Abstracts

15 by each subsequent court determination that additional features are central to the rights’ meaning. It is necessary to begin with an expanded view of Grootboom to give a historical context to the inception of the reasonable measures test. It represents the shoulders upon which socioeconomic rights law stands in South Africa. Grootboom deals with an evicted group of squatters who were moved into settlements that lacked running water and electricity. The Constitutional Court determined that in not designing a coherent and coordinated housing program, the government did not take reasonable measures to realize the right. This effectively established the reasonableness standard by which subsequent cases have been decided ( Grootboom, 2000). Eleven years after Grootboom , and citing the reasonable measures test within that decision, the High Court of the Western Cape in Ntombentsha Beja et al v. Premier of the Western Cape et al ( Ntombentsha Beja ) (2011) added necessary features to the provincial government’s obligation. Judge Nathan Erasmus, in his majority decision, alluded not only to Grootboom’s test but also to Justice Yacoob’s instruction that the courts regard human dignity as a metric in determining the reasonableness of state action. The result was a decision that expanded the scope of obligations for the right to housing to include elements that the Western Cape courts deem “central features” of the right. In this case, the toilets to a housing settlement provided by the provincial government were unenclosed and did not meet standards for sanitation, health, or human dignity ( Ntombentsha Beja , 2011, p. 24). The combined force of reasonable measures and human dignity under the court system’s incrementalistic doctrine bound the Western Cape government to fulfill a right to housing that goes beyond the standard definition of shelter. Components of the right that enable citizens to live in humane, safe, and dignified conditions must be accommodated. The landmark Constitutional Court case for the right to health care, Minister of Health et al v. Treatment Action Campaign et al ( T.A.C. ) (2002), extended the reasonable measures test that became precedent in Grootboom to the domain of health care. The government had a supply of the antiretroviral (HIV) drug nevirapine, which they would administer only in certain pilot sites. Beyond that, they delayed the setup of the sites that were chosen. The Court ruled that the government needed to make the treatment available nationwide as well as give a detailed plan for its administration. The government, in not taking reasonable measures to plan for and disseminate the drug, had failed the court’s test: “it was not reasonable to restrict the use of Nevirapine to the research and training sites” (p. 26). The Constitutional Court also defined what a reasonable legislative plan for health care includes. Not only is it necessary to expand the geographic range and timeliness of the drug’s dissemination but also reasonable measures include the training of medical professionals for counseling, testing pregnant women for HIV, and administering treatment of the drug (p. 34). This extension beyond the realm of housing was essential to the development of socioeconomic rights delivery. Because all three rights—to housing, health care, and further education (but not basic education, explored in the next paragraph)—include the phrasing of reasonable measures and progressive realization, the logic of Grootboom extends to all cases of these rights. It became a necessity that the government adopt a strategy for the realization of the rights that includes progressive realization of their components. The training of professionals as well as nationwide and timely treatment access became the first step in the incrementalistic approach to realizing the right to health care ( T.A.C., 2002). The right to basic education is understood in a different way than the other socioeconomic rights. The fundamentality of the interests of children replaces the condition of progressive availability with the obligation of making basic education immediately realizable. In effect, government duties to provide education to children are more acute than the commitments to the rights to housing, health care, and higher education. This diminishes the role of considering available resources in court decisions. The product of immediate