Ensuring Reasonable Health: Health Rights,the Judiciary,and South African HIV/AIDS Policy

See for instance, Dandridge v. Williams 397 U.S. 471 (1970), where the U.S. Supreme Court refused to review the way that social grants were formulated or administered, reasoning that “[t]he intractable economic, social and even philosophical problems presented by public welfare assistance program are not the business of this Court.”

See for example, Andrews v. Law Society of British Columbia (1989) 1 S.C.R. 123, at paragraph 194, where Justice La Forest states: “much economic and social policy making is simply beyond the institutional competence of the courts: Their role is to protect against incursions on fundamental values, not to second guess policy decisions.”

See for example, Gosselin v. Québec (Attorney General), 2002 4 S.C.R. 429, where the Canadian Supreme Court refused to recognize that the right to security of the body places positive obligations on the government to provide social welfare.

See for instance, Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810 (1948): Article 25; Constitution of the World Health Organization, opened for signature July 22, 1946, 62 Stat. 2679, 14 U.N.T.S. 186; International Covenant on Economic, Social and Cultural Rights opened for signature December 16, 1966, 993 U.N.T.S. 3, article 12; International Convention on the Rights of the Child, opened for signature November 20 1989, U.K.T.S. 1992 No. 44, 28 I.L.M. 1448 1989, article 24(1); International Convention on the Elimination of Racial Discrimination, opened for signature December 21, 1965, 660 U.N.T.S. 195, 5 I.L.M. 352 1966, article 5(e)(iv); Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature December 18, 1979, U.K.T.S. 1989 No. 2, 19 I.L.M. 33 1980, articles 11(1)(f) and 12; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, opened for signature December 18, 1990, article 28; The European Social Charter, opened for signature, October 18, 1961, 529 U.N.T.S. 89, article 11; the African Charter on Human and People's Rights, opened for signature June 27, 1981, O.A.U. Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), article 16; and Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) (1988), article 10. The Cairo Declaration on Human Rights in Islam (1990) is not part of an operational regional system, but it does contain a health right in article 17.

For interpretations of social rights generally, see Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, Maastricht , June 2–6 1986; and Maastricht Guidelines on Violations of Economic, Social and Cultural Rights , January 22–26 1997, reprinted in International Commission of Jurists, Economic, Social and Cultural Rights: A Compilation of Essential Documents (Geneva: ICJ, 1997). On the right to health specifically, see Committee on Economic, Social and Cultural Rights, “General Comment No. 14 (2000): The Right to the Highest Attainable Standard of Health (article 12 of the International Covenant on Economic, Social and Cultural Rights)” E/C.12/2000/4, August 11, 2000.

Kinney E. D. Clark B. A. , “Provisions for Health and Health-Care in the Constitutions of the Countries of the World,” Cornell International Law Journal 37 (2004): 285–355, at 287.

There are examples of both direct judicial enforcement of health rights, and judicial protection of health through civil rights protections. For example in Viceconti v. Ministry of Health and Social Welfare (Argentina, Poder Judicial de la Nación, Causa no. 31.777/96, June 2, 1998), international human rights treaties on health were recognized, and government's positive obligations to provide health care were confirmed; and in Cruz Bermudez et al v. Ministerio de Sanidad y Asistencia Social (Supreme Court of Justice of Venezuela, Case No. 15.789, Decision No. 916 July 15, 1999), the court found that constitutional rights to health and life required the Ministry of Health to provide antiretroviral medicines; develop national treatment policies and programs; and reallocate budget necessary to carry out the Court's decision. For indirect protection of health, see for example, Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996) 4 S.C.C. 37, where the denial of emergency medical treatment for serious head injuries was deemed to be a breach of the right to life contained in the Indian Constitution; and Eldridge v. British Columbia (Attorney General) 1997 3 S.C.R. 624, where the Canadian Supreme Court ordered the provision of health care benefits under the constitutional right to equality and non-discrimination.

Chaskalson A. , “From Wickedness to Equality: The Moral Transformation of South African Law,” International Journal of Constitutional Law 1, no. 4 (2003): 590–609, at 601.

