius ibi remedium?, entitles citizens to effective relief for infringements of their socio-economic rights. 19 Similarly, UNCESCR has stated that ?[a]ny person or gr oup who is a victim of a violation of the right to health should hav e access to effective judicial or other appropriate remedies ... [and] should be entitled to adequate reparation, which may take the form of restitution, com pensation, satisfacti on or guarantees of non-repetition?. 20 In order for an applicant in a health rights matter to derive tangible benefit from the successful invoca tion of her right, it is necessary that 21The appropriateness of various of these remedies for violations of socio-economic rights and in other related contex ts is considered for instance by David Bilchitz ?Towards a reasonable approach to the minimum core: Layi ng the foundations for future socio-economic rights jurisprudence? (2003) 19 SAJHR 1 at 18; 25-26; Bollyky op cit note 1 at 177; 184-186; De Waal, Currie & Erasmus op cit note 8 at 175- 190; 451-452; Klaaren (1999) op cit note 16 at 7- 8A; 11-16; 22; 28; Jonathan Klaaren ?A remedial interpretation of the Treatment Action Campaign decision? (2003) 19 SAJHR 455 at 461; 465; Leckie op cit note 7 at 120; Liebenberg (in Chaskalson et al) op cit note 4 at 52- 54; Liebenberg op cit note 2 at 62-63; Sandra Liebenberg ?Basic rights claims: How responsiv e is reasonableness review?? (2004) 5(5) ESR Review 7 at 11; Kent Roach & Geoff Budlender ?Mandatory relief and supervisory jurisdiction: When is it appropriate, just and equitable?? (2005) 122 SALJ 325; Theunis Roux ?Understanding Grootboom - A Response to Cass R Sunstein? (2002) 12(2) Constitutional Forum 41, 51; Scott & Alston op cit note 1 at 224-25; Mia Swart ?Left out in the cold? Crafting constitutional remedies for the poorest of the poor? (2005) 21 SAJHR 215 at 225-228; Trengove op cit note 16 at 8-11; Varney op cit note 17 at 337-338; 344-345. See also Fose op cit note 16 paras 19-20; 58-61; 67; 72; 99; 104. 22Bollyky op cit note 1 at 163-164. 56 relief awarded to prevent or compensate for the unjusti fiable infringement of her right is both effective and am ounts to ?adequate reparation?. A wide range of remedies may consti tute appropriate, just, equitable and effective relief for unjustifiable infri ngements of health-rela ted rights, depending on the nature of the right, the natur e of the infringement and the unique circumstances of each case. These in clude, for instance, an order declaring that a challenged law, policy or conduc t is invalid, an order suspending a declaration of invalidity of legislation or policy and allowing the legislature or executive to correct the defect, an order that words be read into legislation or policy, a declaration of rights, a prohibi tive interdict, a mandamus, a structural interdict, an order of specific perfo rmance or reparations in kind, the development of the substantive or remedi al provisions of the common law, an award of damages or compensation as we ll as various forms of interim relief. 21 Of course, tangible benefits will result mo re readily from some of these remedies than from others. So for instance will purely declaratory relief, while it may indirectly benefit individual rights- bearers, often be of little use to them - ?[t]he benefits of moral c ondemnation ... seem rather abstract for those whose rights have been violated, such as the thousands of South Africans living with HIV/AIDS and dying without access to effective treatment. ... Effective relief for these individuals must be more than declaratory, it must be mandatory in form and structural in purpose, addressing the underlying conditions that threaten constitutional values as well as the private and public acts that create and perpetuate those conditions?. 22 23 See De Waal, Currie & Erasmus op cit note 8 at 194. 24 Remarked in a more general sense by De Waal, Currie & Erasmus (ibid) at 169. 57 Nevertheless, circumstances may well aris e in which the inte rests of justice and equity dictate that a declaratory order is the only appropriate one. 23 What is required in every case is for courts to weigh the applicant?s interest in an effective remedy that amounts to adequat e reparation for the harm threatened or suffered against competing individual or societal interest s and to award a tangible remedy unless doing so would be unjust, inequitable or inappropriate. The extent of courts? remedial fl exibility enables them to strike an appropriate balance between individual and communal interests in socio- economic rights cases and further to deli neate the circumstances in which the interests of justice permit tangible benefits to result from a finding that a socio- economic right has unjustifiably been infringed. Accordingly, it facilitates a more explicitly benefit-focused approach to t he interpretation and limitation of health rights, by allowing courts to avoi d potentially unjust consequences of a permissive and benefit-focused interpretation of health rights or a finding that a (permissively interpreted) health right has unjustifiably been infringed, through tailoring a remedy that is appropriate in light of the specific circumstances of every case. 24 Overall, the provisions governing the structure of Bill of Rights litigation appear to encourage a benefit-f ocused approach to socio-economic rights. Not only are socio-economic rights fully ju sticiable and enforc eable by a wide range of individuals and groups against the State or certain private entities, but their enforcement may also, in appropriate circumstances, result in the granting of tangible and effective relief which am ounts to adequate reparation for their infringement. Courts are empowered firs tly to ascertain the extent of the benefits implied by various socio- economic rights through a generous and purposive approach to their interpretation, secondly to ascertain whether law or conduct has infringed a particular right by balancing the interests served by any limitation on its ambit against the applicant ?s interests in obtaining relief that satisfies the needs it represents, and th irdly to delineate the circumstances in 25Bekker op cit note 4 at 1-2; C hapman op cit note 2 at 35-36; 51. 58 which the benefits implied by a right should result by deliberating the appropriateness of a range of orders through which to remedy the infringement. It is thus possible for the socio-economic rights in the Bill of Rights, including the various health-related rights to be discussed in the following section, to directly and tangibly compensate for the denial of the needs they represent, and hence to contribute to the affirmation and protec tion of the inherent dignity of their subjects. 3.2 THE HEALTH RIGHTS PACKAGE IN THE BILL OF RIGHTS There is no single provision in the Consti tution that simultaneously protects all aspects of the right to ?the enjoyment of the highest attainable standard of physical and mental health?. Rather, c hapter 2 of the Constitution contains several scattered provisions aimed at pr omoting the realisation of the right to health, which ought to be r ead together when ascertaining the extent of health- related protection awarded by the Bill of Rights. 25 This section identifies the rights in the Bill of Right s that guarantee interests si milar to those that enjoy protection as part of the health right s package in international law, and illustrates that the benefits im plied by these constitutional provisions are virtually identical to those conferred by the ri ght to health. I accordingly propose an interpretation of these rights that co rresponds to the interpretation of the relevant constituent elem ents of the health rights package advanced in chapter 2, and consider the ext ent to which these rights are capable of rendering the benefits they promise (and, accordingly, of satisfying the needs they affirm) within the structural framework of S outh African Bill of Rights litigation. ( a ) Health-related freedom s Control over physical and mental health status may be seen as an integral aspect of human autonomy, and the pursuit of health through the exercise of 26 RS Downie; Carol Tannahill & Andrew Tannahill Health Promotion: Models and Values (1996) at 176; Dieter Giesen ?A right to health care? A comparative perspective? (1994) 4(2) Health Matrix 277 at 280; Sheetal B Shah ?Illuminati ng the possible in the developing world: Guaranteeing the human right to health in India? (1999) 32 Vanderbilt J of Transnational Law 435 at 457; 460-461; Alicia Ely Yamin ?Defining ques tions: Situating issues of power in the formulation of a right to health under international law? (1996) 18 Human Rights Quarterly 398 at 404; 422. 27 In the context of abortion, the exercise of this right is fa cilitated by s 5 of the Choice on Termination of Pregnancy Act 92 of 1996, which determines that no c onsent other than that of a pregnant woman is required for the terminat ion of a pregnancy. The reverberance of this provision with s 12(2)(a) of the Constitution in fluenced a finding that the limits occasioned by it on the rights of parents to consent to medica l treatment received by their daughters were not unjustifiable in Christian Lawyers Association v Minister of Health 2004 (10) BCLR 1086 (T). See 1092H-1095J. 28Joanna Birenbaum ?Contextualising choice: Abortion, equality and the right to make decisions concerning reproduction? (1996) 12 SAJHR 485 at 485-486; 489- 490; 502; Charles Ngwena ?Access to health care as a fundamental right: The scope and limits of section 27 of the Constitution? (2000) 25(1) Journal for Juridical Science 1 at 9. See also Christian Lawyers Association of SA v Minister of Health 1998 (4) SA 1113 (T) at 1123E-G. 59 personal choices as an ex pression of that autonomy. 26 As shown in 2.2(a) above, the health rights package accord ingly includes a number of autonomy- based freedoms. In South Africa, thes e are located in s 12(2) of the Constitution, which determines: ? Everyone has the right to bodily and psychological integrity, which includes the right - (a) to make decisions concerning reproduction; (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without their informed consent.? Regarded also as an important inst rument for the achievement of substantive gender equality, s 12(2)(a) ens hrines the control of women over their reproductive capacity. As such, it is most often equated to choices to use contraception or to terminate a pregnan cy, and requires firstly that legal and other obstacles to exercising such choices be removed and secondly that women are not to be refused access to r eproductive health care facilities, goods and services when they request it. 27 Given that the availability and accessi bility of such facilities, goods and services are logical and essential prerequi sites for the meaningful exercise of this right, 28 s 12(2)(a) should further be interpre ted as affording additional weight to any claims to such access that wom en have in terms of other constitutional provisions. For example, Jonathan Be rger argues that lack of access to 29 Jonathan M Berger ?Taking respons ibilities seriously: The role of the state in preventing transmission of HIV from mother to child? (2001) 5 Law, Democracy & Development 163 at 166- 168. 30 See Dieter Giesen ?Health care as a right: Some practical implications? (1994) 13 Medicine & Law 285 at 292-293; Aart C Hendriks ?Pati ents? rights and access to health care? (2001) 20 Medicine & Law 371 at 373-374; Ngwena op cit note 28 at 15; SA Strauss ?Geneesheer, pasient en die reg: ?n Delikate driehoek? (1987) TSAR 1 at 3. 31 De Waal; Currie & Erasmus op cit note 8 at 262-264. 32 The extent to which the ss 12(2)(b) and (c) ri ghts are protected by the current state of common law is discussed under 5.3(a) below. Pa tients? right not to be treated without their 60 treatment preventing the trans mission of the HIV virus from mother to child could effectively negate reproductive freedom th rough indirectly coercing poor, HIV- positive, pregnant women to opt fo r termination of pregnancy. Berger accordingly views s 12(2)(a) as obligi ng the State to ensure that women have access to such health care services as would enable them freely to exercise their choice whether or not to continue with a pregnancy. 29 Other than in relation to reproducti ve autonomy, the context in which health-related freedoms are most at i ssue is that of the doctor-patient relationship. The inherent imbalances in medical knowledge between patients and health care professionals, combin ed with the remnants of a culture of medical paternalism within the medical profession, complicates the ability to exercise informed choices in relation to medical treatment options. It is therefore necessary that patients are afforded rights to have full facts regarding their own medical status, diagnosis, pr ognosis and treatment options disclosed to them by health care practitioners and t hat they are not subjected to medical interventions without their informed consent. 30 Section 12(2)(c) of the Constitution entrenches a right not to be treated without consent, albeit in the context of medical or scientific experimentation. In addition, the phrase ?security in and c ontrol over [the] body? in s 12(2)(b) is arguably aimed at protecting individual in terests in ?bodily autonomy and self- determination? from undue interference. 31 If interpreted in accordance with the South African common law understanding of ph ysical integrity, this phrase would encompass protection of individual c ontrol over physical and mental health status, as well as protection of independent and informed decision-making in pursuit of health. 32 To administer medical treatme nt without a patient?s consent informed consent also finds expression in ss 7- 9 of the National Health Act 61 of 2003, which require that a patient?s info rmed consent be obtained before the administering of any medical treatment and which provide for patients? partici pation in all decisions affecting their health. 33 For instance, s 7 of the National Health Act determines that treatment without the consent of a patient may proc eed where the patient is unable to consent and consent is instead obtained from another person who has been authorised by the patient to consent to treatment on her behalf or, in appropriate circumstances, fr om a spouse, parent or close family member of the patient; where failure to treat the patient would pose seri ous risks for the public health or, in circumstances where the patient has not ex pressly refused consent, where failure to treat would pose serious risk to the life or health of t he patient; provided that in all of these instances a health care provider has taken all reas onable steps to obtain t he patient?s consent. 34 See De Vos op cit note 4 at 265; Pierre De Vos ?Substantive Equality after Grootboom : The emergence of social and ec onomic context as a guiding value in equality jurisprudence? (2001) Acta Juridica 52 at 53; Caroline MA Nicholson ?The ri ght to health care, the best interests of the child and AIDS in S outh Africa and Malawi? (2002) 35 CILSA 351 at 359. 61 would therefore likely amount to a breach of ss 12(2)(b) and/or (c). As s 12(2) does not contain an inte rnal limitation, non-compliance with the obligations it imposes would be capable of justification only under circumstances allowed for by laws which sa tisfy the criteria la id down by s 36 of the Constitution. 33 Where an unjustifiable infringement of a s 12(2) right is occasioned by the terms of some law or policy, such law or policy would be invalid to the extent of its inconsis tency with s 12(2). Furthermore, it is conceivable that rights-bearers may attemp t to prevent infringement of their s 12(2) rights by applying for interdicts or similar orders against health care professionals or others who threaten to in terfere with their exercise of the s 12(2) rights, or that they may seek compensation in circumstances where they suffered damages due to an infringement of their health-related autonomy rights. ( b ) Equality The eradication of socio-economic inequalitie s is a primary aim of South Africa?s constitutional order. The inclusion of so cio-economic rights in the Bill of Rights is particularly indicative of this aim. As such, the socio-economic rights in the Constitution may be said to be egalitarian in orientation while the aims of the right to equality include addressing the i nequalities resulting from decades of social deprivation. 34 Section 9 of the Constitution determines: ?(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. 35 See Eric Buch ?Discrimination in the area of health and health care? in Christof Heyns et al (eds) Discrimination and the Law in South Africa Volume 1 (1994) 152; Barbara Klugman ?Mainstreaming gender equality in health policy? (1999) Agenda Monologue 48 at 50-51; Charles Ngwena ?Accessing abortion services under the Choice on Termination of Pregnancy Act: Realising substantive equality? (2000) 25 Journal for Juridical Science 19 at 35; Ngwena op cit note 28 at 6; Edgar Pieterse & Mirjam van Donk ?Incomplete ruptures: The political economy of realising socio-economic right s in South Africa? (2002) 6 Law, Democracy & Development 193 at 203; Jeremy Sarkin ?Health? (1997/8) SA Human Rights Yearbook 97 at 131; HCJ van Rensburg et al Health Care in South Africa: Structure and Dynamics (1992) at 30-31. 62 (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminat e directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair?. The guarantee of ?equal protection and benefit of the law? in s 9(1), as well as s 9(2)?s determination t hat the right to equality encompasses the ?full and equal enjoyment of all rights and freedoms?, indicates that equal access and enjoyment of socio-economic amenities is envisaged. The State is accordingly tasked with the programmatic eradication of lingering inequalities in such access and enjoyment. Many of these inequalitie s are occasioned by the operation of patriarchal social power-structures and their interact ion with the remnants of the structural racial oppression of apartheid, which c ontinue to lend definite racial and gender dimensions to discrepancies in access to health-conducive social amenities and to health care facilities, goods and services . For instance, the lack of availability and comparatively poorer qualit y of health care services in rural areas coincides with the fact that rural areas are predominantly populated by black people and women. 35 Another example is the virtual ex clusion of poor South Africans (the overwhelming majority of whom are bl ack and female) from the high quality care that is available at considerable expens e in the private health care sector, and their concomitant relegation to t he over-burdened and unde r-resourced public 3 6 Only approximately 18% of South Africans (most of whom have medical insurance and belong to the White and Indian populat ion groups) are treated in the private health care sector. However, approximately 80% of health care expenditu re takes place in the private sector, which also employs by far the greatest number of health care professionals. For these figures and for discussion of problems relating to quality discr epancies between private and public sector health care in South Africa see Buch op cit not e 35 at 156; Chapman op cit note 2 at 52; MA Christianson ?Health care? in EML Strydom (ed) Social Security Law (2001) 122 at 138; Herma Forgey et al South Africa Survey 2000/01 (2001) at 229; 237-239; He ywood op cit note 7 at 136- 138; Heinz Klug ?Five years on: How relevant is the Constitution to the new South Africa?? (2002) 26 Vermont LR 803 at 806; Bruce E Leech ?The right of the HIV-positive patient to medical care: An analysis of the costs of prov iding medical treatment? (1993) 9 SAJHR 39 at 43; Ngwena op cit note 28 at 7; Sarkin op cit note 35 at 97; Je remy Sarkin ?A review of health and human rights after five years of democracy in South Africa? (2000) 19 Medicine & Law 287 at 288; Van Rensburg et al op cit note 35 at 28. 37 Laid down in Harksen v Lane 1998 (1) SA 300 (CC) at paras 42-54. 38 Ibid para 54(b)(i). One non-listed ground upon which discrimination in health service provision is especially rife is that of health status (see for example Mahendra Chetty ?Human rights, access to health care and AIDS? (1993) 9 SAJHR 71-76; Mary A Crossley ?Of diagnoses and discrimination: Discriminatory nontreatment of infants with HIV infection? (1993) 93 Columbia LR 1581-1667; David Orentlicher ?Destru cturing disability: Rationi ng of health care and unfair discrimination against the sick? (1996) 31 Harvard Civil Rights Civil Liberties LR 49 at 50-51; 61; Marelise Richter ?Aiding intolerance and fear: T he nature and extent of AIDS discrimination in South Africa? (2001) 5 Law, Democracy & Development 195 at 205-208). In Hoffmann op cit note 16, the Constitutional Court determined that unfair discriminat ion in employment practices, on the ground of HIV status, infringes s 9. It would seem both logical and necessary to extend protection in this regard also to the provisi on of health-related benefits. Other non-listed grounds which could conceivably come into play in th is context include citizenship, geographical location, and socio-economic status. 63 health sector. 36 The right to equality demands t hat the amelioration of these discrepancies in enjoyment of health-relat ed rights receives urgent attention in a variety of policy-formulation and -implementation processes. But the right to equality also holds more immediately enforceable benefits for its subjects. Read with the Consti tutional Court?s test for establishing violations of the right, 37 it would seem that s 9(1) may be used to attain the benefit of inclusion in pr ograms conferring health-rela ted benefits from which an applicant has arbitrarily and/or irrationa lly been excluded, or to attain access to health care services where such access is arbitrarily or irrationally being denied, unless the exclusion or refusal can be ju stified under s 36. Similarly, where denial, exclusion or inequitable provisi on of health-related benefits results from unfair discrimination on one or more of t he grounds listed in s 9(3) or on another ground where discrimination on that ground ?is based on attributes and characteristics which have the potentia l to impair the fundamental human dignity of persons or to affect them adver sely in a comparably serious manner?, 38 such 3 9 See De Vos op cit note 34 at 64-65; Liebenber g (in Chaskalson et al) op cit note 4 at 30; Liebenberg (in Andrews & Ellmann) op cit note 4 at 412-414; Mubangizi op cit note 15 at 346. 40 On the ambit, scope and impact of s 6 see Charles Ngwena ?HIV in the workplace: Protecting rights to equality and privacy? (1999) 15 SAJHR 513 at 532; Charles Ngwena ?HIV/AIDS and equal opportunities in the workplace: The implicati ons of the Employment Equity Act? (2000) 33 CILSA 96 at 102-106. 64 denial, exclusion or inequitable provis ion will be unconstitutional unless it is found to be justifiable under s 36. 39 A wide array of potential remedies, r anging from orders that policy or laws be modified to comply with the dictates of the right to equality to declaratory orders that particular applic ants are entitled to rece ive certain benefits, may compensate for unjustifiable infringement s of s 9. These may be considered effective from a benefit-focused perspective where they result in the inclusion of the applicant in the ambit of the heal th-related policy or program from which she was previously excluded, or in t he conferring of the health-related benefit which she was previously denied. According to s 9(4), the right to equality may also be asserted horizontally. The subsection further i ndicates the need for legislation in order to provide effective remedies for unfair discrimination in the private sector. In relation to health, three legislative enactments augment s 9(4). First, s 6 of the Employment Equity Act 55 of 1998 prohibits unfair discrimination in the workplace on grounds similar to those in s 9(3), but significantly including also HIV status. The prohibition explicitly extends to the provision of employment benefits, which would include health-relat ed benefits such as contributions to medical aid schemes, sick leave etc. 40 Second, s 24(2)(e) the Medical Schemes Act 131 of 1998 prohibits registration of a medical scheme which discr iminates on a list of grounds similar to those in s 9 of the Constitution but prominently including ?state of health?. This provision is augmented by s 29(1)(n ) of the Act?s determination that terms and conditions applicable to a person?s adm ission to a medical scheme may not relate in any manner to similar grounds. Together, these provisions constitute a prohibition on the exclusion of member ship from a medical scheme based on 41 For a discussion of the impact of these pr ovisions, see Ngwena (2000) (ibid) at 106- 107. 42 Relevant provisions of the Act are discussed by Cathi Albertyn, Beth Goldblatt & Chris Roederer (eds) Introduction to the Promotion of Equality and Prevention of Unfair Discrimination Act (2001) 84-86; 112-114; Sandra Liebenberg & Michelle O?Sullivan ?South Africa?s new equality legislation: A tool for advancing women?s socio-economic equality?? (2001) Acta Juridica 70 at 92-96. 65 health status or any ground listed in the Constitution. 41 Third, several health-related provisi ons are contained in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Augmenting s 6's general prohibition on unfair discrim ination, are determinations outlawing the provision of inferior services to any racial group (s 7(d)) and the limiting of women?s access to health benefits (s 8 (g)). Section 34 urges that inclusion of HIV status as an explicitly enumerat ed prohibited ground of discrimination should be considered, whereas item 3 of the Schedule to the Act contains an illustrative list of unfair practices in the health sector, which include the unfair denial or refusal of access to health care facilities and the discriminatory refusal to provide emergency medical treatme nt to particular people or groups of people. A wide array of rem edies for victims of unfair discrimination is allowed for by s 21 of the Act. These include dec laratory orders, orders for payment of damages, prohibitive interdicts, orders for the implementation of special measures that aim to address unfair discrimination, orders requiring an unconditional apology and the suspension or revocation of a health care practitioner?s licence. 42 Overall, it would seem t hat the immediate protecti on afforded by s 9 of the Constitution and its detailed elaboration in a variety of legislative provisions serve adequately to vindicate the equalit y-element of the right to health. Combining challenges based on more ?conventional? health rights with a challenge based on the right to equality in circumstances where a deprivation of health-related benefits also falls foul of the latter right, would give practical effect to the principle that rights are interdependent and indivisible. Indeed, where a challenge to the non-provision of or denial of access to a social good or service may be brought under the ambit of s 9, adequate reparation for such 4 3 De Vos op cit note 4 at 270-271; 273-274; De Vos op cit note 34 at 65-66; 68. Note, however, the drawbacks of using the right to equa lity to ameliorate social hardship discussed in chapter 2 note 43 and accompanying text. 44 Erika De Wet The Constitutional Enforceability of Economic and Social Rights: The Meaning of the German Constitutional Model for South Africa (1996) at 119; Jan Glazewski Environmental Law in South Africa (2000) at 85; Mubangizi op cit note 15 at 345. 45 UNCESCR General Comment 14 op cit note 3 at para 43 views the adoption of a public and environmental health strat egy as part of the minimum core of the right to health. See also Brigit Toebes ?Towards an improved understanding of t he international human right to health? (1999) 21 Human Rights Quarterly 661 at 668; Yamin op cit note 26 at 410-411. 46 See Minister of Health and Welfare v Woodcarb 1996 (3) SA 155 (N); Jan Glazewski ?Environment? in MH Cheadle et al (eds) South African Constitutional Law: The Bill of Rights 66 non-provision or non-access may resu lt more readily from basing a constitutional challenge on s 9 than from relying on another right which guarantees provision of the good or service more generally. 43 ( c ) Health-related entitl e m e n t s : Rights to determ i n a n t s of health Section 2.2(b) above has shown that right s to a variety of determinants of health, including rights to environmental and occupational health as well as to several non-medicinal, health-conducive social goods, form part of the health rights package in international law. Rights to the majority of these amenities are also contained in the 1996 Constitution. Section 24(a) of the Constitution dete rmines that ?[e]veryone has the right ... to an environment that is not harmful to their health or well-being?. This open- ended right obviously guarantees environm ental health and is phrased broadly enough to serve as a constitutional basis for a right to occupational health (working environment not harmful to health or well-being) and for rights to a variety of other non-medicinal, health-conducive social goods. 44 In addition to requiring that the State ad opt measures aimed at ensuring that environmental conditions do not harm citizens? health (from which tangible health-related benefits will flow indirectly), 45 infringements of s 24(a) may also be directly remedied through, for instance, an inte rdict prohibiting health-damaging actions by public or private entitie s (such as dumping toxic waste in a residential area) or an award of compensation where su ch actions have adversely affected health. 46 (2002) 409 at 422; Cheryl Loots ?The impact of the Constitution on environmental law? (1997) 1 SAJELP 57 at 58-59. Environmental law has, thr ough standards such as the ?polluter pays principle?, long acknowledged that not onl y states are responsible for environmental preservation. See Paust op cit note 7 at 818; Ratner op cit note 7 at 479-481. Indeed, a multitude of statutor y standards of environmental and o ccupational health have through the years been enforced against public and private entities. See for instance the Atmospheric Pollution Act 45 of 1965; the Occupational H ealth and Safety Act 85 of 1993 and ss 83 and 89 of the National Health Act 61 of 2003. 47 On the impact of these amenities on i ndividual health status, see UNCESCR General Comment 14 op cit note 3 at para 44; David Abbott ?AIDS and the homeless? (1994) 144 New LJ 1726-1727; Cathi Albertyn ?Using rights and the law to reduce women?s vulnerability to HIV/AIDS? (2001) 5 Law, Democracy & Development 179 at 185; Sundrasagaran Nadasen Public Health Law in South Africa: An Introduction (2000) at 8-12; David R Phillips Health and Health Care in the Third World (1990) 13-16; Toebes op cit note 45 at 668. 67 With the exception of a right to sanitation (which I would argue nevertheless finds residual protecti on under s 24(a)), rights to most non- medicinal, health-conducive social goods are also enshrined separately by the Bill of Rights. A right to have a ccess to adequate housing is guaranteed by s 26, whereas ss 27(1)(b) and (c) award ri ghts to have access to sufficient food and water and to social security respectively. 47 Children?s rights to shelter and basic social services find further prot ection under s 28(1)(c), whereas s 29(1)(a) confers a right to basic education. With the exception of the latter two, these rights are all guaranteed subject to the proviso that the State must take reasonable measures to achieve their progr essive realisation within its available resources. As reflected in the consti tutional text, these social goods are all subjects of rights-based protection regar dless of their impact on individual or communal health status. Indeed, reporte d South African court decisions in which these constitutional provisions have come into play typically do not involve the right to health. While such court decisions remain re levant to an analysis of the potential of health rights to render tangible benef its (due to the textual similarities between these rights and the various rights to health care services, goods and facilities discussed below), I will not c onduct a separate benefit-focused analysis of these rights. However, the majority of observations pertaining to health-care related entitlements discussed below perta in equally to entitlements flowing from rights to non-medicinal, health-conducive social amenities. 48 On the categorisation of socio-economic rights in the 1996 Constitution as generic ?access? rights on the one hand and fully enforceable, priority rights on the other, see De Vos op cit note 1 at 87-91. 49 See De Vos op cit note 4 at 265-266; Li ebenberg op cit note 4 at 26-27; Ngwena op cit note 28 at 3; 7-9; 27; Charle s Ngwena ?Aids in Africa: Access to health care as a human right? (2000) 15 SA Public Law 1 at 13; Marius Pieterse ?For eigners and socio-economic rights: Legal entitlements or wishful thinking?? (2000) 63 THRHR 51 at 54; 56; SAHRC Third Economic and Social Rights Report (1999) at 189. 68 ( d ) Health-related entitl e m e n t s : Right s to health care goods, services and fa c i l i t i e s To complete the health rights pack age, the 1996 Constitution appears broadly to recognise two distinct categories of rights to health care services, goods and facilities. First, a generic right to have a ccess to such amenities, which is limited in the extent to which it may be enfor ced at any given time, is guaranteed by s 27(1)(a) read with s 27(2) of the Constituti on. Apart from this generic provision, more direct and seemingly unlimited prio rity entitlements to certain specific forms of health care are found elsewhere in the Constitution. 48 This section discusses the ambit, scope and enforceabilit y of the entitlements implied by these respective categories of rights. (i) The generic right of access to health care services Section 27(1)(a) of the Constitution determines: ?Everyone has the right to have access to ... health care services, including reproductive health care?. By determining that ?everyone? is entitled to have access to health care services, s 27(1)(a) clearly has an equality-threshold that forbids any group-based distinctions in the provision of health ca re services. This aspect of s 27(1)(a) supplements the right to equality by embodying an entitlement not to be arbitrarily or unfairly excl uded from the ambit of polic ies, laws and programmes which confer health care-related benefits and by forbidding the inequitable provision of health care services. 49 The equality-component of s 27(1)(a) is 50See Chirwa op cit note 7 at 4; Chirwa op cit note 4 at 559; 564-565. 51The inclusion of reproductive health care se rvices aligns s 27(1)(a) with South Africa?s obligations to ensure ?appropriate services in connection with pregnancy, confinement and the post-natal period? under art 12 of CEDAW. See Berger op cit note 29 at 167-168; Ngwena op cit note 28 at 8; Ngwena op cit note 35 at 32. 52These issues are identified by Karrisha Pillay ?Tracking South Africa?s progress on health care rights: Are we any closer to achieving the goal?? (2003) 7 Law, Democracy & Development 55 at 60. Unfortunately, the National H ealth Act does not provide any clarity on these issues. Instead, its definit ion of ?health care services? merely refers back to s 27(1)(a) and related provisions whereas other concepts such as ?essential health services? and ?primary health services? are left to be defined by the Minister. 53 Including all such services within the ambit of s 27(1)(a) accords with UNCESCR General Comment 14 op cit note 3 at para 17 and is reflected also by s 1 of the Medical Schemes Act 131 of 1998. See further Christi anson op cit note 36 at 123-126; 132; De Waal, 69 further considered to be horizontally enforceable in conjunction with s 9(4). 50 This means that it can be used by ci tizens to demand medical treatment from public or private sources where such treatment is being withheld arbitrarily or unfairly. Beyond this threshold, s 27(1)(a) is unc lear as to the kinds of ?health care services? it envisages, save for indicating explicitly that such services include reproductive health care. 51 Specific definitional issues to consider include which health needs are addressed by s 27(1)(a), w hat kinds of services the subsection envisages and on which levels such services need to be rendered. 52 It may be argued that, in line with a generous approach to constitutional interpretation and in order to resonate with international law standards, s 27(1)(a) should be interpreted as encompassing entitlements to all services, goods and facilities aimed at securing the greatest attainable standard of physical and mental well-being. Sect ion 27(1)(a) should thus be read as addressing more than the need for physica l medical treatment to encompass also services aimed at satisfying mental health needs, and as extending beyond medical treatment to include services aimed at health prot ection and promotion, as well as the prevention and diagnosis of illness. The concept of ?medical treatment? should in turn be understood as implying all services aimed at alleviating, curing or rehabilitating t he causes or symptoms of disease and as including entitlements to access am bulance and hospital services, access to care by general and specialist medical practitioners and access to beneficial pharmaceutical products. 53 A similar broad reading of ?reproductive health care? Currie & Erasmus op cit note 8 at 448; Nicholson op cit note 34 at 359; Pillay op cit note 4 at 52- 53; Pillay op cit note 52 at 60-62; Karrisha P illay ?Testing for HIV/AIDS: The constitutional standard? (2001) 5 Law, Democracy & Development 213 at 214; SAHRC op cit note 49 at 185; Geraldine Van Bueren ?Health? in Cheadle et al op cit note 46, 491 at 495. 54 This understanding is reflected by the pr eamble to the Choice on Termination of Pregnancy Act 92 of 1996. See also Ngwena op ci t note 28 at 8; Ngwena op cit note 35 at 21; 32; Van Bueren op cit note 53 at 497-498; Ferd inand Van Oosten ?The Choice on Termination of Pregnancy Act: Some comments? (1999) 116 SALJ 60 at 61-62. 55See P Carstens et al ?Health care? in MP Olivier et al (eds) Social Security Law: General Principles (1999) 213 at 216; De Vos op cit not e 1 at 87; Andrea Gabriel ?Socio- economic rights in the Bill of Rights: Comparative lessons from India? (1997) 1(6) Human Rights and Constitutional LJ of SA 8 at 9; Heyns & Brand op cit note 1 at 159; Liebenberg op cit note 4 at 26; Pillay op cit note 4 at 53; Pillay op cit note 53 at 214. 56 See M Geldenhuys ?The rights to health care and housing: Some aspects of 70 may be advanced to include access to reproductive education and counselling services, contraceptive services and products, termination of pregnancy services as well as pre- and post-natal care. 54 A generous and purposive interpretation of the phrase ?health care services? in s 27(1)(a) would further imply that access to the services out lined here should in principle be guaranteed at primary, secondary as well as tertiary levels of care. Much is often made of the fa ct that it is not a right to health care services that is guaranteed, but merely a right to have access to such services. This is said to mean that s 27(1)(a) does not enable anyone directly to demand particular health care services, but rather envisages that people should be capable of securing such services for themselves. On such a reading of s 27(1)(a), the State is depicted as bei ng responsible only for providing an ?enabling environment? within which citizens may realise the right for themselves, by providing conditions necessary to ma ke health care services accessible to all. 55 From a benefit-focused perspective, how ever, this argument holds only for those who are already in the material position to access health care services for themselves. Beyond such people, the ri ght of access to health care services must imply more than simply an equal abilit y to seek care. A theoretical ability to access care is of no significance if such access does not translate into actually obtaining the relevant health care service or product, or physical access to the relevant health care facility. Indeed, in order to be meaningful, a right of access to care must imply the ability to obtain, rather than to seek, treatment. 56 constitutional interpretation? (2005) 17 SA Mercantile LJ 182 at 193; Giesen op cit note 30 at 290; Hendriks op cit note 30 at 374; Knut Erik Tr anoy ?Vital needs, human rights, health care law? (1996) 15 Medicine & Law 183 at 186-188. Such an understanding of access is reflected by the SA Department of Health?s recent Draft Charter of the Private and Public Health Sectors of the Republic of South Africa (2005) at 6, which defines ?acce ss? to mean ?having the capacity and means to obtain and use an affordable package of health care services in South Africa in a manner that is equitable? (my emphasis). 57 See Bekker op cit note 4 at 15; Liebenberg (in Chaskalson et al) op cit note 4 at 28-30. 58See Department of Health Draft Charter op cit note 56 at 13; Chapman op cit note 2 at 52; De Vos op cit note 1 at 87; Gabriel op cit note 55 at 9; Liebenberg (in Chaskalson et al) op cit note 4 at 26; Oliv ier op cit note 1 at 144-145. 59 The ?meaningful access? standard was first developed in relation to the capping of medical aid benefits in Alexander v Choate 469 US 287 (1985) at 301 and followed in a line of subsequent similar cases. For discussion, s ee Alexander Abbe ??Meaningful access? to health care and the remedies available to Medicaid managed care recipients under the ADA and the Rehabilitation Act? (1999) 147 Univ Pennsylvania LR 1161-1203; Orentlicher op cit note 38 at 79-82. 71 I would argue that the only limiti ng function fulfilled by the access standard in s 27(1)(a) is to indicate t hat health care services need not be made available free of charge to everyone. Where people do have the means and capacity to access health care services themselves, their s 27(1)(a) right is satisfied and capable of infringement only where such access is subsequently deprived, denied, obstructed or otherwise interfered with. 57 The State, however, incurs significantly more responsibility towards those groups or individuals who, through social or financial vulner ability, geographical isolation, the consequences of unfair discrim ination or some other reason, lack the means or capacities to access health care services themselves. 58 In relation to such individuals, it may be argued that access to health care services has to be meaningful or adequate in order to comply with s 27(1)(a). In a different context, American cour ts have held that access to health care services cannot be said to hav e been meaningful wher e vulnerable groups are excluded from such access, where lim its on eligibility for treatment are based on criteria that vul nerable groups are objective ly incapable of meeting and where recipients of treat ment are unable to benefit meaningfully from it. 59 An even more useful assessment of m eaningful access is provided in relation to the international law right to health by UNCESCR, which determined in General Comment 14 that health care services, goods and facilities must be accessible, available, affordable, cult urally acceptable as well as ?medically 60 See UNCESCR General Comment 14 op cit note 3 at para 12; also chapter 2 note 36 and accompanying text. 61 See further Chapman op cit note 2 at 45; P illay op cit note 52 at 64; Pillay op cit note 2 at 63-64; Toebes op cit note 45 at 666-667; 669; Van Rensburg et al op cit note 35 at 30-32. 62 See Carstens & Kok op cit note 11 at 442 (?professional health care services ... provided in a non-negligent manner?); Christi anson op cit note 36 at 133 (?basic minimum standards? of care); De Waal; Currie & Erasmu s op cit note 8 at 448 (?proper? care); Ngwena op cit note 49 at 5-6 (?adequate? care). 63 On these and other variables complicati ng the development of a unitary standard of ?adequacy? in the American context, see generally Einer Elhauge ?Allocating health care morally? (1994) 82 California LR 1451 at 1455; 1466-1472; Paul E Ka lb ?Defining an adequate package of health care benefits? (1992) 140 Univ Pennsylvania LR 1987-1998; John A Siliciano ?Wealth, equity and the unitary medical malpractice standard? (1991) 77 Virginia LR 439-487. On resource discrepancies and quality of care in the context of s 27, see Neil Van Dokkum ?The evolution of medical malpractic e law in South Africa? (1997) 41 J of African Law 175 at 189. 64 See Department of Health Draft Charter op cit note 56 at 19 (?access to health services of unacceptable quality is not access?); Carst ens & Kok op cit note 11 at 442; Hendriks op cit note 30 at 377. 72 appropriate and of good quality? for the me aningful enjoyment of the right to health. 60 Access to health care services should therefore not be regarded as meaningful where such services are geographically or physically inaccessible, unavailable or unattainable within a r easonable time after the need for them arises. Similarly, a person shoul d be regarded as havi ng been precluded from exercising his right to meaningfully acce ss health care services where care is unaffordable or not rendered by adequatel y skilled medical professionals. 61 As to quality, most commentators agree t hat s 27(1)(a) implies some kind of ?appropriateness?, ?adequacy? or ?reasonableness? standard against which the quality of health care services may be measured. 62 Access to care is accordingly considered to be inhibited w here services rendered are of an inferior quality. Defining what level of services would qualify as ?adequate?, ?reasonable? or ?appropriate? may be difficult, not least because quality of treatment is necessarily influenced by the financial re sources of both the patient and the health care facility, the nature of the medical condition, medical-technological progress, and the circumstances in which care is rendered. 63 However, it must at least be acknowledged that access to heal th care services is impaired where substandard or negligent care is render ed, and that the duty to protect health rights implies the creati on and/or sustenance of rem edies for damage suffered as a result of substandard or negligent care. 64 65 See De Waal, Currie & Erasmus op cit note 8 at 133-135. 66 Since s 27(2) is identical to s 26(2), wh ich delineates the right to have access to adequate housing, I rely also on lit erature pertaining to s 26(2). 67 Article 2.1 requires states parties to take steps to the maximum of their available resources whereas s 27(2) requires measures to be taken within the state?s available resources. Whereas s 27(2) requires measures to be aimed at achieving the ?p rogressive realisation? of s 27(1)(a), art 2.1 employs the phr ase ?with a view to achieving pr ogressively the full realisation? of relevant rights. 73 Section 27(1)(a) may thus be understood as conferring an entitlement to the availability, accessibility, and acc eptability of prevent ative, diagnostic and curative health care services of adequate quality on primary, secondary and tertiary levels. Such a permissive inte rpretation of the right accords with the premise that a generous and purposive approach to constitutional interpretation requires that the initial interpretation of the ambit and scope of a right should be as wide as is textually and c ontextually permissible. On ly after the ambit of the right has been identified in this manner , should an inquiry into potential justifications for restrictions or limitations on the right be launched. 65 Given that there are great variations in the co st and effectiveness of various forms of medical treatment, and also that there are many co mpeting health-related needs in society (not all of wh ich are equally urgent and vital) , it comes as no surprise that the Bill of Rights env isages the limitation of s 27(1)(a) both through an internal textual limitation on the ext ent to which it may be enforced and in accordance with s 36. The internal limitation on s 27(1)(a)? s ambit and scope is contained in s 27(2), which determines: ?The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights [guaranteed in s 27(1)]?. 