Abstracts

17 many ways, is not precise in explaining what it means for the population to have the abstract right to something as concrete as housing. Section 26 [1] of the Bill of Rights provides that everyone has access to “adequate housing.” But what does “adequate” mean? It is a term that is subjective, especially without the inclusion of the minimum core of the right that the covenant provides. The same issue exists for health care. Section 27 [1] provides that everyone has a right to access health care services, but what services this right constitutes also is up to interpretation. With the exception of an overarching goal of equality and learning in the official language of one’s choosing, components of the right to basic and higher education are not defined in the constitution. It is the place of the courts to determine what they consider a reasonable government program. What is reasonable, as past cases have shown, tends to be a vision of a right that is elastic in what elements, or sub- rights, it includes. The full achievement of socioeconomic rights in South Africa will come by means of cases that build an image of a right by expanding the scope of what is considered fundamental to it. I have conceptualized two models that serve to represent rights realization. I have termed these the loading screen model and the jigsaw puzzle model . The former presents an explanation of the traditional understanding of the phrase in accordance with the definition of progressive realization that implies increased accessibility, as it is defined by the courts. The latter is an illustration of the concept of incrementalism, which I contend is the effect of the courts’ decision making based on the reasonable measures test . One can imagine the achievement of a socioeconomic right as a loading screen in which the progressive realization of the right is facilitated by increasing the percentage of the population that receives a constitutional entitlement within available resources. Beginning from the starting point of limited access, expansion of the right constitutes the inclusion of new populations into the scope of its benefits. Thereby, the right exists as a constant, while the number of citizens who can access it increases. In contrast, the jigsaw puzzle model envisions a right as an incomplete whole that is built through sub-right components that represent pieces of a fully realized entitlement. Progressive realization is achieved by extending the privileges that are inherent in the right given available resources. Beginning from the starting point of a baseline right, expansion constitutes the inclusion of new benefits for the whole population. Thereby the population exists as a constant, while the scope of the right increases. Regarding housing, health care, and education, it can be demonstrated through the case law that the guiding logic of the court has leaned toward the jigsaw puzzle model. The models are not mutually exclusive, and the courts have used the loading screen model’s conception of increasing access alongside the jigsaw puzzle model’s expansion of the scope of the right. The cases discussed in the previous section serve to demonstrate, however, that the most impactful leaps forward in socioeconomic rights have come from precedents that incorporate reasoning akin to the jigsaw puzzle model. For housing, components of what have been deemed adequate living conditions exist in the spirit of the right and thus were expanded on by the court. Privacy, sanitary conditions, and running water, amongst other sub-rights, have built the puzzle that is housing. For health care, the same has been true regarding the evolution of the right to include timely delivery and the training of professionals for administering testing and medication. The case has been especially clear for basic education, which was broadened to include the sub-rights to textbooks, desks, and further components. Each of these pieces has contributed to the formation of a fully realized image of socioeconomic rights. In the concluding section, I seek to identify some sub-right gaps in an effort to predict what is prospective in the South African socioeconomic landscape. Conclusion: A Prospective Application of Incrementalism The body of case law that exists for socioeconomic rights is extensive and developed for housing and basic education. Incrementalism and its active component in the courts, the reasonable measures test , have