Constitution of the Republic of South Africa (adopted May 8, 1996, amended October 11, 1996), available at <http://www.polity.org.za/govdocs/constitution/saconst.html> (last visited October 4, 2004).

Id, Preamble.

Id, sections 1(a), 7(1), 36(1) and 39(1)(a).

Id, Preamble.

For instance, in addition to prohibiting discrimination on the grounds of sexual orientation and gender in section 9(3) on equality, in sections 8(2) and 239, the Constitution provides for horizontal application of the constitution as between individuals and juristic persons. See in this respect, Ellmann S. , “A Constitutional Confluence: American ‘State Action’ Law and the Application of South Africa's Socio-Economic Rights Guarantees to Private Actors,” in Andrews P. Ellmann S. eds., The Post-Apartheid Constitutions: Perspectives on South Africa's Basic Law (Johannesburg: Witwatersrand University Press, 2001): At 444.

These rights include section 27 (food, health care, water and social security), 26 (housing), 29 (education), and 28 (children's rights to basic social amenities).

Under apartheid, approximately 87 percent of South African land was reserved for white ownership, and what limited black ownership remained was effectively eroded through forced removals. Skilled jobs and economic opportunities were predominantly limited for whites.

South Africa is ranked 119th on the United Nations Development Program's [UNDP] human development index (in the lower two thirds of countries classified as having medium human development). However it has a gross domestic product per capita (US $10,070, 00) comparable to at least 60 percent of countries classified as having high human development See UNDP, Human Development Report 2004 (New York: UNDP, 2004): At 138–139.

Steyn K. Schneider M. , “Overview on Poverty in South Africa” in Bradshaw D. Steyn K. , eds., Poverty and Chronic Diseases in South Africa: Technical Report 2001 (Tygerberg: Medical Research Council, 2001): 1–14, at 6. S.A. records one of the highest Gini Coefficient indexes in the world, measured in 2003 at 59.3. The Gini coefficient is used to compare inequality among nations. It measures the distribution of income (or consumption) among individuals or households within a country between 0 (perfect equality) and 100 (perfect inequality).

May J. , Poverty and Inequality in South Africa: Report Prepared by the Office of the Executive Deputy President and the Inter-Ministerial Committee for Poverty and Inequality, Final Report, May 13, 1998, at 1.

See Steyn Schneider , supra note 17, at 12.

See supra note 14.

Constitution, supra note 9, at sections 28(1)(c), 35(2)(e) and section 24(a) respectively.

See for example, WHO Constitution and ICESCR, supra note 4.

Mann J. M. Gruskin S. Grodin M. A. Annas G. J. , eds., Health and Human Rights: A Reader (New York: Routledge, 1999): At 8.

World Health Organization (WHO), “Action on the Social Determinants of Health: Learning from Previous Experiences,” (Background Paper for WHO Commission on Social Determinants of Health, March 2005); and Wilkinson R. G. , “Socioeconomic Determinants of Health: Health Inequalities: Relative or Absolute Material Standards?” British Medical Journal 314 (1997): 591–595, at 591.

There is however an important proviso to this limited scope, since certain health care services (such as AIDS medicines in high prevalence countries) may hold far broader public health benefits. Moreover, given the correlation between poverty and health, the realization of the constitutional provisions regarding basic needs could also contribute to improved population health.

Constitution, supra note 9, at section 7(2).

The duty to respect imposes a negative obligation to desist from interfering with people's enjoyment of rights; the duty to protect requires the state to prevent third party interference with people's rights; and the duty to promote and fulfil describes the state's positive obligation to realize access. The notion of a typology of rights is widely acknowledged to have been developed by Henry Shue, see Shue H. , Basic Rights, Subsistence, Affluence and US Foreign Policy (Princeton, NJ: Princeton University Press, 1980). It is applied in the context of health in General Comment 14, supra note 5.

Ex Parte Certification of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, (1996) 4 S.Afr.L.R. 744 (S.Afr.Const.Ct.), at paragraphs 77–78.