66 While clearly modeled on article 2.1 of t he ICESCR, s 27(2) differs in certain respects from its international law counterpart. First, there are semantic differences in the framing of the provis ions? respective resource-specifications and standards of progre ssive realisation. 67 Second, s 27(2) imports a standard of reasonableness that is absent from ar ticle 2.1, which instead prescribes a standard of appropriateness. These di fferences notwithstanding, the terms 68 The ?dual? nature of s 27(2) is acknowl edged by Sandra Liebenberg ?The right to social assistance: The im plications of Grootboom for policy reform in South Africa? (2001) 17 SAJHR 232 at 238; Frank Michelman ?The Constitution, social rights and reason: A tribute to Etienne Mureinik? (1998) 14 SAJHR 499 at 503. Its ?amplifying? nature is emphasised by Carstens et al op cit note 55 at 217; De Vos op cit note 4 at 262; Gabriel op cit not e 55 at 9-10; Sandra Liebenberg ?Health? in Dennis Davis et al (eds) Fundamental Rights in the Constitution: Commentary and Cases (1997) 354 at 358; Ngwena op cit note 28 at 23-24, whereas its ?limiting? character is highlighted by De Vos op cit note 1 at 93; Liebenberg (in Chaskalson et al) op cit note 4 at 48; Darrel Moellendor f ?Reasoning about resources: Soobramoney and the future of socio-economic rights claims? (1998) 14 SAJHR 327 at 330; Mubangizi op cit note 15 at 345. 69 See, in relation to art 2.1 of the ICES CR, Limburg Principle 16; Matthew CR Craven The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1995) at 114-116; Ngwena op cit note 28 at 22. 70 David Bilchitz ?Giving socio-economic rights teeth: The minimum core and its importance? (2002) 119 SALJ 484 at 495; Liebenberg (in Chaskals on et al) op cit note 4 at 38. 71 UNCESCR General Comment 3 The Nature of State Parties? Obligations (Art. 2, para. 1 of the Covenant) (1990) at paras 11-12. See also Craven op cit note 69 at 132-133; De Vos op cit note 1 at 98; De Waal; Currie & Erasmus op cit note 8 at 443; Pillay op cit note 53 at 215. 74 employed by s 27(2) cannot be understood entirely in is olation from the meaning of corresponding international law provisi ons, especially given the dictates of s 39(1) of the Constitution. It appears that s 27(2) fulfills two distinct functions. First, it amplifies the rights guaranteed in s 27(1) through indicati ng the extent of the positive duties they impose on the State. Second, it limits s 27(1) by indicating that not all benefits implied by it may immediately be claimed. 68 As to its amplifying function, the various terms employed in s 27(2) may all be interpreted as indicating specific obligations on the State. First, the duty to take legislative or other appropriate measures constitute s an immediate obligation of conduct, notwithstanding the margin of discreti on awarded in relation to the form and content of measures. 69 This margin of discretion is simultaneously preserved and qualified by s 27(2)?s determinat ion that measures adopted must be reasonable. 70 Second, if the resource-specific ation in s 27(2) is understood as implying similar obligations to those in article 2.1 of the ICESCR, it would indicate that the State infr inges s 27(2) where it fails to fulfill an aspect of s 27(1) despite resources for the purpose indeed bei ng available. It also requires that the State prioritise expenditure aimed at satisfying the needs of the most vulnerable sectors of society. 71 Third, the standard of progressive realisation requires that the State in crementally make relevant socio-economic amenities 72 UNCESCR General Comment 3 op cit note 71 at paras 2; 9; Limburg Principles 16; 21; Maastricht Guideline 14(e)-(f). See also Audrey R Chapman ?A ?violations approach? for monitoring the International Covenant on Econom ic, Social and Cultural Rights? (1996) 18 Human Rights Quarterly 23 at 42-43; Chapman op cit note 2 at 37; Craven op cit note 69 at 131- 132; Pierre De Vos ?So much to do, so little done: The right of access to anti-retroviral drugs post- Grootboom ? (2003) 7 Law, Democracy & Development 83 at 90-91; Gabriel op cit note 55 at 10; Maria Green ?What we talk about when we talk about indicators: Current approaches to human rights measurement? (2001) 23 Human Rights Quarterly 1062 at 1070-1071; Heyns & Brand op cit note 1 at 160; Leckie op cit note 7 at 93; 98-100; Sandra Liebenberg ?The International Covenant on Economic, Social and Cu ltural Rights and its implications for South Africa? (1995) 11 SAJHR 359 at 365; Liebenberg (in Chaskals on et al) op cit note 4 at 39-41; Liebenberg (in Andrews & Ellmann) op cit not e 4 at 421-422; Ngwena op cit note 28 at 223; Olivier op cit note 1 at 149; Pillay op cit note 53 at 214; Pillay op cit note 2 at 64; Toebes op cit note 45 at 677. 7 3 Iain Currie ?Bill of rights jurisprudence? (2000) Annual Survey of SA Law 24 at 56; Liebenberg op cit note 4 at 41; Olivier op cit note 1 at 142. 74 Demand for health services typically exceeds the availability of resources, since technological progress has led to an increasing number of serious ailm ents becoming treatable (often at high expense) and since even routine health care services are ordinarily often expensive, especially at secondary and tertiary levels. See Elhauge op cit note 63 at 1459; Richard D Lamm ?Rationing health care: Inevitable and desirable? (1992) 140 Univ Pennsylvania LR 1511 at 1512; Moellendorf op cit note 68 at 332; Ngwena op cit note 28 at 19. 75 available both to a larger number and a wider range of people, and must show that it is moving ?effectively and expedi tiously?, through concrete and deliberate steps, towards full realisation of the ri ght. Deliberately retrogressive measures (resulting in lesser enjoyment of the ri ght) are regarded as infringing the right unless they are necessitated by extreme re source scarcity or are in the interest of the progressive realisat ion of the totality of soci o-economic rights. The same would apply where the State does not take any measures aimed at progressive realisation, halts progressive realisat ion or delays the adoption of appropriate measures unreasonably. 72 Section 27(2)?s limiting function is fa r more significant from a benefit- focused perspective, since it directly impacts on the extent to which tangible individual benefits may be claimed under s 27( 1)(a). In particular, the resource specification in s 27(2) indicates that the State will not fall foul of s 27(1)(a) where it does not have the resources to gi ve effect to all of the entitlements implied by the provision. 73 Particularly in the health care sector, the reality is that not all medically benef icial treatment is afford able and that, while resource scarcity persists, certain treatment will be unavail able to those who cannot finance it for themselves. 74 It is, however, important to view resource scarcity 75 See Bilchitz op cit note 21 at 18; 21; F ons Coomans ?Reviewing implementation of social and economic rights: An assessment of the reasonableness test as developed by the South African Constitutional Court? (2005) 65 Heidelberg J of International Law 167 at 191-192; Currie op cit note 73 at 56; Scott & Alston op cit note 1 at 255. 76 De Vos op cit note 1 at 96; De Waal; Curri e & Erasmus op cit note 8 at 441; Gabriel op cit note 55 at 10; Liebenberg op cit note 4 at 39. 77 Liebenberg op cit note 2 at 25. See also Bilc hitz op cit note 21 at 21; Gabriel op cit note 55 at 11; Nicholas Haysom ?Giving effect to so cio-economic rights: The role of the judiciary? (1999) 1(4) ESR Review 11 at 12; Michelman op cit note 68 at 504-505; Scott & Alston op cit note 1 at 239; 249. 76 not as qualifying the ambit of s 27(1)(a) but rather as lim iting the extent to which its implied benefits may be demanded at a given time. 75 In this sense, the resource specification links to the concept of progressive realisation which, by conceding that certain aspects of so cio-economic rights are only capable of realisation over time, limits the ext ent to which they are immediately enforceable. 76 The progressive realisation standard and the resource limitation in s 27(2) accordingly allow courts to approac h the task of ascertaining the State?s compliance with the obligations imposed by s 27(1)(a) realistically and within the context of every specific matter. Howe ver, there remains a real risk, as in international law, that the terms of s 27(2) can be used to def late the content of s 27(1)(a) to such an extent that they strip the right of most of its remedial capacity. This would defeat the intention of the drafters of the Constitution and would diminish the right?s impact on the liv es of those it wa s designed to protect: ?[n]o provision should be interpreted in a way that makes its enforcement practically impossible. If section 27(2) is interpreted to be exhaustive of the State?s positive duties, individual right holders have no direct right to claim anything specific from the state?. 77 It is accordingly necessary to ack nowledge that not all obligations engendered by s 27(1)(a) are rendered unenforceable by the limiting effect of s 27(2). As in international law, greater clar ity on the extent to which obligations engendered by the right of access to health care services survive the limiting effect of the progressive realisation standard and the resource limitation may be gained through considering the extent to which the ?tripartite typology of interdependent duties? finds application in relation to s 27(1)(a) of the Constitution. In line with the Constitu tional Court?s acknowledgment in its First 78 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) at para 78. 79 See Chirwa op cit note 7 at 5-6; Chirwa op cit note 4 at 559; 564; De Vos op cit note 1 at 92-94; 100; Ellmann op cit note 4 at 460-461; Liebenberg (in C haskalson et al) op cit note 4 at 46-48; Sandra Liebenberg ?Sout h Africa?s evolving jurisprudence on socio-economic rights: An effective tool in challenging poverty?? (2002) 6 Law, Democracy & Development 159 at 178; Liebenberg op cit note 2 at 19; 58; Michelman op ci t note 68 at 504; Pieter se op cit note 7 at 26. 80See UNCESCR General Comment 14 op cit not e 3 at paras 34; 50; Chapman op cit note 2 at 46; Chetty op cit note 2 at 453; De Vo s op cit note 1 at 81; De Vos op cit note 72 at 88- 89; De Waal; Currie & Erasmus op cit note 8 at 435; Liebenberg (in Chaskalson et al) op cit note 4 at 28-30; Liebenberg (in Andrews & Ellmann) op cit note 4 at 411-414; 421; Liebenberg op cit note 79 at 163; Pillay op cit note 4 at 54; Pillay op cit note 2 at 67; Richter op cit note 38 at 202; Toebes op cit note 45 at 677. 77 Certification judgment that socio-economic ri ghts may at least negatively be protected against improper invasion, 78 it may be argued that entitlements implied by the obligation to respect s 27(1)(a) should be immediately enforceable against public and private entities notwiths tanding resource availability or the limits inherent to progr essive realisation. 79 Infringements of the obligation to respect s 27(1)(a) would typically o ccur where law or conduct intentionally deprives existing access to or enjoyment of health rights (by, for example, closing existing health care facilities or discontinuing the provision of particular services in State hospitals) or has the effect of denying or obstructing existing access or enjoyment. The obligation could further be infringed by health- harming conduct (such as pollution or the marketing of unsafe pharmaceuticals), by the adoption of deliberately retrogre ssive measures or by non-compliance with the guarantee of equal access to health care services. 80 It may further be argued that the obligation to protect s 27(1)(a) requires that some of the standards inherent in the concept of ?meaningful access? to health care services should be capable of enforcement against third parties without reference to s 27(2). For inst ance, claimants should generally be able to avail themselves of remedies where health care services to which they have had access were not acceptable or of a reasonable quality. The elements of s s 27(1)(a) identified here as being capable of immediate enforcement when read with the domestic recast ing of the ?tripartite typology of interdependent duties? in s 7( 2) of the 1996 Constitution, correspond with certain of the obligations identif ied by UNCESCR as constituting the 81See Maastricht Guideline 8; David Bilchitz ?Placing basic needs at the centre of socio- economic rights jurisprudence? (2003) 4(1) ESR Review 2 at 3; Chapman op cit note 2 at 37; 54; Craven op cit note 69 at 132-133; Currie op cit not e 73 at 56; Pierre De Vos ?The economic and social rights of children and South Africa ?s transitional Constitution? (1995) 10 SA Public Law 233 at 251; De Vos op cit note 1 at 97; Gabriel op cit note 55 at 10; Heyns & Brand op cit note 1 at 160; Liebenberg (in Chaskalson et al) op cit note 4 at 43; Liebenberg op cit note 2 at 41; Russell op cit note 2 at 15; Scott & Alston op cit note 1 at 80-81. 82See Bilchitz op cit note 81 at 3; Bilchitz op cit note 21 at 11; 13. 83 Scott & Alston op cit note 1 at 227. 78 minimum core of the right to health or as being of similar priority. UNCESCR?s list of core and comparable obligations fl owing from the right to health also extends beyond these obligations, to in clude obligations to provide primary health care services, essential reproductive health care services, essential medicines and immunisation against major in fectious diseases. In international law, access to these core amenities is viewed as the immediately enforceable baseline of protection awarded by the right to health, from which the State must progressively facilitate increased enjoym ent of non-core am enities, with the goal of ultimately ensuring full enjoyment thereof. It would be useful to adopt a similar minimum core approach in relation to s 27(1)(a), which would mean that rights to access such core services, together with other, non-core services to which universal access has already been established through progressive realisation, are viewed as immediately enforceable, notwithsta nding the dictates of s 27(2). 81 A minimum core approach to the inte rpretation of s 27(1)(a) would be useful firstly because it would determine a concrete starting point for the process of progressive realisation. 82 Acknowledging that s 27(1)(a) entails a core of claimable entitlements would further enable the right to make a concrete difference to the lives of its beneficia ries and would counter perceptions of socio-economic rights as ?never being c apable of being violated, as constantly receding into the future?. 83 Moreover, a minimum co re approach would affirm the reality that certain socio-economic needs are more vital and urgent than others, and that the immediate satisfaction of the most ur gent and vital of these needs is essential in a society that values and protects human dignity. As David Bilchitz argues: 84 Bilchitz op cit note 21 at 11-12. See al so Liebenberg op cit note 2 at 28-29; Sandra Liebenberg ?The value of human dignity in inte rpreting socio-economic rights? (2005) 21 SAJHR 1 at 15; 18; 22. 85De Waal; Currie & Erasmus op cit note 8 at 451. See also Christianson op cit note 36 at 131. 79 ?There are two important interests that ss 26 and 27 of the Constitution protect. The first is at a minimum the very basic interest people have in survival and the socio-economic goods required to survive. The second is the interest people have in being provided with the conditions that enable them to pursue their own projects and to live a good life by their own lights. The notion of progressive realisation links these two interests: it recognises that what the government is required to do is to provide core services to everyone without delay that meet their survival needs and then qualitatively to increase these services so as ultimately meet the maximal interests that the state is required to protect. Without protecting people?s survival interests, all other interests and rights that they may have - whether civil, political, social or economic - become meaningless. The recognition of a mini mum core of social and economic rights that must be realised without delay attempts to take account of the fact that certain interests are of greater relative importance and require a higher degree of protection than other interests?. 84 Through acknowledging and giving effect to the relative urgency of basic health- related needs by awarding direct claims to their satisfaction, a minimum core approach to s 27(1)(a) would enable the right to connect concretely to the needs and experiences of its subjects by allowing them to demand the immediate satisfaction of the most urgent of the needs it represents. To hold that certain entitlements implied by s 27(1)(a) are capable of being claimed from the Stat e notwithstanding the terms of s 27(2) is not to say that the State would always be forced to deliver relevant goods and services to all without consideration of the circumstances of de livery, even where delivery would entail severe resource implications for the State, would derail the totality of its social reform efforts or would simila rly threaten the interests of justice. It should be remembered that any infringem ent of s 27(1)(a) may nevertheless be justified as amounting to a reasonable and justifiable limitation of the right in terms of s 36 of the Cons titution. Unless a finding that s 27(1)(a) has been infringed is based on a finding that m easures adopted towards its progressive realisation were unreasonable (in which case it may be self-defeating to argue that an unreasonable measure in terms of s 27(2) is never theless reasonable in terms of s 36 85), the possibility therefore rema ins that the State can offer a 86 See Bilchitz op cit note 21 at 17-18; 23; Liebenberg op cit note 2 at 29-31. Insisting on justification for non-compliance with minimum co re obligations in accordance with s 36 seems to accord with the international law standards in relation to non-satisfaction of core interests. See chapter 2 note 66 and accompanying text. 80 satisfactory explanation for non-comp liance with a particular obligation. 86 Furthermore, in the event that such expl anation is not forthcoming, an order that the good or service in question be provided to the claimant is but one of the myriad ways in which a court can choose to remedy the infringement. A finding that a right to receive a minimum core entitlement had been breached would accordingly still result in tangibl e benefit for the beneficiary only in circumstances where non-provision of the benefit cannot objecti vely be justified by the State and where it is appropriate in the circumst ances to order that the claimant be provided with the benefit. (ii) Priority-rights to specific health care services, goods and facilities Apart from the generic right of access to health care services, three further constitutional provisions award distinct entitlements to particular health care services, goods or facilities. Significant ly, not one of these contains an internal modifier subjecting its enforcement to resource availability or progressive realisation. Given this, and in light of the fact that the benefits implied by these provisions relate either to extremely urgent health-related needs or to the health- related needs of particularly vulnerable se ctors of society, it appears reasonable to conclude that these benefits are more readily claimable than those awarded by s 27(1)(a). The first of these provisions, s 27( 3), determines that ?[n]o-one may be refused emergency medical tr eatment?. By virtue of its textual separation from s 27(1)(a) and the strong negative language it employs, it may be argued that s 27(3) operates free from the constrai nts posed by s 27(2). Its unequivocal language and the fact that it identifies no specific duty-bearer further seems to indicate that it will operate horizontally, at least agains t those entities that are able and qualified to render emergency ca re (such as paramedics, emergency 87 On these aspects of s 27(3), see Carstens et al op cit note 55 at 217; Chirwa op cit note 7 at 5; Coomans op cit not e 75 at 170; De Waal; Currie & Erasmus op cit note 8 at 55; 449- 450; De Wet op cit note 44 at 117; Ellmann op ci t note 4 at 460; Heyns & Brand op cit note 1 at 158; Liebenberg op cit note 68 at 357-358; Liebenberg (in Andrews & Ellmann) op cit note 4 at 415; Liebenberg op cit note 79 at 163; DJ McQuoid-Mason & SA Strauss ?Medicine, dentistry, pharmacy and other health professions? in WA Joubert & JA Faris (eds) The Law of South Africa Volume 17 (1 st Reissue, 1999) 129 at 193-194; SAHRC op cit note 49 at 186; Scott & Alston op cit note 1 at 247-248; 251; SA St rauss ?Twee mediese regsvrae: Die aanspreeklikheid van private hospitale met ongevalle-afdelings en die aanspreeklikheid van sportpromotors en skeidsregters teenoor bes eerde spelers? (2000) TSAR 205 at 208-209; Van Bueren op cit note 53 at 505. See further 5.3(c) below. 88On the difficulties of defining a medica l emergency, see Anna-Katarina S Christakis ?Emergency room gatekeeping: A new twist on patient dumping? (1997) Wisconsin LR 295 at 312-315; Erik J Olson ?No room at the inn: A snapshot of an American emergency room? (1994) 46 Stanford LR 449 at 455. 89 See Carstens et al op cit note 55 at 217; Liebenberg op cit note 68 at 358; SAHRC op cit note 49 at 186; Van Bueren op cit note 53 at 504. 90 That non-compliance with s 27(3) requires i mmediate remedial action unless it can be justified in terms of s 36, is argued by Cars tens et al op cit not e 55 at 217; Liebenberg (in Chaskalson et al) op cit note 4 at 37; 42fn1; Liebenberg op cit note 68 at 358; Liebenberg op cit note 79 at 163; Ferdinand Van Oost en ?Financial resources and the pat ient?s right to health care: Myth and reality? (1999) 32 De Jure 1 at 13. 81 services, private hospitals and health care practitioners). 87 The scope of the entitlem ents conferred by s 27( 3) primarily depends on the meaning of ?emergency m edical treatment?. While clearly not applicable to routine preventative, diagnostic and curati ve treatment, treatment for a variety of injuries and other physical or physi ological symptoms (varying from obvious examples like serious injuries sustai ned in motor vehicle accidents to less obvious symptoms such as chest pains possibly indicating imminent cardiac arrest) may be viewed as emergency medical treatment. 88 Where a medical emergency exists, s 27(3) s eems to demand that relevant medical services are available and are adequate to cope with the dem ands of the situation. While not guaranteeing a right to free treatment, s 27(3) further seems to require that treatment be rendered regardless of a patient?s ability to pay. 89 Unless an objectively justifiable reason for non-compliance with the positive obligations imposed by s 27(3) is offered in terms of s 36, 90 non- compliance with such obligations may conceivably be remedied either through an order compelling the State to ma ke adequate emergency medical services available or through an award of prevent ative damages. Given the often severe consequences of non-complianc e with s 27(3) for patient s in need of emergency 91 Argued also by De Wet op cit note 44 at 107; Pillay op cit note 4 at 56. See further SAHRC op cit note 49 at 186. 92 See Bekker op cit note 4 at 16-17; De Vos op cit note 81 at 55-56; De Vos op cit note 1 at 88; De Wet op cit note 44 at 106; Heyn s & Brand op cit note 1 at 161; Willem A Landman & Lesley D Henley ?Rationing and children?s constitutional health-care rights? (2000) 19 SA Journal of Philosophy 41 at 42-43; Pillay op cit note 4 at 55; Paula Proudlock ?Children?s socio- economic rights: Do they have a right to special protection?? (2002) 3(2) ESR Review 6; Geraldine Van Bueren ?Alleviating poverty through the Constitutional Court? (1999) 15 SAJHR 52 at 55-59; Frans Viljoen ?Children?s rights: A response from a South African perspective? in Brand & Russell (eds) op cit note 2, 201 at 203. 93 See De Vos op cit note 1 at 87; ME Klin ck & DA Louw ?A South African perspective on children?s rights: General principles? (2000) 19 Medicine & Law 49 at 56-57; Liebenberg op cit note 79 at 162-163. 94 See De Waal; Currie & Erasmus op cit note 8 at 56 (arguing that these duties are too onerous to be borne by private hospitals); Chri s Sprigman & Michael Osborne ?Du Plessis is not dead: South Africa?s 1996 Constitution and the app lication of the Bill of Rights to private disputes? (1999) 15 SAJHR 25 at 53fn35 (disputing that these duties are inherently incapable of horizontal application). 82 care, it is also necessary that pat ients who were denied emergency treatment are afforded effective ex post facto co mpensatory remedies against relevant health workers, service providers or establishments. Under s 28(1)(c), children have the right to ?basic nutrition, shelter, basic health care services and social services?. Section 28(1)(c) is narrower in scope than s 27(1)(a), since only basic health care services (which, it may be argued, should at least be understood as entailing an entitlement to primary health care services 91 ) are guaranteed. Accordingly, in line with international law, the subsection should be understood as imposing an immediately enforceable obligation upon the State to provide child ren with primary health care services within the broader framework of progressive realisation. 92 Unless non- compliance with this obligation can be just ified under s 36 of the Constitution, an appropriate remedy to correct for t he infringement of s 28(1)(c) may well require children to be provi ded with the treatment they need, notwithstanding the policy or resource-implications of such an order. 93 Whether the obligations implied by s 28(1)(c) are fit for application against the private health ca re sector is contested. 94 Interestingly, significantly less controversy seems to surround the question whether parents, who typically command far less resources than private health care establishments, may be bound by s 28(1)(c). This is becaus e parents already bear limited socio- 95 See Chirwa op cit note 7 at 4; Brigitte Clark ?Children?s right to support - a public responsibility?? (1996) Acta Juridica 82 at 84; Liebenberg (in Chaskalson et al) op cit note 4 at 36; 46; Marius Pieterse ?Reconstructing the private/public dichotom y? The enforcement of children?s constitutional social rights and care entitlements? (2003) TSAR 1 at 7-8. 96 This accords with the position at common la w and international law. See arts 18 and 27 of the CRC; De Vos op cit note 81 at 256; De Vos op cit note 1 at 87-88; De Waal; Currie & Erasmus op cit note 8 at 463; Pieterse op cit not e 95 at 6-9; Scott & Alston op cit note 1 at 230. See further 5.3(d) below. 97 These include the close physical proximit y in which detainees are held and the general conditions in prisons. See De Wet op cit note 44 at 110. 98 De Waal; Currie & Erasmus op cit note 8 at 614. See also De Wet op cit note 44 at 113; John C Mubangizi ?The constitutional rights of prisoners in South Africa: A critical review? (2002) 35 De Jure 42 at 48-49. 83 economic duties towards their childr en under international and common law and because they are well-placed to provide fo r their children?s needs (as indicated by the right of children to ?family care or parental care? in s 28(1)(b)). 95 It may however be argued that the duties of parents in rela tion to their children?s health are no more onerous than those of individuals in relation to their own, meaning that the State should prov ide children with primary health care services where their parents cannot afford to do so. 96 Finally, among a cluster of rights aw arded to detained persons, s 35(2)(e) of the Constitution awards a right ?to conditions of det ention that are consistent with human dignity, including at least ex ercise and the provision, at state expense of adequate ... medical treatment?, w hereas s 35(2)(f)(iv) awards a right to communicate with and be visited by a medical practitioner of the detainee?s choice. Detainees? health interests hav e likely been singled out for protection because of their inability to procure acce ss to medical services for themselves, and because of the various potential heal th hazards posed by incarceration. 97 The extent of the entitlements conferred by s 35(2)(e) depends on what is meant by ?adequate medical treatment ?. De Waal, Currie and Erasmus argue that ?adequacy? of treatment should depend on whether, viewed in conjunction with other circumstances of confinement, the standar d of available treatment contributes to ?conditions of detention t hat are consistent with human dignity?. 98 More concretely, Ngwena suggests that ?adequacy? should be assessed in the context of a particular prisoner?s medi cal condition, the c apacity of detention centres? available health care facilities to provide the medica l treatment required 9 9 Ngwena op cit note 49 at 17-18. 100Rules 22-23 of the UN ?Standard Minimum Rules for the Treatment of Prisoners? (1955). See also rules 24-26. 101De Wet op cit note 44 at 110 argues tha t, given the particular vulnerability of prisoners, ?adequate? treatment mi ght well amount to more than the ?basic? treatment envisaged by s 28(1)(c). 102See De Wet (ibid); Fanyana ka Mdumbe ?Socio-economic rights: Van Biljon versus Soobramoney ? (1998) 13 SA Public Law 460 at 469; Liebenberg (in Chaskalson et al) op cit note 4 at 37; Mubangizi op cit note 15 at 349. 84 by the prisoner, as well as the standard of medical treatment available outside of prisons. 99 According to s 12(1) of the Co rrectional Services Act 111 of 1998, medical facilities in prisons should be aimed at allowing prisoners to lead healthy lives and should focus on providing primary health care, whereas s 12(2)(a) of the Act explicitly excludes cosmetic medical treatment from its conception of ?adequacy?. Further, under the UN Standard Minimum Rules for the Treatment of Prisoners, prisoners should have access to basic medical, dental and psychiatric health services r endered by qualified officials, prisoners requiring specialised treatment should be transferred to facilities which are capable of meeting their needs, and necessa ry pre- and post-natal care should be provided. 100 Accordingly, I would submit that s 35(2)(e) encompasses at least an entitlement to receive primary health care services, 101 non-compliance with which is capable of justification only in terms of s 36 of the Constitution. 102 It may further be argued that s 35(2)(e) ent itles prisoners to have their individual health needs considered in all decisions impacting on the duration, locality and conditions of their detention. 3.3 SUMMARY: THE POTENTIAL OF CONSTITUTIONAL HEALTH RIGHTS TO RENDER TANGIBLE BENEFITS The Bill of Rights in the 1996 Constitu tion empowers individuals and groups to assert a wide range of fully justiciabl e socio-economic rights against the State or private entities. It allows courts to interpret these rights generously, purposively and in accordance with their meaning in international law. It 85 promotes accountability by requiring of respondents to justify any limitation on the enjoyment of a right and allows c ourts to balance individual and societal interests in deciding whether an infringement of a right was justifiable. In the event of an unjustifiable infr ingement, it allows for the granting of effective relief, which amounts to adequate reparation for t he infringement, without losing sight of the demands of justice, equity and appropriateness in the particular circumstances of each case. Several substantive provisions of the Bill of Rights correspond to elements of the health rights package in inte rnational law. Section 12(2) of the Constitution entrenches a variety of health-related freedoms, whereas the equality element of the right to health, in addition to underlying rights of access to care, finds protection under s 9 of the Constitution and under the various legislative enactments that elaborate on its operation. Rights to determinants of health are found throughout the Consti tution, with s 24(a) embodying a right to environmental health and various ot her health-conducive social goods finding protection under ss 26-29 of the Constitu tion. Finally, s 27(1)(a) provides generically for a right to have meaningf ul access to primary, secondary and tertiary health care services of adequate quality, whereas more explicit entitlements to emergency m edical care, basic health care services for children and adequate health care services for detainees are conferred by ss 27(3), 28(1)(c) and 35(2)(e) of the Constitution respectively. Whereas the benefits implied by m any of these rights appear to be immediately enforceable (subject, of cour se, to the provisions of s 36 and the exercise of courts? remedial flexibility) , rights to most det erminants of health as well as the generic right of access to health care services are limited in the extent to which they may i mmediately be claimed. In relation to these rights, s 27(2) of the Constitution determines that the State is obliged to adopt reasonable measures aimed at their progre ssive realisation within its available resources. Nevertheless, I have argued in relation to s 27(1)(a) that at least entitlements associated with the obligation to respect the right as well as with the obligation to ensure equal access to the amenities it implies are capable of 86 immediately being enforced. Furthe rmore, I have suggested that additional minimum core obligations may be inherent in s 27(1)(a) and that non-compliance with these may amount to an infringement of s 27(1)(a), notwithstanding s 27(2). This would not necessarily entail that all relevant treatments or benefits may immediately and without reservation be demanded by all rights-bearers, but rather that infringements of these entitlements should tangibly be remedied unless such a remedy woul d be inappropriate, or the infringement of the right may be justified in terms of s 36 of the Constitution. Overall, the Bill of Rights offers suffi cient protection to the right to health and provides an ideal setting for a study of the extent to which individual benefits may flow from reliance on health rights in litigation. The following chapter assesses reported judgments of South African courts in which health rights have come into play, in an attempt to establish whether the textual potential of health rights has been realised in cases where tangible health- related benefits have been clai med before the courts. 1I refer also to findings concerning rights in ss 26(1) and 27(1)(b) and (c), as well as non- health-related rights in s 28(1)(c) of the Constitu tion. To the extent that entitlements awarded by these provisions are phrased and/or limited in a similar way to health-related rights, courts? approach to these entitlements will likely al so inform their approach to health rights. 86 CHAPTER 4 HEALTH RIGHTS IN THE COURTS 4.1 GENERAL Chapter 3 illustrated the pot ential of health rights in the 1996 Constitution to result in meaningful benefits, by discussi ng the interpretation of constitutional provisions which firstly enable a benefit-focused approach to socio-economic rights and secondly embody the various in terests represented by the right to health in international law. This chapt er is concerned with the manner in which South African courts have thus far dealt with health rights in cases before them. It considers the content that courts have awarded to health rights as well as the limitations to which they have subj ected them, and comments on the manner in which courts? interpretative, evaluative and remedial approaches to health rights impact upon the potential of t hese rights to make a meani ngful difference to the lives of their benficiaries. Of course, socio-economic rights jurisp rudence in South Africa is still in its infancy and there has only been a handful of reported decisio ns at High Court level and above that directly involve health rights. Many of these offer only tentative and exploratory observations on the content and enforcement of the rights concerned and many aspects of heal th rights have thus far received only minimal judicial attention. The empirical basis for conclusions drawn in this chapter is therefore nece ssarily limited. However, when viewed together with judgments on non-health-related socio-economic rights, 1 it is possible to identify aspects of socio-economic rights jurisprudence generally, and of health-rights jurisprudence specifically, that present c ause for concern from a benefit-focused perspective. Section 4.2 below analyses the various reported judgments that involve 21998 (1) SA 745 (CC). 3 2002 (5) SA 721 (CC). 4 Minster of Health v Treatment Action Campaign (No 1) 2002 (5) SA 703 (CC) (? TAC 1 '). 87 constitutional health rights or that are otherwise relevant to their enforcement. It concludes that, while a measure of t angible benefits is indeed resulting from health rights litigation, several as pects of our emerging health rights jurisprudence unduly limit the potential of health rights in this respect. Possible explanations for such unduly limiting aspects are considered in section 4.3. I argue that, while constraints imposed by the separation of powers, the polycentricity of health-related matters and the intricacy of the specialist and complex medical issues that they involve may justify a degree of judicial caution in health rights matters, they do not prec lude courts from directly and tangibly remedying infringements of health rights w here these occur. Accordingly, they do not provide a convincing explanation for courts? hesitance to interpret and enforce health rights in a manner that may render tangible benefits more directly. The chapter concludes by spec ulatively considering other factors that may explain this hesitance. 4 .2 SOUTH AFRICAN HEALTH RIGHTS JURISPRUDENCE FROM A BENEFIT - FOCUSED PERSPECTIVE The Constitutional Court has twice dec ided matters directly involving health rights. In Soobramoney v Minister of Health, KwaZulu Natal 2 (? Soobramoney ?), the Court dismissed an appeal by a chroni cally ill man in need of life-sustaining kidney dialysis to have such treatment provided at state expense. In Minister of Health v Treatment Action Campaign (No 2) 3 (? TAC2 ' ) , the Court confirmed a High Court decision that the government?s policy regulating the availability of a drug used to prevent mother-to-child-t ransmission of HIV did not satisfy constitutional standards and issued an order requiring the drug to be made more widely available. Health rights were further implicated in a procedural matter relating to the Treatment Action Campaign challenge, 4 in an administrative-law 5 Minister of Health v New Clicks South Africa CCT 59/04, judgment of 30 September 2005 (unreported) (? New Clicks ?). 6 2001 (1) SA 46 (CC). 7 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC). 82004 (6) SA 505 (CC). 9 2005 (2) SA 140 (CC). 88 challenge to the validity of regulati ons aimed at making medicines more affordable 5 and in a small number of judgm ents, including the lower court decisions in the above matters, by the High Courts and the Supreme Court of Appeal (SCA). The context within which these health rights decisions must be understood further includes judgments rela ting to other, non-health-related, socio-economic rights, especially that of Government of the Republic of South Africa v Grootboom 6 (? Grootboom ?), an access to housing case in which the Constitutional Court first set out its current approach to socio-economic rights adjudication. Apart from Grootboom , reference will also be made to dicta in the First Certification judgment 7 pertaining to socio-econom ic rights adjudication in general; to the simultaneous vindication of the rights to equality and to have access to social security in Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 8 (? Khosa/Mahlaule ?); to the vindication of the obligation to respect the right of access to housing in Jaftha v Schoeman; Van Rooyen v Stotlz 9 (? Jaftha ?); as well as to assorted lower court judgments involving particular aspects of non-heal th-related, socio-economic rights. Whereas the rights involved in the ma jority of the judgments classified here as non-health-related all represent determinants of health, the rights are not implicated as such in any of the above judgments. Consequently, judicial enforcement of determinants of health is not separately discussed in this chapter. However, conclusions drawn from the discussion of s 27(1)(a) below also apply to claims relating to non-medicinal, health-conducive social amenities. Given further that the health -related freedoms in s 12(2) and the right to an environment that is not harmful to health or we ll-being in s 24(a) have not yet been directly implicated in constituti onal litigation, their vindication will not 10Soobramoney v Minister of Health, KwaZulu Natal 1998 (1) SA 430 (D) (? Soobramoney High Court?) at 437A-D; 439E-440D. 11Soobramoney op cit note 2 at paras 17-21. The C ourt?s findings in relation to s 27(3) are discussed in 4.2(c) below. The socio-econom ic dimensions of t he right to life and its significance for a benefit-focused approach to a ll socio-economic rights is beyond the scope of this dissertation. I have discu ssed the potential of the right to life in this regard and have criticised the manner in which the right to life challenge in Soobramoney was dismissed elsewhere - see Marius Pieterse ?A different shade of red: Socio-econom ic dimensions of the right to life in South Africa? (1999) 15 SAJHR 372-385; also Marius Pieterse ?Possibilities and pitfalls in the domestic enforcement of socio-ec onomic rights: Contemplat ing the South African experience? (2004) 26 Human Rights Quarterly 882 at 899-900. 89 be discussed in this chapter. (a) Decisions concerning the right to have access to health care services The first socio-economic rights matter to reach the Constitutional Court, Soobramoney , involved a challenge by a man in need of life-sustaining renal dialysis to the resource-rationing policy of a State hospital according to which he was excluded from receiving such treatm ent. Due to its limited resources, the hospital could provide dialysis only to a limited number of pati ents. It therefore allowed treatment only for those patients whose conditions could be cured by dialysis, or whose general state of health made them eligible for a kidney transplant. This did not include Mr Soobramoney who, because he would die if he did not receive dialysis, all eged that his exclusion from treatment unjustifiably infringed his rights to life and not to be refused emergency medical treatment. The challenge was dismiss ed by the Durban High Court, which held that Mr Soobramoney?s circumstances did not fall within the ambi t of the right not to be refused emergency medi cal treatment and that hi s right to have access to the relevant health care services was limited by resource scarcity and the competing rights of other patients. 10 On appeal to the C onstitutional Court, the rights to life and not to be refused emer gency medical treatment were held not to be applicable to the matter. 11 Instead, the Court considered whether the rationing policy fell foul of s 27(1)(a). It held that it did not, mainly because it found the policy to have been rationally conceived and implemented in good faith by hospital authorities, which were better placed to take the decision of who 12Soobramoney op cit note 2 at paras 25; 29-30 (per Chaskalson P for the majority); 58 (per Sachs J concurring separately). 13 Ibid paras 11; 17. This aspect of the j udgment is criticised by Frank Michelman ?The Constitution, social rights and reason: A tribute to Etienne Mureinik? (1998) 14 SAJHR 499 at 503-504; Craig Scott & Philip Alston ?Adjudicating constitutional priorities in a transnational context: A comment on Soobramoney ?s legacy and Grootboom ?s promise? (2000) 16 SAJHR 206 at 239. 90 was to receive treatment within prevailing resource constraints. 12 Soobramoney was far from an ideal case for establishing the potential reach of s 27(1)(a). The benefit claim ed by the appellant was to be provided with very expensive tertiary treatment (which would neit her cure nor significantly alleviate his condition, but would merely marginally prolong his life) at State expense, in the face of relatively convincing evidence that providing such treatment fell outside of the State?s financial capacity. It was accordingly to be expected that the appeal would fail. Wi thout therefore taking issue with the outcome of the case, certain aspects of the Court?s engagement with the right to have access to health care services are nevertheless worrying from a benefit- focused perspective. The factual circumstances in Soobramoney explain why the Court engages more with the limits to s 27(1 )(a) than with the content of the entitlements it awards - t he judgment seems to accept that the claimed treatment falls within the meaning of t he concept ?health care services?, but seeks to limit the extent to which the provision of such treatment may immediately be demanded under the provision. Interestingl y, the limitation clause is nowhere invoked for this purpose. Instead, the Court attempts to restrict the extent of the appellant?s entitlement by firstly awar ding a narrow and specific meaning to s 27(1)(a) 13 and secondly by limiting the right through s 27(2). Much seemed to turn on the fact that the State could not afford to provide the requested treatment to the appellant and others in hi s position. The Court was clearly of the opinion that the rele vant authorities were doing the best they could, within their limited re sources, by restricting tr eatment to those who were most likely to benefit from it. Mor eover, it was understandably concerned that second-guessing the rationing decision (impac ted as it were, by financial as well 14 Soobramoney op cit note 2 at para 29. See also Sachs J?s concurring remarks at ibid para 58 (?[t]he provisions of the b ill of rights should furthermore not be interpreted in a way which results in Courts feeling themselves unduly pre ssurised by the fear of gambling with the lives of claimants into ordering hospitals to fu rnish the most expensive and improbable procedures, thereby diverting scarce medical resources and pr ejudicing the claims of others?). See further 4.3(a) below. 15The Soobramoney Court?s narrow and deferent approach to ascertaining resource availability is criticised by Darrel Moellendorf ?Reasoning about resources: Soobramoney and the future of socio-economic rights claims? (1998) 14 SAJHR 327 at 330-332; Charles Ngwena ?The historical development of the South African health-c are system: From privilege to egalitarianism? (2004) 37 De Jure 290 at 309; Jeremy Sarkin ?Health? (1997/8) 8 SA Human Rights Yearbook 97 at 101-02; Scott & Alston op cit not e 13 at 239; 241; Ferdinand Van Oosten ?Financial resources and the pat ient?s right to health care: Myth and reality? (1999) 32 De Jure 1 at 17. See also Christa Van Wyk ?The enforcement of the right of access to health care in the context of HIV/AIDS and its impact on the separation of powers? (2003) 66 THRHR 389 at 396; 398. 16 Sandra Liebenberg ?Socio-economic rights? in Matthew Chaskalson et al (eds) Constitutional Law of South Africa (RS5, 1999) ch 41 at 41; Charles Ngwena ?Access to health care as a fundamental right: The scope and limits of section 27 of the Constitution? (2000) 25(1) Journal for Juridical Science 1 at 7. See further Pierre De Vos ?Pious wishes or directly enforceable human rights?: Social and economic rights in South Africa?s 1996 Constitution? (1997) 13 SAJHR 67 at 97; Moellendorf op cit note 15 at 332; Charles Ngwena & Rebecca Cook ?Rights concerning health? in Danie Brand & Christof Heyns (eds) Socio-economic rights in South 91 as medical considerations) would do more harm than good and would amount to overstepping its institutional boundaries. 14 However, two aspects of the Court? s approach to the limiting effect of resource constraints present cause for concern. The first is that the Court seems too readily to accept the respondent ?s assertion of scarcity without in any meaningful manner inquiring into the accu racy of the assertion or reasons for the alleged scarcity. In particular, the Court may be criticised for apparently regarding the inability of the hospital and provincial health department in question to satisfy the appellant?s claim (due to lack of human, financial and technological resources) as conclusive proof that satisfying the claim was beyond the resource capacity of the State as a whole. 