van der Berg, Shanelle (2017). 'A CAPABILITIES APPROACH TO ENSURING PROPORTIONATE STATE RESOURCE ALLOCATION DECISIONS IN SOCIO-ECONOMIC RIGHTS CASES IN SOUTH AFRICA' Paper presented at the annual conference of the HDCA, Cape Town 2017.
The realisation of socio-economic rights constitutes a critical prerequisite in the struggle to eradicate poverty and inequality in South Africa. State resource allocation lies at the heart of the realisation of socio-economic rights. Courts will often be called upon to adjudicate complex, polycentric prioritisation decisions taken by the state. An appropriate review paradigm can aid courts in performing this onerous task. Capabilities, as the substantive freedom to choose the lives we have reason to value, resonate strongly with the socio-economic rights enshrined in the Constitution of the Republic of South Africa, 1996. The capabilities approach can therefore be developed to constitute a capabilities based standard of review for the adjudication of state resource allocation decisions. The need for such a theoretically justified standard of review becomes apparent from the South African Constitutional Court’s insufficient focus on the content of socio-economic rights, and from the maintenance of a rigid distinction between the positive and negative duties imposed upon the state by socio-economic rights.
In this paper it is further argued that a capabilities-based standard of review can be incorporated into proportionality review and applied to state resource allocation decisions in socio-economic rights cases. When applying proportionality review to an impugned allocative decision, it is important that South African courts observe certain tenets common to both the capabilities approach and South Africa’s project of transformative constitutionalism, which aims to effect large-scale social change through legal processes. First, the foundational constitutional values of freedom, dignity and equality underlie the capabilities approach and should likewise inform the entire adjudicatory process. Second, public reasoning is an essential component of Sen’s capabilities theory. Similarly, public reasoning conceptualised as participation constitutes a central tenet of transformative constitutionalism. The importance of public reasoning and participation implies that in seeking to foster substantive capabilities, the state must simultaneously pay attention to procedural processes that allow for meaningful participation by a broad range of stakeholders. Opportunities should also be created by courts for the public to participate in evaluative exercises. Finally, it is imperative that decision-makers explicitly justify the socio-economic policy choices that they make. One of the central tenets of transformative constitutionalism is a shift from a culture of authority to a culture of justification, in terms of which all exercises of public power must be justified. This requires that state actors must account for the creation and implementation of socio-economic policy as well as for specific instances of resource allocation decisions. The need for explicit, substantive reasoning is accommodated within the capabilities approach. Sen argues that instead of obscuring reasoning during evaluative processes in an ‘implicit framework’, explicitness in resolving judgmental questions is preferable. Explicitness furthermore allows for open public scrutiny of valuational judgments where prioritisation takes places in a context of diversity. Consequently, participation is allowed to flourish in the setting of social and economic priorities.
Furthermore, courts play a crucial role in interpreting the content of socio-economic rights with reference to the capabilities these rights represent in varying contexts during the first stage of a two-stage rights analysis. Only thereafter should the weight assigned to the capabilities-content of the right be balanced against the weight assigned to the state’s resource-based justificatory arguments when a proportionality review standard is applied at the second stage of the rights-analysis. The intricacies of applying a capabilities-centred standard of proportionality review to government resource allocation decisions will be explained.
By consistently requiring proportionate state resource allocation aimed at the realisation of the capabilities that inform the content of socio-economic rights, courts can contribute to a culture of justification, our project of transformative constitutionalism and efforts to alleviate structural poverty and inequality in South Africa.