Id, at paragraph 78.

These concerns are apparent in Justice Albie Sach's ex curia assertion, prior to the Court's seminal decision in Grootboom, that judicial lack of expertise regarding the technical complexities of socioeconomic policy required “corresponding judicial modesty.” In Sachs' eyes, judges could not “be philosopher kings and queens who go around telling government how to function.” Where Sachs saw an appropriate judicial function, was when situations of socioeconomic deprivation went “to the core of a person's life and dignity” – here he argued that courts were better equipped to balance competing interests than governments whose bureaucratic and operational concerns demanded compromise. See Sachs A. , “Social and Economic Rights: Can they be Made Justiciable?” Southern Methodist University Law Review 53 (2000): 1381–1391, at 1388–1389.

Two additional socioeconomic rights-related cases have been heard – Minister of Public Works and Others v. Kyalami Ridge Environmental Association, Case CCT 55/00, which addressed private challenges to state policy designed to provide housing to the poor, and Louis Khosa and Others v. The Minister of Social Development and others; Saleta Mahluale and Another v. The Minister of Social Development, Case CCT 12/03, which dealt with a challenge to state policy that limited social security assistance to citizens. Relevant holdings of the latter case are included below.

Soobramoney v. Minister of Health (Kwa-Zulu Natal) (1998) 1 S.Afr.L.R. 765 (S. Afr. Const. Ct.).

Government of the Republic of South Africa and Others v. Irene Grootboom and Others (2000) 11 B.Const. L.R. 1169 (S. Afr. Const. Ct.).

Minister of Health and Other v. Treatment Action Campaign and Others (2002) 5 S.Afr.L.R. 721 (S.Afr.Const.Ct).

See for example, Moellendorf D. , “Reasoning about Resources: Soobramoney and the Future of Socio-Economic Rights Claims,” South African Journal on Human Rights 14 (1998): 327–333, at 327; and Ngwenya C. , “The Recognition of Access to Health Care as a Human Right in South Africa: Is it Enough?” Health and Human Rights 5, no. 1 (2000): 27–44, at 33.

Soobramoney never contested the lower court's finding that “the [state] has conclusively proved that there are no funds available to provide patients such as the applicant with the necessary treatment.” Instead Soobramoney argued that the state could make additional funds available to the provincial hospital, and that it was obliged to do under section 27. Soobramoney, supra note 33, at paragraph 23. See also Chaskalson , “Moral Transformation,” supra note 8, at 603.

Soobramoney, supra note 33, at paragraphs 24–25.

See Id, at paragraph 42.

Id, at paragraph 29 states that “a court would be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters.” Rationality is a low standard of review, requiring only that the government purpose is legitimate, and that there is a rational and not arbitrary connection between the law and the government purpose. See also Khosa , supra note 32, at paragraph 67.

Grootboom , supra note 34, at paragraphs 24 and 44.

TAC, supra note 35, at paragraphs 35 and 36.

Grootboom , supra note 34, at paragraph 83.

Id, at paragraphs 38, 40, 42 and 43.

Id, at paragraph 44, cited with approval in TAC, supra note 35, at paragraph 68.

Grootboom , supra note 34, at paragraphs 35 and 43, the latter paragraph cited with approval in TAC, supra note 35, at paragraph 68.

Grootboom , supra note 34, at paragraph 44.

Id, at paragraph 44.

Id, at paragraph 42.

Id, at paragraphs 40 and 43; cited with approval in TAC, supra note 35, at paragraph 68.

Grootboom , supra note 34, at paragraph 41.

Id, at paragraph 45.

UN Committee on Economic, Social and Cultural Rights, General Comment 3: The Nature of State Party Obligations , U.N. Doc. HRI/GEN/1/Rev.1 at 45 (1994), at paragraph 9, cited with approval in Grootboom, supra note 34, at paragraph 45.

TAC, supra note 35, at paragraph 131.

Id, at paragraph 32.

Grootboom , supra note 34, at paragraph 46.

Id, at paragraph 68.