15 This is patently defeatist in that it potentially allows the State to shirk its constitutional responsibilities in relation to the delivery of particular health care services simply by allocating minimal funds for the purpose. Failing to subject government assertions of resource scarcity to meaningful scrutiny allows for the undifferentiated ?tolling of the resource- bell? by the State in every matter where it falls foul of its socio-economic ob ligations, thereby stripping socio-economic rights of much remedial potential. 16 Africa (2005) 107 at 137; Sarkin op cit note 15 at 103; Jeremy Sarkin ?A review of health and human rights after five years of dem ocracy in South Africa? (2000) 19 Medicine & Law 287 at 293. 17 Soobramoney op cit note 2 at para 28. 18Ibid para 31. 19 Ibid para 54. See also para 58. Kevin Il es ?Limiting socio-economic rights: Beyond the internal limitati ons clauses? (2004) 20 SAJHR 448 at 454 criticises this dictum for importing a proportionality inquiry, which typically forms part of a s 36 limitations analysis, into the definition of the ambit of the right. See also Fanyana Ka Mdumbe ?Socio-economic rights: Van Biljon versus Soobramoney ? (1998) 13 SA Public Law 460 at 467. 20Scott & Alston op cit note 13 at 252-253. S ee also ibid 241-245 and, in the context of 92 Second, in justifying the finding that Mr Soobramoney?s claim was untenable in the face of competing i ndividual and societal demands for limited resources, the Court took an overly def eatist stance. Consider the following passages from Chaskalson P?s majority judgment: ?The appellant?s case must be seen in the context of the needs which the health services have to meet, for if treatment has to be provided to the appellant it would also have to be provided to all other persons similarly placed.... If all the persons in South Africa who suffer from chronic renal failure were to be provided with dialysis treatment ... the cost of doing so would make substantial inroads into the health budget. And if this principle were to be applied to all patients claiming access to expensive medical treatment or expensive drugs, the health budget would have to be dramatically increased to the prejudice of other needs which the State has to meet?. 17 ?There are also those who need access to housing, food and water, employment opportunities, and social security.... The State has to manage its limited resources in order to address all these claims. There will be times when this requires it to adopt an holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals within society?. 18 Along similar lines, Sachs J stated in a separate concurring judgment that ?[w]hen rights by their very nature are shared and inter-dependent, striking appropriate balances between the equally valid entitlements or expectations of a multitude of claimants should not be seen as imposing limits on those rights (which would then have to be justified in terms of s 36), but as defining the circumstances in which the rights may most fairly and effectively be enjoyed?. 19 Craig Scott and Philip Alston warn against invoking and endorsing such justifications for restricting the ambit of individual rights to access care, arguing that this could lead to a situation wher e ?[t]he individual is quickly sacrificed to the amorphous general good on this kind of reasoning which, if taken all the way, would preclude virtually any adj udication of a claim to resources as enjoying constitutional priority over other claims?. 20 The idea that a particular the subsequent Grootboom case, David Bilchitz ?Giving socio-economic rights teeth: The minimum core and its importance? (2002) 119 SALJ 484 at 499 (?[c]ollective goals cannot outweigh protections for the most basic interests of individuals?). 21See also Sandra Liebenberg ?South Africa?s evolving jurisprudence on socio-economic rights: An effective tool in challenging poverty?? (2002) 6 Law, Democracy & Development 159 at 187 (remarking that the Court?s approach to so cio-economic rights is di stinguishable from its approach to civil and political rights, where larger societal concerns at most enter the inquiry under the limitation clause, and not in the rights-definition stage). 22Soobramoney op cit note 2 at para 42. 23 Also pointed out by Nomthandazo Ntlama ?Unlocking the future: Monitoring court orders in respect of socio-economic rights? (2005) 68 THRHR 81 at 82fn2. See further 4.3(b) below. 93 claim should be unenforceable merely because other similar claims (or dissimilar claims of equal importance and cost) remain unrealised, is simply at odds with the notion of individual rights. One would be hard pressed to imagine a court similarly rendering a claim based on a civil or political right contingent upon whether the State could satisfy all si milar claims and could meet all its other constitutional obligations towards society at large. 21 Indeed, there are indications in Soobramoney that the Court does not view s 27(1)(a) as embodying a fully-f ledged right at all. In a separate concurring judgment, Madala J stated: ?The Constitution is forward-looking and guarantees to every citizen fundamental rights in such a manner that the ordinary person-in-the-street, who is aware of these guarantees, immediately claims them without further ado - and assumes that every right so guaranteed is available to him or her on demand. Some rights in the Constitution are the ideal and something to be strived for. They amount to a promis e, in some cases, and an indication of what a democratic society aiming to salvage lost dignity, freedom and equality should embark upon?. 22 While this remark was not explicitly endorsed by the majority of the Court, it reveals an ideological discomfort wit h viewing socio-economic rights as embodying immediately enforceable individual claims, 23 which could significantly hinder the potential of soci o-economic rights to render tangible benefits for those who rely on them in litigation. This discomfort influenced the Court?s subsequent development of a coherent approach to socio-ec onomic rights adjudication in Grootboom , where it was at pains to emphas ise that the right to hav e access to adequate housing 24 Grootboom op cit note 6 at para 95. 25Ibid para 32. The Grootboom approach to minimum core has been criticised for misunderstanding the concept and ov erstating its complexity, for failing to recognise the universality of basic subsistenc e needs and for not insisting that the State prioritise satisfying the primal needs of vulnerable se ctors of society. See Bilchi tz op cit note 20 at 487-489; Pierre De Vos ?Substantive Equality after Grootboom : The emergence of soci al and economic context as a guiding value in equality jurisprudence? (2001) Acta Juridica 52 at 58; Liebenberg op cit note 21 at 174; Theunis Roux ?Understanding Grootboom - A Response to Cass R Sunstein? (2002) 12(2) Constitutional Forum 41 at 48; 51. 26 Grootboom op cit note 6 at para 33. 27 Ibid para 83 (?[t]he proposition that rights are interrelated and are all equally important is not merely a theoretical postulate. The concept has imm ense human and practical significance in a society founded on human digni ty, equality and freedom. It is fundamental to the evaluation of the reasonableness of State action that account be taken of the inherent dignity of human beings. The Constitution will be wort h infinitely less than its paper if the reasonableness of State action concerned with housing is dete rmined without regard to the fundamental constitutional value of human dignity?). 94 did not entitle people ?to claim shelter or housi ng immediately on demand?. 24 In dismissing the amici?s assertion that s 26(1) of the Constitution embodied an immediately enforceable minimum core obligation, the Court found that determining the content of such an obli gation was overly complex and would be impossible without ?having the requi site information on the needs and the opportunities for the enjoyment of this right?. 25 Instead, the Court held that the ?real question? in terms of the Constitu tion was whether the current State policy in relation to housing delivery was reasonable under s 26(2), 26 hence shifting the focus of its inquiry to the internal limitation on the right. According to the Grootboom Court, an inquiry into the reasonableness of State measures must have regard to the value of human dignity. 27 Reasonableness of socio-economic measures should be assessed on a case- by-case basis and depends on the context of the litigation, the broader social, economic and historical context and the cont ext of the Bill of Rights as a whole. Reasonableness of measures depends not onl y on their content, but also on their implementation. Measures must be aimed at the effective and expeditious progressive realisation of a particular ri ght, within the State?s means. In addition to the financial resources ava ilable, the capacity of rele vant State institutions to implement measures should also be taken into account. Measures must further be comprehensive, coherent, balanced and fl exible, must be adequate to satisfy the obligations posed by the relevant right, should clearly set out the 28Ibid paras 39-44. See also paras 46; 66; 68; 82. 29 Ibid para 69. 95 responsibilities of different spheres of government and must ensure that appropriate resources are available for their implementation. Measures may further not exclude a significant segm ent of society, must plan, budget and monitor the fulfillment of immedi ate needs and the management of crisis situations, and must cater for the urgent needs of the most vulnerable sectors of society. Courts should also be infl uenced by the extent to which the exercise of the right in question is being impeded in a particular case. 28 The nationwide housing programme evaluated for reasonableness in Grootboom was held to fall short of the standar d, particularly because it did not cater for the emergency needs of vulnerable groups. 29 A declaratory order to this effect was issued, with the impli ed demand that government adjust its policy in order to conform to the dictates of reasonableness. While the Court?s elevation of one of the terms in the s 26(2) internal limitation to the central yardstick fo r measuring compliance with the State?s obligations in Grootboom might have seemed curious, it became clear in the subsequent TAC2 that the Court not only viewed ? Grootboom reasonableness? as equally applicable to the right to have access to health care services, but that it considered the State?s obligation to adopt reasonable measures in the quest for progressive realisation of socio-econom ic rights to be the primary (if not sole) justiciable obligation generated by s 27(1)(a) of the Constitution. In TAC2 , the amici contended for an interpretation of s 27(1)(a) that reflected a minimum core obligation inherent in the right. Since the drug Nevirapine (the provision of which was central to the TAC2 challenge) appeared on the WHO?s list of essential drugs (which, according to UNCESCR General Comment 14, should be provided as part of the minimum core of the right to health), a minimum core approach to s 27(1)(a) would have entailed elevating the provision of Nevirapine above the dict ates of s 27(2) of the Constitution and would accordingly have required its ava ilability in the public sector (unless, presumably, its non-availability could be justified under s 36). The Court 30 TAC2 op cit note 3 at para 29. 31 Ibid para 35. See also para 34 ('the socio- economic rights of the Constitution should not be construed as entitling ev eryone that the minimum core be provided to them?). 32 Ibid paras 37-38. 33 Ibid para 39. See also paras 31-32. 96 emphatically dismissed this argument, char acterising it as implying that ss 27(1) and (2) would always engender separate obligations. 30 According to the Court, a purposive approach to s 27 precluded a finding that s 27(1)(a) imposed any minimum core obligation. It stated: ?It is impossible to give everyone access even to a ?core? service immediately. All that is possible, and all that can be expected of the state, is that it act reasonably to provide access to the socio-economic rights identified in sections 26 and 27 on a progressive basis?. 31 The Court went on to hold t hat courts were not instit utionally equipped to ?make the wide-ranging factual and political enqui ries necessary for determining what the minimum-core standards ... should be?, si nce this would have ?multiple social and economic consequences for the community?. 32 Finally, the Court indicated that s 27(1)(a) should never fulf ill more than a definitional role: ?section 27(1) of the Constitution does not give rise to a self-standing and independent positive right enforceable irre spective of the considerations mentioned in section 27(2). Sections 27(1) and 27(2) must be read together as defining the scope of the positive rights that everyone has and the corresponding obligations on the state to ?respect, protect, promote and fulfill? such right. The rights conferred by sections 26(1) and 27(1) are to have ?access? to the services that the state is obliged to provide in terms of sections 26(2) and 27(2)?. 33 Instead of attempting to award discernible and claimable content to s 27(1)(a), the T A C 2 Court followed the Grootboom reasonableness inquiry in relation to s 27. The Court reiterated t hat the extent of the rights-violation in question must influence the reasonableness inquiry, and again emphasised that the reasonableness standard required of measures to be coherent, balanced and flexible, and not to exclude already vulnerable members of society. Regarding the latter requirement, the TAC2 Court added that inability to afford treatment is considered indicative of such vulnerability. The Court further seemed to add an additional requirement that measures should be transparent 3 4 Ibid paras 68; 70; 123. On the additional requirement of transparency, see also Liebenberg op cit note 21 at 184. 35 T A C 2 (ibid) at paras 80; 95. The T A C High Court held that t he State?s programme was unreasonable because it was ?open-ended and leaves ev erything for the future? and thus could not ?be said to be coherent, progressive and purposeful?. Treatment Action Campaign v Minister of Health 2002 (4) BCLR 356 (T) (? T A C High Court?) at 385F-G. 3 6 TAC2 (ibid) at paras 49; 72-73; 120. For a general discussion of the application of the Grootboom reasonableness standard in TAC2 , see Sibonile Khoza ?Reducing mother-to-child transmission of HIV: The Ne virapine case? (2002) 3(2) ESR Review 2 at 4-5. 37 TAC2 (ibid) at para 135. See also paras 64; 69; 71; 95. 38 Ibid para 125. 39 Remarked also by Danie Brand ?The proc eduralisation of South African socio- economic rights jurisprudence, or ?what are soci o-economic rights for??? in Henk Botha et al (eds) Rights and Democracy in a Transformative Constitution (2003) 33 at 46; Pierre De Vos ?So 97 in order to satisfy the dictates of reasonableness. 34 The Court found that the governm ent policy according to which Nevirapine could not be administered in t he public health care sector except at certain designated ?research and training sites? (regardless of whether the capacity to administer it existed el sewhere) failed the requirement of reasonableness primarily due to its rigidity and inflexibility. 35 Other factors influencing the finding of unreasonableness were the negligible cost of administering the drug, that its safety and efficacy was beyond question, that the procedure for administering it was simple and that funds to expand its provision outside of designated sites were available. 36 The Court accordingly ordered the government to take r easonable measures to remove restrictions on administering the drug in instances w here this was medically indicated and where the capacity to do so existed, to ?permit and facilitate? the use of the drug in these circumstances, to make it available for this purpose and to take reasonable measures to extend HIV testi ng and counseling facilities at public hospitals which still lacked the capacity to administer the drug. 37 Despite the far- reaching terms of this order and despite viewing universal access to Nevirapine as a goal that needed to be accomplished as soon as possible, the Court was still at pains to point out that its finding of unreas onableness ?does not mean that everyone can immediately claim access to such treatment?. 38 In TAC2 , the Constitutional Court clear ly distanced itself from an approach to the right of access to health care services that entails the recognition of enforceable individual claims. 39 Instead, it opted for an essentially much to do, so little done: The right of access to anti-retroviral drugs post- Grootboom ? (2003) 7 Law, Democracy & Development 83 at 89; Liebenberg op cit note 21 at 187. 40 See for instance S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC) at para 37 (Court assumes that s 26(1) of the interim Constitution can be infringed separately from s 26(2), implying that such violation would requi re justification under s 33 of the interim Constitution); Christian Education South Afri ca v Minister of Education 2000 (4) SA 757 (CC) at para 27 (Court assumes violation of s 31 of t he 1996 Constitution without any consideration of s 31(2), and continues to conduct a limitations analysis under s 36); Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC) at paras 32-34 (Court holds explicitly that limitations on expression which fall outside of the restriction on freedom of expression in s 16(2) of the 1996 Constitution need to be justified under s 36, accordingly that s 16(1) is capable of independent violation). 41 Bilchitz op cit note 20 at 496. 98 procedural inquiry into the reasonableness of measures taken in pursuit of the progressive realisation of the ri ght. Its unwillingness to acknowledge an enforceable individual right flowing fr om s 27(1)(a) appears to betray the constitutional text (which clearly separ ates the right in s 27(1)(a) from the qualifiers to the positive obligations it imposes in s 27(2)), to contradict the Court?s interpretative approach to all other internal lim itations in the Constitution40 and to reinforce the dichotom y between socio-economic and civil and political rights (which the Court has consistently interpreted as conferring enforceable individual entitlements). Opting for reasonableness as an alternative to a rights-bas ed approach also lacks textual support, since it seems clear from the wording of s 27(2) that the reasonableness standard was intended to prescribe the content of measur es adopted in pursuit of progressively realising the right, rather than to substi tute an inquiry into the meaning of the right itself or into the implications of the progressive realisation standard or the resource specification. 41 In light of its own objections to reading s 27(1)(a) independently from s 27(2), it is ironic t hat the Court has inversely severed a single requirement in s 27(2) from the remainder of s 27. Indeed, the Court?s approac h has allowed it altogether to avoid engaging with the ambit and scope of s 27(1)(a). While TAC2 seems to accept that provision of Nevirapine legitimately fa lls within the ambit of s 27(1)(a), the judgment nowhere explicitly engages with the many interpretative issues raised by the phrase ?access to health care serv ices?. Hence there is no indication as to when there is considered to be access to health care services, the kind of 42 Lamented also by David Bilchitz ?Placing bas ic needs at the cent re of socio-economic rights jurisprudence? (2003) 4(1) ESR Review 2 at 3; David Bilchi tz ?Towards a reasonable approach to the minimum core: Laying the f oundations for future socio-economic rights jurisprudence? (2003) 19 SAJHR 1 at 6; 8; 10; Brand op cit not e 39 at 45-46; Iles op cit note 19 at 454. 43 Grootboom op cit note 6 at paras 46; 94. 4 4 The affordability of Nevirapine is given significant weight in the T A C reasonableness inquiry. See TAC2 op cit note 3 at paras 48-49; 71; 89; 120; 125; T A C High Court op cit note 35 at 386C-G. See further remarks of Liebenber g op cit note 21 at 173; Van Wyk op cit note 15 at 401; Murray Wesson ? Grootboom and beyond: Reassessing the socio-economic jurisprudence of the South African Constitutional Court? (2004) 20 SAJHR 284 at 296. 45 See Fons Coomans ?Reviewing implementat ion of social and economic rights: An assessment of the ?reasonableness? test as devel oped by the South African Constitutional Court? (2005) 65 Heidelberg J of International Law 167 at 190-191; Sandra Liebenberg ?The right to social assistance: The implications of Grootboom for policy reform in South Africa? (2001) 17 SAJHR 232 at 255; Liebenberg op cit note 21 at 179. 99 services to which access may be claimed, the levels at which such services must be provided or the quality standards to which such services should adhere. Similarly, TAC2 nowhere clearly articulates the ob ligations that the State incurs in relation to these and other aspects of the right. 42 Grootboom reasonableness further precludes meaningful engagement with the other standards contained in s 27(2), with both the progressive realisation standard and the resource spec ification functioning only as non- specific indicators of reasonableness. 43 For instance, while it is clear from both Grootboom and TAC2 that the affordability of a par ticular social good is central to whether or not the non-provis ion of that good will be regarded as reasonable, 44 neither judgment gives any indica tion of the degree of scrutiny to which assertions of resource scarcity should be subjected, or of the manner in which resource-availability should be assessed. 45 Declining to ascertain the ambit and scope of the entitlements conferred by rights also precludes meaningful engagem ent with their limits. In particular, confining the inquiry into compliance wit h the obligations imposed by s 27(1)(a) to the reasonableness of measures in terms of s 27(2) seems to preclude (or at least significantly to complicate) engagem ent with the limiting effect of s 36. This is because a finding of unreas onableness under s 27(2) appears to exclude the possibility of holding that measures which limit a particular entitlement conferred by s 27(1)(a) are neverthele ss reasonable and justifiable in terms of 4 6 Johan De Waal; Iain Currie & Gerhard Erasmus The Bill of Rights Handbook ( 4 th ed 2001) at 451; Iles op cit note 19 at 451-452; Marius Pieterse ?Towar ds a useful role for section 36 of the Constitution in social rights cases? Residents of Bon Vista Mansions v Southern Metropolitan Local Council ? (2003) 120 SALJ 41 at 43. The anomalies caused by the duplication of the reasonableness standard in ss 27(2) and 36 were acknowledged by the Constitutional Court in Khoza/Mahlaule op cit note 8 at paras 83 (per Mo kgoro J for the majority); 105 (per Ngcobo J partially dissenting). 47 Iles op cit note 19 at 464; Sandra Liebenberg ?V iolations of socio-economic rights: The role of the South African Human Rights Commission? in Penelope Andrews & Stephen Ellmann (eds) The Post Apartheid Constitutions: Pers pectives on South Africa?s Basic Law (2001) 405 at 424; Pieterse op cit note 46 at 47. See however M Geldenhuys ?The rights to health care and housing: Some aspects of constitutional interpretation? (2005) 17 SA Mercantile LJ 182 at 185- 187 (arguing that the Court?s approach to reas onableness contains elem ents of a limitations inquiry in terms of s 36). A detailed compar ison of the standards of scrutiny envisaged by ss 27(2) and 36 is beyond the scope of this dissertation. It may how ever be accepted that the s 36 standard is more stringent. See Iles (ibi d) at 456-457; Theunis Roux ?Legitimating Transformation: Political Resource Allocation in the South African Constitutional Court? (2003) 10 Democratization 92 at 97. 100 s 36(1). 46 This is unfortunate from a benefit-focused perspective, since courts will understandably be loath to award meaningful content to s 27(1)(a) if doing so will always create an entitlement inc apable of limitation. Excluding the application of s 36 from socio-economic rights matters further means that relevant policies may never be subjec ted to the additional scrutiny envisaged by the standards of justifi ablility and proportionality cont ained in s 36(1) and will accordingly always pass constitutional must er if they satisfy the (arguably more lenient) standard of reasonableness. 47 Non-application of s 36 to socio-econom ic rights matters also appears to preclude courts from following the ?two -stage? approach of adjudication when ascertaining whether there has been an in fringement of s 27(1)(a). Indeed, Grootboom reasonableness focuses neither on the interpretation of the content of the right in question nor on the limits to which it may be subjected (as would be the case under the ?two-stage approach?). Instead, it is concerned only with the internal limitation to s 27(1)(a), wh ich would ordinarily be considered as part of the first stage of adjudication. As Sandra Liebenberg indicates, this has the unfortunate consequence of placing an unfairly onerous burden of proof on applicants, who have to show that government measures aimed at the progressive realisation of s 27(1)(a) are unreasonable in terms of s 27(2). This would require them to review and ev aluate a wide range of complex budgetary 48 The nature of this burden of proof and its unfair ramifications for applicants in socio- economic rights matters is discussed by Liebenberg op cit note 21 at 188; Sandra Liebenberg ?The interpretation of socio-economic rights? in Stuart Woolman (ed) Constitutional Law of South Africa (2ed; 2003) ch 33 at 30; Sandra Liebenberg ?Basic rights claims: How responsive is reasonableness review?? (2004) 5(5) ESR Review 7 at 10; Sandra Liebenberg ?The value of human dignity in interpreting socio-economic rights? (2005) 21 SAJHR 1 at 22-23. See also Iles op cit note 19 at 464. 4 9 See Chrystal Chetty ?The right to health ca re services: Interpreting section 27 of the Constitution? (2002) 17 SA Public Law 453 at 455; Danwood Mzikenge Ch irwa ?Non-state actors? responsibility for socio-economic ri ghts: The nature of their obli gations under the South African Constitution? (2002) 3(3) ESR Review 2 at 5; and also remarks of Stephen Ellmann ?A constitutional confluence: American ?State-act ion? law and the applicat ion of South Africa?s socio-economic rights guarantees to private actors? in Andrews & Ellmann op cit note 47, 4 4 4 at 461; Liebenberg op cit note 16 at 45; Mic helman op cit note 13 at 504; John C Mubangizi ?Public health, the South Arican Bill of Ri ghts and the socio-econom ic polemic? (2002) TSAR 343 at 345; Marius Pieterse ?Beyond the welfare state: Gl obalization of neo-liberal culture and the constitutional protection of social and ec onomic rights in South Africa? (2003) 14 Stellenbosch LR 3 at 26. 50Bilchitz ( SAJHR ) op cit note 42 at 8-10. See also Bilchitz op cit note 20 at 496-499; Bilchitz ( ESR ) op cit note 42 at 3; Marius Pieterse ?Coming to terms with judicial enforcement of socio-economic rights? (2004) 20 SAJHR 383 at 407. 101 and policy processes, which would in turn require them to have access to complex and specialist information which is typically only available to the State. Many claimants would be simply incapabl e of coping with the various logistical demands associated with satisfying th is onus which, under the two-stage approach, would instead hav e rested with the State. 48 Furthermore, the Court?s exclusive focu s on s 27(2) serves to obscure the horizontal elements of s 27(1)(a), si nce it complicates the process of distinguishing obligations capable of hor izontal application fr om the (seemingly exclusively vertical) obligations cont ained in s 27(2). While the obligations detailed in s 27(2) are pr obably too onerous to bind priv ate entities, a denial that s 27(1)(a) also entails obligations bey ond those listed in s 27(2) means that many of the interests served by the right to have access to health care services are left without adequate protection in many of the settings where they are most often threatened. 49 Overall, when applied without reference to the content of the right it is meant to qualify, the reasonableness standard becom es ad hoc, amorphous and incapable of addressing the substantive c oncerns that arise when social policy measures are challenged. 50 Moreover, divorcing the focus of the reasonableness inquiry from the right to which it relates in this manner, strips the 51Iain Currie ?Bill of Rights jurisprudence? (2002) Annual Survey of SA Law 36 at 72. For similar characterisations of the Court? s approach see, for example, Bilchitz ( ESR ) op cit note 42 at 2; Bilchitz ( SAJHR ) op cit note 42 at 10; Brand op cit note 39 at 36-37; 39; 49; Chetty op cit note 49 at 461; Coomans op cit not e 45 at 188; Pierre De Vos ? Grootboom , the right of access to housing and substantive equality as contextual fairness? (2001) 17 SAJHR 258 at 271; Heinz Klug ?Access to health care: Judging impl ementation in the context of AIDS: Treatment Action Campaign v Minister of Health ? (2002) 18 SAJHR 114 at 115; Heinz Klug ?Five years on: How relevant is the Constitution to the new South Africa? (2002) 26 Vermont LR 803 at 807-808; Liebenberg op cit note 21 at 176; Dwight G Newman ?Institutional monitoring of social and economic rights: A South African case study and a new research agenda? (2003) 19 SAJHR 189 at 196; Pieterse op cit note 11 at 898; Roux op cit note 25 at 46; Andre van der Walt ?A South African reading of Frank Michelman? s theory of social justice? in Botha et al op cit note 39, 163 at 200. Indeed, in Grootboom op cit note 6 at para 83, the Cour t stated: ?Section 26, read in the context of the Bill of Rights as a whole, must mean that the respondents have the right to reasonable action by the State in all circumst ances and with particular regard to human dignity?. 52Currie op cit note 51 at 72. It is for this reason that Grootboom reasonableness is sometimes described as approximating an administrat ive law inquiry (see, for example, Bilchitz op cit note 20 at 495; Cass R Sunstein ?Social and economic rights? Lessons from South Africa? (2001) 12 Constitutional Forum 123). The claim is not (as Wesson op cit note 44 at 289-293 assumes) that Grootboom reasonableness is identical to any particular standard in administrative law, but rather that the benefits flowing from application of the standard appear to be similarly confined. 53 See Brand op cit note 39 at 49-50; De Vos op cit note 39 at 90; Liebenberg op cit note 21 at 176; Roux op cit note 25 at 46; Wesson op cit note 44 at 293; 295; 297. This appears especially from Khosa/Mahlaule op cit note 8. 102 right of meaningful content. As Iain Currie observes: ?The trouble is that interpreting the rights in the way the Constitutional Court has done leaves them empty. They are not a right to anything of substance, only to reasonableness in the formulation and carrying out of whatever measures the state has decided to adopt. Reasonableness is no more than a relational standard - ends measured against means. It is not an obligation to provide something. Read in this way, the socio-economic rights are not a right to, say, a roof over your head or anti-retroviral drugs, but only to have evaluated the reasonableness of a decision to provide or not to provide these things?. 51 In affirming only the exist ence of a right to have m easures aimed at addressing health-related concerns in place and to have such measures evaluated for their adherence to principles of good governance, the extent of the entitlements conferred by Grootboom reasonableness appear identical to those implied by the right to reasonable and procedurally fair administrative acti on in s 33 of the Constitution. 52 Apart from this, Grootboom reasonableness seems at most to award a relatively weak claim for incl usion in the ambit of policy aimed at satisfying health needs generally, which could in any event be claimed under s 9(1) of the Constitution, 53 or indeed under common law principles of administrative law (which, even in the pre-Constitutional er a, could be used to 54 This is illustrated by Applicant v Administrator Transvaal 1993 (4) SA 733 (W), where an HIV-positive patient successfu lly challenged an administrative decision by a State hospital not to provide him with a particular drug. 55See Bilchitz op cit note 20 at 499; Bilchitz ( ESR ) op cit note 42 at 3-4; Brand op cit note 39 at 36-37; 49; 55; Chetty op cit note 49 at 455; Pieterse op cit note 50 at 407; Van der Walt op cit note 51 at 200. 56 Acknowledged by Bilchitz ( SAJHR ) op cit note 42 at 1; Coomans op cit note 45 at 168; 181; 186; Liebenberg op cit note 45 at 250; Liebenberg op cit note 21 at 178; 190. 57 See Coomans op cit note 45 at 188; 195; Liebenberg op cit note 21 at 176; Liebenberg (2003) op cit note 48 at 30; Pi eterse op cit note 11 at 896. 103 obtain access to treatment from which a patient was arbitrarily or irrationally excluded, or where a legiti mate expectation was created that she would receive such treatment). 54 This makes apparent nonsense of s 27's separate inclusion as a justiciable right in the Bill of Rights. In focusing on the coherence, rationa lity, inclusiveness and flexibility of legislative or policy measures, instead of on the alleviation of the concrete consequences of socio-economic deprivation, Grootboom reasonableness has rendered the material needs of socio-economic rights? subjects extraneous to the inquiry into constitutional complianc e with socio-economic obligations. 55 This inquiry neither concerns itself with evaluating the urgency of applicants? needs (unlike, for instance, a minimum co re approach to socio-economic rights adjudication), nor necessarily demands their satisfaction. The beneficiaries of socio-economic rights stand to gain virtually no tangible benefit from the outcome of an inquiry into the adherence of law or policy to essentially procedural standards. Part of the reason for this is that the only remedy practically allowed for by a finding that law or policy has failed to comply with Grootboom reasonableness, appears to be an order declaring the extent of such non-compliance and calling for the law or policy to be modified in order to adhere to the standard. Whereas the adherence of health care policy to the dictates of Grootboom reasonableness will no doubt have positive consequences for the progressive rea lisation of s 27(1)(a) generally and whereas Grootboom reasonableness accordingly fulfills a valuable ?directive principle function?, 56 such an order will more often than not be of little use to people in urgent need of access to particu lar health care goods, facilities or services, whose needs will remain unsatisfied. 57 This is further exacerbated by 58Dennis Davis ?Socio-economic rights in Sout h Africa: The record of the Constitutional Court after ten years? (2004) 5(5) ESR Review 3 at 6. See also Mia Swart ?Left out in the cold? Crafting constitutional remedies fo r the poorest of the poor? (2005) 21 SAJHR 215 at 218. Grootboom , for instance, did not result in an alleviation of the respondents? housing need, despite their successful challenge. 59 De Vos op cit note 51 at 266; 270-272; Liebenberg (2005) op cit note 48 at 22; Liebenberg (2004) op cit note 48 at 9; Sandra Liebenberg & Michelle O?Sullivan ?South Africa?s new equality legislation: A tool for advanc ing women?s socio-economic equality?? (2001) Acta Juridica 70 at 76. For instance, Sachs J found in New Clicks op cit note at 5 paras 650-656 that regulations aimed at making medicines more a ffordable, despite being aimed at progressively realising the s 27(1)(a) right, were not reasonable because they failed to take into account the special needs served by and obstacles faced by rural pharmacies. 104 the Constitutional Court?s apparent relu ctance to enforce compliance with the orders it has issued in Grootboom and TAC2 (through, for instance, combining its declaratory orders with structural inte rdicts), the result of which has been that ?litigants have won cases and government has done little to produce the tangible benefits that these litigant s were entitled to expect from their success?. 58 Accordingly, it would seem that, des pite its ostensible concern for the protection and safeguardi ng of human dignity, t he manner in which Grootboom reasonableness depicts the entitlements conf erred by the socio-economic rights in the 1996 Constitution serves to strip the rights of much of their remedial potential. Whereas Grootboom reasonableness is potentially useful as an indicator of State compliance with t he obligation to adopt reasonable measures in terms of s 27(2), 59 it becomes problem atic when viewed as representative of the totality of entitlement s implied by the socio-economic rights in the 1996 Constitution. This is simply because a procedural standard such as reasonableness, by its very nature, c annot and should not fulfill a substantive role by masquerading as a human right. As long as the Constitutional Court insists on depicting the obligation of r easonableness in s 27(2) as exhaustive of the entitlements implied by s 27(1)(a), the right to have access to health care services will fail effectively to confr ont denial of the needs it represents. It may therefore be tempting to c onclude that s 27(1)(a) has become merely another example of rights discour se?s inability to bring about meaningful social change and that, as the skeptics predicted, the inclusion of justiciable socio-economic rights in the 1996 Consti tution clearly demanded more of South African courts than they were capable of delivering. But such a conclusion 60 Liebenberg op cit note 21 at 180; Liebenberg (2005) op cit note 48 at 29; Pieterse op cit note 11 at 895; Wesson op cit note 44 at 296. 61 Grootboom op cit note 6 at para 68. 105 would not only be premature (being based, after all, on only three judgments), it would also ignore the fact that the effect of applying Grootboom reasonableness in T AC2 has been that many women who were previously denied access to Nevirapine can now acce ss the drug. By improving access to the drug, TAC2 did result in a measure of tangible benefit for rights-bearers, notwithstanding the Court?s reluctance to depict such benefits as flowing from an enforceable right. 60 The problem is that the procedural nature of the reasonableness standard obscures the jurisprudential basis for this welcome result, which is depicted by the TAC2 Court as incidentally flowing from application of the standard rather than fr om a discernible notion of individual entitlement. Chapter 5 below will further probe the TAC2 decision and order in an attempt to uncover this basis. Moreover, there are suggestions in Grootboom and TAC2 , supplemented by indications from Constitutional Court judgments subsequent to TAC2 , that there may well be enforceable obligations lurking in socio-economic rights, notwithstanding the limits of Grootboom reasonableness. When these indications are considered together with a number of Hi gh Court judgments where the ambit and scope of s 27(1)(a) were not made exclusively contingent on the confines of Grootboom reasonableness, it becomes possible to identify elements of s 27(1)(a) that may yet, ev en on the Court?s cu rrent restrictive approach to the adjudication of socio-ec onomic rights, render some of the tangible benefits they promise. For instance, the Grootboom Court?s determination tha t, in order to satisfy the dictates of reasonablene ss, policy measures must recognise ?the obligation to meet immediate needs? and should ? ensure that a significant number of desperate people in need are afforded relief, though not all of them need receive it immediately?, 61 presents the standard?s strongest acknowledgment of need and stops just short of actually conferri ng an enforceable right to (albeit undefined) 62 See De Vos op cit note 51 at 266; 270-272; Liebenberg op cit note 21 at 172; 175; Van der Walt op cit note 51 at 202-203. 63 Roux op cit note 25 at 47; 49. See also B ilchitz op cit note 20 at 498; De Vos op cit note 25 at 58. 64 De Vos op cit note 51 at 267 further suggests that this aspect of Grootboom reasonableness is permeated with the value of s ubstantive equality, and approximates an inquiry into the impact of unfair discrimination in equality cases. 65 TAC2 op cit note 3 at paras 70; 125. 66 Khoza/Mahlaule op cit note 8 at paras 53; 82; 85; 89 (per Mokgoro J). 67 Ibid paras 42-43; 47; 49. See critical remarks of Iles op cit note 19 at 452. 106 relief in emergency situations. 62 Furthermore, while it is true that to insist that policy does not ignore the needs of vulnerable groups does not in it self confer any tangible benefits on them, 63 the benefit of inclusion in the ambit of social policies that Grootboom reasonableness seemingly confers on vul nerable sectors of society, appears to correspond to that implied by the presence of the word ?everyone? in s 27(1)(a) and to the prohibition of irrational di fferentiation under s 9(1) and of unfair discrimination under s 9(3). 6 4 These links were seemingly affirmed by TAC2 which, in addition to indicating that the Grootboom benefit of ?policy-inclusion? extended to financially vulnerable groups (and accordingly that health policy may not ignore the needs of those who cannot afford to pay for treatment), held that restricting the provis ion of Nevirapine to desi gnated sites was unreasonable because it excluded people who could reasonably have been included in the ambit of the policy. 65 The outcome of TAC2 further suggests that there are circumstances in which inclusion withi n the ambit of a policy will also entail sharing in the tangible benefit s conferred by the policy. More explicitly, the majority of t he Constitutional Court in the subsequent Khosa/Mahlaule case found that the arbitr ary and unfairly discriminatory exclusion of foreigners from social secu rity benefits conferred by legislation fell foul of Grootboom reasonableness. The Court a ccordingly ordered the reading of words into the legislati on that would explicitly ext end the benefits also to the applicants. 66 While acknowledging that equality of access to social goods is implied by the word ?everyone? in s 27(1), the majority (per Mokgoro J) nevertheless refused to adopt a sever ed reading of ss 27(1) and (2), instead conducting a reasonableness inquiry under s 27(2). 67 Ngcobo J?s minority 68 Khoza/Mahlaule (ibid) at paras 111-112; 134-136 (per Ngcobo J). 69 Grootboom op cit note 6 at paras 35-36. 70 Pharmaceutical Society of South Africa v Tshabalala-Msimang; New Clicks South Africa v Minister of Health 2005 (3) SA 238 (SCA) at paras 42; 53; 77. 71 New Clicks op cit note 5 at para 706. 107 judgment, however, adopted a different app roach, locating the infringement in the ?everyone? standard in s 27(1) and pr oceeding to hold that the exclusion of non-citizens from certain ( but not all) of the benefits in question was justifiable in terms of s 36. 68 Whereas one may disagree with this latter finding, the minority?s willingness to tran scend the confines of Grootboom reasonableness, by acknowledging that s 27(1)(a) embodi es interests capable of infringement notwithstanding the provisions of s 27(2), is welcomed. Beyond the equality-threshold of s 27( 1)(a), a number of judgments have hinted that the ?access? standard contained in the subsection may be read as conferring several interrelated ent itlements on beneficiaries. In Grootboom , the Court recognised that the ?access? st andard in s 26(1) of the Constitution required that housing to which people have access must satisfy certain qualitative requirements, though it did not pursue this further. 69 An acknowledgment that access to health care services must similarly be meaningful was, however, absent from TAC2 . Somewhat more encouragingly, the SCA recently remarked in Pharmaceutical Society of South Africa v Tshabalala-Msimang that ?access? to health care services required services to be both physically accessible and affordabl e, and acknowledged that prohibitive pricing of medicines may amount to a denial of access. It also indicated that it viewed the phrase ?health care services? as at least including medicines (hence representing the first explicit judicial attempt to award content to the phrase). 70 In the subsequent appeal judgment in this matter by the Constitutional Court, these dicta were affirmed in a separate judgment by Moseneke J. 71 The question whether the ?access? standard requires of health care services to be of sufficient quality was answered affirmatively by the Pretoria High Court in Strydom v Afrox Healthcare , where a contractual clause insulating a health care facility from delictual li ability arising from the negligent conduct of its personnel was declared contra bonos mores and unenforceable. The Court 72 Strydom v Afrox Healthcare [2001] 4 All SA 618 (T) at 626b-h; 627f-g. Section 27(1)(a) was also held to be implicated in matters of medical negligence in Korf v Health Professions Council of South Africa 2000 (1) SA 1171 (T) at 1179B-D. 7 3 See also Currie op cit note 51 at 74. The only other indication that s 27(1)(a) may sometimes apply horizontally is to be found in an obiter remark by Madala J in Soobramoney op cit note 2 at para 48 on the ?impor tant role? played by the privat e sector in rendering complex medical treatment beyond the res ource capacity of the State, where he appeared to indicate that he would have no difficulty holding the private sector accountable under s 27(1)(a) in matters where it is duly before the Court. The majo rity judgment however appeared to distance itself from these remarks. Ibid para 35. 74 Afrox Healthcare v Strydom 2002 (6) SA 21 (SCA) at paras 13; 15; 19-21. This finding will be criticised in 5.3(b)(ii) below. 75 First Certification judgment op cit note 7 at para 78. 76 Residents of Bon Vista Mansions v Southern Metropolitan Local Council 2002 (6) BCLR 625 (W) at paras 11-20; 27. The Court interpre ted s 7(2) of the Constitution with reference to international law, holding that t he obligation to respect s 27(1)(b) was not subject to s 27(2) and that an infringement ther eof required justification. For di scussion, see generally Pieterse op cit 108 seemingly viewed s 27(1)(a) as indirect ly horizontally applicable to private hospitals and held that the right of access to health care services awarded patients a legitimate expectation that t he services to which they have access would be rendered with skill and care by professional and trained health care personnel. 72 This amounts to the most definite affirmation of the horizontal dimensions and implicit quality standards inherent in s 27(1)(a) thus far and is welcomed accordingly. 73 Whereas the SCA overtu rned this judgment on appeal (since it felt that the exclusion claus e did not deny access to treatment and did not explicitly allow for negli gent or substandard care), it assumed in favour of the applicant that the right could be horiz ontally applied and left open the question of whether s 27(1)(a) presupposed a minimum level of care. 74 Ever since the Constitutional Court stated in its First Certification judgment that socio-economic rights could at least be protected against improper invasion, 75 there have been arguments that the obligation to respect s 27(1)(a) could be immediately enfor ced. That non-compliance with the obligation could uncontroversially be remedied was illustrated in relation to the right to have access to water in Residents of Bon Vista Mansions v Southern Metropolitan Council , where the WLD granted a tem porary interdict ordering the respondent to restore the water supply to the applicants? apartment complex, holding that discontinuing the water amounted in the circumstances to non- compliance with the obligation to res pect the right of access to water. 76 While note 46. 77 See Grootboom op cit note 6 at paras 34; 88; TAC2 op cit note 3 at para 46; 135.3(a) (?Government is ordered without delay to remove the restrictions that prevent Nevirapine from being made available?). See also T A C High Court op cit note 35 at 384E -F (explicitly stating that the refusal to make Nevirapine available out side of designated sites breached the obligation to respect s 27(1)(a)), as well as remarks of Bilchitz ( SAJHR ) op cit note 42 at 8; Iles op cit note 19 at 462; Liebenberg op cit note 21 at 170; 170-178; 183; Liebenberg (2003) op cit note 48 at 18. 