Abstracts

13 or level of the government), the intensity of harm that may result as an effect of the duty not being met, and the relevant human and financial resource constraints ( R.C.A.G. , 2004, p. 63). Reasonableness also implies an adherence to features of international law. The Constitution of the Republic of South Africa, Chapter 2, Section 39, sets international law as a standard by which the courts can interpret the Bill of Rights. The relevant document for housing, health care, and education is the UN International Covenant on Economic, Social, and Cultural Rights (1966). The covenant requires that member states demonstrate that every effort has been made using all available resources to satisfy the “minimum core” of the rights ( Grootboom , 2000, pp. 22, 27). The court in Grootboom rejected the covenant’s conception of a minimum core to the right, as there can be no trueminimum in a large and diverse country with dissimilar economic and resource situations between various provinces and dissimilar population densities. Their rejection was conditional though. The decision suggested that there could be cases in which it would be appropriate to obtain and use information regarding a minimum core. With that, the Constitutional Court opened the idea that data gathering and statistical assessment are features of a reasonable state program ( Grootboom, 2000, p. 27). In the Grootboom majority decision, Justice Yacoob clarified that “a reasonable programme…must clearly allocate responsi- bilities and tasks to the different spheres of government and ensure that the appropriate financial and human resources are available” ( Grootboom , 2000, p. 31). It is not enough for the government to act toward the end of rights fulfillment without the necessary condition of having a clearly articulated plan and organizational structure. The success of measures taken by the state is not in and of itself considered sufficient; well- directed policies and programs must exist to continuously forward the aim of fulfilling the rights. The Constitutional Court determined that the programs must be reasonable from conception through implementation, at various levels of government. “An otherwise reasonable programme that is not implemented reasonably will not constitute compliance with the state’s obligations” ( Grootboom, 2000, p. 33). This expansion on the meaning of reasonable measures forged an organizational component in the law. It became necessary for the state’s policy to be more than just action; it must be a forward-thinking blueprint for the administration of the rights. Progressive realization indicates that the constitutional drafters foresaw that the rights could not be immediately realized ( Grootboom, 2000, p. 34). The constitution does make clear, however, that rights should be extended in more cases to more people. As interpreted by the Grootboom decision, “accessibility should be progressively facilitated: legal, administrative, operational and financial hurdles should be examined and, where possible, lowered over time” (p. 35). The phrase progressive realization is derived from the aforementioned covenant. The covenant explains the duality of meanings for the term. It simultaneously serves a role of flexibility while being obligatory. As to the former, it reflects the reality of real-world economic conditions and the potential difficulties involved in fully realizing socioeconomic rights with immediacy. Regarding the latter, its objective is to establish a duty to fully realize those rights as “expeditiously and effectively as possible” (p. 36). In combining the definitions as they appear within the rights, reasonable measures andprogressive realization canbe taken tomean that government programs “must be capable of facilitating the realization of the right[s]” ( Grootboom, 2000, p. 32). The reasonable measures test exists as an assessment of the adequacy of programs in light of the goal of progressive realization. This places the burden on the government’s efforts rather than its effects. The Constitutional Court, in interpreting the framers’ language regarding any inability to immediately realize the rights in their entirety, put forth a definition of reasonable measures that permits incremental achievement of components of the rights. In this framework, cases brought against the government do not attack its inability to deliver the right to more individuals, which also would be permitted under the flexible definition of