Soobramoney , supra note 33, at paragraphs 8–11; TAC, supra note 35, at paragraphs 31 and 34; Khosa , supra note 32, at paragraph 43.

Soobramoney, supra note 33, at paragraphs 8, 28 and 31.

Id, at paragraph 53.

Id, at paragraph 54.

Id, at paragraph 32.

Grootboom, supra note 34, at paragraphs 27–33; TAC, supra note 35, at paragraphs 26–28.

The minimum core is developed in relation to health in General Comment 14, supra note 5, at paragraph 42.

Grootboom, supra note 34, at paragraph 33.

TAC, supra note 35, at paragraphs 37 and 38.

Id, at paragraph 38.

Id, at paragraph 36.

For more comprehensive assessments along these lines see Pillay K. , “Tracking South Africa's Progress on Health Care Rights: Are We Any Closer to Achieving the Goal?” Law Democracy and Development (2003): 7; and the annual socio-economic rights reports by the South African Human Rights Commission, see <http://www.sahrc.org.za> (last visited October 4, 2005).

South African Human Rights Commission, “Health Care and Health Care Services for Children” in Third Economic and Social Rights Report 1999/2000 , 84–251, at 184, at <http://www.sahrc.org.za> (last visited July 1, 2005).

See for example, South African Department of Health, “White Paper for the Transformation of the Health System in South Africa,” 1997, available at <http://196.36.153.56/doh/docs/index.html> (last visited June 18, 2005). The White Paper proposed transformation of the public health care system primarily through increasing access to health services through primary health care; creating a district health system; ensuring the availability of safe, good quality essential drugs in health facilities; and rationalizing health financing through budget reprioritization. Subsequent policy documents have expanded on this framework. See for example, South African Department of Health, “Health Sector Strategic Framework, 2000–2004; Accelerating Quality Health Service Delivery,” available at <http://196.36.153.56/doh/docs/index.html> (last visited June 18, 2005); and South African Department of Health, “Strategic Priorities for the National Health System, 2004–2009,” available at <http://www.doh.gov.za/docs/> (last visited June 19, 2005).

Legislative measures include legislation designed to transform and restructure the health professions; to increase the number of health care personnel in the public sector; to ensure equal access to medical scheme benefits, and to improve access to affordable medicines. See Forman L. Pillay Y. Sait L. , “A Review of Nearly a Decade of Health Legislation, 1994–2003,” in Ntuli A. ed., South African Health Review 2003 (Durban: Health Systems Trust, 2004): 13–27.

Reagon G. Irlam J. Levin J. , The National Primary Health Care Facilities Survey 2003 (Durban: Health Systems Trust, 2004): At ix.

South African Government Communications (GCIS), South Africa Yearbook 2004/05 (Pretoria: Government Communications, 2004): At 54.

Day C. Reagon G. Irlam J. Levin J. , “Facilities Survey 2003: Selected Findings from the Fourth National Survey of Primary Health Care Facilities,” in Ntuli , supra note 77. at 342–345.

Reagon G. , supra note 78, at ix. Despite major advances in national AIDS policies on treatment for mother to child transmission of HIV, and a national ARV plan discussed below, access remains greatly limited.

South African Human Rights Commission, “The Right to Health Care,” in Fifth Economic and Social Rights Report Series 2002/2003 June 21, 2004, 1–83, at 15, available at <http://www.sahrc.org.za/5th_esr_health.pdf> (last visited July 1, 2005).

Ntuli A. , “HIV/AIDS and Health Sector Responses in South Africa – Treatment Access and Equity: Balancing the Act,” Equinet Discussion Paper Number 7, September 2003, at <http://www.equinetafrica.org/Resources/downloads/Equinet-DiscussionPaper7.pdf> (last visited June 20, 2005).

See African National Congress, Reconstruction and Development Program: A Policy Framework (1994), at <http://www.anc.org.za/rdp/rdpall.html> (last visited February 14, 2005), and Marais H. , South Africa: Limits to Change – The Political Economy of Transformation (London and New York: Zed Books, 1998): At 163–165.