78 Jaftha op cit note 9 at paras 31-32; 34. This aspect of the judgm ent is welcomed by Liebenberg (2004) op cit note 48 at 7-8. 109 the existence of such a negative dim ension of socio-economic rights was affirmed in both Grootboom and TAC2 , and while there are at least some indications in the TAC2 order that the Court regarded the challenged policy as contravening this obligation, 77 it appeared from the Court?s resort to a reasonableness analysis in both cases and especially from its categorical refusal to recognise an enforceable entit lement flowing from s 27(1)(a) in TAC2 , that such affirmation would remain at t he level of rhetoric only. Entitlements associated with the obligation to respect s 27(1)(a) accordingly appeared beyond the reach of rights-bearers unle ss their vindication could somehow be made to resonate with Grootboom reasonableness. Subsequently however, in a welcom e about-turn from its seemingly uncompromising position in TAC2 , the Constitutional Court found in Jaftha that infringements of negative obligations generated by the right of access to housing may be remedied without reference to Grootboom reasonableness. The Court (per Mokgoro J) dismissed the submission by the respondents that, in line with TAC2 , self-standing obligations coul d never be generated by s 26(1). It held that the relevant TAC2 dicta pertained only to positive obligations generated by socio-economic rights and that non-compliance with their implied negative obligations had to be justif ied under s 36 of the Constitution. 78 Given the close textual similarities between ss 26 and 27 of the Consti tution, it may be expected that a similar stance may in appropriate cases be adopted in relation to s 27(1)(a). It is therefore possibl e that entitlements associated with the obligation to respect the right of a ccess to health care services may be demanded where non-compliance with the obligation cannot be justified under s 36. 7 9 Grootboom op cit note 6 at para 45. 80See remarks of Coomans op cit note 45 at 194; Liebenberg op cit note 21 at 179. 110 Finally, the Grootboom Court endorsed UNCESCR?s understanding of ?progressive realisation?. 79 Whereas this may appear s uperfluous in light of the fact that the standard is sidelined by Grootboom reasonableness, it may serve as a basis for finding that deliberately re trogressive measures fall foul of s 27(1) notwithstanding s 27(2). 80 This may render benefits si milar to those implied by the obligation to respect s 27(1)(a). Gi ven that the minimum core concept also originated from this under standing of progressive r ealisation and is arguably integral to the functioning of the st andard, the endorsement may also serve as basis for future arguments attempting to resurrect judicial sensitivity to the minimum core dimensions of s 27(1)(a). Overall, whereas the Constitutional C ourt?s approach to the interpretation of socio-economic rights may rightly be crit icised as overly restrictive, there remain indications that the possibilit y of it adopting a more benefit-conducive approach to s 27(1)(a) over time is not out of the question. The Court?s post- TAC2 judgments, together with the High Court judgments discussed here, further show that Grootboom reasonableness does not entirely stifle s 27(1)(a)?s benefit-rendering potential. In any event, the failure of Grootboom reasonableness to engage meaningfully with t he content of entit lements implied by s 27(1)(a) means that the subsection in principle remains open for a generous interpretation approximating that envisaged in chapter 3 above. The contextual nature of Grootboom reasonableness further means that it may in appropriate circumstances be applied in su ch a way that tangible benefits result more explicitly from it, or that the approach may be changed or supplemented to this effect. ( b ) Decisions concern i n g the right to equalit y While South African courts are yet to consider the relationship between health rights and s 9 of the Constitution, the Khoza/Mahlaule judgment indicates 81 Khoza/Mahlaule op cit note 8 at paras 62; 74-75; 77; 80. Irrational exclusion from social security benefits was also held to fall foul of s 9(1). Ibid para 53. 82Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T) at 316A-C. 83 Ibid 317D-F. 111 beyond question that the right to equalit y may be used alongside s 27 to secure benefits from which an applicant was excl uded due to unfair discrimination. In addition to falling foul of Grootboom reasonableness, Mokgoro J held that the exclusion of all non-citizens from social security benefits amounted to an infringement of s 9(3), and could not be justified under s 36. The benefits accordingly had to be extended to those unfairly excluded, notwithstanding the significant financial implications this held for the respondent. 81 A finding that health-related benefits we re unjustifiably withheld due to unfair discrimination could therefore be reached without reference to s 27(2) or to Grootboom reasonableness. An infringement of s 9(3) in these circumstances would also not depend on t he resource limitation in s 27(2), meaning that resource scarcity could only justify non-extension of a benefit which was withheld in contravention of s 9(3) wher e this is reasonable and justifiable in terms of s 36. That s 9 of the Constitution may oper ate in this way to secure health- related benefits is also illu strated by the decision in Langemaat v Minister of Safety and Security, where the TPD held that the ex clusion of same-sex partners from the definition of ? dependant? in a medical aid schem e was inconsistent with the prohibition of discrimination on the gr ound of sexual orientation in s 9(3). The Court held that this exclusion discr iminated unfairly not only against the person who was refused the status of ?dependant?, but also against the member of the medical aid scheme w ho, as a result of the ex clusion, ?would have to find the financial means elsewhere to pay for the medical care of excluded dependants?. 82 Section 27(1)(a) of the Constitu tion is nowhere referred to in the judgment. The Medical Aid Scheme sought to justify the exclusion under s 36, arguing that it would face a flood of similar claims from gay and lesbian members to have their partners regist ered as dependants on the scheme. This argument was also dismissed. 83 The Court ordered that the scheme had to 84 Ibid 317I. 85Soobramoney op cit note 2 at para 20 (per Chaska lson P). See also paras 13; 18; 21 (per Chaskalson P); 38 (per Madala J - ?s 27(3) envisages a dramatic, sudden situation or event which is of a passing nature in terms of time?); 51 (per Sachs J - ?[t]he special attention given by s 27(3) to non-refusal of emergency medical treatm ent relates to the particular sense of shock to our notions of human solidarity occasioned by the turning away from hospital of people battered and bleeding or of those who fall vict im to sudden and unexpected collapse?) as well as Soobramoney High Court op cit note 10 at 440B-C (eme rgency treatment aimed at alleviating ?sudden illness or ... unexpected trauma?). 86 See Van Oosten op cit note 15 at 12-13 and, more generally, Brand op cit note 39 at 47. 87 See Soobramoney op cit note 2 at para 11. 112 consider the application fo r registering the applicant?s same-sex partner as her dependant afresh, ?without the complication of a definition of what a dependant is?. 84 (c) Decisions concerning the right not to be refused emergen c y medi cal treatment Soobramoney remains the only matter in which a South African Court has considered the ambit and scope of the s 27( 3) right not to be refused emergency medical treatment. In holding that the appellant?s need for long-term, life- prolonging kidney dialysis did not constitu te a medical emergency and that the right was accordingly not applicable to the case, the Constitutional Court described s 27(3) as being aimed at the non-refusal of treatment where someone ?suffers a sudden catastrophe which calls for immediate medical attention?. 85 While the Court?s seeming exclusion of life-threatening conditions not occasioned by a sudden disastrous occurrence has been subjected to some criticism, 86 this definition is arguably wide enough to encompass a relatively broad range of urgent medical conditions and injuries. It also adequately carves out a role for s 27(3) that is distinct from that of s 27(1)(a) and that relates specifically to the compelling needs it aims to satisfy. Far more disconcerting is the Soobramoney Court?s reading of resource- and practical limitations into the scope of s 27(3), from which they are textually absent. The Court seemed to hint that s 27(3) should be understood in light of the limitations es poused in s 27(2), 87 though in this regard it may be noteworthy 88 TAC2 op cit note 3 at para 30. This list c ontained only s 26(1) as well as ss 27(1)(a), (b) and (c). A more explicit determinat ion to this effect is to be found in T A C High Court op cit note 35 at 380E-F. 89 Soobramoney op cit note 2 at para 20. For a simila rly limited view of the ambit of the right, see Soobramoney High Court op cit note 10 at 439H-440B. 90 Scott & Alston op cit note 13 at 245; 247-248. See also Brand op cit note 39 at 47; Ngwena op cit note 15 at 309; Ngwena & Cook op cit note 16 at 136-137; Pieterse op cit note 11 at 901. 91 Liebenberg op cit note 16 at 42fn1; Liebenberg op cit note 21 at 165. 92 Liebenberg op cit note 21 at 165; 167; Gerald ine Van Bueren ?Health? in MH Cheadle 113 that s 27(3) was subsequently absent from the TAC2 judgment?s list of rights entailing only an obligation to adopt reas onable measures aimed at progressive realisation. 88 However, the Soobramoney majority regarded the negative phrasing of s 27(3) as significant. Chaskalson P stated: ?The purpose of the right seems to be to ensure that treatment be given in an emergency, and is not frustrated by reason of bureaucratic requirements or other formalities. A person who suffers a [medical emergency] ... should not be refused ambulance or other emergency services which are available and should not be turned away from a hospital which is able to provide the necessary treatment?. 89 The Court accordingly denied the exist ence of any positive obligation on the State to ensure the availability, accessibility and adequacy of emergency services. Scott and Alston are severely cr itical of this, pointing out that the Court has rendered s 27(3) ?v irtually redundant? by deny ing the existence of an obligation to ensure that emergency servic es are sufficient to meet the needs of those in need of care, thereby failing to insist that the rendering of emergency services be prioritised and accordingly restricting the meaning of s 27(3) as barely (if at all) extending beyond the scope of s 27(1)(a). 90 The practical consequence of this appears to be, as Liebenberg points out, that the right neither requires that emer gency medical services be es tablished where they did not exist previously, nor provides any insurance against the culling of existing emergency services or the reduction of the budget for the provision of such services. 91 The Court?s restrictive readi ng of s 27(3) also serves to deny (or at least significantly to limit) the existence of an enforceable individual entitlement that emergency treatment be rendered when required, outside of the narrow circumstances described by Chaskalson P. 92 Indeed, much like Grootboom et al (eds) South African Constitutional Law: The Bill of Rights (2002) 491 at 505. 93 MA Christianson ?Health care? in EML Strydom (ed) Social Security Law (2001) 122 at 134; De Waal; Currie & Erasmus op cit note 46 at 450; Scott & Alston op cit note 13 at 236. See also Brand op cit note 39 at 47. 94 See for instance Brand (ibid) at 47; Van Bueren op cit note 92 at 505. 95 Grootboom v Oostenberg Municipality 2000 (3) BCLR 277 (CC) (? Grootboom High Court?) at 290G-H; 291B-D. See Julia Sloth-Nie lsen ?Children? in Cheadle et al op cit note 92, 507 at 516. 96 Grootboom op cit note 6 at paras 71 and 74 respectively. 114 reasonableness that was to come after it, Soobramoney appears to view s 27(3) only as a ?right not to be arbitrarily excluded from that which already exists?. 93 In this respect, the judgment may be cr iticised for proceduralising the right to emergency care and for sidelining the critical need underlying its explicit inclusion in the Constitution. 94 (d) Decisions concerning the right of children to basic health care services The interaction between children?s right to shelter in s 28(1 )(c) and the right of access to adequate housing in s 26 of the C onstitution, as well as that between s 28(1)(c) and the right to parental care in s 28(1)(b), was discussed in Grootboom . Due to the overlap between the provision concerned there and children?s right to basic health care se rvices under the same subsection, this discussion is also relevant to a benefit-focused analysis of the latter right. Whereas the Grootboom High Court held that s 28(1)(c) imposed an immediately enforceable obligation on the State to provide shelter for children where their parents were unable to do so, 95 the Constitutional Court rejected this interpretation of s 28(1)(c) and instead decided the matter solely on the basis of s 26. The Court held t hat the ?carefully prescri bed constitutional scheme for progressive realisation of social rights would make little sense if it could be trumped in every case by the rights of ch ildren to get shelter from the State?, and accordingly that ?[t]he obligation created by s 28(1)(c) can properly be ascertained only in the context of the ri ghts and, in particular, the obligations created by ss 25(5); 26 and 27 of the Constitution?. 96 The Court thus seemed to indicate that the qualifications on t he duties of the State under ss 26(2) and 9 7 See also ibid paras 71; 74; 77-78; 95. For criticism, see Pieter se op cit note 11 at 901; Paula Proudlock ?Children?s socio-economic rights: Do they have a right to special protection?? (2002) 3(2) ESR Review 6 at 8. 98 Grootboom (ibid) at paras 71; 75-78. Note the unfazed manner in which the Court accepts that s 28(1)(c) does apply horizontally, even to the virtual exclusion of vertical application. See Marius Pieterse ?Recons tructing the private/pub lic dichotomy? The enforcement of children?s constitutional so cial rights and care entitlements? (2003) TSAR 1 at 10. 99 Pieterse (ibid) at 10-11. See also Caroli ne MA Nicholson ?The right to health care, the best interests of the child and AIDS in South Africa and Malawi? (2002) 35 CILSA 351 at 365; Pieterse op cit note 11 at 902; Slot h-Nielsen op cit note 95 at 514-515; 517. 100See Roux op cit note 25 at 46. 101Brand op cit note 39 at 48; Liebenberg op ci t note 21 at 189; Liebenberg (2003) op cit note 48 at 51; Julia Sloth-Nielsen ?Too littl e? Too late? The imp lications of the Grootboom case for state responses to child-headed households? (2003) 7 Law, Democracy & Development 113 at 121; Sloth-Nielsen op cit note 95 at 515. 115 27(2) should also be read into s 28(1)(c). 9 7 Anxious that s 28(1)(c) could be misused by indigent parents to procure shelter for themselves, the Court further read down the ambit of s 28(1)(c) to coinci de with its interpretation of s 28(1)(b), holding that the State only incurred a prim ary obligation for the realisation of s 28(1)(c) rights where children had been abandoned by their parents or had otherwise been removed from the family envir onment. As far as children in the care of their parents were concerned, t he State?s duties were held to be limited to creating a legal, administrative and in frastructural environment that would enable children to enforce their rights against their parents. 98 I have criticised the judgment else where for rendering the separate inclusion of s 28(1)(c) in the Bill of Rights purposeless and for delineating the interaction between parental and State re sponsibility for child welfare far more restrictively than is envisaged by common law or the CRC. 99 The conflation of ss 28(1)(c) and 26(2) would seem comple tely unsupported by the constitutional text and denies the explicit constitutional prioritsation of children?s basic social needs over the other competing needs that the State has to address. 100 On the positive side, Grootboom does appear to create a directly enforceable entitlement on the part of orphans or abandoned children for the satisfaction of their basic needs, though it does not indicate the extent of such an entitlement. 101 Indeed, in the recent Centre for Child Law v Minister of Home Affairs , the TPD indicat ed that it understood Grootboom as suggesting that ?the State is under a direct duty to ensur e basic socio-economic provision for 1022005 (6) SA 50 (T) at para 17. The case concerned assistance for unaccompanied foreign children. 103 See Liebenberg op cit note 21 at 173; Liebenberg (2003) op cit note 48 at 50; Pieterse op cit note 98 at 11; Proudlock op cit note 97 at 7-8; SALC Project 110, Discussion Paper 103 Review of the Child Care Act (2001) at 461-462. J Sloth-Niels en ?The child?s right to social services, the right to social security, and prim ary prevention of child abuse: Some conclusions in the aftermath of Grootboom ? (2001) 17 SAJHR 210 at 229-230 adds that Grootboom might encourage destitute families to abandon their childr en in order for an enforceable claim against the State to come into being . See also Sloth-Nielsen op cit note 101 at 119-120. 104 TAC2 op cit note 3 at paras 77-78. 116 children who lack family care?. 102 What is disconcerting however, is the manner in which Grootboom leaves a far larger cat egory of poor children, who happen to be in the care of their parents, without any tangible relief. A similarly restrictive reading of the right to basic health services would have potentially devastating consequences for the health interests of such children, who are arguably the very objects of s 28(1)(c)?s protection. 103 While the Constitutional Court?s concerns with the possible abuse of children?s right to shelter by indi gent parents are perhaps understandable, these are unlikely to arise in relation to the ri ght to basic health care services, since parents do not stand to derive comparable benefits from t he provision of primary health care services to their children. Accordingly, in the health care context at least, the rationale for the Court?s stri ngent restriction of State responsibility towards children in Grootboom falls away, which means that Grootboom , at least insofar as it describes the interacti on between ss 28(1)(b) and (c), should not be followed in relation to the right of children to basic health care services. From the Court?s subsequent judgment in TAC2 it may be inferred th at it has at least implicitly recognised this argument. Counsel for the Government relied on Grootboom in arguing that s 28(1)(c) obli ges parents, and not the State, to provide their children with basic health care services. The Court seemingly dismissed this contention, emphasising that the State retains some residual responsibility to children in the care of their parents and descr ibing the interests of children in the prevention of mothe r-to-child-transmission of HIV as ?most urgent? and ?most in peril?. 104 It further seemed to expand the Grootboom definition of children lacking parental care, thereby extending the State?s responsibilities also towards childr en of indigent parents. It stated: 105Ibid para 79. It is difficult to see how the Court distinguishes between the children in casu and those in Grootboom , whose parents were also i ndigent and dependent on the State for the realisation of their right of access to housing. 106 See De Vos op cit note 39 at 97; Ge ldenhuys op cit note 47 at 189-190; Liebenberg op cit note 21 at 185; Liebenberg (2003) op cit note 48 at 51; Pieterse op cit note 98 at 11fn61; Proudlock op cit note 97 at 7; Sl oth-Nielsen op cit note 101 at 120-121. 117 ?The state is obliged to ensure that children are accorded the protection contemplated by section 28 that arises when the implementation of the right to parental or family care is lacking. Here we are concerned with children born in public hospitals and clinics to mothers who are for the most part indigent and unable to gain access to private medical treatment which is beyond their means. They and their children are in the main dependent upon the state to make health care services available to them?. 105 While thus going back somewhat on its uncompromising position in Grootboom regarding the interrelation between ss 28(1)(b) and (c), 106 the Court nevertheless did not explicitly find a vi olation of s 28. Rather, TAC2 seemed to turn exclusively on s 27(2). It would thus seem that the Court remains unwilling to read s 28(1)(c) separately from the limit ations stipulated in s 27(2), which remains open to criticism for reasons similar to those advanced in relation to the Grootboom finding. ( e ) Decisi o ns concern i n g the right of detaine e s to adequat e medical treatment The Constitutional Court has not yet deci ded a matter involving the health rights of detainees under s 35(2)(e) of the Consti tution. There are however High Court judgments in which the right has been im plicated, which amply illustrate the potential of the right to result in tangible benefits for its subjects. In the first of these, Van Biljon v Minister of Correctional Services , the Cape High Court ordered that two HIV-posit ive prisoners had to be provided with such anti-retroviral treatm ent as had been medically pre scribed to them, at State expense. The order flowed primarily from a finding that such treatment amounted to ?adequate treatment ? in the circumstances , notwithstanding its cost and complexity. The Court pointed out that ?adequate? treatment under s 35(2)(e) did not necessarily encompass ? optimal medical tr eatment? or ?best 107 Van Biljon v Minister of Correctional Services 1997 (4) SA 441 (C) (also reported as B v Minister of Correctional Services 1997 (6) BCLR 789 (C)) at paras 49; 52. 108Ibid paras 52-55. At para 53, the Court stated that ?t he standard of medical treatment for prisoners in general cannot be determined by the lowest common denomi nator of the poorest prisoner on the basis that he or she c ould afford no better treatment outside?. 109 Ibid para 49. 110Ibid paras 56; 60; 65. 118 available medical treatment?, 107 and proceeded to evaluate the adequacy of the requested treatment with reference to its medical efficacy and cost- effectiveness. It held that ?adequacy? of treatment in prisons would not necessarily be influenced by the standar d of medical care to which non- incarcerated citizens generally have access. In fact, given prisoners? particular vulnerability and the constitutional prioritiza tion of their health interests, it was held that s 35(2)(e) may well require a higher standard of care than what is generally available to non-incarcerated ci tizens in the public health sector. 108 However, while finding that resource constraints could under s 35(2)(e) not justify the provision of inadequate m edical treatment, the Court nevertheless held that such constraints had to be taken into account in determining ?adequacy?. It stated: ?What is ?adequate medical treatment? cannot be determined in vacuo. In determining what is ?adequate?, regard must be had to, inter alia, what the State can afford. If the prison authorities should, therefore, make out a case that as a result of budgetary constraints they cannot afford a particular form of medical treatment or that the provision of such medical treatment would place an unwarranted burden on the State, the Court may very well decide that the less effective medical treatment which is affordable to the State must in the circumstances be accepted as ?sufficient? or ?adequate medical treatment??. 109 Since the Court regarded the requested treatment as both beneficial and cost- effective, and since the respondents could not show that it was unaffordable, the treatment was regarded as adequate. The failure of the respondents to provide it to the first and second applicants ther efore amounted to an infringement of s 35(2)(e). The respondents were accordingly ordered to provide the first and second applicants with the prescribed treatment. 110 The similar application by the third and fourth applicants was howev er dismissed, because anti-retroviral treatment had not been prescribed to them and because the Court was not 111Ibid paras 33-37; 61; 65. For criticism of this aspect of the order, see Ngwena & Cook op cit note 16 at 134. 112See Liebenberg op cit note 16 at 37; Ka Mdumbe op cit note 19 at 462-463. 113 Stanfield v Minister of Correctional Services 2004 (4) SA 43 (C) at paras 125; 129; 132. 119 prepared to make an order guiding a decision to prescribe medicine. 111 The Van Biljon judgment has not been without cr iticism. In particular, there is some discord over the Court? s decision to import resource limitations into the ambit of s 35(2)(e), from which they are textually absent. It has convincingly been argued that cost-based re strictions on unlimited, ?priority rights? such as s 35(2)(e), rather than impacting on the ambit of the entitlement, should be viewed as limitations on its enf orcement, which would be allowed only if justifiable in terms of s 36. 112 Overall however, the judgment indicates that courts are capable of interpreting cons titutional health rights (and especially those that are not subjec ted to limitations imposed by s 27(2)) as conferring enforceable entitlements on individuals. Following from such an interpretation, Van Biljon further illustrates that court or ders may grant tangible health-related benefits to individuals who have succeeded in showing that their rights have been infringed. Other than in Van Biljon , s 35(2)(e) has not been used to attain access to particular forms of medi cal treatment. It has howeve r come into play in a different context - the release of pr isoners on parole on medical grounds. In Stanfield v Minister of Correctional Services , it was held that to insist on the continued incarceration of a terminally ill prisoner, despite the fact that the medical facilities at the prison we re not adequate to provide the care necessitated by his condition, affronted his rights to dignity and to dignified conditions of detention (inc luding the provision of adequate medical care). The refusal to grant parole was accordingly overturned. 113 Whereas a specific analysis of s 35(2)(e) was not conducted, it is clear that t he Court conceived of the subsection as essentially requi ring an inquiry into whether detention conditions are consistent with human di gnity, the outcome of which inquiry depended, among other factors, on whether the correctional facility was capable 114 Ibid paras 89-91; 119-122; 125. 115[2004] 3 All SA 613 (T). See paras 23; 26-27. 120 of rendering such medical care as was required by the detainee?s condition. 114 Section 35(2)(e) similarly, although less explicitly, influenced the overturning of a refusal to grant medica l parole to a prisoner in need of palliative care (the rendering of which was outside of the capacity of the correctional institution) in Du Plooy v Minister of Correctional Services . 115 Read together, Stanfield and Du Plooy present a potentially interest ing remedial alternative in cases where a detainee requires medi cal treatment beyond the financial capacity of the State. Reading these decisions together with Van Biljon , it seems that s 35(2)(e) may operate either to secure prisoners access to such health care services as has been medically indicated for their conditions, or to secure their early and conditional release so that they are placed in a position to access such services for their own account. In appropriate circumstances, detainees? rights in this regard may of c ourse be limited in a ccordance with s 36 of the Constitution. ( f ) Evaluati o n The above survey of report ed judgments by South African courts involving socio- economic rights generally and/or health right s specifically has shown that, while much uncertainty still surrounds the ambit, scope and limits of constitutional health rights, they may in appropriate circumstances be used successfully to prevent their imminent infringement, to attain adequate compensation for their infringement, or to attain access to particular health-related goods and/or services. It for instance appears from the Constitu tional Court?s judgments in socio- economic rights matters that citizens may demand to be included in the ambit of policy which confers health-relat ed benefits (from which inclusion such benefits will sometimes flow incidentally), may demand to receive health-related benefits where these are being denied as a result of unfair discrimination and 116 See also remarks of Liebenberg op cit note 21 at 190. 117 The term ?negative textual inferentialism? refe rs to an overly formalistic interpretative practice in relation to socio-economic rights, according to which interdependent or related rights are read together in a way that re sults in the creation of a crosso ver ?ceiling effect?, through using the restrictive terms of one prov ision in order to justify the concomitant readi ng down of another, 121 may enforce entitlements associated with the obligation to respect their health rights. The Court?s engagement with s pecific health-related rights in the Constitution further seems to confirm t he existence of an ent itlement to obtain available emergency medical treatment fr om institutions which are able to provide it as well an undefined entit lement of orphans and abandoned children to receive certain health care services at State expense. Decisions by courts other than the Constitutional Court further hint at the existence of entitlements to accessible and affordable medicine and to medical care of a reasonable quality, have vindicated t he guarantee against unfair discrimination in access to health-related benefits, and have indicat ed that detainees may in appropriate circumstances demand to be provided with par ticular health care services or to be placed in a position where they may obtain access to such services for themselves. However, the jurisprudence surveyed, es pecially that of the Constitutional Court, may be criticised for unduly limiting the extent to which tangible benefits may flow from health rights litigation. 116 Not only has the Constitutional Court categorically denied that heal th rights embody enforceabl e, ?positive? individual claims against the State, but its appropriation of Grootboom reasonableness in socio-economic rights cases has served to proceduralise the inquiry into compliance with the right to have access to health care services to such an extent that there has been precious little engagement with the content of health rights or with the needs that t hey aim to satisfy. As a result, it would appear that the remedy for successfully enforcing s 27( 1)(a) in the Constitutional Court will almost always be at an abstract policy-m odification level, from which tangible benefits would at most result incidentally. Furthermore , the Court has displayed a tendency to read down the ambit and scope of health rights guaranteed by constitutional provisions other than s 27(1)(a) to correspond to its restrictive understanding of the latter right. Such ?negative textual inferentialism? 117 not less restrictive, provision. See Craig Sc ott ?Reaching beyond (without abandoning) the category of ?economic, social and cultural rights?? (1999) 21 Human Rights Quarterly 633 at 638-640. 118Scott & Alston op cit note 13 at 252 state: ?T he very point of constitutional rights as priority setters for government would seem to have been missed. Positive rights and the notion of core guarantees do have a significant prioritising function. Trying to interpret the constitution to remove or neutralise this function thus misses the constitutional point?. See also ibid 244-245. 122 only contradicts the textual positioning and phrasing of these rights, but also denies the explicit prioritisation of the satisfaction of certain material needs over others in the constitutional text. 118 It further significantly diminishes their potential to result in tangible benefits fo r those that successfully enforce them by closing off a direct remedial av enue that would otherwise uncontroversially have been open for courts. 4 . 3 POSSIBLE EXPLANATIONS FOR THE LIMITS OF SOUTH AFRICAN HEALTH RIGHTS JURISPRUDENCE This section explores the possible reasons behind those aspects of the Constitutional Court?s socio-economic rights jurisprudence that I regard as overly restrictive of health rights? benefi t-rendering potential. I firstly consider the institutional constrai nts that impact on the manner in which the judiciary decides socio-economic rights matters. I argue that the constraints occasioned by the doctrine of separation of power s, the polycentricity of socio-economic rights matters and the limited expertise of the judiciary in matters involving the specialised field of medicine do not pr eclude courts from interpreting and enforcing health rights in a manner that renders tangible benef its. Instead, I suggest that the Court?s animosity towards adopting an approach towards the adjudication of socio-economic rights likely relates to outdated and erroneous perceptions of the nature of socio-ec onomic rights and of the nature of the judicial role in their enforcement. T hese perceptions, I believe, are fuelled by the formalist and liberal-individualist undert ones of South African legal culture and by discomfort associated with the rela tive novelty of judicially enforcing socio-economic rights. Accordingly, I contend that the obstacles in the way of a more benefit-friendly approach to health rights are imagined rather than real 119 Because it inevitably involves unelected judges striking down legislation or policy conceived by the ?democratic? br anches, the institution of judicial review necessarily implies the sacrifice of a measure of dire ct or representative democracy. See generally Nicholas Haysom ?Constitutionalism, majoritarian democra cy and socio-economic rights? (1992) 8 SAJHR 451 at 455-458; Patrick Lenta ?Democracy, rights di sagreements and judicial review? (2004) 20 SAJHR 1 at 3-4; Jeremy Waldron ?A right-based critique of constitutional rights? (1993) 13 Oxford J of Legal Studies 18-51. I have discussed these tensions in more detail in Pieterse op cit note 50 at 390-392. 120It is often argued that socio-economic rights are particularly ill-suited for judicial review because they appear to require judicial invo lvement in decisions with policy and budgetary implications, which dramatically departs from depi ctions of the judicial role under ?traditional? conceptions of the separ ation of powers. See Chetty op ci t note 49 at 458; DM Davis ?The case against the inclusion of socio-economic demands in a Bill of Rights except as directive principles? (1992) 8 SAJHR 475 at 489; De Waal; Currie & Eras mus op cit note 46 at 433; Erika De Wet The Constitutional Enforceability of Economic and Social Rights: The Meaning of the German Constitutional Model for South Africa (1996) at 108-109; Liebenberg op cit note 16 at 6-7; Frank I Michelman ?The Constitution, social rights and liberal politic al justification? (2003) 1 International J of Constitutional Law 13 at 15; Craig Scott & Patrick Macklem ?Constitutional ropes of sand or justiciable guar antees? Social rights in a new S outh African constitution? (1992) 141 Univ Pennsylvania LR 1 at 41-42; 147-148; Van W yk op cit note 15 at 394-395. 121See Stephen Holmes & Cass R Sunstein The Cost of Rights (2000) at 94- 95; Liebenberg op cit note 16 at 10; Sheetal B Shah ?Illuminating the possible in the developing world: Guaranteeing the human right to health in India? (1999) 32 Vanderbilt J of Transnational Law 435 at 448-449 as well as discussion in Pieterse op cit note 50 at 394. 123 and urge courts to modify or supplem ent their current approach to socio- economic rights adjudication in a manner that will allow for these rights more concretely to serve their constitutional purpose. ( a ) Institu t i o n a l constr a i n t s Courts are typically regarded as less than ideal fora for enforcing socio- economic rights. This is not only due to the counter-majoritarian 119 and separation of powers 120 concerns typically raised w here courts exercise powers of judicial review, but also because courts are often regarded as lacking the expertise to decide on the intricacie s involved in socio-economic rights matters. 121 It is therefore to be expected that at least part of the Constitutional Court?s unwillingness to depict socio-ec onomic rights as entailing enforceable individual entitlements relates to the c onfines imposed by its institutional role and character. This is apparently affirmed by t he Court?s socio-economic rights judgments, in which it has on more t han one occasion expressly justified its 122Soobramoney op cit note 2 at para 29. 123 TAC2 op cit note 3 at para 38. 124 The term polycentricity refers to decisions that affect an unknow n but potentially vast number of interested parties and that have many complex and unpredictable repercussions, which inevitably vary for every subtle differenc e in the decision. Lon L Fuller ?The forms and limits of adjudication? (1978) 92 Harvard LR 353 at 395. See also ibid at 403; Davis op cit note 120 at 478; Liebenberg op cit note 16 at 10; Kate O?Regan ?Introducing socio-economic rights? (1999) 1(4) ESR Rev 2 at 3. Courts are considered ill- suited to make polycentric decisions, because all affected parties cannot logistically be made part of the proceedings, all possible consequences of the decision c annot be foreseen and there are limits to the quantity and kinds of information to which a court has access in a particular case. For more detailed discussion, 124 restrictive stance to the interpretation of socio-economic rights by referring to the institutional constraints under which it operates. In Soobramoney for instance, Chaskalson P defended the Court?s deferenc e to the terms of the challenged rationing policy by stating: ?The provincial administration which is responsible for health services in KwaZulu-Natal has to make decisions about the funding that should be made available for health care and how such funds should be spent. These choices involve difficult decisions to be taken at the political level in fixing the health budget, and at the functional level in deciding upon the priorities to be met. A court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibilities it is to deal with such matters?. 122 Then, in TAC2 , the Court justified its resort to Grootboom reasonableness instead of adopting a ?minimum core appr oach? to s 27(1)(a) on institutional grounds. It stated: ?Courts are ill-suited to adjudicate upon issues where Court orders could have multiple social and economic consequences for the community. The Constitution contemplates rather a restrained and focused role for the Courts, namely, to require the State to take measures to meet its constitutional obligations and to subject the reasonablene ss of these measures to evaluation. Such determinations of reasonableness may in fact have budgetary implications, but are not in themselves directed at rearranging budgets. In this way the judicial, legislative and ex ecutive functions achieve appropriate constitutional balance?. 123 It would appear from these passages that, in relation to health rights, the Court considers itself to be restrained firstl y by an imperative that it respect the boundaries of the separation of powers (by not unnecessarily second-guessing the decisions of functionaries and/or dictating budgetary and associated policy processes) and secondly by the inherent polycentricity of socio-economic rights matters. 124 Its order in TAC2 further indicates that it regards itself as not see NW Barber ?Prelude to the separation of powers? (2001) 60 Cambridge LJ 59 at 74-78; Holmes & Sunstein op cit note 121 at 29-30; 95; Etienne Mureinik ?Beyond a charter of luxuries: Economic rights in the Constitution? (1992) 8 SAJHR 464 at 466-468; Pieterse op cit note 50 at 393. 125Indeed, commentators have sought to dist inguish the rationality review adopted in Soobramoney from the less deferent Grootboom reasonableness followed in TAC2 on the basis that the policy scrutinised in Soobramoney was conceived by health care professionals. See Kam Chetty ?The public finance implications of recent socio-economic rights judgments? (2002) 6 Law, Democracy & Development 231 at 249; Klug ( SAJHR ) op cit note 51 at 118; JC Mubangizi ?The constitutional right of access to heal th care services in South Africa: From renal dialysis to Nevirapine? (2003) 24 Obiter 203 at 211-212; Albie Sachs ?Reflections on emerging themes? (1999) 1(4) ESR Rev 14; 23; Scott & Alston op cit note 13 at 243. 126 Roux op cit note 47 at 107. See also Jonathan M Berger ?Tak ing responsibilities seriously: The role of the stat e in preventing transmission of HIV from mother to child? (2001) 5 Law, Democracy & Development 163 at 169-170; Liebenberg op cit note 16 at 7-8; Charles Ngwena ?Access to health care and the courts: A note on Minister of Health v Treatment Action Campaign ? (2002) 17 SA Public Law 463 at 469; Pieterse op cit note 50 at 404; Scott & Macklem op cit note 120 at 41-42; 147-148; Yousuf Vavwda ?Is eleven better than one? Democracy and the Constitutional Court T A C case? (March 2003) De Rebus 59-60. 127 See Barber op cit note 124 at 68-72. 125 possessing adequate medical knowledge to second-guess decisions involving the expertise of health care profe ssionals, a concern which arguably also informed its deference in Soobramoney . 125 These concerns necessarily impact on the manner in which courts conduct them selves in health rights matters. But do they completely explain the Constitu tional Court?s aversion to recognising enforceable, individual socio-economic rights claims? As far as separation of powers is concerned, the text of the 1996 Constitution patently mandates a rather drastic departure from the classical conceptualisation of the doctrine by in cluding justiciable socio-economic rights and by requiring of courts to ensure co mpliance with these rights through judicial review. The Constitution not only allows judges to get involved in matters of social and economic significance, it requires them to do so - South African courts simply ?cannot afford the luxury of the separation of powers doctrine?. 126 In any event, not even the classical conc eption of the doctrine intended for its boundaries to be rigidly determined and enfor ced - the doctrine must always be responsive to the particular need s of each society it serves. 127 Rather than endeavouring to keep the functions of government branches separate at all costs, the separation of powers? concern with prevent ing an over-concentration of power often requires the exact oppos ite - that power should be diffused and 128James Madison ?The Federalist no 47' in Alexander Hamilton, James Madison & John Jay The Federalist, or, The New Constitution (1992) at 247-248. See also Iain Currie & Johan De Waal The New Constitutional and Administrative Law: Volume 1 - Constitutional Law (2001) at 92-95. 129 See Klug ( Vermont LR ) op cit note 51 at 818-819; Pi eterse op cit note 50 at 405; Kameshni Pillay ?Implementation of Grootboom : Implications for the enforcement of socio- economic rights? (2002) 6 Law, Democracy & Development 255 at 259; 276; Scott & Alston op cit note 13 at 216; Geraldine Van Bueren ?Allevi ating poverty through the Constitutional Court? (1999) 15 SAJHR 52 at 69; Van Wyk op cit note 15 at 407. 130 The State?s argument is set out at TAC2 op cit note 3 at paras 96-97 and is echoed by Kevin Hopkins ?Shattering the divide - when judges go too far? (March 2002) De Rebus 22-26. Jonathan Klaaren ?A remedial interpretation of the Treatment Action Campaign decision? (2003) 19 SAJHR 455 at 461 describes the argument as ?an attempt to re-litigate the principle of the non-justiciability of socio-economic rights ... in the remedy stage of the case rather than in rights interpretation?. 126 kept in check through an intricate network of constitutionally mandated interferences, of which the power of judicial review is but one example. 128 In post-1996 South Africa, courts are c onstitutionally empowered to award content to socio-economic ri ghts, to ascertain whether the obligations that they generate have been complied with and to appr opriately remedy the effects of non-compliance therewith, all the time having due regard to the constitutional role of the other branches of government in light of the interests of justice and good governance. It is up to courts themselves to decide on the appropriate balance to be struck, in t he circumstances of every socio-economic rights case, between the need for judicial vigilance in t he protection of citizens? rights on the one hand and the need to respect the constitutional role and powers of the ?democratic branches? on the other. 129 That courts have significant scope fo r manoeuvre in this regard, was affirmed by the Constitutional Court in T A C 2 , where it dismissed an argument by the government that courts are c onstrained by the separation of powers doctrine from issuing anything but declara tory orders in socio-economic rights matters. 130 The Court found that, while courts should respect the domains of the legislature and the executive, this di d not preclude them from making orders which impact on policy. In fact, to the ex tent that an intrusion of legislative or executive terrain flowed from a court fulfilling its functions of ascertaining whether the State has fulfilled its cons titutional obligations and of remedying non-compliance with such obligations, the Court regarded it as ?an intrusion 131 TAC2 op cit note 3 at para 99. See also paras 98; 100-114. 132 Ibid para 113. 133 See ibid para 25, also First Certification judgment op cit note 7 at para 77; Grootboom op cit note 6 at paras 20; 94; TAC1 op cit note 4 at para 20. 134 See Bilchitz op cit note 20 at 487-488; 496; Bilchitz ( SAJHR ) op cit note 42 at 8; 10; Karl E Klare ?Legal culture and transformative constitutionalism? (1998) 14 SAJHR 146 at 171; 188; Scott & Alston op cit note 13 at 219; 253-254; Craig Scott ?Social rights: Towards a principled, pragmatic judicial role? (1999) 1(4) ESR Review 4. I have argued this more fully in Pieterse op cit note 50 at 406. 127 mandated by the Constitution itself?. 131 It stated that ?South African Courts have a wide range of powers at their disposal to ensure that the Constitution is upheld. How they should exercise those powers depends on the circumstances of each particular case. Here due regard must be paid to the roles of the Legislature and the Executive in a democracy. What must be made clear, however, is that when it is appropriate to do so, Courts may - and, if need be, must - use their wide powers to make orders that affect policy as well as legislation?. 132 These remarks powerfully confirm that t he justiciability of socio-economic rights in the 1996 Constitution is beyond question. As the Constitutional Court has stated on several prior occasions, the question is not whether courts may give effect to socio-economic rights, but rather how they should do so in the circumstances of each individual case. 133 However, this unequivocal affirmation of its powers in socio-economic rights matters seems at odds with the rat her tentative way in which the Court has exercised these powers to date. In parti cular, it seems curious that the Court has made little effort to define the cont ent of the socio-economic rights it has been called upon to vindicate. Both from a separation of powers and institutional competence perspective, inte rpretation is the least controversial of the judicial functions in socio-economic rights matters, since it bears the closest resemblance to the ?ordinary? adjudic ative functions of courts, which are generally considered better equipped at the task of interpretation than other branches of government. In exercising this task, courts are accordingly regarded as owing minimal deference to t he legislative or executive branches. 