Abstracts

12 has established an incrementalistic doctrine for socioeconomic rights achievement. In effect, the constitutionally demarcated rights to housing, health care, and education will not be realized by any single, potential case directing government action; rather, a series of court decisions achieving sub-rights of the whole will incrementally bring those entitlements into existence. An analysis of relevant case law reveals this pattern to be the methodological paradigm of the courts. Through the armature of case law precedent of the South African courts, I argue for the existence of an extraconstitutional principle that underlies socioeconomic law. This principle is a product of the combined definitions of progressive realization and reasonable measures as they are interpreted through the lens of the Constitutional Court’s test. This test manifests in a judicially constructed remedial pattern, that I term, incrementalism . Incrementalism exists in the political science lexicon as a form of governance whereby policies are formed through partisan mutual adjustment utilizing proposals that only incrementally alter the status quo (Hayes, 2017). I use the term in reference to South African law in a different way. Incrementalism, as used in this article, refers to the way in which the courts act in a quasi-legislative manner in defining the components of socioeconomic rights. The purpose of this article is to call to attention a methodological structure that is implicit in the courts’ reasoning, which I have observed from analysis of socioeconomic rights cases. While the concept of incrementalism is of use to an academic understanding of judicial reasoning, I hope that what is written here can serve a strategizing purpose. What is common in almost all the cases that I have explored is the presence of non-governmental organizations serving a supporting legal role to those who have not received their constitutional guarantees. NGOs play a vital role in society, giving voice, and often counsel, to the poor. Their most powerful tool is the rule of law. Term Definitions and Interpretation as per Grootboom “Socio-economic rights are expressly included in the Bill of Rights; they cannot be said to exist on paper only….The question is therefore not whether socio-economic rights are justiciable under our Constitution, but how to enforce them in a given case. This is a very difficult issue which must be carefully explored on a case-by-case basis” ( Grootboom, 2000, p. 18). With this statement, Justice Yacoob defined the role of the judiciary in cases of socioeconomic rights abuse. He animated the words of the constitution with his own, creating a Frankensteinian moment in which he declared the powers of the judiciary to be alive. The court majority in the Grootboom case decided that questions about socioeconomic rights ought to be answered by the courts as subject to trial. More importantly, by suggesting that the application of remedial action be determined on a case-by-case basis, the justices established the courts’ prerogative to determine when the government has not fulfilled the rights and when corrective measures are needed ( Grootboom , 2000, p. 18). The state’s duties to fulfill the socioeconomic provisions of the Bill of Rights are threefold and broken down as follows: “(a) the obligation to ‘take reasonable legislative and other measures’; (b) ‘to achieve the progressive realization’ of the right; and (c) ‘within available resources’ ” ( Grootboom , 2000, p. 30). An understanding of the phrases “reasonable measures” and “progressive realization” is relevant to the concept of incrementalism . Reasonable measures is the key phrase upon which the Constitutional Court’s test is based. The government’s efforts toward the goal of realizing socioeconomic rights must pass judicial muster as to what can be deemed reasonable. Reasonableness is fluid in definition and to be determined based on the nature of each case ( Grootboom , 2000, p. 18). However, the evolving pillars of what is necessary to pass the reasonable measures test can be erected from the courts’ decision making. In Rail Commuters Action Group v. Transnet Ltd t/a Metrorail ( R.C.A.G. ), Justice O’Regan outlined the metrics by which the reasonableness of the government is judged. These include the social and economic contexts surrounding the government’s duty, the relationship of the duty to the core activities of the duty-bearer (branch