Bond P. , Talk Left Walk Right: South Africa's Frustrated Global Reforms (Scottsville: University of Kwa-Zulu Natal Press, 2004): At 83–84.

McIntyre D. , “The Nature and State of Health Care Financing and Delivery in South Africa: Obstacles to Realizing the Right to Health Care,” Presentation at Seminar on Health Sector Transformation, February 10, 2004, AIDS Law Project, Johannesburg; Blecher M. Thomas S. , “Health Care Financing,” in Ntuli , supra note 77, at 269–270.

Gelb S. , “An Overview of the South African Economy,” in Daniel J. Southall R. Lutchman J. , eds., State of the Nation: South Africa 2004–2005 (Cape Town: Human Sciences Research Council, 2005): 367–400, at 367.

Ardington C. Lam D. Leibbrandt M. Welch M. , “The Sensitivity of Estimates of Post-Apartheid Changes in South African Poverty and Inequality to Key Data Imputations,” Centre for Social Science Research, University of Cape Town, Working Paper No. 106, February 2005, at <http://www.sarpn.org.za/documents/d0001148/P1265-South_African_poverty_Febr2005.pdf> (last visited June 19, 2005).

Altman M. , “The State of Employment,” in Daniel , supra note 87, 423, at 425.

South African Government Communications, supra note 79.

Schmidt S. , “South Africa: The New Divide,” International Politics and Society 4 (2003): 148–163, at 148.

South African Human Rights Commission, supra note 82, at 25.

United Nations Global Programme on HIV/AIDS (UNAIDS), Report on the Global AIDS Epidemic 2004 (Geneva: UNAIDS, 2004): At 24, at <http://www.unaids.org/bangkok2004/GAR2004_pdf/Chapter2_globaloverview_en.pdf> (last visited June 1, 2005).

South African Department of Health, National HIV and Syphilis Antenatal Sero-Prevalence Survey in South Africa 2004, at <http://www.doh.gov.za/aids/index.html> (last visited June 13, 2005).

Dorrington R. E. , The Impact of HIV/AIDS on Adult Mortality in South Africa , Technical Report, Burden of Disease Research Unit, Medical Research Council, 2001, at <http://www.mrc.org.za> (last visited June 20, 2005).

Dorrington R. E. Bradshaw D. Johnson L. Budlender D. , The Demographic Impact of HIV/AIDS in South Africa: National Indicators for 2004 (Cape Town: Centre for Actuarial Research, South African Medical Research Council and Actuarial Society of South Africa, 2004), at <http://www.mrc.ac.za/bod/demographic.pdf> (last visited June 1, 2005).

Whiteside A. Sunter C. , AIDS: The Challenge for South Africa (Cape Town: Human & Rousseau (Pty) Ltd, 2000): At 69.

Shisana O. , The Impact of HIV/AIDS on the Health Sector: National Survey of Health Personnel, Ambulatory and Hospitalised Patients and Health Facilities, 2002 (Human Sciences Research Council, Medical University of South Africa and Medical Research Council, 2003): At xiv, at <http://www.hsrcpublishers.co.za/user_uploads/tblPDF/1986_00_Impact_HIVAIDS_Health_Sector.pdf> (last visited August 10, 2005).

Jeena P. M. , “Impact of HIV-1 Co-infection on presentation and hospital-related mortality in children with culture proven pulmonary tuberculosis in Durban, South Africa,” International Journal of Tuberculosis and Lung Disease 6, no. 8 (2002): At 672–8.

Shisana , supra note 98, at xiv.

Loewenson R. Whiteside A. , “HIV/AIDS Implications for Poverty Reduction,” United Nations Development Program Policy Paper, 2001, at 1–27, at <http://www.undp.org/dpa/front-pagearchive/2001/june/22june01/hiv-aids.pdf> (last visited June 25, 2005); see also UNAIDS, Report on the Global HIV/AIDS Epidemic 2002 (Geneva: UNAIDS, 2002).

UNAIDS, HIV Prevention Needs and Successes: A Tale of Three Countries – An Update on HIV Prevention Success in Senegal, Thailand and Uganda, UNAIDS/01.15E, UNAIDS Best Practice Collection, (Geneva: WHO, 2001).