134 The Constitutional Court?s reluctance to award enforceable cont ent to s 27(1)(a) through interpretation cannot therefore be explained by referring to the separation of powers. 135 See Thomas J Bollyky ?R if C > B + P: A par adigm for judicial remedies of socio- economic rights violations? (2002) 18 SAJHR 161 at 162-164; 180-181; Ho lmes & Sunstein op cit note 121 at 95-96. 136 See Bollyky op cit note 135 at 177; Curri e & De Waal op cit note 128 at 115-116; Liebenberg (2003) op cit note 48 at 40; Pillay op ci t note 129 at 259; Swart op cit note 58 at 217; 240 as well as chapter 3 notes 16; 21 and accompanying text. 137 TAC2 op cit note 3 at para 129. Fo r associated criticism of the Grootboom and TAC2 orders, see for instance Bilchitz op cit note 20 at 500-501; Bilchitz ( SAJHR ) op cit note 42 at 23- 24; Davis op cit note 58 at 5-7; Mark Heywood ?Preventing mother-to-child HIV transmission in South Africa: Background, strategies and out comes of the Treatment Action Campaign case against the Minister of Health? (2003) 19 SAJHR 278 at 311-312; Ntlama op cit note 23 at 81-82; Pillay op cit note 129 at 256; 275-276; Kent Roach & Geoff Budlender ?Mandatory relief and supervisory jurisdiction: When is it appropriate, just and equitable?? (2005) 122 SALJ 325 at 333- 334; Roux op cit note 25 at 51; Swart op cit note 58 at 215-216; 224. 138 See, for example, the order in August v Electoral Commission 1999 (3) SA 1 (CC) as well as remarks of Ntlama op cit note 23 at 85; 87-88. 128 Similarly, while separation of power s concerns should logically impact on the manner in which courts choose to remedy violations of human rights, 135 the extent of South African courts? remedi al flexibility in terms of s 38 of the Constitution means that they are able, without much difficulty, to devise remedies that balance the need for effe ctive relief with the equally pressing need to afford the other branc hes of the State a margin of discretion in deciding on how to give effect to court orders. 136 Despite this, the Constitutional Court has thus far exercised its remedial pow ers in socio-economic rights matters with extreme caution. In particular, comm entators have expressed puzzlement at the Court?s failure to combine its orders in Grootboom and TAC2 (restricted as they were to a level of policy -modification) with structural interdicts through which compliance with their terms could be monitored. This is curious, especially since the Court explicitly held in TAC2 that awarding structural relief for socio- economic rights violations would be pe rmissible under the separation of powers where it is appropriate in terms of s 38. 137 The Court has also, on more than one occasion, vindicated infringements of ci vil and political rights through awarding such structural relief. 138 It would therefore appear that, whereas separation of powers concerns no doubt informed the Constitutional Court?s formulation of Grootboom reasonableness as yardstick for measuri ng compliance with s 27(2) of the 1996 Constitution, the model of separation of powers underlying the 1996 Constitution does not prohibit courts from awardi ng enforceable content to socio-economic 139 Thomas J Bollyky ?Balancing private ri ghts and public obligations: Constitutionally mandated compulsory licensing of HIV/AIDS re lated treatments in S outh Africa? (2002) 18 SAJHR 530 at 544-545; Liebenberg op cit note 16 at 41- 11; Scott & Alston op cit note 13 at 216; 242. 140 August op cit note 138 at para 30. See also Bollyky op cit note 139 at 541; Sandra Liebenberg ?Social and economic rights: A crit ical challenge? in Sandra Liebenberg (ed) The Constitution of South Africa from a Gender Perspective (1995) 79 at 85; Ngwena op cit note 16 at 18; O?Regan op cit note 124 at 3; Pieterse op cit note 50 at 395; Van Bueren op cit note 129 at 61. 129 rights beyond Grootboom reasonableness. Nor, by t he Constitutional Court?s own admission, does it prevent them from providing effective relief for infringements of socio-economic rights. The overly restrictive elements of the Court?s interpretative and remedial appr oach to health rights can therefore not be justified by arguing that more direct and affirmative options for giving effect to socio-economic rights were not inst itutionally available to the Court. Similarly, the reluctance to interp ret health rights in a more benefit- friendly manner is inadequately explained by the polycentricity of socio- economic rights matters. While the polyc entricity of a matter certainly mandates that courts be aware of the consequences of their j udgments, it cannot preclude their involvement in socio-ec onomic rights matters altogether. 139 In any event, socio-economic rights matters are no more polycentric than cases involving civil and political rights. In relation to the latter rights, the Constitutional Court has indicated that it would not let the potential polycent ric consequences of its judgments prevent it from performing its constitutional duties in vindicating human rights. As it stated in August v Electoral Commission : ?We cannot deny strong actual claims timeously asserted by determinate people because of the possible existence of hypothetical claims that might conceivably have been brought by indeterminate groups?. 140 As in civil rights matters, courts must manage the potential polycentric consequences of their socio-economic right s judgments by carefully tailoring the remedies they confer, rather than by adopt ing an overly restrictive interpretation of rights. The Constitutional Court?s generous and purposive approach to interpreting civil and political rights, toget her with the flexibility it often displays in remedying civil rights violations, show that it is certainly capable of this. Indeed, at the level of remedy, vie wing social rights as conferring 141 See Van Biljon op cit note 107 at paras 32; 65 and the critical remarks on the restricted ambit of the order by Ngwena op cit note 15 at 307-308. 142 Langemaat op cit note 82 at 317D-F. Other examples where the relief for an infringement of a socio-economic right was limited to the parti cular litigants include the orders in Stanfield op cit note 113; Bon Vista Mansions op cit note 76 and the pre-constitutional vindication of a legitimate expectation to receive treatment in Applicant v Administrator Transvaal op cit note 54 - see Applicant (ibid) at 739H; 741D as well as remarks of Van Wyk op cit note 15 at 393. 143 Van Biljon op cit note 107 at paras 33-37; 61. 130 individual entitlements and accordingly as entitling applicants to individual relief in appropriate circumstances would pose less polycentricity-related problems than the Constitutional Court?s current holistic approach. Section 38 of the Constitution allows courts to strike a balance between the principle that individual litigants should generally obtain t he relief they seek and the principle that relief should generally also benefit similarly situated persons, in the circumstances of every case. Where an order would clearly have unwanted polycentric consequences, the dictates of appropriateness require that this balance be struck to favour the awarding of individual, rather than general, relief. The Van Biljon Court, for instance, indicat ed that it was aware of the potential polycentric consequences of its or der (that the prisoners in casu were entitled to receive the anti-retrovir al drugs they had been prescribed) and consciously avoided these by limiting t he entitlement conferred only to the successful individual applicants. 141 Similarly, in Langemaat, the Court dismissed arguments that its order (that a Medi cal Aid scheme had to reconsider an application by a woman to have her same-sex partner registered as her dependant on the Scheme) would open floodgat es of litigation and similarly limited its order to the successful applicant only. 142 As to the complexities posed by the medical issues often implicated in health rights matters, it appears from t he judgments discussed above that courts are unwilling to interfere with the clinical decisions of health care professionals. In Van Biljon , the order that the applicants be provided with medicines was limited to those medicines that have been medically prescribed to them. 143 Similarly, both the High Court and the Constitutional Court orders in the TAC case were expressly limited to situati ons where administering Nevirapine was 144 T A C High Court op cit note 35 at 387A; TAC2 op cit note 3 at para 135(3)(b). See also Chetty op cit note 125 at 249. In TAC1 op cit note 4 at para 16, the Constitutional Court found that a drug is to be considered as ?medically indicated? where ?a consulting medical practitioner considers that a pati ent he or she is treating would in all the circumstances of health and social circumstances benefit from t he administration of the medication?. 145 See TAC1 (ibid) at para 18 as well as T A C High Court (ibid) at 362I-J; 363I-J; 374H and the discussion in Heywood op cit not e 137 at 279; 288; 291; 293-294; 312-313. 146 See Van Biljon op cit note 107 at paras 33-34; Mark A Hall & Gerard F Anderson ?Health insurers? assessment of medical necessity? (1992) 140 Univ Pennsylvania LR 1637 at 1650; 1675; Ngwena op cit note 126 at 470; Scott & Alston op cit note 13 at 243. 147 See for instance conclusions drawn from medical evidence in Hoffmann v South African Airways 2001 (1) SA 1 (CC) at para 15; TAC2 op cit note 3 at para 59. 148 These include the doctrine of informed consent, the law relating to medical negligence, legal provisions relating to pr ivacy and confidentiality, rules and standards of professional monitoring bodies and codes of professional ethics. See Gregg M Bloche ?The invention of health law? (2003) 91 California LR 249 at 271-272; Mark A Hall ?Rationing health care at the bedside? (1994) 69 New York Univ LR 693 at 756; David Mechanic ?Professional judgment and the rationing of medical care? (1992) 140 Univ Pennsylvania LR 1713 at 1747- 1748; 1750-1751; John A Siliciano ?Wealth, equity, and the unitary medical malpractice standard? (1991) 77 Virginia LR 439 at 452; SA Strauss ?Geneesheer, pas ient en die reg: ?n Delikate driehoek? (1987) TSAR 1 at 3-4. 149 See Hall op cit note 148 at 715; Hall & Anderson op cit note 146 at 1698-1700; Christof Heyns & Danie Brand ?Introduction to socio-economic rights in the South African Constitution? (1998) 2 Law, Democracy & Development 153 at 164; David Orentlicher ?Destructuring disability: Rationing of health care and unfair discrimination against the sick? 131 medically indicated. 144 Indeed, the order in TAC2 was at least partly directed at removing bureaucratic restrictions that prevented doctors in the public health care system from prescribing Nevir apine in accordance with their clinical diagnoses and the dictates of medical ethics. 145 Courts obviously lack the scientific knowledge to decide on diagnosis, prognosis, suitable treatment opti ons and necessity of treatment. 146 This does not mean that they are necessarily ill-equipped to review such decisions, as attested by their scrutiny of and conclusi ons from medical expert evidence in a variety of cases. 147 However, their obvious lack of medical expertise justifies significant deference to clinical decisi ons taken by health care professionals. Possible dangers of awarding a wide marg in of discretion to health care professionals in this respect are amelio rated by the existence of various legal and extra-legal frameworks through whic h the acceptability, integrity and efficacy of such clinical decisions may be tested. 148 It is accordingly believed that clinical decisions which are rationa lly arrived at and consistently applied should not be interfered with, as long as c ourts remain vigilant to the possibility of subliminal racism, sexism and other forms of bias in such decisions. 149 (1996) 31 Harvard Civil Rights Civil Liberties LR 49 at 51-52; 59; 61- 62; 71; Alan Parkin ?Allocating health care resources in an imperfect world? (1995) 58 Modern LR 867 at 870; 877; Scott & Alston op cit note 13 at 243; Siliciano op cit note 148 at 480. 150Parkin op cit note 149 at 870. See also ibid 867; 878; Einer Elhauge ?Allocating health care morally? (1994) 82 California LR 1451 at 1458; 1495-1496; Leonard M Fleck ?Just health care rationing: A democratic decisionmaking approach? (1992) 140 Univ Pennsylvania LR 1597 at 1599; Mechanic op cit note 148 at 1734; Charles Ngwena ?Access to antiretroviral therapy to prevent mother-to-child transmissi on of HIV as a socio-economic ri ght: An application of section 27 of the Constitution? (2003) 18 SA Public Law 83 at 88; Orentlicher op cit note 149 at 60. 151See Soobramoney High Court judgment op cit note 10 at 435D-E; 437E-G; Soobramoney op cit note 2 at paras 29-30 (per Chaska lson P); 40; 45 (per Madala J); 58-59 (per Sachs J) as well as arguments of Fleck op ci t note 150 at 1606-1607; Dieter Giesen ?Health care as a right: Some practical implications? (1994) 13 Medicine & Law 285 at 293; Parkin op cit note 149 at 870-871; 878. In TAC2 op cit note 3, government unsu ccessfully argued that the policy decision not to supply Nevirapine at si tes other than those designated rested on medical/scientific determinations that rendered it unsuitable for j udicial deliberation. See Klug ( SAJHR ) op cit note 51 at 118; Klug ( Vermont LR ) op cit note 51 at 811-812. 132 This, however, does not mean that a ll decisions involving health care professionals should be sacrosanct. Specifically, health care-related rationing decisions, such as that challenged in Soobramoney , are not clinical, but political in nature. There is no reason why such decisions should not be subjected to the same level of scrutiny as that appropriat ed in cases involving ?purely? political decisions - ?[w]hile it may be the case that lawyers should not make medical decisions, we might equally suppose that doctors should not make social decisions?. 150 Indeed, courts should guard agains t political actors attempting to shield their decisions from judicial scr utiny by depicting them as clinical or scientific. The Soobramoney court arguably fell into t he trap of falsely equating a rationing decision (neither taken excl usively by health care professionals nor based predominantly on medica l criteria) as a medi cal/scientific one, and accordingly unjustifiably subjected the decision only to limited scrutiny. 151 Whereas individual entitlements flowi ng from rights to access health care services may accordingly be limited by medical judgments as to whether such care would be beneficial to a particular pat ient, the mere fact that health rights implicate medical issues need not preclude either the judicial interpretation of rights (a legal, and not medical, function) or the judicial scrut iny of decisions and policies which are not purely c linical in nature. Just as the constraints posed by the separation of powers and by the polycentricity of health rights matters, those implied by the medical/scientific element s of such matters do not explain the 152Theunis Roux ?Pro-poor court, anti-poor outco mes: Explaining the performance of the South African Land Claims Court? (2004) 20 SAJHR 511-543. 133 overly restrictive approach that the Constitutional C ourt has adopted towards the interpretation and enforcement of health rights, even as they justify certain restrictions inherent in the TAC2 order. Overall, it w ould appear that the Court?s refusal to award enforceable core cont ent to health rights, its refusal to acknowledge that certain aspects of s 27(1)(a) are independent of s 27(2) and its negative textual inferentialism in rela tion to the entitlements afforded by ss 27(3) and 28(1)(c) of the Constitution are not necessitated by institutional constraints. ( b ) Beyond institu t i o n a l constra i n t s It would seem that the institutional obs tacles referred to by the Constitutional Court as justification for its restrict ive approach towards socio-economic rights adjudication are, at best, significantly ex aggerated. This makes it all the more peculiar that the Court, despite its ostens ible commitment to the actualisation of socio-economic rights and despite the signific ant leeway it is afforded by the text of the 1996 Constitution to interpre t and enforce these rights in a manner reflective of their rights- based status, is nevertheless choosing to restrict their benefit-rendering potential. In interrogating a similarly peculia r tendency of the South African Land Claims Court to reject plausible ?pro- poor? arguments in certain of the cases before it, Theunis Roux showed that much of the unexpected ?anti-poor outcomes? in these cases could be attri buted to the influence of South African legal culture on the manner in which judges negotiate ?doctrinal gaps? when called upon to decide issues of substantive justice. 152 While it may not be the only reason behind the overly restrictive aspects of the Constitutional Court?s socio-economic rights jurisprudence, it is worth considering w hether this culture is having a similarly debilitating effe ct on the benefit-r endering potential of health-related rights. 153 Shown, in relation to liberal legal cultures generally, by M Dlamini ?The political nature of the judicial function? (1992) 55 THRHR 411 at 418; KD Ewing ?Social rights and constitutional law? (1999) Public Law 104 at 110-111; 122-123; Holmes & Suns tein op cit note 121 at 29; Klare op cit note 134 at 152; 166-167; Liebenberg op cit note 140 at 84; Dikgang Moseneke ?The fourth Bram Fischer memorial lecture: Transformative adjudication? (2002) 18 SAJHR 309 at 315-316; Ziyad Motala ?Socioeconomic rights, federalism and the courts: Comparative lessons for South Africa? (1995) 112 SALJ 61 at 68; 71; 74; Pieterse op cit note 50 at 397-399; Ruti Teitel ?Transitional jurisprudence: The role of law in political transformation? (1997) 106 Yale LJ 2009 at 2056; 2075; Robin West ?Rights, Capabilities and the Good Society? (2001) 69 Fordham LR 1901 at 1931. See also chapter 1 note 12 and accompanying text. 154 These aspects of South African legal culture are discussed by, for example, Edwin Cameron ?Legal chauvinism, executive-mindedne ss and justice - LC Steyn?s impact on South African law? (1982) 99 SALJ 38 at 52-62; Alfred Cockrell ?Rainbow jurisprudence? (1996) 12 SAJHR 1 at 35; Dlamini op cit note 153 at 420; J ohn Hlope ?The role of judges in a transformed South Africa - Problems, c hallenges and prospects? (1995) 112 SALJ 22 at 24-26; Klare op cit note 134 at 168; Moseneke op cit note 153 at 316; Donald Nicholson ?Ideology and the South African judicial process - Lessons from the past? (1992) 8 SAJHR 50 at 63-65; Pieterse op cit note 50 at 396-399; Roux op cit note 152 at 531-536. 155See Bollyky op cit note 135 at 182; De Vo s op cit note 16 at 69; 74-75; Klare op cit note 134 at 168; 170-171; Scott & Macklem op cit note 120 at 136-137; 148; Van Wyk op cit note 15 at 395. 134 South African legal culture shares the classical liberal foundations of Anglo-saxon legal culture, which are not favourably inclined towards the notion of enforceable socio-economic rights. Accordingly, arguments that socio- economic rights amount to vague, polit ically loaded and resource-intensive aspirations that are ill-suited for judi cial deliberation, despite having been conclusively refuted, are bound to res onate with the ideological sensibilities of many South African lawyers. 153 Furthermore, South African legal culture is often described as being characterised by an al most peculiar formalism, which has in the pre-constitutional dis pensation been accompanied by a culture of virtually limitless deference to the exec utive and legislative branches. 154 Given that South African judges were schooled in and in fluenced by this legal culture, it is possible that they may intuitively experience ideological discomfort with enforcing socio-economic rights and would attempt to allay such discomfort by deferring to the legislative and executive branches. 155 This instinctive reaction is likely to be fuelled by the fact that judges, in most societies, are simply not used to enforcing socio-economic rights, which remain non-justiciable in the majority of contemporary legal systems. Given the novelty of having to vindicate just iciable socio-economic rights and the concomitant lack of historic al or comparative precedent to guide this task, South 156 See, for example, Barber op cit note 124 at 79; Tom Campbell ?Judicial activism - justice or treason?? (2003) 10 Otago LR 307 at 324; Mureinik op ci t note 124 at 469; Van Bueren op cit note 129 at 58. 157 Argued in relation to the Land Claims Cour t by Roux op cit note 152 at 534; 542-543. 158See text accompanying note 22 above. 159 I have also argued this in Pieterse op ci t note 11 at 898-899. The Court?s objections in this regard are echoed by Albie Sachs ?The judi cial enforcement of so cio-economic rights: The 135 African judges are thus bound to experience socio-economic rights matters as overly complex and intr icate, and as posing in surmountable institutional challenges. Given further that the very not ion of rights-based judicial review was altogether alien to South Af rican law as recently as 1993, we may accept that contemporary South African courts rema in more comfortable with solving disputes of ?formal justice? , rather than with settling issu es of ?substantive justice? which seem alien to them. 156 It may therefore be expected that, in instances where courts are faced with giving effect to claims which appear alien to their preconceived notions of rights, justice and their own institutional capacity, and where they are granted the latitude to dec ide on the manner in which to do so, they would instinctively hark back to formalist modes of legal reasoning. 157 This may ultimately impact negatively on the ex tent to which socio-economic rights render tangible benefits. It indeed seems possible to attribute t he Constitutional Court?s reluctance to opt for a rights-based approach to socio-economic rights to the lingering belief, explicitly voiced by Madala J in Soobramoney that, unlike civil and political rights, socio-economic rights ar e ideals to be strived for rather than rights to be claimed. 158 In particular, t here are many distinct similarities between the Court?s objections to recognising mini mum core obligations flowing from s 27(1)(a) and the typical (and much discredited) objections by socio-economic rights? ideological opponents to their justici ability. Just as socio-economic rights have been described as overly vague, moral aspirations that impose unaffordable positive obligations on states and that require courts to do more than what they are legitimately capabl e of, so the Constitutional Court has characterised minimum core obligati ons as imposing imprecise, positive obligations on the State which are ?im possible? to deliver and which cannot be determined by courts without them tr ansgressing institutional boundaries. 159 Grootboom case? (2003) 56 Current Legal Problems 579 at 599. 160 At least as far as health rights are concer ned, there exists a det ailed and authoritative elaboration on minimum core content in UNC ESCR General Comment 14, the existence of which the Court all but ignores. Furthermore, as chapter 2 has shown, international law does not conceive of minimum core obligations as trump-cards that may, regardless of context or severe resource scarcity, always be enforc ed against states. S ee chapter 2 note 66 and accompanying text. Moreover, far from being ?im possible? to deliver, compliance with minimum core obligations imposed by the right to health would seem well within South Africa?s current capacity. See Bilchitz ( ESR ) op cit note 42 at 4; Bilchitz ( SAJHR ) op cit note 42 at 17; Audrey R Chapman ?Core obligations related to the right to health and their relevance for South Africa? in Danie Brand & Sage Russell (eds) Exploring the Core Content of Socio-economic Rights: South African and International Perspectives (2002) 35 at 49; Scott & Alston op cit note 13 at 250. Finally, courts are perfectly capable of awarding minimum core content to socio-economic rights, as is evident for example from the Grootboom High Court?s interpretation of children?s right to shelter in terms of s 28(1)(c) as requiri ng, as a ?bare minimum?, the provision of tents, portable latrines and safe water. Grootboom High Court op cit note 95 at 293A-B. See further Bilchitz op cit note 20 at 487- 488; Wesson op cit note 44 at 301. 161 It is perhaps also instructive to note the affirmative and rigorous relief awarded in President of the Republic of S outh Africa v Modderklip Boerdery 2005 (5) SA 3 (CC), where the housing interests of homeless people coincided wit h the private property interests of landowners. The order did not, however, flow from a finding that housing or property rights had been breached. 136 Besides at best amounting to a misunderstanding and at worst to a conscious misrepresentation of the role played by mi nimum core obligations in international law, 160 this characterisation betrays a m easure of ideological discomfort with vindicating socio-economic rights that clearly resonates with liberal legal culture?s hostility towards the notion of rights-based, redistributive social reform. It is further telling in this respect that the Court?s (however slight) post- TAC2 departures from Grootboom reasonableness related to aspects of socio- economic rights that either coincide with violations of civil and political rights (the simultaneous infringement of t he right to equality and the ?everyone? threshold in Khoza ) or correspond to the nature of infringements typically associated with civil rights (non-complianc e with the obligation to respect the right of access to housing in Jaftha ) . 161 Given that the enfor cement of civil and political rights rests far more comfort ably with the foundations of liberalism, it was perhaps to be expected that the C onstitutional Court would feel more comfortable with vindicating those el ements of socio-economic rights that correspond to its enforcement of civil and political rights. If one accepts that, due to the cla ssical liberal undertones of South African legal culture, the Constitutional Court is distinctly uncomfortable with 162 See Bollyky op cit note 135 at 182; De Vos op cit note 16 at 74-75; Klare op cit note 134 at 168; 170-171; Pieterse op cit note 11 at 904; Van Wyk op cit note 15 at 395. 163 I have also argued this in Pieterse op cit not e 11 at 893. See further Bilchitz op cit note 20 at 495-496; Brand op cit note 39 at 42. 164 Shown also by Sunstein op cit note 52. See discussion on judicial deference in relation to reasonableness review in pre-consti tutional administrative law by Lawrence Baxter Administrative Law (1984) at 485-487 and in post-constitutional law by Cora Hoexter The New Constitutional and Administrative Law Volume II: Administrative Law (2002) at 183. For example, in Applicant v Administrator Transvaal op cit note 54 at 738F-G; 739A-C; 741D-E, the court was at great pains to emphasise that its judgment shoul d not be viewed as questioning the substantive motive behind a policy-decision no l onger to supply a particular drug in the public health sector nor as supplanting such decision. See discussion of these aspects of the judgment by Frans Viljoen ? Kim Schmidt v Administrator of the Transvaal ? (1993) 26 De Jure 207 at 209. 137 having to vindicate interest s associated with rights that it (at least subliminally) views as ill-suited for judicial review, its choice of the essentially procedural standard of Grootboom reasonableness to give effect to such rights over a more substantive, rights-based interpretative approach, seems almost predictable. 162 In light of South African legal culture?s formalistic undertones, it makes sense for a court faced with (what it perceives to be) novel and potentially acute separation of powers-related tensions, to resort to a familiar (and essentially formalistic) manner of negotiating those tensions. 163 It should therefore come as no surprise that there are close si milarities between the judicial role under Grootboom reasonableness and that which South African courts have for years played in administrative law, which has always involved walking the tightrope between ?legitimate? review of policy decisions and ?illegitimate? substitution of policy with a judge?s personal vision of w hat such policy should ideally have contained. 164 Unfortunately, the result of the Constitutional Cour t?s resort to a method of adjudicating socio-economic rights claims that rests comfortably both with the liberal and formalistic leanings of South Af rican legal culture as well as with the historical role of judicial review in such a culture, is that an application of Grootboom reasonableness does not yield significantly more tangible benefits than those which would in any event hav e resulted from applying administrative law principles in a constitutional setti ng where socio-econom ic rights had either not been entrenched at all or had functioned only as directiv e principles of state policy. 138 While this is lamentable, there never theless remains hope that, as it is called upon to adjudicate an increasing number of health and other socio- economic rights cases, the Constituti onal Court may move towards a more rights-based, and ultimately more benefit -conducive, approach. Given that it may well be a culturally ingrained instinct ive response to the nature of health- related rights claims, rather than insurm ountable textual or in stitutional hurdles to their enforcement, that underlies the Court?s hesitance to tangibly give effect to the health rights in the 1996 Constituti on, the possibility remains that it may over time be persuaded to modify or s upplement its current approach. In the following chapter, I attempt to illustrate that such modification or supplementation is possible without requiring courts to depart radically from the adjudicative approaches to which they are accustomed. 138 CHAPTER 5 ALTERNATIVES AND SUPPLEMENTS TO CURRENT JUDICIAL APPROACHES TO HEALTH RIGHTS 5.1 INTRODUCTION: LOOKING BEYOND GROOTBOOM REASONABLENESS Chapter 4 has shown that certain aspec ts of South African courts? emerging health rights jurisprudence have the effect of unduly restricting the extent to which tangible benefits may result from successful reliance on health rights in litigation. This is true especially of Grootboom reasonableness, the standard developed by the Constitutional Cour t to measure compliance with all obligations imposed by socio-economic ri ghts in the Constitution. I have argued that, with certain exceptions, Grootboom reasonableness leaves socio-economic rights empty of enforceable content and obscures the theor etical basis for those tangible benefits that appear to result in cidentally from its application. In addition to precluding meaningful engagement with the content of health rights, Grootboom reasonableness also hinders engagement with their limits and their horizontal dimensions, and complicat es the development of appropriate remedies to prohibit, correct or compensate for their infringement. While accepting that Grootboom reasonableness will remain the focus- point of the Constitutional Court?s soci o-economic rights jurisprudence for the foreseeable future, this chapter aims to show that there are viable alternative and/or supplementary approaches to health rights adjudication. These may more readily result in tangible benefit s for rights-bearers without requiring a radical overhaul in the manner in whic h courts conduct themselves in socio- economic rights matters. Nor do the approaches considered here preclude the application of Grootboom reasonableness in appropriate matters. Commenting on the TAC2 judgment from a remedy-conscious perspective, Jonathan Klaaren suggests that Grootboom reasonableness ?does 1Jonathan Klaaren ?A remedial interpretation of the Treatment Action Campaign decision? (2003) 19 SAJHR 455. 2Ibid 455; 460-461. See also Jonathan Klaaren ?A n institutional interpretation of socio- economic rights and judicial remedies after T A C ? in Henk Botha et al (eds) Rights and Democracy in a Transformative Constitution (2003) 105 at 112-113. 3 See Klaaren op cit note 1 at 465. 4 The harm suffered by claimants in a particular case may well relate specifically to the manner in which legislation or policy is phr ased or implemented. For example, terms of legislation or policy may arbitrarily exclude par ticular individuals or groups from receiving benefits that would otherwise a ccrue to them, or may otherwis e unreasonably hinder them from accessing particular health-related goods or servic es. In such circumstances, an order that legislation or policy be modified to comply with the dictates of Grootboom reasonableness, if complied with, would correct for the infringement. 139 not entirely shut the door on the direct enforcement of socio-economic rights?. 1 Instead, he claims, Grootboom reasonableness allows for three distinct remedial paradigms, none of which preclude the j udicial recognition and enforcement of a direct remedy for an infr ingement of a socio-economic right. These are, first, the judicial evaluation of legislative and other measur es for compliance with the reasonableness standard (where the remedy granted essentially amounts to an order that reasonable measures be adopt ed or that existing measures be modified to comply with the dictates of reasonableness), secondly, the provision of a legal framework for the vindicati on of health rights through developing the common law and, thirdly, the direct enfor cement of particular litigants? rights, through tailoring appropriate remedies in accordance with s 38 of the Constitution. 2 This chapter engages pr imarily with the second and third remedial avenues identified by Klaaren. The first, which essentially amounts to a reading of Grootboom reasonableness that sees s 27(2) as the remedy intended by s 27(1), 3 is not of direct relevance for my purposes, since tangible benefits would mostly result only incidentally from a re medy that requires legislative or policy measures to adhere to the dictates of Grootboom reasonableness. This is not to say that the ?directi ve principle effect? of Grootboom reasonableness is of no concrete value to health rights? beneficiari es or that its incidental benefits may not be substantial. Moreover, there will certainly be matters in which an order that measures be adopted or modified is both appropriate and sufficient from a benefit-focused perspective. 4 My concern here, how ever, is to elaborate on 140 alternatives to the remedial par adigm most readily associated with Grootboom reasonableness. Accordingly, section 5.2 below cont emplates the direct remedying of health rights infringements, which it lin ks back to arguments that health rights should in appropriate circumstances be interpreted as awarding entitlements and imposing obligations which are imm ediately enforceable. In addition to arguing that the Constitutional Court should reassess its stance towards the notion of minimum core obligations, I illustra te that there exist several alternative ways of identifying and enforcing core- like entitlements inherent to the health rights package in the 1996 Constitution. T hese neither involve courts slavishly following the international law understanding of the minimum core concept, nor require of them to ignore the dictates of s 27(2) of the Constitution or to transgress their institutional boundaries. Thereafter, section 5.3 explores the ex tent to which tangible benefits may result from the application or development of existing common law principles in matters where health rights are implicat ed. I argue that there is significant unexplored potential for the actualisation of health rights through their indirect application. This is so firstly because of the fairly extensiv e body of common law principles applicable to the doctor-pat ient relationship and other ?special relationships? from which socio-economic obligations may flow. Secondly, South African courts would likely be more co mfortable with the ev aluative and remedial paradigms associated with common la w adjudication than with the direct application of socio-economic rights. Common law not only offers a wide array of potential remedies t hat may amount to adequate r eparation for infringements of health rights, but also pr ovides the ideal environment for an exploration of the horizontal dimensions of health right s in accordance with s 8(3) of the Constitution. I accordingly discuss instances in which the current state of common law adequately serves the interests underlying health-related constitutional rights, as well as instances in which these interests may be furthered through relatively uncontrove rsial developments to existing common law rules and doctrines. 5Klaaren op cit note 1 at 461; 464; 467; Klaaren op cit note 2 at 113. 6 Sandra Liebenberg ?The value of human dignity in interpreting socio-economic rights? (2005) 21 SAJHR 1 at 22. 141 5.2 DIRECTLY REMEDYING INFRINGEMENTS OF HEALTH RIGHTS: TOWARDS ENFORCEABLE ENTITLEMENTS Despite the TAC2 Court?s rejection of the argum ent that s 27(1)(a) of the 1996 Constitution awards an immediately claim able minimum core ri ght outside of the parameters of Grootboom reasonableness, Klaaren views the Court?s simultaneous affirmation of its powers to order a remedy that amounts to appropriate relief for each infringement of a socio-economic right, as it reserving the option to vindicate individual or group-based entitlements where this is called for in the circumstances of a particular case. Kl aaren adds that such appropriate relief may well, in suit able circumstances, correspond to the enforcement of a minimum core obligat ion, though it woul d probably follow from a finding of unreasonableness under subsec 27(2) of the Constitution, rather than from a finding that subsec 27(1)(a) thereof has been breached. 5 While the direct remedying of health rights infringements in this manner would be welcome, the basis of a direct judicial remedy for the infringement of a health-related right would remain conceal ed unless it is related specifically to an understanding of the entitlem ents awarded by the right in question and of the extent to which these may be claimed or limited in particular circumstances. Declining to situate a remedy within such an understanding would complicate the monitoring of its effectiveness, th rough obscuring the links between such a remedy and the needs that under lie the right it serves to vindicate. Moreover, detaching remedy from right in this m anner would fail to provide any practical guidance to applicants in future health right s matters as to the extent of their entitlements and to their likelihood of success. Given the onerous burden of proof that such applicants face under Grootboom reasonableness and given that ?[t]he stakes are high for the indivi duals and groups who approach the Court for relief, entailing threats to life, health and the ability to function in society?, 6 7 See also Sandra Liebenberg ?South Africa?s evolving jurisprudence on socio-economic rights: An effective tool in challenging poverty?? (2002) 6 Law, Democracy & Development 159 at 188 (?recognising an individual entitlement to ... relief would be of immense practical benefit to litigants who seek the courts? assistance in situations of severe socio-economic deprivation. They would not be required to review a wi de range of measures adopted by the state and to assess their reasonableness in the light of its ava ilable resources. Instead they would enjoy the benefit of a presumption that placed the burden on t he state to justify why it is unable to provide direct relief. Furthermore, it would ensure tha t, in appropriate circumstances, they are entitled to direct individual relief?). 8Argued also by Darrel Moellendorf ?Reasoning about resources: Soobramoney and the future of socio-economic rights claims? (1998) 14 SAJHR 327 at 331-332 and, in relation to minium core entitlements specifically, by Davi d Bilchitz ?Towards a reasonable approach to the minimum core: Laying the foundations for future socio-economic rights jurisprudence? (2003) 19 SAJHR 1 at 16-18; Kevin Iles ?Limiting socio-ec onomic rights: Beyond the internal limitations clauses? (2004) 20 SAJHR 448 at 458; Liebenberg op cit note 7 at 188; Liebenberg op cit note 6 at 25. 9 See, for example, Iles op cit note 8 at 463-465; Marius Pieterse ?Towards a useful role for section 36 of the Constitution in social rights cases? Residents of Bon Vista Mansions v Southern Metropolitan Local Council ? (2003) 120 SALJ 41 at 45-48; also chapter 3 notes 85-86 and accompanying text. 142 uncertainty as to whether the relief they seek is actually capable of resulting is bound to impact negatively on such applicant s? willingness to assert their rights through the judicial process. The ar gument therefore remains that, if its jurisprudence is to have any tangible significance for socio-economic rights? beneficiaries, the Constitutional Court needs to reverse its stance against the recognition of enforceable claims. 7 In particular, the Court?s reasons for rejecting the argument that s 27(1)(a) of the Constitution encompassed an enfor ceable minimum core obligation simply do not hold water. Contrary to the Cour t?s assertions, affirmi ng the existence of minimum core entitlements would not r equire respondents immediately to satisfy claims to core goods or services, even in circumstances where this would patently be impossible or would lead to in justice. It would merely require the Court to insist that respondents justif y the non-satisfaction of core needs, and to pronounce on the constituti onal acceptability of such ju stification, in exactly the same manner as it decides and pr onounces on the justifiability of apparent infringements of civ il and political rights. 8 This it could achieve either by viewing non-satisfaction of core needs as an in fringement of s 27(1)(a) that requires justification in terms of s 36 of the Constitution 9 or, if it insists on involving s 27(2), by viewing such non-satisfac tion as triggering a presumption of 10As suggested by Liebenberg op cit note 6 at 23. Whereas such a presumption would serve to relieve applicants of the unfair burden of proof they currently bear in terms of a Grootboom reasonableness analysis, it would neverthel ess amount to a less stringent insistence on justification than a s 36 inquiry. Given the vitality and urgency of the interests at stake, Liebenberg accordingly suggests that an inquiry into the rebuttal of the presumption approximates a proportionality analysis in terms of s 36. Ibid at 24; 27-28. 11See Bilchitz op cit note 8 at 18; Liebenberg op cit note 7 at 175fn90; also chapter 3 note 24 and accompanying text. 12Murray Wesson ? Grootboom and beyond: Reassessing the socio-economic jurisprudence of the South African Constitutional Court? (2004) 20 SAJHR 284 at 303-305 for instance argues that the UNC ESCR conception of minimum core excludes many needs of vulnerable sectors of South Afric an society, inflexibly prescribes the State?s response to social needs and frustrates the satisfaction of legitimate needs that UNCESCR regards as falling outside of the minimum core. See also Liebenberg op cit note 6 at 31. Furthermore, it may be argued that it is unwise to incor porate an interpretation of a provision in a treaty that Parliament has not ratified and that is enforced by way of a reporting mechanism only, into a justiciable constitutional right of which the content corre sponds only partially to the treaty-provision. 13 Liebenberg op cit note 7 at 174; Sandra Li ebenberg ?The interpretation of socio- economic rights? in Stuart Woolman (ed) Constitutional Law of South Africa (2ed; 2003) ch 33 at 31. 143 unreasonableness in terms of s 27(2). 10 Moreover, in circumstances where adequate justification for non-satisfaction of core needs is lacking, the Court would retain the flexibility to minimise any unreasonable, unrea listic or otherwise undesirable consequences of a finding to this effect, through tailoring the remedy it awards to suit the circumstances of the case and the interests of justice. 11 I concede that it may possibly be unwis e for South African courts blindly to incorporate the UNCESCR?s understandi ng of the minimum core content of the international law right to health into an interpretation of s 27(1)(a) of the 1996 Constitution, since the latter provis ion operates in an entirely different legal, institutional and social cont ext from article 12 of the ICESCR. 12 However, there is nothing that prohibits domestic courts from themselves incrementally awarding context-sensitive and need-specif ic core content to s 27(1)(a) on a case-by-case basis. 13 Whereas I would still ar gue that UNCESCR?s elaboration of the core content of t he right to health provides invaluable guidance for courts in this respect, several other interpreta tive options also present themselves. For instance, courts could choose to align their understanding of core entitlements in terms of s 27(1)(a) to the understanding evident from legislation or health policy that confers health ca re-related benefits upo n citizens. For 14 Section 28(1)(c) is viewed as illuminating part of the core content of s 27(1)(a) in this 144 example, s 4(3)(b) of the National H ealth Act 61 of 2003 determines that the State must provide free primary health ca re services to all persons except to those who are members of medical aid sc hemes or to their beneficiaries, or to persons receiving compensation in terms of relevant occupational health laws. Section 4(3)(a) of the same Act determi nes that the State must provide free health services (ie extending beyond prim ary care) to all pregnant and lactating women and to all children below the age of six years, subject to similar limitations. Viewing the ent itlements conferred by prov isions such as these as constituting the enforceable core of s 27(1)(a), would minimise the (already slight) separation of power s tensions that may other wise be occasioned by this interpretative exercise. However, adopt ing such an approach obviously runs the risk of depicting core entitlements as being contingent on the existence of the legislative provisions or policy docum ents in question. Nor would such an approach assist in relation to the satisf action of those vital and urgent needs that are not similarly the subject of legislative or policy provisions. Alternatively, should courts insist on adopting a holistic approach to the health rights package in the 1996 Constitu tion, it would appear possible for them to locate the core of the right to healt h outside of s 27(1)(a). As chapter 3 has shown, the constitutional scheme as a whol e supports the prioritisation of certain essential health services, regardless of resource limitations, the dictates of progressive realisation or the existence of reasonabl e measures. The absence of a s 27(2)-style modifier in ss 12( 2)(a), 24(a), 27(3), 28(1)(c) and 35(2)(e) could therefore be read to suggest that the minimum core of the right to health in South Africa could be viewed as enta iling entitlements to emergency medical treatment for all, basic health care se rvices for children, adequate medical care for detainees, such services as are nece ssary to constitute an environment that is not harmful to health and such reproductive health care services as are necessary for the unfettered exercise of the right to reproductive freedom. In line with the two-stage approach to adjudica tion, non-satisfaction of such core needs would be capable of just ification only in terms of s 36 of the Constitution. 14 manner by Craig Scott & Philip Alston ?Adjudicat ing constitutional priorities in a transnational context: A comment on Soobramoney ?s legacy and Grootboom ?s promise? (2000) 16 SAJHR 206 at 260; Geraldine Van Bueren ?Alleviating pover ty through the Constitutional Court? (1999) 15 SAJHR 52 at 57. See further Liebenberg op cit note 13 at 49. 145 Constructing a ?constitutional core? fo r the right to health in this manner would seem to serve the same purpos e as the minimum core approach in international law. Following this appr oach would also minimise separation of powers tensions inherent in the rec ognition and enforcement of minimum core entitlements since courts are, under this approach, de riving their conception of core entitlements from the ex plicit provisions of the c onstitutional text. However, much like Grootboom reasonableness and the ?negative textual inferentialism? that characterises the Constitutional C ourt?s current approach to ?priority? health rights, this approach appears to drai n s 27(1)(a) of independently enforceable content. While the argument that access to particular health care services implied by s 27(1)(a) may not immedi ately be claimed unless it is also guaranteed by another, unlimited, provision of the Constitution, is certainly plausible in light of s 27( 2), it may be criticised for unduly restricting the benefit- rendering potential of s 27(1)(a). Accepting therefore that the rights guaranteed in ss 12(2)(a), 24(a), 27(3), 28(1)(c) and 35(2)(e) of the Constitution are capable of resulting in the population obtaining access to the heal th-related benefits they promise, regardless of whether a minimum core approach is adopted in relation to s 27(1)(a), it should nevertheless be possi ble to award a measure of claimable content to the latter right, over and abov e the entitlements associated with the obligation to respect it and with its egalit arian threshold. Even on a conjunctive reading of ss 27(1)(a) and 27(2), courts shoul d at least be capable of delineating a set of circumstances in which entit lements implied by s 27(1)(a) could be viewed as immediately claimable. In an attempt to establish when dire ct, mandatory relief would amount to an appropriate remedy to correct for the infringement of a socio-economic right, Thomas Bollyky examined a range of orders made by the Constitutional Court in cases involving civil and political, as well as socio-economic rights. He 15See generally Thomas J Bollyky ?R if C > B + P: A paradigm for judicial remedies of socio-economic rights violations? (2002) 18 SAJHR 161 at 163-177. Bollyky expresses this paradigmatically in algebraic terms as R if C > B + P (where R = remedy; C = constitutional violation; B = budgetary implications and P = Po licy implications). He summarises the paradigm as follows: ?The ?positive? mandate created by t he constitutional violation (C) - as a product of its quantitative and qualitativ e elements - is weighed against the ?illegitimacy? of a court issuing the relief - as defined by the sum of its qua litative and quantitative in terference in policy and budgetary decisions (P + B). The common unit, or the basis of comparison, for the variables in this paradigm is whether they add, or detract, fr om the legitimacy of granting that form of relief. Judges intuitively weigh these competing norma tive values and ultimately make an assessment of remedies based on their proportionality?. Ibid 175. 16 Danie Brand ?The proceduralis ation of South Africa n socio-economic rights jurisprudence, or ?what are socio-economic rights fo r??? in Botha et al (eds) op cit note 2, 33 at 50-51. See also Kathryn Garforth ?Canadian ?medical necessity? and the right to health? (Dec 146 concluded that the Court would go beyond ordering mere declaratory relief in circumstances where the egregiousness of the constitutional violation outweighed the sum-total of the budgetar y and political consequences of the order in question. 15 If Bollyky is correct, it shoul d be possible to derive a set of circumstances under which tangible re lief may be expected to result from reliance on s 27(1)(a), through engagi ng with the manner in which the Constitutional Court struck the balanc e between these competing normative values in TAC2. This is so because, even as its use of Grootboom reasonableness in TAC2 obscured the basis for its or der that restrictions on the provision of Nevirapine must be lifted and that its provision must under certain circumstances be permitted and facilitated, that order resulted in a measure of tangible relief for HIV-posit ive pregnant women. It shou ld therefore be possible to recast the terms of the TAC2 order, read with the Court? s justifications for its finding of unreasonableness in that case, in terms that reflect a notion of entitlement at the core of s 27(1)(a). In his critique of the ?proceduralising? effect of Grootboom reasonableness as evident from TAC2 , Danie Brand remarks that the TAC2 Court?s finding of unreasonableness was essentially motivated by its dissatisfaction with the lack of rational c oherence of the challe nged policy. The perception that the policy lacked rational coherence, argues Brand, was in turn based on the fact that the policy prohi bited the drug being administered in situations where it was m edically indicated and where the capacity to administer it clearly existed, despite the drug being affordable, safe and efficacious. 16 That 2003) 8(3) Canadian HIV/AIDS Policy & Law Review 63 at 67-68 (reaching a similar conclusion after probing the judgment and order in TAC2 ) . 17 See, for example, Minister of Health v Treatment Action Campaign (no 2) 2002 (5) SA 721 (CC) ( TAC2 ) at paras 48 (?[i]n deciding on the poli cy to confine Nevirapine to the research and training sites, the cost of the drug itself was not a factor?); 64 (? [h]owever, this is not a reason for not allowing the administration of Nevir apine elsewhere in the public health system when there is the capacity to adminis ter it and its use is medically indicated?); 80 (?[a] potentially lifesaving drug was on offer and where testing and c ounselling facilities were available it could have been administered within the available res ources of the State wit hout any known harm to mother or child?); 120 ('we were informed ... t hat the government has made substantial additional funds available for the treatment of HIV, including the reduction of mother-to-child transmission?); 125 (?[w]e have held that its poli cy fails to meet constitutional standards because it excludes those who could reasonably be included w here such treatment is medically indicated to combat mother-to-child transmission of HIV?) ; 135(2)(c) (?[t]he policy ... fell short of compliance with [the Constitution] in that ... [d]o ctors at public hospitals and clinics other than the research and training sites were not enabled to prescribe Nevirapine ... even where it was medically indicated and adequate facilities exist ed for the testing and counselling of the pregnant women concerned?); 135(3) (?Govern ment is ordered without delay to:( a) Remove the restrictions that prevent Nevirapine from being made avail able for the purpose of reducing the risk of mother-to-child-transmission of HIV at public hos pitals and clinics that are not research and training sites. ( b) Permit and facilitate the use of Nevir apine for the purpose of reducing the risk of mother-to-child transmission of HIV and to make it available for this purpose at hospitals and clinics when in the judgment of the attending medical practitioner acting in consultation with the medical superintendent of the fa cility concerned this is medica lly indicated, which shall if necessary include that the mo ther concerned has been appropriate ly tested and counselled. ... ( d) Take reasonable measures to extend the test ing and counselling facilities at hospitals and clinics throughout the public health sector to fac ilitate and expedite the use of Nevirapine for the purpose of reducing the risk of mot her-to-child transmission of HIV?). 18Klaaren op cit note 2 at 113 adds that the Court will likely order direct relief in these circumstances only where there is sufficient info rmation before it to just ify the order and where there is not a significant ?div ersity of needs and claimants?. 19 The principle of ?non-abandonm ent?, which is sometimes advanced as an appropriate 147 this indeed appears to have been the basis for the TAC2 decision is borne out by several passages from the judgment and the order. 17 It is possible to recast this basis of the TAC2 finding as an entitlement to receive safe and efficacious medical tr eatment where such treatment has been medically indicated, as long as the tr eatment is affordable and where capacity to administer it exists. 18 A basic entitlement to medically indicated, safe and efficacious treatment (s 27(1)(a)) is t hus carved down by restraints imposed by affordability and capacity (s 27(2)). Wher eas this conception of the s 27(1)(a) entitlement may easily be reconciled with the distinctio n between primary, secondary and tertiary care (in that cl aims to be provided with primary health care services will more often succeed on this model than claims for secondary and tertiary care), it is also consist ent with the progressive realisation standard and with the princi ple of non-abandonment, 19 in that it does not rule out direct directive for health resource rationing processes, involves that, despite an emphasis on the satisfaction of primary health care needs, a health system should not abandon attempts to satisfy more complex health needs where it is capable of providing more advanced secondary and tertiary health services. See Willem A Landman & Lesley D Henley ?Rationing and children?s constitutional health-care rights? (2000) 19 SA Journal of Philosophy 41 at 43-44. 148 relief for claims to more sophisticated forms of treatment where this is within the State?s financial and human resource c apacity. Explicitly enunciating and demarcating an entitlement to direct relief under s 27(1)(a) in such terms would be consistent with the refusal of such direct relief in Soobramoney (where treatment was neither effective nor affo rdable). It would further resonate with findings such as that in Van Biljon (where the provision of expensive and complex treatment was order ed since it was medically indicated and efficacious, and because the State could not show that it was unaffo rdable) and in the pre- constitutional Applicant v Administrator Transvaal (where a decision not to provide a patient with medically indica ted and beneficial treatment within the financial capacity of the re spondent was overturned), despite the very different remedial contexts of these decisions. The nature and extent of the entitlement inherent in s 27(1)(a) admittedly remains relatively vague and unspecific in terms of this interpretative approach. The approach also does not assist courts in devising a sufficiently robust standard of scrutiny for assessing resour ce-availability and capacity. However, making the implicit basis for the TAC2 judgment explicit in this manner provides a discernible foundation from which future courts may depart in their efforts to tease out the enforceable cont ent of the right of acce ss to health care services on a case-by-case basis. Usi ng this foundation, rather than Grootboom reasonableness, as the point of departure in cases where access to a particular form of medical treatment is claimed woul d serve to focus the attention of the judicial inquiry on factors directly related to the claim (the medical appropriateness, safety, efficacy and afford ability of treatment claimed by the applicant and the financial and other capacit y of the respondent to provide it) rather than on abstract overarching poli cy factors which are only of indirect relevance to the claimant. It would also force courts to articulate their findings in terms reflecting either an entitlement to particular forms of care or the limits 149 of such entitlement, which will be more conducive than Grootboom reasonableness to the incremental developm ent of a health rights jurisprudence that is sensitive to need. Whereas the minimum core approach to s 27(1)(a) of the Constitution and all of the other approaches to interpreting the subsection discussed here may all have their drawbacks, it is clear that, over and above enforcing the entitlements to specific kinds of health care services afforded by several other constitutional provisions, there are a va riety of ways in which courts could interpret s 27(1)(a) that would amount to the recognition of an individual entitlement to direct relief that effectively and adequately compensates for infringements of the right. Courts should accordingly be encouraged to look beyond Grootboom reasonableness in appropriate cases and to engage instead in the incremental development of an ent itlement orientat ed approach to s 27(1)(a), as well as to other health-rela ted rights. Such an approach would not only assist present and future applicants who would in appropriate circumstances be able to assert their ri ghts with greater ease, but would prove beneficial also to respondents, who woul d have a clearer notion of what is expected of them under each of the implicated rights. An approach to health rights that vindi cates core-like entitlements, such as those discussed here, would nei ther exclude the application of Grootboom reasonableness in appropriate cases (such as challenges to the form and content of particular health-related legislat ion or policies), nor require a drastic reconceptualisation of the manner in which courts conduct themselves in socio- economic rights matters. It would merely ex pect of courts to explicitly articulate the basis of their findings and to situat e this within an entitlement-based and need-sensitive interpretation of the ri ghts concerned. Not only are courts perfectly institutionally capable of awarding such content to rights through interpretation, they also remain empowered under an entit lement-orientated approach to limit the extent of health right s? enforcement where this is called for. They further retain the flexibility to award less than tangible relief in circumstances where, all fa ctors considered, the intere sts of justice dictate that 20Bilchitz op cit note 8 at 21. 21See further ibid 21-22. 150 this is appropriate. A finding that a legitimate health-related entitlement has been limited in particular circumstances, or that tangible relief is not appropriate (notwithstanding the infri ngement of a health-related right) admittedly involves a loss or an empty victory fo r a particular claimant. However, the articulation of this loss or empty victory in entitle ment-orientated or benefit-centered terms remains preferable over Grootboom reasonableness? denial of the existence of a valid, claimable entitlement in the firs t place. As David Bilchitz explains: ?The idea that people have rights even when these are not presently capable of being fulfilled thus helps to express the idea that there is a moral loss, something deeply disturbing that occurs when not all can be provided with life- saving health care, food, water, and shelter. It enjoins us to change this situation as soon as we can so that people can be given what they are entitled to. Without such a recognition, t he failure to meet basic needs under conditions of scarcity does not violate any claim people have. The situation does not demand reform as it does in a position where people have rights that are not fulfilled. The recognition that a person?s fundamental rights are being abrogated ... thus provides a strong sense that there is some injustice or moral tragedy involved in the inability to realise those rights.? 20 Recognising the existence of a valid and enforceable entitlement inherent to a right, even in circumstances where the right is considered to have been limited, or where it is not appropriate to dire ctly remedy its infringement, further opens the door for future applicants to succeed with similar claims in different or altered circumstances (eg where res ources have become available, where relevant policy measures hav e been put in place, etc). Were courts to indicate that they regard particular aspects of health-related rights as being enforceable (whether or not they are act ually enforced in a particula r case), this would likely also have positive ?directive-principle?-lik e spinoffs, in that the other branches of government would be given an incentive to satisfy the needs in question in order to avoid future litigation. 21 Overall, there appears to be suffici ent textual backing and institutional leeway for courts directly to remedy infringements of particular health-related rights in appropriate circumstances, whet her or not such remedies flow from 22Klaaren op cit note 1 at 460-461. S ee also Klaaren op cit note 2 at 112. 151 endorsement of the minimum core standard as enunciat ed in international law. It is hoped that courts would, where the circumstances of a particular case lend themselves to this, venture beyond Grootboom reasonableness to directly enforce certain health-related rights, or aspects of a particular health-related right. This would significantly enhanc e the practical relevance of their judgments for the intended reci pients of the protection awarded by health rights in the Constitution, without diminishing the judiciary?s inst itutional integrity. 5.3 GIVING EFFECT TO HEALTH RIGHTS THROUGH DEVELOPING THE COMMON LAW In addition to an order that requires the State to adopt reasonable measures aimed at progressively realising a socio- economic right, or an order that directly remedies an infringement of such right, it is possible for a court indirectly to give effect to the interests served by a particular socio-economic right, by making an order that amounts to a development of the common law in terms of s 39(2) of the Constitution. Klaaren argues that, on a reading of the phrase ?reasonable legislative and other measures? in s 27(2) of the Constitution as including also judicial measures, it is possible to vi ew the judicial task under s 27(2) of the Constitution as in addition comprising an obligation to ensure that the common law, as part of the general legal framew ork for the realisat ion of socio-economic rights, is ?reasonable?. Hence, courts ar e constitutionally required to develop the common law in situations where this is necessary for the effective enjoyment of socio-economic rights. 22 It is further generally accepted that development of the common law is the preferred avenue through which to give horizontal effect to human rights. Given the prevailing opposition to applying socio- economic rights directly in private disputes, it may be expected that t heir horizontal dimensions will for the foreseeable future, be limited either to the vindication of statutory socio- economic duties against private entities or to the development of relevant 23 See chapter 3 notes 10- 11 and accompanying text. 24 2002 (6) SA 21 (SCA). 25See also remarks of Iain Currie ?Bill of Rights jurisprudence? (2002) Annual Survey of SA Law 36 at 74; Klaaren op cit not e 2 at 115. Apart from Afrox, health rights were relied on in Ntsanwisi v Mbombi 2004 (3) SA 58 (T) at 61G where it wa s argued that enforcing a restraint of trade clause on a health care professional would im pact detrimentally on patients? right to access health care services. However, the judgment nowhere addresses this argument. 152 common-law rules or doctrines that regulate private relationships. 23 A survey of South African common law reveals that it gives effect to health rights to an extent far greater than what is ack nowledged by most critics of horizontal application of socio-economic rights. Given that South African courts have for many years engaged in developing the common law in accordanc e with the changing social mores and are now under an explicit constitutional mandate to ensure that the common law resonates with the spirit, purport and objects of the Bill of Rights, they should be able to fulfill the remedial aspects of thei r role in this regard with relative ease. While an attempt to allign the common law regulating contractual exclusion clauses with the values associated wit h s 27(1)(a) of the Constitution in Afrox Healthcare v Strydom 24 ( ? Afrox ?) was ultimately unsuccessful, that case illustrates that it would be possible for c ourts to enforce certain aspects of health rights in such an indirect manner, without straying too far from their institutional comfort zone. 25 This section will show that there are a significant number of instances in which courts may adequately give effect to health rights through applying and/or developing the common law. Courts are accordingly encouraged to explore the remedial avenue of ?law provis ion? or development more closely, as it presents a potentially viable supplement to Grootboom reasonableness, especially in cases where there is an attempt to assert a health-related right in a ?private? relationship. The examples of common law dev elopments discussed here are not exhaustive of the possibilities posed by this remedial avenue for the actualisation of health rights. Nor are t hey held forth as the only, or necessarily the best, manner in which the relevant common law provisions may be altered 26 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) at para 40. 153 to give effect to particular health-relat ed interests, or to facilitate access to direct, tangible remedies for successful claimants. In Carmichele v Minister of Safety and Security, the Constitutional Court dete rmined that any court which is called upon to develop the common law in accordance with s 39(2) must first establish whether and to what extent the current state of the common law requires development, in light of the circ umstances of the case. Thereafter, it should decide on the manner in which dev elopments that are necessary for the common law to reflect the spirit, purport and objects of the Constitution should be effected in the context of the particular matter. 26 The examples provided here present but some of the spectrum of possible co mmon law developments which may result in more tangible benefits in matters where health-related rights are directly or indirectly implicated. (a) The common law and s 12(2) As set out in 3.3(a) above, the health-re lated freedoms protected in terms of s 12(2) of the Constitution include a right to individual control over physical and mental health status. One way in whic h individuals exercise such control is through making informed and independent lifes tyle-related choices that impact on their personal health status. These include the choice to seek medical attention in the event of illness. W here medical attention is sought, health- related autonomy finds expression within the doctor-patient relationship through patients? participation in decisions by health care professionals as to whether patients should receive particular forms of medical treatment. In order for this aspect of health-related autonomy to have practical significance for patients in this context, legal mechanisms are necessa ry not only to prevent the unjustified infringements of health-related autonomy in terests by health care professionals, but also to compensate patients fo r damage suffered in cases where such infringements have occurred. One such mechanism is to be found in the common law, which has long 27 See J Neethling; JM Potgieter & PJ Visser Neethling?s Law of Personality (1996) 29-30; Christa Van Wyk ?Die regte van gevangenes met HIV? (1997) 60 THRHR 699 at 704. 28See Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T) at 721B-E, also Dieter Giesen ?From paternalism to self-determi nation to shared decision-making? (1988) Acta Juridica 107 at 109; DJ McQuoid-Mason & SA Str auss ?Medicine, dentistry, pharmacy and other health professions? in WA Joubert & JA Faris (eds) The Law of South Africa Volume 17 (1st Reissue 1999) 129 at 146 and authorit ies cited there; Charles Ngwena ?Health care decision- making and the competent minor: The lim its of self-determination? (1996) Acta Juridica 132 at 134-135; FFW Van Oosten ? Castell v De Greef and the doctrine of informed consent: Medical paternalism ousted in favour of patient autonomy? (1995) 28 De Jure 164 at 166-167. 29 Castell v De Greef 1994 (4) SA 408 (C) at 420J and 421C-D respectively. See also 427D-E, where the doctrine is described as follows: ?It is in accord with the fundamental right of individual autonomy and self-determination to wh ich South African law is moving. This formulation also sets its face against paternalism, from many other spec ies whereof South Africa is now turning away?. For discussion of thes e dicta, see Van Oosten op cit note 28 at 176; 178- 179. Castell ?s understanding of informed consent as integral to autonomy has been endorsed in the post-constitutional era in C v Minister of Correctional Services 1996 (4) SA 292 (T) at 300F-H; Christian Lawyers Association v Minister of Health 2004 (10) BCLR 1086 (T) at 1092H- 1095J; Oldwage v Lourens [2004] 1 All SA 532 (C) at paras 87-91. 30 Castell op cit note 29 at 425G-J; 426F-H. For a detailed exposition of the common-law position in this regard, see NJB Claassen & T Verschoor Medical Negligence in South Africa 154 regarded physical and mental heal th as part of the individual?s physical integrity, which is in turn recognised and protect ed as a personality right that is capable of infringement by public or private actors. 27 Further linked to this understanding of physical integrity is the not ion of individual autonomy and self- determination, which common law in turn views as encompassing the doctrine of informed consent to medi cal treatment. Accordingly, where a patient receives medical treatment without her informed consent, this is viewed as an actionable breach of her physical integrity, wh ich may found delictual liability and may accordingly warrant an award of com pensatory damages against a medical practitioner. 28 The legal position in this regard has authoritatively been set out in Castell v De Greef , where Ackermann J spoke of the r equirement that medical treatment may proceed only with the informed consent of a patient, as flowing from a patient?s ?fundamental right to self-determination? and ?r ights of bodily integrity and autonomous moral agency?. 29 He found that, for c onsent to constitute a defence against a delictual claim arising from medical treatment, the medical practitioner in question must have informed the patient, as fully and clearly as is practicable, of her diagnosis and prognosis, as well as of the nature, importance and effects of proposed treatment. 30 Patients would further be (1992) at 59-71; Murray Earle ? ?I nformed consent?: Is there r oom for the reasonable patient in South African law?? (1995) 112 SALJ 629-642; Van Oosten op cit note 28 at 170-171. 31 The Court further indicated t hat it would regard a risk as ?material? where, in the circumstances of the case, ?a reasonable person in the patient?s position, if warned of the risk, would be likely to attach significance to it; or ... the medical practitioner is or should reasonably be aware that the particular patien t, if warned of the risk, would be likely to attach significance to it?. Castell op cit note 29 at 426F-H. The import of a patient-orientated test for determining whether informed consent was present in a par ticular matter has been hailed as a triumph for patient autonomy over medical paternalism in S outh African law. See Van Oosten op cit note 28 at 176. 32 For instance, common law regards it as lawf ul to proceed with treatment in the absence of informed consent where this is necessary for the protection of public health, or where assistance is rendered in a medical emergency. See Giesen op cit note 28 at 123-125; Van Oosten op cit note 28 at 172. Castell furthermore does not exclude the withholding of health- related information where disclosure would do more harm than non-disclosure. Castell op cit note 29 at 426H; Van Oosten op cit note 28 at 172; 177. 33 See provisions discussed in chapter 3 notes 32-33 and accompanying text. 155 regarded as having consented to treatm ent only where they have understood and appreciated any material risk relevant to it. 31 Where a medical practitioner proceeds with treatment wit hout a patient?s informed consent, thus understood, her conduct is regarded as wrongful and can accordingly found delictual liability, unless the medical practitioner can show that she was justified in the circumstances, to proceed with treatment notwithstanding the lack of informed consent. 32 The legal position in this regard has recently been supplemented by the provisions of ss 7-9 of the National H ealth Act 61 of 2003, which set out the consent-related duties of parties to the doctor-patient relationship and list circumstances in which treatment may proceed without informed consent. 33 While these provisions therefore func tion both as a statutory expression of patients? right to bodily integrity in terms of s 12(2) of the Constitution and as a limitation on its ambit, they seemingly do not add any rights or obligations to those identified in Castell . They further appear not to provide an independent remedial avenue for patients whose int egrity-related rights have been infringed in the rendering of medica l treatment. Such patient s will likely still make use of the common law to attain compensati on for damages suffered as a result of having received medical tr eatment without their informed consent. The current state of common law, as set out in Castell , clearly allows for adequate reparation in this regard. 3 4 See McQuoid-Mason & Strauss op cit note 28 at 143 and authoritie s cited there; SA Strauss ?Medical and health law? in Francis Bosman (ed) Social Welfare Law (1982) 511 at 519. 35 Factors listed by McQuoid-Mason & Str auss op cit note 28 at 145. See also Magware v Minister of Health 1981 (4) SA 472 (Z) at 475A-B; Dieter Giesen ?A right to health care? A comparative perspective? (1994) 4(2) Health Matrix 277 at 290; Aart C Hendr iks ?Patients? rights and access to health care? (2001) 20 Medicine & Law 371 at 376; Bruce E Leech ?The right of the HIV-positive patient to medical care: An analysi s of the costs of prov iding medical treatment? (1993) 9 SAJHR 39 at 48; Strauss op cit note 34 at 517. 156 (b) The common law and s 27(1)(a) (i) Access to care An obvious barrier to acce ssing health care services, especially in the private health care sector, occurs where health care practitioners or establishments refuse to render treatment to particula r patients or groups of patients. Such refusal is typically justified on a vari ety of grounds, including the failure by patients to satisfy hospital admission r equirements (such as having to produce proof of medical aid member ship or having to sign indemnity forms), the inability of health care practitioners or facilities to render treatment of the kind requested, the inability of patients to pay for tr eatment and health care professionals? conscientious objection to rendering par ticular forms of treatment. It is conceivable that, whereas such a denial of care would often be legitimate, it may sometimes be viewed as an unjustifiable barrier to accessing health care services and accordingly as an infringement of s 27(1)(a) of the Constitution. At common law, a health care profe ssional is as a general rule free to refuse to accept a particular person as a patient. 34 Once accepting a patient however, a contractual, moral and ethical duty obliges the health care professional to continue providing treat ment, unless it can feasibly be left to another health care professional who is willi ng to treat; or sufficient instructions for further treatment are issued; or furt her treatment is medically unnecessary, futile or likely to do more harm t han good; or the patient refuses further treatment; or the practitioner gives the patient reasonabl e notice of her intention to discontinue treatment while simultaneously ensuring that alternative treatment options are available. 35 It is thus possible to hold a health care professional delictually liable for withholding treatment unreasonably, in circumstances where 3 6 McQuoid-Mason & Strauss op cit note 28 at 145. 37 See in this regard also Hendriks op ci t note 35 at 377; Leech op cit note 35 at 67. 157 a doctor-patient relationship has come to be established. In determining whether or not a refusal of treatment was reasonable, courts must take into account factors such as the doctor?s k nowledge of the patient?s condition, the nature and seriousness of the patient?s condition, the ability of the doctor to assist the patient, the availability of al ternative treatment, the interests of the doctor?s other patients as well as ethical considerations. 36 The constitutionalisation of health rights must necessarily influence the above assessment. I would argue that the right to have access to health care services challenges the foundation of t he common law position that health care professionals are regarded as always being free to refuse treatment, unless a doctor-patient relationship has already been established. At the very least, the horizontal operation of the right to equality and the concomitant equality guarantee underlying the right of access to health care services should have the effect of precluding any arbitrary refusa l of treatment or any refusal that is motivated by unfair discrimination. 37 The common law should accordingly be developed to reflect this. In addition, I would argue that the values associated with the right to have access to health care services would be better served by reversing the starting point of the common law inquiry. This would entail that a health care professional is regarded as duty-bound to provide treatment, regardless of the presence of a pre-exis ting doctor-patient relationship, unless he or she can offer constitutionally accept able justification for refusing to do so. Accordingly, health care professionals would incur delictual liability for damages suffered as a result of an unjustifiable refusal to render treatment. Developing the common law in the manner described here would serve either to secure access to health care services for patients who were at risk of being denied access without constitutionally acceptable justification, or to tangibly compensate such patients for damages suffered as a result of such denial of access. Whereas there obvi ously has to be guarded against placing an undue burden on health care professionals to render care regardless of the 38 See cases discussed by C Ngwena ?Conscientious objection and legal abortion in South Africa: Delineating t he parameters? (2003) 28(1) Journal for Juridical Science 1 at 4. 39 Ngwena (ibid) at 9-10. See also re marks of Stephen Ellmann ?A constitutional confluence: American ?State-action? law and t he application of South Africa?s socio-economic rights guarantees to private actors? in Penelope Andrews & Stephen Ellmann (eds) The Post- Apartheid Constitutions: Perspectives on South Africa?s Basic Law (2001) 444 at 458. 158 circumstances or their reasons for refusal, it is submitted that health care professionals? interests in this r egard could be adequately protected by developing rules of common law to limit patients? right of access to care, in accordance with s 8(3)(b) of the Cons titution. The accepted common law grounds of justification for refusal to c ontinue treating existing patients and the factors to be taken into account in determining the reasonableness or otherwise of such refusal, could serve as a useful starting point in this respect. An inquiry into the reasonableness and ju stifiability of a refusal to render particular treatment would often boil down to weighing interests of health care professionals against those of their w ould-be patients. One particularly controversial example of this is where the refusal to tr eat relates to a health care professional?s moral, religious or et hical objection to rendering particular treatment. The context in which such c onscientious objection appears to arise most often is the provision of abortion services under the Choice on Termination of Pregnancy Act 92 of 1996. Especially in rural areas, several instances of health care professionals refusing to per form abortions out of moral or religious objection have been documented. This has resulted in a de facto denial of access to termination services in situati ons where the requested treatment is not accessible or available elsewhere in the vicinity. 38 An inquiry into the constitutional acceptability of justificat ion for refusing to perform a termination of pregnancy due to conscientious objecti on must necessarily involve a balance between the implied right of health care professionals to conscientious objection (derived from the right to freedom of c onscience, religion, belief and opinion in s 15 of the Constitution) and the expr ess right of patients to have access to reproductive health care services. 39 The Choice on Termination of Pregnan cy Act does not indicate how this balance should be struck, though the det ermination in s 6 that women who 40 See Charles Ngwena ?Accessing abortion services under the Choice on Termination of Pregnancy Act: Realising s ubstantive equality? (2000) 25 Journal for Juridical Science 19 at 39; Ngwena op cit note 38 at 5; 9; 11-13; 16. 159 request termination services should be inform ed of their rights in terms of the Act does impose limited restrictions on rights of conscientious objection. Similarly, Charles Ngwena argues that refusal to perform a termination of pregnancy out of conscientious objection would generally amount to a reasonable and justifiable limitation on the right of access to reproductive health care services, unless the termination is required as a matter of medical emergency. However, Ngwena regards health care professional s as duty-bound, notwit hstanding their rights of conscientious objection, to re fer the patient to a facility where a termination service may in the alternat ive be accessed. Ngwena further hints that rights of conscientious objection ma y more readily be limited in rural areas where such alternative facilities are not available or accessible. 40 I would go further to suggest that, in circumstances where a refusal to provide medical treatment due to consci entious objection amounts to a de facto denial of access, implied rights of conscientious objection should be overruled by the express right of access to health care services. In other words, the interests of patients shoul d generally outweigh those of medical practitioners in this context. Refusal to treat due to conscientious objection would, on my suggestion, be regarded as reasonable and justifiable only in circumstances where alternative services are practically available and accessible to the patient and where the patient was alerted to such options by the health care professional. (ii) Quality of care As shown in 3.3(d)(i) above, the s 27(1)(a) right to have access to health care services must necessarily imply a justic iable standard of quality of care, for it to comply with relevant international human rights norms and to have practical significance for those who suffer damages through receiving negligent or substandard care. Furthermore, the State?s duty to protect citizens from private 41 See Strydom v Afrox Health Care [2001] 4 All SA 618 (T) at 626b-e; 627f-g; Korf v Health Professions Council of South Africa 2000 (1) SA 1171 (T) at 1179B-D. 42 See, for example, Esterhuizen v Administrator, Transvaal op cit note 28 at 723C-E; Blyth v Van den Heever 1980 (1) SA 191 (A) at 193B-194A; 221A; 221D-E; Magware v Minister of Health op cit note 35 at 477A-B; Correira v Berwind 1986 (4) SA 60 (ZHC) at 63E-F; I; 66C-D; S v Kramer 1987 (1) SA 887 (W) at 893E-894J; Pringle v Administrator, Transvaal 1990 (2) SA 379 (W) at 385A-D; 396H-I; Applicant v Administrator, Transvaal 1993 (4) SA 733 (W) at 738D- F; Collins v Administrator, Cape 1995 (4) SA 73 (C) at 81J-82B; Oldwage v Lourens op cit note 29 at paras 40-46; Van der Walt v De Beer 2005 (5) SA 151 (C); also Claassen & Verschoor op cit note 30 at 13-14; McQuoid-Mason & Strau ss op cit note 28 at 152- 153; 198-199; SA Strauss Doctor, Patient and the Law (3ed 1991) at 95-96; 252; Strauss op cit note 34 at 517; Neil Van Dokkum ?Hospital consent forms? (1996) 7 Stellenbosch LR 249; Neil Van Dokkum ?The evolution of medical malpractice law in South Africa? (1997) 41 J of African Law 175 at 190; Ferdinand Van Oosten ?Financial resources and the patient?s right to health care: Myth and reality? (1999) 32 De Jure 1 at 4-5; 8. 160 infringements of the right to have a ccess to care requires the presence of effective and practicable remedial avenues which ensure that rights-bearers are in the position to demand that the health care services they receive satisfy at least minimum standards of professi onalism and scientific appropriateness. Patients should further be entitl ed to adequate compensation for damages suffered as a result of receiving care wh ich falls short of such standards. There have been welcome obiter remarks by South African High Courts which acknowledge that the actual enjoyment of the right of access to health care services is significantly compromis ed where quality standards are not adhered to or are not enforced. 41 The task of establishing when the qualit y of treatment received is to be regarded as adequate, so as to satisf y the quality standard inherent in s 27(1)(a), has been significantly simplif ied by the development of a quality yardstick in common-law cases dealing with medical negligence. This standard involves that failure by a health care professional to exercise a degree of skill and care that may reasonably be expect ed of the average, reasonably skilled practitioner in his or her field of medica l expertise in similar circumstances, can lead to contractual or delictual liability. 42 I would submit that the implied standard of ?reasonable care? is sufficient ly flexible to accommodate quality concerns in relation to s 27(1)(a), while simultaneously remaining realistic and sensitive to the context wit hin which health care services are rendered. The standard thus strikes a fair balance bet ween the competing interests of health 4 3 See Claassen & Verschoor op cit note 30 at 27; Lorraine Hebblethwaite ?Mishap or malpractice? Liability in delict for medical negligence? (1991) 108 SALJ 38 at 38-39; 43. On the various difficulties associated with the imbalanc es in knowledge and bargaining power in the doctor-patient relationship see also Einer Elhauge ?Allocating health care morally? (1994) 82 California LR 1451 at 1542; David M Frankford ?Privatizing health care: Economic magic to cure legal medicine? (1992) 66 Southern California LR 1 at 15-16; 55-57; 59-60; 93; Paul Gertler & Jacques Van der Gaag The Willingness to Pay for Medical Care: Evidence from Two Developing Countries (1990) at 16-17; 21; Giesen op cit note 28 at 114; Mark A Hall ?Rationing health care at the bedside? (1994) 69 New York Univ LR 693 at 700-701. 44 See Mitchell v Dixon 1914 AD 519; Van Wyk v Lewis 1924 AD 438; also authorities cited and discussed by PA Carstens ?Die toepassing v an res ipsa loquitur in gevalle van mediese nalatigheid? (1999) 32 De Jure 19 at 21-24; Claassen & Ver schoor op cit note 30 at 28-20; McQuoid-Mason & Strauss op cit note 28 at 204. 161 care professionals and patients in this regard. Common law accordingly presents a viable remedial avenue for re cipients of negligent or substandard care. However, there are practical impedim ents regarding the application of the common law quality standard to concrete case s, that significantly restrict its remedial potency and accordingly diminish its effectiveness. The spirit, purport and objects of a Constitution which take s health rights seriously require that these be acknowledged and addressed, eit her through a development of the relevant legal principles or through a change in the manner in which courts currently apply these principles. One such impediment, relating to the application (rather than the content) of the medical negligence standard, is occasioned by the inherent imbalance in scientific knowledge (and other resources) between patients an d doctors. This imbalance, coupled with the discipline-s pecific and scientific nature of a test inquiring into ?reasonable care? rendered by a ?reasonable practitioner?, make it notoriously difficult for a patient to prove negligence or wrongdoing on the part of a health care professional. 43 An obvious manner in which to alleviate this difficulty would be to apply the maxim of res ipsa loquitur in medical negligence cases where an inference of negligence seems justified by the circumstances of the case. However, South African courts have historically been unwilling to apply the maxim in cases of alleged medica l negligence, out of deference to the medical profession and in em pathy with the often difficult conditions under which health care professionals operate. 44 45 Claassen & Verschoor op cit note 30 at 28. S ee also authorities cit ed there. Carstens op cit note 44 at 21-22; 24; 26 further lists se veral examples of cases clearly calling for application of res ipsa loquitur. These include cases where there has been physical injury to a body part other than that which was treated, where the wrong body part was treated, where the wrong limb was amputated, where there is operated on the wrong pat ient or the wrong operation is carried out on a patient, where a patient is given the wrong medication or an over-dosage of medication, or where medical instrument s are left inside the body after an operation. 46 As argued by Carstens (ibid) at 26-27. 47 See Danie Brand ?Disclaimers in hospital admission contracts and constitutional health rights? (2002) 3(2) ESR Review 17 at 18. For an exposition of t he relevant principles from the common law of contract applicable here s ee Van Dokkum (1996) op cit note 42 at 250-253. 162 Whereas one must remain sympathetic to these circumstances, I agree with suggestions that res ipsa loquitur should, at least where ?the prejudicial result is clearly in contrast with the acknowledged therapeutic objectives and technique of the operation or treatment in question?, find application in cases of alleged medical negligence. 45 This is required not only by the constitutional guarantees of equality and a fair trial, 46 but also by the values associated with s 27(1)(a). The application of the ma xim in such cases would significantly enhance the potential of s 27( 1)(a) to address the imbalances in power inherent to the doctor-patient relationship and to result in adequate compensation for those whose rights to receive care of an appropriate quality have been infringed. A further, and arguably more pernicious, impediment to the effectiveness of the relevant common law principles in securing tangible relief for patients whose rights to receive care of an adequat e quality have been infringed, is that the principles are increasingly excluded from application in the majority of doctor-patient relationships in the privat e health care sector. The great majority of private health care institutions indemnify themselves against damages resulting from substandard or negligent care administered by their personnel, by insisting that patients waive their re medies in this regard upon entering into a contract of admission to the institution. So prevalent is this practice that virtually no patient of a private health care institution can nowadays successfully hold the institution liable for r endering negligent or substandard care. 47 In Afrox Healthcare v Strydom , the SCA overturned a finding of the High Court that the terms of such an excl usion clause were contra bonos mores and unenforceable by virtue of infri nging s 27(1)(a), since it fe lt that the terms of the 48 Afrox op cit note 24 at paras 13; 15; 19-21. The SCA emphasis ed that s 27(1)(a) would not preclude private hospitals fr om charging fees or from setting conditions for rendering care. See also remarks of Pieter Carstens & Anton Kok ?An assessment of the use of disclaimers by South African hospitals in view of cons titutional demands, foreign law and medico-legal considerations? (2003) 18 SA Public Law 430 at 439. 4 9 Refusing to admit a patient who refuses to agree to an exclusion clause may however fall foul of s 27(1)(a). Carstens & Kok (ibid) at 441; 444. 50See Brand op cit note 47 at 18; Carstens & Kok op cit note 48 at 444; 452; RM Jansen & BM Smith ?Hospital disclaimers: Afrox Healthcare v Strydom ? (2003) 28(2) Journal for Juridical Science 210 at 215; Patrick van den Heever ?Exclusion of liability of private hospitals in South Africa? (April 2003) De Rebus 47 at 47-48. Such disclaimers ar e also incompatible with medical ethics. Carstens & Kok op cit note 48 at 450. 51See Jansen & Smith op cit note 50 at 218. 163 exclusion clause did not deny access to tr eatment and did not explicitly allow for the rendering of negligent or substandard care. The argument that s 27(1)(a) presupposed a minimum level of care was accordingly held not to be relevant in the circumstances. 