See for instance, United Nations General Assembly, 26th Special Session, Declaration of Commitment on HIV/AIDS , A/Res/S-26/2, June 27, 2001, available at <http://www.unaids.org/UNGASS/> at paragraphs 27, and 37–54.

This is not a unique feature of the current administration however, and from the earliest appearance of AIDS in South Africa in 1983, government's response has been inadequate. See van der Vliet V. , “South Africa Divided against AIDS: A Crisis of Leadership,” in Kauffman K. D. Lindauer D. L. , eds., AIDS and South Africa: The Social Expression of a Pandemic (Hampshire: Palgrave Macmillan, 2004): 48.

Quinlan T. Willan S. , “HIV/AIDS: Finding Ways to Contain the Pandemic,” in Daniel , supra note 87, at 227.

National Institute of Allergies and Infectious Diseases, “The Relationship between Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome.” September 1995, available at <http://www.niaid.nih.gov/publications/hivaids/all.htm> (last visited June 1, 2005).

Palella F. J. Jr Delaney K. M. Moorman A. C. Loveless M. O. Fuhrer J. Satten G. A. Aschman D. J. Holmberg S. D. , “Declining Morbidity and Mortality among Patients with Advanced Human Immunodeficiency Virus Infection,” N. Engl. J. Med. 338, no. 13 (1998): 853–60.

This legislative authority is primarily held in the Medicines and Related Substances Control Amendment Act No. 59 of 2002, as well as the Patents Act No. 57 of 1978 as revised.

Treatment Action Campaign, Dr. Haroon Saloojee and Children's Rights Center v. Minister of Health and MECS for Health in Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Mpumulanga, Northen Cape, Northern Province, North-West and Western Cape, High Court of South Africa Transvaal Provincial Division, case no. 21182/2001.

TAC, supra note 35, at paragraph 48.

Id, at paragraph 120.

Id, at paragraph 50.

Id, at paragraphs 57–66.

Id, at paragraphs 71 and 72.

Id, at paragraphs 93 and 131.

Id, at paragraph 123.

Id, at paragraph 68, quoting Grootboom , supra note 34, at paragraphs 43 and 44.

TAC, supra note 35, at paragraph 70, referencing Grootboom , supra note 34, at paragraphs 35–7.

TAC, supra note 35, at paragraph 78.

Id, at paragraph 96.

Grootboom, supra note 34, at paragraphs 93–4, quoted in TAC, supra note 35, at paragraph 24.

Constitution, supra note 9, at section 38.

Id, at section 172(1)(a).

TAC, supra note 35, at paragraphs 100–112.

Tuohy C. , Accidental Logics: Dynamics of Change in the Health Care Arena in US, Britain and Canada (Oxford: Oxford University Press, 1999).

There is a natural overlap between the reasonableness standard's focus on meeting the needs of the poor and vulnerable, and the focus in health equity on addressing systematic health differences between social groups with varying disadvantage. The latter definition is drawn from Braveman P. Gruskin S. , “Defining Equity in Health,” Journal of Epidemiology and Community Health 57 (2003): 254–258, at 254

Concerns about the polycentric nature of adjudication (particularly of decisions with knock on budgetary consequences) have most famously been articulated by Lon Fuller, who argued that polycentric disputes are like spider webs, in that if you pull on one strand, the impact is felt throughout the web. See Fuller L. L. , “The Forms and Limits of Adjudication,” Harvard Law Review 92 (1978): 353–409, at 395.

There can be little doubt that political protest and the upcoming national elections played equally important roles in effectively forcing government's hand on a broader treatment plan. See Forman L. , “Claiming Equity and Justice in Health: Enforcing the South African Right to Health to Ensure Access to Antiretroviral Medicines,” in Flood C. ed., Frontiers of Fairness (Toronto: University of Toronto Press, forthcoming).

South African Department of Health, Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa November 19, 2003 , (Care Plan) at <http://www.gov.za/reports/2003/aidsplan/report.pdf> (last visited June 1, 2005).

See for instance, WHO, Macroeconomics and Health: Investing in Health for Economic Development: Report of the Commission on Macroeconomics and Health (Geneva: WHO, 2001): At 51.

See General Comment 14, supra note 5, at paragraph 42.

The minimum core focuses on state obligations to ensure equitable distribution of health care facilities, goods and services; essential drugs; non-discriminatory access to health care; access to food, water, housing and sanitation, and a comprehensive plan to provide health care for all. Id, at paragraph 43.

The only specific minimum core obligation not explicit in the reasonableness standard or the Constitution itself is the necessity of ensuring access to essential drugs, although the holding in the TAC case would certainly support such an interpretation. This is not to downplay this absence – given the crucial role of essential drugs within national health care systems, this deficit alone could found the objections to the Court's refusal to more fully elaborate a substantive content for section 27.

See for instance, Bilchitz D. , “Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socioeconomic Rights Jurisprudence,” South African Journal on Human Rights 19 (2002): 1–126; Roux T. , “Understanding Grootboom – A Response to Cass R. Sunstein,” Forum Constitutionnel 12, no. 2 (2002): 41–51; Pieterse M. , “Possibilities and Pitfalls in the Domestic Enforcement of Social Rights: Contemplating the South African Experience,” Human Rights Quarterly 26 (2004): 882–905.

Roux , id, at 46.

Liebenberg S. , “South Africa's Evolving Jurisprudence on Socioeconomic Rights,” Law, Democracy and Development 6, No. 2 (2002): 159.

The task of defining a nationally appropriate minimum core is probably best addressed by a government institution like the Human Rights Commission, which is constitutionally mandated to monitor state compliance with the Constitution's socioeconomic guarantees, to promote the protection, development and attainment of human rights, and to carry out research. See Constitution, supra note 9, section 184(1)(a), (3), and (2)(c) respectively.

Lenta P. , “Judicial Restraint and Overreach,” South African Journal on Human Rights 20 (2004): 544–576, at 554.

Subsidiary legislation which protects health interests may also serve this purpose.

DeNavas-Walt C. Proctor B. D. Mills R. J. , Income, Poverty, and Health Insurance Coverage in the United States: 2003 (Washington: U.S. Census Bureau, 2004): At 14.

Heywood M. , “Preventing Mother-To-Child HIV Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action Campaign Case against the Minister of Health,” South African Journal on Human Rights 19 (2003): 278–315, at 314–315. Similarly government's compliance with the Grootboom decision is reported to be slow and incomplete. See Pillay K. , “Implementing Grootboom: Supervision Needed,” ESR Review 3 (2002): 13.

South African Government, Towards a Ten Year Review: Complete Report , 2003, availableat <http://www.10years.gov.za/review/documents.htm> (last visited June 10, 2005).

In his outgoing speech as Chief Justice, Arthur Chaskalson articulated this balance in the following way: [T]he independence of the judiciary and the separation of powers are foundational principles of constitutionalism. The delicate balance called for to give effect to this separation requires the three arms of government to pay attention to the inter-relationship between them mandated by the Constitution, and to the deference that each owes to the other. How this is done is of particular importance to the standing of the courts, their efficacy, and the respect that their judgments command. It is crucial to constitutionalism.

Chaskalson A. , Chief Justice, “Farewell Speech on Stepping Down as Chief Justice of South Africa and the Constitutional Court,” June 2, 2005, available at <http://www.constitutionalcourt.org.za/site/farewell.htm> (last visited July 10, 2005).

Judicial review is increasingly recognized less as “trumping” legislative decisions, than as enabling a dialogue between judiciary and legislature over rights issues generally. This idea has been developed particularly in the Canadian context. See for example, Hogg P. Bushnell A. , “Charter Dialogue between Courts and Legislature,” Osgoode Hall Law Journal 35 (1997): 75–107, and Roach K. , Constitutional, Remedial and International Dialogues about Rights: The Canadian Experience (Toronto: University of Toronto, Faculty of Law, 2004).