48 While the Court was arguably correct that exclusion clauses do not themselves deny access to care or condone negligent or substandard care, 49 it failed to appreciate that such clauses prevent patients from availing themselves of their onl y meaningful remedy where the quality guarantee underlying their right to have a ccess to health care services has been dishonoured. 50 This is patently incompatible with the ethos of a Bill of Rights that entrenches justiciabl e health rights and promises appropriate relief for their infringement. Such a de facto expurgation of the common law pertaining to medical negligence from private doctor-patient re lationships may clearly be avoided, by limiting the ambit of the common law understanding of freedom of contract in order for it to resonate with the val ues associated with s 27(1)(a) of the Constitution. It has for example been ar gued that, given that exemption clauses amount to a de facto waiver of the quality-guarantee underlying the right of access to health care services, privat e hospitals should be under an obligation to alert prospective pati ents to their existence. 51 I would, however, argue that exclusion clauses in hospital admission contracts should per se be viewed as being against public policy (given that t he concept of public policy must be understood as also embodying the values underlying the rights in the Bill of Rights, including the various rights a ssociated with the right to health) and as 52See also ibid 215-216 and authorities there ci ted. For a pure contract-law argument to the same effect, see Tjakie Naude & Gerhard Lubbe ?Exemption clauses - A rethink occasioned by Afrox Healthcare Bpk v Strydom ? (2005) 122 SALJ 441 at 456-457. Carstens & Kok op cit note 48 at 455 call on the legislature to outlaw disclaimers in standard-form hospital admission contracts. The positi on of patients in this regard will likely be ameliorated somewhat by the National Health Act 61 of 2003, s 46 of which determines that ?[e]very private health establishment must maintain insurance cover su fficient to indemnify a user for damages that he or she might suffer as a consequenc e of a wrongful act by any mem ber of its staff or by any of its employees?. 53 On the English position, see Kevin Williams ?Medical samaritans: Is there a duty to treat?? (2001) 21 Oxford Journal of Legal Studies 393 at 393-394; Kevin Williams ?Doctors as good samaritans: Some empirical evidence concer ning emergency medical treatment in Britain? (2003) 30 Journal of Law & Society 258 at 258-259. 54 The common law position is set out in Minister van Polisie v Ewels 1975 (3) SA 590 (A). See also PQR Boberg The Law of Delict Vol 1 (1984) 211 and authoritie s cited there; J Neethling; JM Potgieter & PJ Visser Law of Delict (3ed 1999) 56-57 and author ities cited there. 164 accordingly being unenforceable. 52 It is hoped that Afrox will not be the last word on the constitutionality of such ex clusion clauses and that the SCA or the Constitutional Court will adopt an approach that is more sympathetic to the dilemma of individual patient s attempting to assert thei r health rights against the powerful collective of the private health care sector. (c) The common law and s 27(3) Due to the nature of medical emer gencies and the urgency of receiving appropriate treatment during such em ergencies, the consequences when such treatment is refused or cannot be obtained are often severe. Vindication of the right not to be refused emergency treatm ent will therefore oft en involve ex post facto claims for compensation in rela tion to damages suffered as a result of having been denied necessary emergency treat ment. As such, the common law of delict seems to be the logical route for obtaining appropriate relief. However, like English law, South African common law does not recognise the existence of a blanket duty to ac t in order to prevent harm to another person. 53 Instead, whether or not a person should have acted to prevent harm to another is determined on a case-by-case basis with reference to the boni mores, taking into account all relevant circumstances of the matter, including whether a ?special relationship? could be said to exist between the parties in question. 54 Like in England, this general position has always been regarded 55See Williams (2001) op cit note 53 at 395; 413. 56 See for instance the events detailed by SA Strauss ?Twee mediese regsvrae: Die aanspreeklikheid van private hospitale met ongev alle-afdelings en die aanspreeklikheid van sportpromotors en skeidsregters teenoor beseerde spelers? (2000) TSAR 205 at 209-210, recalling the death of a Pretoria cyclist who sustained critical injuries in a road accident. The cyclist was brought by a passer-by to an emergency room of a private hospital, where staff refused to admit him, since his identity coul d not be established. The cyclist was subsequently admitted to a public hospital, where he died shortly after arrival. 57 The European and American positions are discu ssed by Dieter Giesen ?Health care as a right: Some practical implications? (1994) 13 Medicine & Law 285 at 287-288. See also the various authorities cited there. 58 Kent v Griffiths [2000] 2 WLR 1158 and Lowns v Woods [1996] Aust Tort Reports 81- 376, as discussed by Williams (2001) op cit note 53 at 401-402. On the r equirement of physical proximity generally, see Williams (ibid) 401-403; 409-410; Williams (2003) op cit note 53 at 271; Giesen op cit note 57 at 287-288. 165 with a measure of mo ral (and legal) unease. 55 This unease is especially acute in the case of medical emergencies, with (all too often true) urban legends describing patients in desperate need of medical attention being ignored by health care professionals in the vicini ty, or being turned away by hospital emergency rooms for failure to indi cate ability to pay for treatment. 56 The English legal position in this regard (from which several commonwealth countries, such as South Africa and Australia, have derived the same stark general rule) may rightly be described as peculiar and as by far the most patient-unfriendly in a continuum of approaches to the issue of ?medical samaritans?. In several European countries for instance, public and private health care professionals are under a st atutory duty to render emergency care when circumstances require them to do so, breach of which leads to civil liability, or even criminal sanction. In the United States, seve ral state legislatures have similarly codified a duty to treat in medical emergencies, whereas others have taken a more passive approach of encouraging emergency assistance, by statutorily indemnifying health care pr ofessionals from possible malpractice liability arising in the proce ss of rendering emergency care. 57 Even in England and Australia, recent years have seen r eported cases of private health care institutions which were in the physi cal proximity of a medical emergency and were able and qualified to render care, being held liable for failing or refusing to do so. 58 In South Africa, there is a well- established moral and ethical duty on 59 McQuoid-Mason & Strauss op cit note 28 at 193-194. On the exis tence of a similar ethical duty on English and European doctors, s ee Giesen op cit note 57 at 287; Williams (2001) op cit note 53 at 413; Williams (2003) cit note 53 at 259; 270; 275; 280. 60 Op cit note 54. 61 See Leech op cit note 35 at 48; McQuoid -Mason & Strauss op cit note 28 at 193 and authorities there cited; Strauss op cit note 34 at 519; Strau ss op cit note 42 at 90-91; Strauss op cit note 56 at 208; 210. As regards payment, the renderer of emergency care would be able to claim payment under negotiorum gestio. Strauss op cit note 56 at 210. 62 Strauss (ibid) at 208; St rauss op cit note 34 at 519. 166 health care professionals to provi de emergency medical treatment to strangers, 59 although such a duty is not lega lly enforceable. Even before the advent of the constitutional er a, there were several calls for doctors (or, at least, emergency rooms in private hospitals) to be held delictually liable, in accordance with the common law position set out in Minister van Polisie v Ewels , 60 for failing to render emergency m edical treatment in circumstances similar to those in the English and Au stralian cases mentioned above. It has been argued that the contempor ary boni mores requires from persons who are able and qualified to render emergency medical assistance without harming themselves, to do so, regardless of the prospective patient?s personal characteristics or ability to pay for treatment, unless it is reasonable to refuse care in the circumstances of the case. 61 Suggested factors influencing a determination of the reasonabl eness of refusing to render treatment in a medical emergency include the health care profe ssional?s knowledge of the patient?s condition, the urgency of t he condition, the health care professional?s expertise in treating similar cases, the possibilit y of alternative treatment and ethical considerations. 62 As set out in 3.3(d)(ii) above, s 27(3) of the C onstitution?s determination that no one may be refused emergency medical treatment is generally accepted to be horizontally applicable to private emergency services and hospitals. This is affirmed by the National Health Act 61 of 2003, which determines in s 5 that ?[a] health care provider, worker or heal th establishment may not refuse a person emergency medical treatment?. The Act? s definitions of the terms ?healthcare provider?, ?health worker? and ?health establishment? include private health care professionals and establishments. The exis tence of a statutor y duty to provide 6 3 For a similar argument in the English contex t (in light of the domestic force of the European Convention on Human Rights), see W illiams (2001) op cit not e 53 at 393; 395; 400; 413. 167 emergency medical care therefore now counteracts the common law presumption against holding health care pr ofessionals or institutions liable for failure to render such care. But even beyond the parameters of this statutory duty, I would argue that, in order for the common law of delict effectively to provide a remedy for patients who have been denied emergency medical treatment, a complete overhaul of the basis of an inquiry into the reasonableness or otherwise of such a deni al is required by the constitutional presence of s 27(3). 6 3 It would appear necessary to start from the premise that emergency services, private hospitals and health care professionals in the vicinity of medical emergencies s hould be regarded as duty-bound to render emergency medical assistance. Failure to render such treatment should accordingly be viewed as unlawful, unless it can be shown to have been reasonable in light of the boni mores. The boni mores should in turn be recast to represent the legal and moral convic tions of a community in which health rights, and specifically t he right not to be refused emergency medical treatment, are constitutionally enshrined. In other words, instead of t he absence of a duty to render emergency medica l treatment being presumed and the presence of a duty having to be established with refe rence to the boni mores, an inquiry reverberating with the values associat ed with s 27(3) would presume the exact opposite. Lest such a position appear overzealous or unrealistic, it needs to be remembered that it will remain possible (and arguably easy) to escape liability by showing that a duty of care did not reasonably aris e in the circumstances of a particular case. Further, a findi ng of wrongfulness based on non-compliance with a duty to render emergency care woul d satisfy but one of the requirements for delictual liability. Health care pr ofessionals who are unable to show that they were absolved of the duty to render care in accordance with the boni mores will therefore be held liable only if the other requirements (such as the presence of an omission, damage suffered and caus ation) are also satisfied. 168 (d) The common law and s 28(1)(c) (i) Parental responsibility for child health Section 4.2(d) above criticised the Grootboom decision for its restrictive delineation of the interaction between parental and State responsibility for child welfare. While Grootboom acknowledges that orphans and abandoned children have an unspecified entitlement to soci o-economic support from the State, it excludes children who are in the care of their parents from such entitlement. Instead, Grootboom depicts such children as only being able to enforce their constitutional claims for nutrition, shel ter, basic health care services and basic social services against their parents. I criticised this finding for placing an overly onerous burden on indigent parents and for effectively barring children in poor households from meaningfully exercising their s 28(1)(c) rights. Grootboom ?s acknowledgment that parents bear some responsibility for the socio-economic welfare of their children does, however, present a useful starting point for thinking about the horizont al dimensions of s 28(1)(c) within the parent-child relationship. Whereas these dimensions indeed need to be explored, it is necessary to keep in mind that, despite an inherent power imbalance in the parent-child relationship, parents are often in a similarly vulnerable position to their children in re lation to the State and to other powerful private actors. For this reason ther e should be guarded against holding parents responsible for facilitating the exerci se of their children?s health rights in circumstances where, due to their own socio-economic vulnerability, they are unable to do so. This said, where parents ar e in the position to provide for their children, it makes sense to hold that they are responsible for meeting their children?s health needs. Productive ways of transgressing the law?s reluctance to intervene in the private sphere of the family envir onment, in order to enforce the duties of parents in this respect, must be sought. The current state of common law presents a useful starting point. Common law provides that parents are, by virtue of their duty of support towards their children, responsible for their children?s physical welfare and 6 4 See Brigitte Clark ?Duties of support of living persons? in Belinda Van Heerden; Alfred Cockrell; Raylene Keightley et al Boberg?s Law of Persons and the Family (2ed 1999) 233 at 243-244 and Roman-Dutch authorities ci ted there; also Brigitte Clark ?Child support: Public or private?? (1992) 55 THRHR 277 at 278; Brigitte Clark ?Children?s right to support - a public responsibility?? (1996) Acta Juridica 82 at 84; Marius Pieterse ?Reconstructing the private/public dichotomy? The enforcem ent of children?s constitutional so cial rights and care entitlements? (2003) TSAR 1 at 7-8; J Sloth-Nielsen ?The child?s right to social services, the right to social security, and primary prevention of child abus e: Some conclusions in the aftermath of Grootboom ? (2001) 17 SAJHR 210 at 225; Julia Sloth-Nielsen ?Ch ildren? in MH Cheadle et al (eds) South African Constitutional Law: The Bill of Rights (2002) 507 at 515. The same applies for other relationships that trigger a co mmon-law duty of support. For instance, in Thomson v Thomson 2002 (5) SA 541 (W), it was found that the dut y to maintain current or former spouses may include facilitating access to health care. See specifically 545B-546A. 65 See Clark (1996) op cit note 64 at 84; Clark (1999) op cit note 64 at 245; Pieterse op cit note 64 at 8. 66 Article 27 of the CRC determines that, while parents bear the primary burden to support their children, they should in appropria te circumstances be assisted by the State. 169 socio-economic well-being. This obligat ion includes facilitating access to health care services for their children, and providing for their other health-related needs. 64 Whereas common law has thus always allowed for the horizontal application of children?s socio-economi c rights against their parents, the obligation that this imposes on par ents has always been r egarded as limited by the extent to which parents are capable of providing for their children?s needs. Where parents can prove that they do not have the means to fulfill the obligations associated with their duty of support, they are relieved of the duty, which then vests instead in the State. 65 Unlike Grootboom therefore, common law awards an enforceable entitlement to be provided with basic health care services against the State to all children who find themselves unable meani ngfully to enforce this entitlement against their parents, regardle ss of whether they are in the care of their parents. The common-law position is therefore c apable of resulting in tangible benefits for a whole additional category of childr en (those in poor families) than those who stand to benefit from the Grootboom interpretation of s 28(1)(c). It is also more realistic, in line with rele vant international law authority 66 and sensitive to the reality in whic h parents and children fi nd themselves than Grootboom ?s stark demarcation of public responsibility for children?s socio-economic needs. The position subsequently taken by the Constitutional Court in TAC2 , which appears to depart from the Grootboom interpretation of s 28(1)(c) and instead bears 6 7 See, for instance, Clark (1996) op cit note 64 at 83; 86; Clark (1992) op cit note 64 at 280. 68 See C Nicholson & A Politis ?The life and death lottery: Tipping the scales in favour of the child?s best interests? (2001) 34 De Jure 594 at 601. It is an offense in terms of s 50 of the Child Care Act 74 of 1983 to let children suffer harm through neglect, which would include neglect of their health-related needs. Parents have been criminally pros ecuted under at least two of s 50's statutory predecessors for causing the death of their childr en by refusing that the children receive medical care. See R v Botha 1918 TPD 133 (father convicted for causing the death of child due to father?s refusal to let ch ild receive ?conventional? medical care and opting instead for healing through prayer); S v Fell 1971 (3) SA 667 (C) (father appeals successfully against conviction for causing death of child by insisting that child receive homeopathic treatment instead of ?conventional? medical care ). In cases where children suffer harm other than death through their parents? mala fide neglec t of their health-related needs, compensatory or similar relief may sometimes be mo re appropriate than criminal sanction. 69 Sloth-Nielsen (2002) op cit note 64 at 515. 170 closer resemblance to the common-law position, is accordingly welcomed. This is not to say that the current state of common law is always reflective of social reality or conducive to childr en being able effectivel y to enforce their entitlements against parents w ho do not fulfill their soci o-economic obligations. Indeed, its effectiveness is significantly compromised by the severe structural deficiencies of statutory me chanisms aimed at ensuring that recalcitrant parents comply with their obligation to support their children. 67 Beyond the obvious urgent need to reform these (the contempl ation of which is beyond the scope of this dissertation), attempts should be m ade to enhance the practical significance of s 28(1)(c) by considering ways in wh ich the common-law position set out here can be coupled with effective and context- sensitive civil remedies against parents who do not fulfill their responsibilities towards their children. In relation to health rights, one option that has been suggested is to explore the question of compensatory remedies against parents where child ren suffer harm due to a lack of parental responsiveness to their health needs. 68 It has also been suggested that, due to a variety of soci al realities, thought must be given to extending the common law obligation to satisfy children?s socio-economic needs beyond biological parents, to rest al so on extended family members and other (non-biological) primary caregivers. 69 (ii) Parental co-oper ation in facilitating children?s access to health care services 70 See generally Esterhuizen v Adminstrator, Transvaal op cit note 28; also McQuoid- Mason & Strauss op cit note 28 at 148 and authorities cited there; Nicholson & Politis op cit note 68 at 597. 71 On the functioning and impact of these pr ovisions, see Ngwena op cit note 28 at 139; Strauss op cit note 34 at 521. 171 Whereas the common law conc eption of the parent-child relationship may serve as useful basis for enhancing the effectiv eness of children?s heal th rights, there are also aspects of the manner in which the common law regulates the interaction between children?s right s and parental interests which may conceivably frustrate the exercise of ch ildren?s health rights. A prime example of this is the extent to which children?s access to health care services is dependent on the co-operation of their parent s. At the same time as obliging parents to fulfill their children?s health -related needs, common law awards them the right to determine the manner in which such needs must be satisfied, within the parameters of the principle that the best intere sts of a child are paramount. This aspect of parental power prominent ly includes the principle that parental consent must be obtained bef ore medical treatment ma y be administered to any minor child. 70 Children?s rights of autonomy in health-related decision-making and of access to health care services are thus limited by the ex tent to which the co-operation of their parents is requi red before treatment may be obtained. Whereas the extent of parental power in this respect is carved down significantly by statutory provisions (so for example may children over the age of 14 consent to medical treatment, other than an operation, i ndependent of their parents and may children over the age of 18 independently consent to an operation in terms of s 39(4) of the Child Care Act 74 of 1983 71 ), it poses a potentially significant barrier to childr en (especially younger children) accessing appropriate health care services. While it makes sense to involve parents in decisions concerning their children?s heal th interests and general welfare (since they are usually best placed to ascertai n the extent of their children?s health needs, as well as to seek and obtain ca re for their children, and since they typically have the best interests of their children at heart), ther e are at least two sets of circumstances in which their c ontrol over their children?s access to health care services is constitutionally problematic. 72 See, for example, Michael Katz ?The docto r?s dilemma: Duty and risk in the treatment of Jehova?s Witnesses? (1996) 113 SALJ 484 at 492-495. 73 Nicholson & Politis op cit note 68 at 597; 601- 603. See also Gerhard Van der Schyff ?The right to religious objection in South African law? (2002) 119 SALJ 526 at 533. 74 See David McQuoid-Mason & Lloyd Lotz ?Re ligious beliefs and the refusal of blood transfusions for children: What should doctors do?? (2005) 68 THRHR 315 at 320-321; Nicholson & Politis op cit note 68 at 599; V an der Schyff op cit note 73 at 532-533. 172 The first is where parents refuse medically beneficial or necessary treatment on behalf of their children. The right of autonomy in health-related decision-making, as implied by s 12(2) of the Constitution and vindicated by common law, logically includes a right to refuse beneficial, or even necessary or life-sustaining, medical treatment. Given that parental power encompasses the right to consent to medical treatment on behalf of a child, it logically extends also to refusing treatment on behalf of the child. While an individual?s choice to waive necessary, life-sustaining or life- saving treatment is often regarded as controversial, 72 this is significantly more so where the rights wa ived are those of a child who is often powerless to insist on access to health care in contravention of his or her parents? refusal. At common law, courts attempt to strike a balance between the respective interests of parents and children in this regard by evaluating the reasonableness of the parents? refusal of the treatment in question. Nicholson and Politis argue that courts are today constitutionally m andated to make the best interests of the child the central focus of this inquiry. 73 It may, perhaps uncontroversially, be suggested that parents? right to refuse consent to medical treatment on behalf of their children should accordingly be ove rruled in favour of a child?s right to access care in medical emergencies or in circumstances where the refusal would lead to the death or disability of the child. 74 This view finds support in the recent decision in Hay v B , where the WLD ordered that health care professionals could proceed with a blood transfusion on a child (without which it was common cause that the child woul d likely die) notwiths tanding the parents? religious objections against blood transfusions and other subjective fears that motivated them to refuse consent. The Court found that, as upper guardian of all minors, it could overrule parents? re fusal to consent to medical treatment on 75 Hay v B 2003 (3) SA 492(W) at 494H-495E; 495I-J. For discussion of the case, see McQuoid-Mason & Lotz op cit not e 74 at 315-316. At common la w, the Court?s power as upper guardian would extend also to overruling the expr ess wishes of the child on whether or not to receive treatment. Ngwena op cit note 28 at 145. 76 See McQuoid-Mason & Lotz op cit note 74 at 316-317; Nicholson & Politis op cit note 68 at 599. 77 On the need to respect parents? position in this context, see Ngwena op cit note 28 at 134. 78 On the extent of this problem, see Lies l Gerntholtz & Marlise Richter ?Access of abandoned children and orphans with HIV/ AIDS to antiretroviral therapy - a legal impasse? (2004) 94(11) SA Medical Journal 910. 173 behalf of their children, and t hat the parents? religious be liefs could not trump the best interests of the child in light of the child?s constitutional right to life. 75 Beyond situations where refusal of treatment would lead to death or disability however, a significant grey area remains, with c ourts guided only by the notoriously vague and amorphous best in terests principle. Factors to be taken into account in determining the balanc e of interests in such matters should include the consequences of refusing treatm ent, the extent to which alternative treatment options could accommodate the parents? objections to specific treatment, the wishes of the child (w here ascertainable) and the reasonableness of the parents? refusal. 76 Whereas I would argue that the constitutionalisation of health rights should tip the scale in fa vour of treatment in most cases, the reasons for parents? objec tion to treatment should nevertheless remain an important factor influencing the inquiry (lest deference to parents? wishes be replaced by deference to the treatment whims of health care professionals). 77 A second set of circumstances in which the requirement of parental consent for children?s access to health care services becomes constitutionally problematic arises in relation to the treatment needs of orphans for whom alternative guardians have not been appointed or in relation to children whose parents or guardians cannot be located. The nature and extent of the HIV/AIDS epidemic has exponentially increased the nu mber of children in this position who, due to the fact that they are frequently themselves HIV-positive, are often also in urgent need of medical attention. 78 The common-law requirement of parental consent to medical treatment for children has, in at least one case, been recognised as posing a significant hurdle to such children acquiring 7 9 Ex parte Meyers WLD29172/03, cited and discussed by Gerntholtz & Richter op cit note 78 at 911-912. 80See Christian Lawyers? Association op cit note 29 at 1095A-J; 1103 F-J; 1104I-1105B; 1105D-J; 1106A-D. 81See clauses 32; 129(2) of the Children? s Bill contained in SALC Project 110 Report Review of the Child Care Act (2002), discussed by Gerntholtz & Richter op cit note 78 at 912. 174 timeous access to necessary, life-pr olonging, medical treatment. In an unreported judgment in E x parte Meyers , the WLD granted consent to a pediatric working group to provide appropria te anti-retroviral treatment to HIV- positive orphans in circumstances where su ch treatment was medically indicated and where their de-facto caregivers cons ented to them receiv ing the treatment. 79 Whereas courts? common law powers as upper guardians of minors are arguably wide enough to ensure that childr en receive necessary treatment both in cases where they have been or phaned or abandoned and where their parents unreasonably refuse treatment on their behalf, it is hoped that the constitutionalisation of health rights w ould lead to the development of more express rules that limit parents? comm on-law rights to guide their children?s exercise of rights to acce ss health care services. The presence of health rights in the Constitution have already been used to justify the limitations on parental power (and the concomitant ri ght to parental care) occasioned by s 5(3) of the Choice of Termination of Pregnancy Act, according to which parental consent is not required where a mino r wishes to terminate a pregnancy. 80 They also arguably underlie recommendations by the South African Law Commission that primary caregivers (other than parents) should also be allowed to consent to medical treatment on behalf of children and that the statutory age at which children are allowed to consent to tr eatment independently of their parents should in appropriate circumstances be lowered to 12 years. 81 Regardless of whether these recommendations bec ome law, there are bound to be circumstances in which courts are called upon to decide whether particular health care services should be provided to children who are for some reason unable to consent to treatm ent themselves, either in parents? absence or against their express wishes. It is hoped that the inquiry into the children?s best interests in these circumstances would a fford due weight to their constitutional 175 health rights. 5.4 CONCLUSION: SUPPLEMENTING GROOTBOOM REASONABLENESS This chapter has explored remedial av enues for infringements of health-related rights outside of the remedi al paradigm of policy-formu lation or -modification that is most readily associated with Grootboom reasonableness. It has shown that courts can significantly enhance the act ual significance of health rights by recognising, in appropriate circumstanc es, that there has been an infringement of an individual, health-related, constitu tional entitlement and by remedying such infringement directly where to do so woul d satisfy the constitutional dictates of appropriateness, justice and equity. It has also explored the possibility of indirectly enhancing the efficacy of health rights in real-life interactions through the application and development of common law rules and principles that impact on the exercise of health rights. In doing so, the chapter has illustrated that Grootboom reasonableness does not entirely shut t he door on a benefit-focussed approach to health rights. Neither the vindication of core-like aspects of constitutional health rights nor the development of the common law to reve rberate with their spirit, purport and objects preclude or undermine judicial resort to Grootboom reasonableness in circumstances where its application is called for. Rather, these remedial paradigms may be seen as viable supplements to Grootboom reasonableness, and it is hoped that courts will explore t he possibilities posed by them where the circumstances of particular cases allow. 1Soobramoney v Minister of Health, KwaZulu Natal 1998 (1) SA 765 (CC) at para 8 (per Chaskalson P). 2Preamble to the 1996 Constitution. 3 See chapter 1 note 14 and accompanying text. 175 CHAPTER 6 THE IMPACT OF HEALTH RIGHTS 6.1 THE SATISFACTION OF HEALTH-RELATED NEEDS AND THE SOCIO-ECONOMIC TRANSFORMATION OF SOUTH AFRICAN SOCIETY ? We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to ex ist that aspiration will have a hollow ring?. 1 This often quoted passage from the Soobramoney judgment acknowledges that the adjudication and enforcement of soci o-economic rights takes place in the context of, and forms an integral part of, a larger societal transformation ?project?. This ?project? purports, inter alia, to ?[h]eal the divisions of our past and establish a society based on democratic values, so cial justice and fundamental rights? and to ?[i]mprove the quality of life of a ll citizens and free the potential of each person?. 2 The society envisaged as end-product of this transformation is one in which the values of freedom and equality flourish and in which the inherent human dignity of all citizens is equa lly affirmed and protected. A vital precondition for the achievement of such a society is that citizens enjoy at least a minimal level of material well-being, in the sense that their vital and legitimate material needs are met. 3 The tangible improvement of the living conditions of socially and economically vulnerable me mbers of South African society thus forms a central pillar of the transforma tion ?project? at the heart of its constitutional dispensation. 4 See Pierre De Vos ?Substantive Equality after Grootboom : The emergence of social and economic context as a guiding val ue in equality jurisprudence? (2001) Acta Juridica 52 at 68-69; Sandra Liebenberg ?South Africa?s evolving jurisp rudence on socio-economic rights: An effective tool in challenging poverty?? (2002) 6 Law, Democracy & Development 159 at 162. 176 Given that health is a highly valued commodity in a society founded on human dignity, equality and freedom, one of the goals associated with the achievement of social justice and the im provement of South Africans? quality of life is the achievement of the highest attainable state of physical and mental health. This dissertation has focused on a s pecific aspect of this latter objective. It has considered the extent to which the various health-related rights enshrined in the 1996 Constitution can enable citizens to gain access to tangible material benefits that either assist them in their quest for health-maximisation through satisfying their health-related needs, or compensate them for harm suffered through the denial or frustration of such needs. It has been said that the provisions of the Bill of Rights in the 1996 Constitution contribute to the social and economic transformation of South African society in three ways. First, they do not stand in the way of political projects aimed at social transformation and buttress such projects by affirming the constitutional legitimacy of their objectives. Sec ondly, they oblige the State to prioritise and actively pursue socio- economic transformation (by, for instance, requiring the State to fulfill the rights in the Bill of Rights and to take reasonable legislative and other measures to achiev e the progressive realisation of socio- economic rights). Thirdly, the provis ions of the Bill of Rights themselves function as vehicles for transformation through the tangible effects of their interpretation and application by courts in concrete cases. 4 Whereas the first and second contributions listed here may be viewed as the ?directive principle effect? of rights, which may result regardless of whether constitutional guarantees are actually capable of judici al enforcement, the third contribution can only be made where the guarantees in ques tion are articulated as justiciable rights. Given that the health-related rights in the 1996 Constitution are fully justiciable, they should be capable of cont ributing to the achiev ement of the right 177 to health (and hence of furthering the c onstitutional transformation project) both through their ?directive principle effect ? and through the concrete impact of their judicial enforcement on t he lives of their beneficiaries. This chapter is concerned with the extent to which this has perceptibly been the case. It firstly considers the extent to which constituti onal health rights have contributed to the actualisation of the right to health in South Africa through their ?directive principle effect?. Subsequently, it summari ses and integrates the findings of this dissertation in an attempt to illustrate the limited extent to which the health rights have functioned as a direct vehicle for t he achievement of the right to health. Thereafter, I indicate areas in which fu rther research is necessary in order to overcome theoretical lacunae that continue to inhibit the effectiveness of health rights in this regard. In conclusion, I reiterate the need for courts to overcome their unease with enforcing socio-econom ic rights and to acknowledge that health rights embody a wide array of i ndividual entitlements that may, in appropriate circumstances, immediately be enforced. Failure to do so, I argue, threatens to deflate the potent ial of health rights to confront the denial of health- related needs and stifles the ab ility of the rights to contri bute meaningfully to the social and economic transformation of South African society. 6 .2 THE ? DIRECTIVE PRINCIPLE EFFECT ? OF CONSTITUTIONAL HEALTH RIGHTS Regardless of whether they are justic iable, constitutional rights demand due consideration of the interests they aim to protect or advance in legislative and policy processes. It is therefore possibl e that the constitutional presence of health-related rights would have an impac t on a wide array of legislative and policy processes relating to the regulati on of the South African health system and to the reform of South African health law. This possibility is enhanced by the constitutional directives that the State must respect, protect, promote and fulfill all rights in the Bill of Rights and must adopt measures aimed at the progressive realisation of the right to have access to health care services. It may therefore be expected that the constitutionalisation of justiciable 5These include the Choice on Termination of Pregnancy Act 92 of 1996 (giving effect to women?s right of reproductive freedom and clar ifying the right of access to reproductive health care services); the Pharmacy Amendment Act 88 of 1997 and the Medical, Dental and Supplementary Health Service Professions Am endment Act 89 of 1997 (prescribing compulsory community service for medical graduates); t he Medicines and Related Substances Control Amendment Act 90 of 1997 (including various initia tives to make medicines more accessible and affordable); s 12 of the Correctional Servic es Act 111 of 1998 (reaffirming and awarding content to detainees? rights of access to adequate medica l care); the Medical Schemes Act 131 of 1998 (having the effect, inter alia, of increased a ccess to medical insurance); the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (bol stering protection of the right to equality in the health care setting, amongst ot hers); the Mental Health Care Act 17 of 2002 (expressing commitment to the provision of appropriate mental health care services) and, perhaps most significantly, the National Heal th Act 61of 2003 (containing several provisions aimed at increasing the availability, accessibilit y and quality of health care services and explicitly affirming the State?s obligations to respect, pr otect, promote and fulfill t he various health rights in the 1996 Constitution). 6 These prominently include Department of Health National Drug Policy for South Africa (1996); Department of Health White Paper for the Transformation of the Health Care System in South Africa (1997) and Department of Health The Primary Health Care Package for South Africa - a Set of Norms and Standards (2000), the latter of which contains the Patients Rights Charter (ibid at 10). 178 health rights would lead to the enactment of legislative and policy measures that award content to, supplement or give e ffect to particular health-related rights. This seems indeed to have occurred. A myriad of legislative provisions that contribute to the fulfillment of cons titutional health rights were enacted subsequent to the adoption of the 1996 Constitution. 5 Many of these create or affirm specific health-related entitlement s and many explicitly supplement health rights in the Constitution. Several exec utive policies that similarly appear to resonate with the spirit, pur port and objects of constitutional health rights, have also been issued during this time. 6 Whereas one can only speculate as to whether and to what extent the consti tutional presence of health rights indeed motivated or impacted on any one of these statutes or policies, their multitude and their ostensible affirmation of releva nt constitutional health rights seem to indicate that the ?directive princi ple effect? of these rights has not been negligible. At least, the constitutional presence of health rights and the associated obligations on the State have served signi ficantly to enhance the legitimacy of these legislative and policy measures in the face of challenges to their constitutionality. A prominent ?directive principle effect? of socio-economic rights is that, where State measur es aimed at fulfilling such rights infringe upon or limit 7 See Danwood Mzikenge Chirwa ?The right to health in international law: Its implications for the obligations of state and non-state actors in ensuring acce ss to essential medicine? (2003) 19 SAJHR 541 at 562-563; CH Heyns ?Extended medical training and the Constitution: Balancing civil and political rights and socio-economic rights? (1997) 30 De Jure 1 at 14-16; Marius Pieterse ?Beyond the welfare state: Globalization of neo-liberal culture and the constitutional protection of social and ec onomic rights in South Africa? (2003) 14 Stellenbosch LR 3 at 13; 26. 8See Stephen Ellmann ?A constitutional confluenc e: American ?State-action? law and the application of South Africa?s socio-economic rights guarantees to private actors? in Penelope Andrews & Stephen Ellmann (eds) The Post-Apartheid Constitutions: Perspectives on South Africa?s Basic Law (2001) 444 at 467; Heyns op cit note 7 at 15-16. 9 See Paul Gertler & Jacques Van der Gaag The Willingness to Pay for Medical Care: Evidence from Two Developing Countries (1990) at 15-16; 21-22. Also remarked in relation to the extent of state intervention in the affairs of medical schemes in terms of the Medical Schemes Act by MA Christianson ?H ealth care? in EML Strydom (ed) Social Security Law (2001) 122 at 147-148; Mark Heywood ?Debunking ?Conglomo-ta lk?: A case study of the amicus curiae as an instrument for advocacy, inve stigation and mobilisation? (2001) 5 Law, Democracy & Development 133 at 138. 10The best known example of this ?legitimating effect? of socio-economic rights in South African case-law is Minister of Public Works v Kyal ami Ridge Environmental Association 2001 (3) SA 1151 (CC), where the Constitutional Cour t regarded the State?s duties to make housing progressively accessible in terms of s 26(2) as a prominent factor justifying the limitation of environmental and commercial interests of priv ate property owners through the construction of emergency housing for flood victims on adjacent l and. See paras 29; 37-39; 51; 68; 103; 107 and 114 of the judgment as well as the discussion of these dicta by Frank I Michelman ?The Constitution, social rights and liberal political justification? (2003) 1 International J of Constitutional Law 13 at 17-18. 179 other private rights or interests, the St ate is afforded an opportunity to justify such limitations and/or infr ingements by arguing that it is constitutionally obliged to increase access to relevant soci o-economic amenities and to ensure that private interests do not unreasonably impai r the enjoyment of socio-economic rights. 7 Of course, not every such lim itation of private rights will pass constitutional muster. Also, the constitu tional purpose of legal measures is but one factor to be taken into account when deciding whether a limitation on a constitutional right is permissible in terms of s 36 of the Constitution. 8 Be this as it may, the constitutional presence of socio-economic rights likely allows the State more leeway in limiting private co mmercial or other interests in pursuit of social justice than would otherwise have been the case. 9 By clothing the purpose of the limitati on of private rights or interest s in constitutional legitimacy, socio-economic rights play an important role in countering the extent to which civil and political rights may be used to thwart State attempts at social transformation. 10 As far as health rights are concerned, two examples from recent case-law 11See also Thomas J Bollyky ?Balancing private rights and public obligations: Constitutionally mandated compulsory licensing of HIV/AIDS related treatm ents in South Africa? (2002) 18 SAJHR 530 at 531-532; 539; 556-557. 12 Pharmaceutical Manufacturers? Association v President of the Republic of South Africa TPD 4183/98. 13 See for instance Pierre De Vos ?So much to do, so little done: The right of access to anti-retroviral drugs post- Grootboom ? (2003) 7 Law, Democracy & Development 83 at 101-102; Sarah Joseph ?Pharmaceutical cor porations and access to drugs: T he ?fourth wave? of corporate human rights scrutiny? (2003) 25 Human Rights Quarterly 425 at 442-443. 14 See for instance APS Van der Merwe ?Amendm ent of the South African Medicine and Related Substances Control Act in relation to the exhaustion of rights in patent law? (2000) 33 De Jure 68-75. 15There were significant international law dimensions to this argument, since strong intellectual property rights over pharmaceutic al products are awarded by the WTO?s TRIPS agreement. The provisions of this agreement and its detrimental impact on the right of access to affordable medicine falls beyond the scope of this dissertation. In any event, most commentators agree that the challenged provisions in the PMA case were TRIPS compliant. See authorities cited in note 16 below. 180 illustrate that, while not indiscriminatel y trumping private ent itlements or curing all deficiencies in health-related legislati on or policy, the obligations implied by ss 7(2) and 27(2) of the Constitution hav e had the effect of bolstering State attempts at facilitating increased access to health care services. 11 The first is the litigation between t he South African government and the Pharmaceutical Manufacturers Association (PMA) 12 concerning several provisions of the Medicines and Relat ed Substances Control Amendment Act 90 of 1997, the aims of which include facilit ating more affordable medicines. In particular, ss 10 and 14 of the Amendm ent Act (inserting ss 15C and 22F-G respectively into the Medicines and Re lated Substances Control Act 1 of 1965) allowed inter alia for the limited exhaustion of patents and the parallel importation of patented medicines, the gener ic substitution of certain patented medicines, a more transparent pricing system for pharmaceutical products and the restriction of profit margins on pharmaceutical products sold in the country. While lauded for its potential to incr ease access to essential medicines, 13 the provisions of the Amendment Act were also severely criticised for limiting the commercial interests and intellectual property rights of the national and international pharmaceutical industry. 14 The PMA instituted litigation, claiming that the relevant provisions violated the rights of its members to intellectual property under s 25 of the Constitution, 15 to freedom of trade, occupation and profession and to freedom of expression (in that it compelled pharmacists to 16 On the arguments advanced in and the outcome of the PMA case, see De Vos op cit note 13 at 102; James Thuo Gathii ?Construing inte llectual property rights and competition policy consistently with facilitating access to affor dable AIDS drugs to low- end consumers? (2001) 53 Florida LR 727 at 767-768; Shubha Ghos h ?Pills, patents and power: State creation of gray markets as a limit on patent rights? (2001) 53 Florida LR 789 at 814-816; Heywood op cit note 9 at 135-158; Joseph op cit note 13 at 443; Harrison Mwakyembe & George Mpundu Kanja ?Implications of the TRIPS agreement on the access to c heaper pharmaceutical drugs by developing countries: Case study of South Africa v The Pharmaceutical Companies ? (2002) 34 Zambia LJ 111-147; Yousuf A Vawda ?Tripped-up on TR IPS: The story of shrinking access to drugs in developing countries? (2002) 13 Stellenbosch LR 352 at 360. 17 Shown by Heywood op cit note 9 at 157. 18 Regulations relating to a Transparent Pr icing System for Medicines and Scheduled Substances GN R553 (30 April 2004). 19 New Clicks South Africa v Tshabalala-Msimang; Pharmaceutical Society of South Africa v Tshabalala-Msimang 2005 (2) SA 530 (C) at 545F-546C; 570G-571A (per Yekiso J for the majority). See also the mi nority judgement at ibid 582F-583B. 181 inform customers of cheaper generic alter natives to prescribed medicines). In reply, the government contended that it was obliged by ss 27(2), 28(1)(c) and the rights to life and dignity to facilitate increased access to essential medicines, and hence to enact the legislation. Crum bling under pressure from worldwide public activism and the strength of t hese arguments, the PMA unconditionally withdrew its claims, and the matter was accordingly halted. 16 The cost of AIDS medications in South Africa significant ly diminished in the aftermath of the litigation, 17 illustrating that tangible benefits ca n indirectly result from the ?directive principle effect? of health rights. The second example of s 27(2)?s ?legi timating? function relates to the controversial price control regulations recently promulgated pursuant to s 22G of the Medicines and Related Substances Control Act, in terms of which limits are set on the profit margins of reta il pharmacists in relation to prescribed medicines. 18 In dismissing a variety of (predominantly administrative law) challenges to the validity of the regul ations brought by retail pharmacy chains and the South African Pharmaceutical So ciety, the Cape High Court affirmed the legitimacy of the purpose of the regulat ions, which it saw as obviously being aimed at complying with t he State?s obligations to increase access to medicines through assuring their affor dability in terms of s 27(2). 19 The regulations were subsequently invalidated by the SCA fo r not having adhered to the legality principle and for not having prescribed an ?appropriate? fee for pharmaceutical products. The SCA nevertheless acknowledged the legitimacy of the 20 Pharmaceutical Society of South Africa v Tshabalala-Msimang; New Clicks South Africa v Minister of Health 2005 (3) SA 238 (SCA) at para 77. The SCA?s finding that the fees were inappropriate was at least in part informed by a belief that the rigi dity of the regulations would lead to the closure of pharmacies which would in turn have a detrimental impact on the accessibility of medicines. The Court nevertheless indicated that a more flexible prescribed fee structure (conducive to accessibility as well as a ffordability of medicines) would survive judicial scrutiny. Ibid paras 79-80. 21 Minister of Health v New Clicks South Africa CCT 59/04, judgment of 30 September 2005 (unreported). See paras 1; 16 (per the entire Court); 32 ( per Chaskalson CJ); 437; 514-517 (per Ngcobo J); 650-651 (per Sachs J); 704-706 (per Moseneke J). 22See also Affordable Medicines Trust v Minister of Health 2005 (6) BCLR 529 (CC), where the legitimacy of measures that restri ct the dispensing of medicines by health care professionals, which were aimed at increasi ng access to safe medicines, was not questioned. See paras 21; 100. 23 See s 24A of the Health Professions Act 56 of 1974 (introduced by s 22 of the Medical, Dental and Supplementary Health Service Pr ofessions Amendment Act 89 of 1997); s 14A of the Pharmacy Act 53 of 1974 (introduced by s 13 of the Pharmacy Amendment Act 88 of 1997), which prescribes compulsory, remunerated community service terms for medical and pharmaceutical graduates respectively. 182 regulations? purpose in line with s 27(2), stating that the public?s constitutional entitlement to access affordable medicines was a crucial interest to be weighed against the commercial viability-interests of pharmacies, in deciding whether the prescribed fees were appropriate. 20 In partially upholding an appeal by the Minister of Health against the SCA j udgment, the Constitutional Court stated that, due to the constitutional obligation on the State to progressively facilitate access to health care services, the l egitimacy and necessity of the regulations were beyond question. While the Court found that certain of the regulations were defective and had to be modified, it emphasised that to restrict the profit margins of pharmacies, as envisaged by the regulations, was in principle constitutionally permissible. 21 Apart from the above examples, 22 s 27(2) may be expected to play a similar legitimating role in relation to a range of measures seeking to limit commercial and liberty-interests of health care professionals and other entities that are implicated in the actualisation of health rights. For instance, the view has been expressed that s 27(2) signifi cantly strengthens arguments purporting to justify limits occasioned by statut orily imposed terms of compulsory, remunerated community service 23 on health science graduates? rights of freedom from forced labour, freedom of movem ent and residence and freedom of trade, 24 See Heyns op cit note 7 at 5-17. These limits are not always extensive, and are counterbalanced by, for example, the limited time period of the servic e, the remuneration of participating health care professionals, and a m easure of choice as to where the community service is performed. In Europe, challenges to community service for legal graduates have been dismissed since the interests limited by t he service were found to have been counterbalanced by the right of the indigent to have access to justice. See Van der Mussele v Belgium [1983] ECHR 13 and other cases discussed by Heyns (ibid). Provided that conditions of community service are not overly onerous, a similar finding would seem likely in the context of access to health care services in South Africa. 25In Re Wilson and Medical Services Commission of British Columbia 53 DLR (4th) 171 (1989) the British Columbia Court of Appeal found that a virtually identical provincial regulatory scheme was unconstitutional, for unjustifiably lim iting the liberty interests of health care practitioners. The Court emphasised that t he finding of unconstitutionality resulted mainly because the State offered no just ification for the scheme, becaus e less restrictive means were available to achieve its purpose and because the government could not show that the geographical distribution of health services was so problematic as to require interference with liberty interests. See spec ifically 174-181; 186-187; 195; 197-198. 26 Craig Scott & Patrick Macklem ?Constitutional ropes of sand or justiciable guarantees? Social rights in a new South African constitution? (1992) 141 Univ Pennsylvania LR 1 at 32 argue that Wilson would have been decided differently had t he government been able to rely on a constitutional duty in just ification of the scheme. 183 occupation and profession. 24 A more controversial current example concerns s 36 of the National Health Act 61 of 2003, which determines that health establishments may not operate without having been issued a certif icate of need by the Director General of Health, who must take in to account a variety of factors, most of which relate to the transformation of the health care sector, the need to increase the geographical accessibility of health care services and the need to address other lingering inequities in access to care, before issuing or renewing such a certificate. This is bound to spark a constitutional challenge, since the provision appears to entail a significant limitation of health care professionals? rights to freedom of movement and residence and freedom of occupation, trade and profession. The success of a similar constitutional challenge before a Canadian court 25 indicates that the Stat e will have some difficulty in convincing a court that there are no less restrictive means to achieve its purpose of reducing urban/rural discrepancies in the physical a ccessibility of health care services. However, the fact that, unlike in C anada, the South African government is under a constitutional obligation to address such discrepancies in progressively facilitating the increased accessibility of health care services, may be expected significantly to strengthen the St ate?s defense of the measures. 26 184 Overall, it would seem that the health rights in the 1996 Constitution have had a discernible ?directive principle effect ?. To the (however slight) extent that health rights have served to inspire or dire ct the content of m easures that confer health-related benefits on citizens, they may be said to have indirectly contributed to the attainment of the right to health. More concretely, whether or not they actually inspired or directed t he content of the legislative or policy measures in question, health rights have usefully bolstered the social transformation process through clothing the purpose of such measures in constitutional legitimacy, thereby pr oviding a degree of insulation against constitutional attack that the m easures would otherwise have lacked. Through the mere fact of their cons titutional presence therefore, health rights may result in some indirect benefit for their subjects. However, if the constitutional drafters intended for the impac t of health rights to be limited to this ?directive principle effect?, there woul d have been no need for them to make the rights justiciable. Evaluating constitu tional health rights? contribution to the social and economic transformation of Sout h African society, while viewing them as fully justiciable rights , must involve more than an assessment of their discursive impact in the political arena. In addition to incidental benefits resulting from their ?directive princi ple effect?, rights should in appropriate circumstances enable their beneficiaries to attain the tangible benefits that are necessary for them to effectively enjoy the rights. 6 . 3 CONSTITUTIONAL HEALTH RIGHTS AS TOOLS FOR ACHIEVEMENT OF THE RIGHT TO HEALTH: SUMMARY OF THE FINDINGS OF THIS DISSERTATION Making socio-economic rights justiciable significantly increases their potential to confront denial of t he needs they embody. Rather than functioning simply as rhetorical devices that draw attention to particular needs, justiciable rights are capable of being used as tools to attain the satisfaction of such needs. Because justiciable socio-economic rights em body enforceable claims to the goods or services that are necessary to satisf y the needs they represent, their use in 27 See for instance KD Ewing ?Social rights and constitutional law? (1999) Public Law 104 at 122-123; Sandra Liebenberg ?Social and economic rights: A critical challenge? in Sandra Liebenberg (ed) The Constitution of South Afri ca from a Gender Perspective (1995) 79 at 84. 185 litigation has the effect of disrupting, or at least challenging, existing societal power structures that determine the di stribution of such services and goods. 27 As such, their judicial vindication can contribute to the dismantling and reconstitution of such power structur es and accordingly to the social and economic transformation of society. The enforcement of socio-economic rights further tangibly advances a central goal of social transformation - the improvement of the qua lity of life of the population. This dissertation focused on this latter aspect of constitutional health rights? contribution to the over arching constitutional transformation project. I argued that, because of their st atus as justiciable rights, successful reliance on health rights should, in appr opriate circumstances, produce tangible benefits for individual litigants. This means, I contended, that Courts should in principle regard health rights as enfo rceable and should award tangible relief that effectively compensates for in fringements of health rights unless such infringements can somehow be constitutiona lly justified or unless it would be demonstrably inappropriate to award tangible relief in t he circumstances of the case. The dissertation accordingly set out to identify the rights that are relevant to the achievement of the highest a ttainable standard of physical and mental health, to locate these rights within the protection awarded by the South African Bill of Rights and to ascertain the extent to which the benefits implied by them are capable of resulting from Sout h African constitutional litigation. Chapter 2 showed that the international law right to health consists of an interrelated package of rights, each cons tituent element of which imposes a myriad of obligations on states and implie s a variety of interrelated claims to have access to (and/or undisrupted enj oyment of) health-conducive goods or services. I identified several health-rela ted freedoms, entitlements to a variety of determinants of health, entitlements to various health care services as well as an underlying guarantee of equality as comprising the main constituent 186 elements of this package. I further s howed that, while not all benefits implied by the right to health may immediately be demanded, rights-bearers are at least entitled to protection of their current enjoyment of health-related rights and to adequate remedies against private infr ingements thereof. Entitlements to goods, services and facilities aimed at the satisfaction of basic and urgent health-related needs further appeared to be more readily claimable than entitlements to more sophisticated, more expensive and less urgent forms of care. Moving the focus to the South Afri can context, chapter 3 proceeded to show that the basic featur es of the Bill of Rights in the 1996 Constitution are conducive to a benefit-orientated approac h to socio-economic rights. The structure of the Bill of Rights allows for a broad, permissive and need-focused interpretation of socio-economic ri ghts and requires justification for non- compliance with the obligations they im pose. Where such justification is inadequate, the Constitution awards cour ts significant flexibility to devise remedies that appropriately compensate fo r infringements of t he rights. The Bill of Rights therefore not only r equires of courts to effect ively enforce health rights, but also awards them the scope to negotiate any institut ional tensions that may otherwise have been occasioned by this task. Thereafter, the chapter showed that a ll elements of the international law health rights package enjoy adequate constitu tional protection in South Africa. I identified and described the interests underlying several constitutional provisions that guarantee different aspects of the right to health and proposed a generous and purposive interpretation of these provisions which enables them to cater effectively for the satisfaction of the needs they represent. Chapter 4 then evaluated t he handful of South Afric an judgments in which health rights have come into play. I argued that the Constitutional Court?s socio- economic rights jurisprudence thus far has been overly restrictiv e of the benefit- rendering potential of health rights. By denying that socio-economic rights embody immediately enforceable, indivi dual claims and by opting instead for an inquiry that focuses on the coherence, rationality and inclusivity of government 187 policy aimed at giving effect to soci o-economic rights, the Court has drained health rights of discernible content and has removed the focus of its inquiry from the needs that the rights aim to satisfy. Moreover, the remedy most logically implied by its approach (namel y that legislation or po licy be modified in order to conform with predominantly procedural st andards) is at most of indirect and marginal relevance to health rights? benef iciaries, whose interests in tangibly improving their living conditions remain sidelined. I proceeded to explore possible reasons for the overly restrictive aspects of the Constitutional Cour t?s socio-economic rights jurisprudence. I concluded that, whereas constraints imposed by the doctrine of separati on of powers, the inherent polycentricity of socio-econom ic rights matters and the need for judges to respect the specialist knowledge of health care professionals must necessarily impact on the m anner in which courts c onduct themselves in health rights matters, they do not restrain cour ts from, in appropriate circumstances, recognising and enforcing individual health-re lated entitlements. Accordingly, they do not justify the Constitutional Cour t?s overly restrictive stance towards socio-economic rights. Instead, I speculat ed, this stance is likely attributable to a lingering unease on the part of the Court with enforcing ?positive rights?, which the Court seems to have appeased by reso rting to an essentially formalist model of adjudication. Despite this, certain aspects of the Constitutional Court?s socio-economic rights jurisprudence, especially when cons idered in light of the more benefit- conducive approach adopted in some High C ourt judgments, indicate that the obstacles hindering a need-focused and benefit-conducive approach to socio- economic rights are not insurmountable. In addition, chap ter 5 showed that there are viable alternative and/or s upplementary approaches to socio-economic rights adjudication which could enhance t he benefit-rendering potential of health rights without requiring a radical departure from the manner in which courts currently conduct themselves in socio-economic rights matters. Overall, in addition to indicati ng the content and benefit-related implications of the various provisions in the Bill of Rights that award health- 28On the various associated interpretative and logistical problems in the international law context, see generally Audrey R Chapman ?A ?violations approach? for monitoring the 188 related entitlements, this dissertation has shown th at these provisions are capable of being enforced in a manner that delivers the benefits that they promise. Accordingly, the rights in ques tion are capable of being used to satisfy the needs they represent, and hence to f unction as tools of transformation. Much of their potential to make a conc rete difference in the lives of their beneficiaries currently goes unrealised. Even so, there appear to be ways in which this potential can be resurrect ed or enhanced without sacrificing the institutional integrit y of the judiciary. 6 . 4 TOWARDS A BENEFIT -ORIENTATED APPROACH TO HEALTH RIGHTS: SUGGESTIONS FOR FURTHER RESEARCH The benefit-focused vantage point adopted in this dissertation has allowed me to demonstrate the remedial possibilities inherent in the health rights contained in the 1996 Constitution and to show, through uniting the various criticisms of South African socio-economic rights juri sprudence, the shortcomings of the Constitutional Court?s current approach to their vindication. It also usefully highlights certain lacunae in socio-ec onomic rights theory and scholarship and indicates aspects of the enforcement of socio-economic rights that require elaboration through further research. First, this dissertation has shown that health rights generate certain immediately claimable benefits and has i dentified a fair number of these. Further enforceable obligations likely lu rk in the non-immediate dimensions of these rights, with which this dissert ation has engaged only cursorily. For instance, whereas I have argued that adopting a minimum core approach to s 27(1)(a) read with s 27(2) of the Constitu tion would provide a discernible starting point for an inquiry into compliance wit h the progressive realisation standard, further research is clearly necessary on measuring compli ance with the standard beyond this baseline. 28 Notwithstanding the signifi cant gains that have been International Covenant on Economic, So cial and Cultural Rights? (1996) 18 Human Rights Quarterly 23-66. For a discussion of similar problem s in relation to the standard as contained in s 27(2) of the South African Constituti on, see Sandra Liebenberg ?Violations of socio- eocnomic rights: The role of the South African Human Rights Commission? in Andrews & Ellmann op cit note 8,405 at 422-423; Craig Scott & Philip Alston ?Adjudicating constitutional priorities in a transnational context: A comment on Soobramoney ?s legacy and Grootboom ?s promise? (2000) 16 SAJHR 206 at 254 and generally Conrad Bar beton ??Progressive realisation? of socio-economic rights: Shifting t he focus to outcomes? (1999) 2(2) ESR Review (accessed online at ). 29 See chapter 3 notes 69- 72 and accompanying text. 30 On the development and implem entation of benchmarks, time-frames and indicators, see Maria Green ?What we talk about when we talk about indicators: Current approaches to human rights measurement? (2001) 23 Human Rights Quarterly 1062 at 1080-1081; 1085-1087; 1091. 189 made in international law towards c ountering problems occasioned by the vagueness and context-specific nature of the progressi ve realisation standard, 29 there is a dearth of domestic scholar ship on the development of appropriate benchmarks, time-frames and indicato rs with which to measure State compliance with the standard. 30 Given that the extent of (secondary and tertiary) benefits that are immediately claimabl e under s 27(1)(a) is dependent on the progress that has been made to wards full realisation of the right, it is important that South African socio-economic rights scholarship show increased engagement with the obligations impli ed by its progressive elements. It is further apparent from many of the arguments advanced in this dissertation that there is a need for further clarification of the limits of health rights in various settings. I have shown that it is im portant to deliberate these limits, both in terms of s 27(2) of the Constitution and under the general limitations clause, because it allows cour ts to indicate the extent to which benefits implied by a health right may be demanded at a particular point in time and to balance the interests of indivi dual claimants in this regard against competing societal interests. It appears that at least part of the Constitutional Court?s hostility towards the notion of enforceable entitlements flowing from s 27(1)(a) of the Constitution is grounded in the fear that this would lead to untenable demands for the benefits implied by the right, regardl ess of the factual or legal context within which such dem ands are made and of the availability of human and financial resources to meet the demands. The extent of the Court?s discomfort in this regard appears to be f uelled by uncertainty over whether and 31 Also argued by Kevin Iles ?Limiting so cio-economic rights: Beyond the internal limitations clauses? (2004) 20 SAJHR 448 at 464; Marius Pieterse ?Towards a useful role for section 36 of the Constitution in social rights cases? Residents of Bon Vista Mansions v Southern Metropolitan Local Council ? (2003) 120 SALJ 41 at 47. See for instance the remarks of Mokgoro J on behalf of the majority of the Court in Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 (6) SA 505 (CC) at para 83. 32 On the latter issue, see chapter 3 note 85 and accompanying text. 33 Iles op cit note 31 at 465. 34 See Liebenberg op cit note 4 at 188; Sandr a Liebenberg ?The value of human dignity in interpreting socio-economic rights? (2005) 21 SAJHR 1 at 26-27; Pieterse op cit note 31 at 47. On the importance of insisting on justification for rights-viol ations generally and infringements of social rights specifically, see Etienne Murein ik ?Beyond a charter of luxuries: Economic rights in the Constitution? (1992) 8 SAJHR 464 at 471-473; also generally Etienne Mureinik ?A bridge to where? Introducing the interim Bill of Rights? (1994) 10 SAJHR 31 at 31-32; 48. 190 to what extent the general limitations clause in s 36 of the Constitution may be invoked to limit socio-economic rights clai ms and, in relation to claims in terms of s 27(1)(a), over how such invocation would dovetail with an internal limitations inquiry in terms of s 27(2). 31 The application of s 36 to socio-econom ic rights matters may indeed yield several complications (caused by, for instance, s 36's insistence on a ?law of general application? and its apparent duplication of the ?reasonableness? standard also found in s 27(2) 32 ). However, the Cour t?s current alternative approach, which instead restricts the ambit of the rights in question, is inimical not only to the benefit-rendering potential of these rights but also to the spirit, purport and object of the Bill of Rights as a whole. Further research on the potential role to be played by s 36 in health rights matters is therefore essential: ?For the state to have a proper understanding of its constitutional obligations under the socio-economic rights clauses, for litigants to be able to determine what they are entitled to under the socio-economic rights clauses, and for courts to ensure that socio-economic rights remain meaningful and actionable rights in South Africa, our courts need to be properly aware of s 36's special and limited role in constitutional jurisprudence, and the special relationship between that section and the socio-economic rights clauses?. 33 Research on the application of s 36 to socio-economic rights matters would further yield increased clarity on the standards of scrutiny to which State justifications for non-compliance with socio-economic obligations should be subjected. This would in turn have t he effect of enhanci ng the contribution of socio-economic rights to achieving the ?cul ture of justification? envisaged by the 1996 Constitution for all exercises of State power. 34 35 Shadrack Gutto ?Modern ?globalisation? and the challenges to social, economic, and cultural rights for human rights practitioner s and activists in Africa? (Oct-Dec 2000) Africa Legal Aid 2. See also Danwood Mzikenge Chirwa ?Non- state actors? responsibility for socio-economic rights: The nature of their obligations under the South African Constitution? (2002) 3(3) ESR Review 2 at 6; Chirwa op cit note 7 at 559; 561-562; Danwood Mzikenge Chirwa ?Socio- economic rights and the privatis ation of basic services in South Africa? (2003) 4(4) ESR Review 4 at 6-7; Iain Currie & Johan De Waal The New Constitutional and Administrative Law: Volume 1 - Constitutional Law (2001) at 93-94; Sandra Liebenberg ?T he interpretation of socio-economic rights? in Stuart Woolman (ed) Constitutional Law of South Africa (2ed; 2003) ch 33 at 58-59; Pieterse op cit note 7 at 25-26; Adam McBeth ?Privatising human rights: What happens to the State?s human rights duties when serv ices are privatised?? (2004) 5 Melbourne J of International Law 133-154. 191 Apart from health rights? constitutional limits, their effective vindication is hindered significantly by the relative dear th of research relating to their horizontal dimensions. The combination of liberal rights discourse?s aversion to the horizontal application of fundam ental rights and its specific hostility towards socio-economic rights has meant that private violations of socio- economic rights often remain undetect ed and unremedied. In order for health rights effectively to render t he benefits they promis e, it is essent ial that they be capable of enforcement against those who ar e most directly implicated in their realisation. As the extent of the private sector?s invo lvement in essential service delivery increases, so does the need for research on the hor izontal dimensions of socio-economic rights: ?Failure to develop and implement practical strategies for holding non-state persons legally responsible for protecting and promoting social, economic and cultural rights would imply that human rights activists are content to allow those who own and control the bulk of the material resources and means of social and economic production to continue operating outside the mainstream of human rights while states that are increasingly losing ownership and control of such resources and means are being pressured to ?deliver?. It goes without saying that under such conditions the ?delivery? would be greatly circumscribed and limited?. 35 I have shown that there are a variety of private relati onships which are integral to the effective enjoyment of health rights and that there exist several common- law rules that may be developed to give proper effect to health rights within these relationships. Further research re mains necessary on the kinds of private entities that may be held di rectly responsible for infringing health rights, the circumstances in which and degree to which they may be held responsible for such infringements and the extent to which they may be co-opted in the 3 6 See Marius Pieterse ?Coming to terms wit h judicial enforcement of socio-economic rights? (2004) 20 SAJHR 383 at 414-415 and authorities cited t here; also chapter 4 note 137 and accompanying text. 37 On the need for such research, see also Liebenberg op cit note 34 at 29; Mia Swart ?Left out in the cold? Crafting constitutional remedies for the poorest of the poor? (2005) 21 SAJHR 215 at 239. 38 See Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) at para 19; Thomas J Bollyky ?R if C > B + P: A paradigm for judicial remedies of socio-economic rights violations? (2002) 18 SAJHR 161 at 177; Currie & De Waal op ci t note 35 at 115-116; Jonathan Klaaren ?A remedial interpretation of the Treatment Action Campaign decision? (2003) 19 SAJHR 455 at 458; Sandra Liebenberg ?Socio-economic rights? in Matthew Chaskalson et al (eds) Constitutional Law of South Africa (RS5, 1999) ch 41 at 52; Kames hni Pillay ?Implementation of Grootboom : 192 progressive realisation of health rights. Both in relation to private infr ingements and more ?traditional? State violations of health rights, there is a need for increased scholarly engagement with courts? remedial function. This dissertation has shown that the remedial flexibility that courts enjoy in terms of s 38 of the Constitution allows them to devise remedies that would appropriately vindicate the interests of litigants while simultaneously remaining mindful of other compelling societal interests and of the judiciary?s instituti onal limitations. However, it appears that the Constitutional Court has thus far made lim ited use of the latitude it is afforded by this flexibility in socio-economic rights matters. 36 This is at least in part because its approach to the interpretati on of socio-economic rights precludes it from exercising remedial options other than broad declaratory orders that instruct the State to conform to the dictates of Grootboom reasonableness. The content of the remedy awarded in the wake of an infringement of a health-related right and the manner in wh ich compliance with such remedy is secured directly determines the extent to which a successful litigant derives tangible benefit from a ?victory ? in a health rights matter. It is therefore essential that further research be conducted into what would constitute appropriate relief for infringements of health rights. 37 Such research should explore the possibilities of productive inter-instituti onal interaction, the interests of both applicants and respondents in health rights ma tters, the dictates of the doctrine of separation of powers and manners in which existing remedies (such as interdicts and awards of damages) ma y be utilised or developed in order to adequately prevent or compensate for infringements of health rights. 38 Given Implications for the enforcement of socio-economic rights? (2002) 6 Law, Democracy & Development 255 at 259; Craig Scott ?Social rights: Towa rds a principled, pragmatic judicial role? (1999) 1(4) ESR Review 4 at 5; Scott & Alston op cit not e 28 at 224; Wim Trengove ?Judicial remedies for violations of so cio-economic rights? (1999) 1(4) ESR Review 8 at 9-10. 39 See Mark Heywood ?Contempt or compliance? The TAC case after the Constitutional Court judgment? (2003) 4(1) ESR Review 7-10. 40 For discussion of the need to ensure that order s are given effect to and for associated criticism of the Grootboom and TAC2 orders, see David Bilchitz ?Towards a reasonable approach to the minimum core: Laying the foundations fo r future socio-economic rights jurisprudence? (2003) 19 SAJHR 1 at 24-26; Liebenberg op cit note 34 at 30; Pieterse op cit note 36 at 414-416; Pillay op cit note 38 at 276; Theunis Roux ?Understanding Grootboom - A Response to Cass R Sunstein? (2002) 12(2) Constitutional Forum 41 at 51. In Kate v MEC for the Department of Welfare, Eastern Cape 2005 (1) SA 141 (SECLD) at para 25, Froneman J remarked: ?It is one thing to realise the possibility as a matter of fact that the Government might refuse to comply with court orders. It is something completely different to hold as a matter of law that courts are powerless to devise ways to ensure compliance wit h court orders in a constitutional State such as ours. In the former case the Government would, in refusing to comply with court orders, place itself outside the ambit of constitutional government and a constitutional crisis would be created. For the courts to do the latter w ould be to aid and abet unconstitutional government, the very antithesis of the courts? duty in terms of the Constitution?. 193 further that the Grootboom order did not result in any tangible improvement of the successful litigants? living condi tions and that the Treatment Action Campaign had to resort to contempt of court proceedings in order to secure compliance with the T A C2 order, 39 research should further explore ways in which courts may take more effective c ontrol over compliance with their orders, both in the remedial stage of proceedings and thereafter. 40 Whereas it is necessary that court orders are structured in a manner that facilitates legislative and executive co mpliance, there should simultaneously be guarded against unnecessarily disrupting the already fragile relationship between the courts and the other branc hes of government. Whereas this dissertation has deliberately under-em phasised institutional dimensions of giving effect to health rights through t he judiciary (in its belief that these dimensions have tended, in most literat ure on the subject, to overshadow the issues of need and entitlement that bel ong at the centre of a study of health rights), I acknowledge that institutional tensions ar e bound to arise when courts are empowered to dictate, in however limited a fashi on, the terms of socio- economic transformation. Legislative and executive commitment to securing enjoyment of health rights and to co-operat ing with the judiciary in this regard is essential if the rights are to end up as more than paper guarantees. 41 See Bilchitz op cit note 40 at 25; Christ of Heyns ?Taking socio-economic rights seriously: The ?domestic reporting procedure? and the role of the Sout h African Human Rights Commission in terms of the new Constitution? (1999) 32 De Jure 195 at 209-210; Jonathan Klaaren ?Structures of government in the 1996 Constitution: Putting democracy back into human rights? (1997) 13 SAJHR 3 at 26; Liebenberg op cit note 38 at 8; 10; Geraldine Van Bueren ?Alleviating poverty through the Constitutional Court? (1999) 15 SAJHR 52 at 64. 42 See Liebenberg op cit note 4 at 189; Pieterse op cit note 36 at 417. 43 Bongani Majola ?A response to Craig Sco tt: A South African perspective? (1999) 1(4) ESR Rev 6 at 7. 44 On the need for such research, see further Dwight G Newman ?Institutional monitoring of social and economic rights: A South Afri can case study and a new research agenda? (2003) 19 SAJHR 189 at 190; 194. 194 Accordingly, it is necessary for a judi cial approach to health rights to enable co- operation and ongoing dialogue between all three branches of state. 41 Achieving the appropriate balance betw een judicial deference and vigilance in structuring and orchestrating this di alogue is bound to prove challenging (though by no means impossible, or even always difficult) and it is hoped that future research on the institutional dimensi ons of socio-economic rights enforcement will increasingly focus on the achievement of this balance. 42 Finally, it needs to be remembered that ?[f]ocusing only on judicial enforcement will not win t he battle for the poor?. 43 Most beneficiaries of health rights will never see the inside of a courtroom and, while the judgments handed down there may vicariously decide their fate, it is whether these judgments actually translate into tangible, ground-leve l realities that is of interest to them. It is accordingly crucial that the t heoretical research conducted here be supplemented by research focusing on the practical implementation of constitutional guarantees and judicial pr onouncements, as well as on the role of non-judicial instituti ons (ranging from constitutionally sanctioned bodies such as the SAHRC, through statutory bodies such as health care professionals? councils to ?private? NGO?s and other intere st groups) in facilitating, monitoring and ensuring such implementation. 44 6.5 CONCLUSION Through ostensibly reconciling notions of right and need, socio-economic rights have the potential to contribute tangibly to the achievement of social justice. 45 See chapter 1 notes 23-24; 39 and accompany ing text, and also remarks of Dennis Davis ?Socio-economic rights in South Africa: T he record of the Constitutional Court after ten years? (2004) 5(5) ESR Review 3 at 5; Sandra Liebenberg ?The right to social assistance: The implications of Grootboom for policy reform in South Africa? (2001) 17 SAJHR 232 at 233. 46 See Davis (ibid) at 7. 47 These and other strengths of the judiciary in this r egard are discussed by, for instance, NW Barber ?Prelude to the s eparation of powers? (2001) 60 Cambridge LJ 59 at 79; John Ferejohn ?Judicializing politi cs, politicizing law? (2002) 65 Law & Contemporary Problems 41 at 55; 63; Mario Gomez ?Social economic rights and human rights commissions? (1995) 17 Human Rights Quarterly 155 at 156; Liebenberg op cit note 38 at 11; Pieterse op cit note 36 at 395; Ruti Teitel ?Transitional jurispr udence: The role of law in po litical transformation? (1997) 106 Yale LJ 2009 at 2033. 195 However, the success of socio-economic rights in this respect ultimately depends on their potential to improve the quality of life of those whose deprivation and vulnerability they seek to address. Indeed, the legitimacy of the Bill of Rights as a whole depends on whet her socio-economic rights are capable of rising to this challenge. 45 This dissertation has shown that the health rights in the 1996 Constitution, despite their inherent capacity to make a tangible difference in the lives of their benefici aries, have only partially succeeded in delivering what they promise. This has been attributed neither to an inherent flaw in their formulation nor to the ex istence of insurmountable institutional hurdles to their enforcement, but instead to the hesitance of South African courts to give effect to the rights-based nature of health-related claims. Discussions of the institutional difficu lties associated with giving effect to socio-economic rights often overlook that many features of t he judicial process equip courts rather well for this task. While remaining inaccessible to a disconcerting number of people, courts provide an offici al platform for claimants to articulate their needs and to negotiate the satisfaction ther eof with the State, or other powerful entities, on a relatively equal footing. 46 Judges are well- equipped to balance the competing intere sts arising from such negotiation and to arrive at fair and well-reasoned solutions that give effect to this balance of interests. They are under a constituti onal mandate to take rights seriously and are experts at interpreting and enforcing ri ghts. Particularly, courts are able to provide direct, timely and appropriate relief to claimants who can show that their fundamental rights have been infringed or threatened. 47 It would be most unfortunate if courts were to preclude themselves from assisting in the socio- 48 For similar arguments, see Liebenberg op ci t note 4 at 188-189; Liebenberg op cit note 34 at 30. 196 economic transformation of South African society by failing to display these strengths in cases where they are ca lled upon to vindicate socio-economic rights. It is hoped that courts will become more comfortable with enforcing socio- economic rights as time progresses and will modify their current approach to socio-economic rights adjudication in a manner that reduces the overly onerous burden of proof on applicants and that more readily produces tangible benefits where applicants are successful. In parti cular, the Constitutional Court should reconsider its stance against affirming the existence of enforceable individual entitlements underlying socio- economic rights, should explicitly articulate the basis of its findings in socio-economic rights cases in rights-terms and should award individual relief for infringements of socio-economic rights in circumstances where this would not be inappropriate or unjust. 48 Whereas valuable steps have been tak en towards building a health rights jurisprudence that resonates with the spirit, purport and objects of the 1996 Constitution, these need to be supplement ed by an explicit acknowledgment that health rights generate legally enforceable entitlements and by interpretative, evaluative and remedial judicial practi ces that enable the vindication of such entitlements in appropriate circumstances. Until this happens, the right to health and the transformative aspirations of the 1996 Constitution will continue to have a ?hollow ring? for those to whom it matters most. 197 ANNEXURE A TEXT OF INTERNATIONAL AND REGIONAL HUMAN RIGHTS TREATY PROVISIONS SURVEYED IN CHAPTER 2 Article 12 of the International Coven ant on Economic, Social and Cultural Rights: 1. The States Parties to the Present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. Ar ticle 2 of the International Covenant on Economic, Social and Cultural Rights: 1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. 2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.... A r t i c l e 3 o f t h e I n t e r n a t i o n a l C o v e n ant on Economic, Social and Cultural Rights: 198 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant. Article 12 of the Convention on Eliminat i o n o f A l l F o r m s o f D i s c r i m i n a t i o n Against Women: 1. States parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure , on a basis of equality between men and women, access to health care services, including those related to family planning. 2. Notwithstanding the provisions of paragraph 1 of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, gr anting free services where necessary, as well as adequate nutrition during pregnancy and lactation. A r t i c l e 5 ( e ) ( i v ) o f t h e C o n v e n t i o n o n E l i m i n a t i o n o f A l l F o r m s o f Racial Disc r i m i n a t i o n : In accordance with the fundamental obligations laid down in article 2 of this Convention, States parties undertake to prohibit and to eliminate racial discrimination in all of its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: . . . e) Economic, social and cultural rights, in particular:... iv) The right to public health, medical care, social security and social services;.... Article 24 of the Convention on the Rights of the Child: 1. States Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. 2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: (a) to diminish infant and child mortality; 199 (b) to ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care; (c) to combat disease and malnutrition, including within the framework of primary health care, through inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution; (d) to ensure appropriate pre-natal and post-natal health care for mothers; (e) to ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breast-feeding, hygiene and environmental sanitation and the prevention of accidents; (f) to develop preventative health care, guidance for parents and family planning education and services. 3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. 4. States Parties undertake to promote and encourage international co- operation with a view to achieving progressively the full realisation of the right recognised in the present Article. In this regard, particular account shall be taken of the needs of developing countries. Article 11 of the European Social Charter: With a view to ensuring the effective exercise of the right to protection of health, the Contracting Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designed inter alia: 1. To remove as far as possible the causes of ill health; 2. To provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; 3. To prevent as far as possible epidemic, endemic and other diseases. Article 13(1) of the European Social Charter: With a view to ensuring the effective exer cise of the right to social and medical assistance, the Contracting Parties undertake: (1) To ensure that any person who is without adequate resources and 200 who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in the case of sickness, the care necessitated by his condition . Article 11 of the American Declarat ion on the Rights and Duties of Man: Every person has the right to the pres ervation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources. A r t i c l e 1 0 o f t h e A d d i t i o n a l P r o t o c ol to the American Convention on Human Rights in the Area of Econom i c , S o c i a l a n d C u l t u r a l Rights: 1. Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being. 2. In order to ensure the exercise of the right to health, the States Parties agree to recognize health as a public good and, particularly, to adopt the following measures to ensure that right. a. Primary health care, that is, essential health care made available to all individuals and families in the community; b. Extension of the benefits of health services to all individuals subject to the State?s jurisdiction; c. Universal immunization against the principal infectious diseases; d. Prevention and treatment of endemic, occupational and other diseases; e. Education of the population on t he prevention and treatment of health problems, and f. Satisfaction of the health needs of the highest risk groups and of those whose poverty makes them the most vulnerable. Article 16 of the African Char ter on Human and Peoples? Rights: (1) Every individual shall have the right to enjoy the best attainable state of physical and mental health. (2) States Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical 201 attention when they are sick. Article 14 of the African Charter on the Rights and Welfare of the Child: 1. Every child shall have the right to enjoy the best attainable state of physical, mental and spiritual health. 2. States Parties to the present Charter shall undertake to pursue the full implementation of this right and in particular shall take measures: (a) to reduce infant and child morality rate; (b) to ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care; (c) to ensure the provision of adequate nutrition and safe drinking water; (d) to combat disease and malnutrition within the framework of primary health care through the application of appropriate technology; (e) to ensure appropriate health care for expectant and nursing mothers; (f) to develop preventive health care and family life education and provision of service; (g) to integrate basic health service programmes in national development plans; (h) to ensure that all sectors of the society, in particular, parents, children, community leaders and community workers are informed and supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hy giene and environmental sanitation and the prevention of domestic and other accidents; (i) to ensure the meaningful participation of non-governmental organizations, local communities and the beneficiary population in the planning and management of a basic service programme for children; (j) to support through technical and financial means, the mobilization of local community resources in the development of primary health care for children. 202 BIBLIOGRAPHY Abbe, Alexander ??Meaningful access? to health care and the remedies available to Medicaid managed care recipients under the ADA and the Rehabilitation Act? 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