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They must, however, ensure that the measures they
adopt are reasonable. In any challenge based on section
26 in which it is argued that the state has failed to meet
the positive obligations imposed upon it by section
26(2), the question will be whether the legislative and
other measures taken by the state are reasonable. A court
considering reasonableness will not enquire whether
other more desirable or favorable (sic) measures could
have been adopted, or whether public money could have
been better spent. The question would be whether the
measures that have been adopted are reasonable. It is
necessary to recognize (sic) that a wide range of possible
measures could be adopted by the state to meet its
obligations. Many of these would meet the requirement
of reasonableness. Once it is shown that the measures do
so, this requirement is met.49
The state policies to implement economic and social rights must be
reasonable, according to the jurisprudence of the South-African Court of
Human Rights. However, this approach also has quite a few
disadvantages, one of the most prominent is the non-transparency of
reasons for state policy, which could be deemed as reasonable, and
another is the reverse burden of proof, which creates difficulties in
showing that the state policy was unreasonable. 50 Therefore, the
combination of both approaches can overcome their deficiencies.
Yeshanew observes that the minimum core model, "more or less
concentrates on the content of the rights to identify minimum
obligations," the reasonableness test, "focuses on the obligations of states
or measures to realize rights." 5' The two-tiered approach can effectively
address the deficiencies of both approaches. In the same way, courts and
human rights bodies can apply such approach towards negative and
positive obligations under social and economic rights. 52 The concept of
the minimum core identifies minimum core obligations to respect,
protect, and fulfil economic and social rights. It has been illustrated that
economic crises often affect the ability of a state to even comply with
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this minimum core obligation to provide economic and social rights.1
continued to review its policy regularly and undertaken sophisticated research to seek to ensure that
it meets the needs of the poor within the city. It cannot therefore be said that the policy adopted by
the City was inflexible, and the applicants' argument on this score too must fail" (para. 97). See also
Nokotyana v. Ekurhuleni Metropolitan, 2009 (4) BCLR 312 (CC) (S. Afr.); see also Etienne
Mureinik, Beyond a Charter of Luxuries: Economic Rights in the Constitution, 8 SAJHR 464,
(1992).
49 Grootboom, SA 46 (CC) Para. 41.
50Yeshanew, supra note 36, at 289-290.
id. at 294.
52 Id.
53 See SOVEREIGN FINANCING AND INTERNATIONAL LAW, THE UNCTAD PRINCIPLES ON
RESPONSIBLE SOVEREIGN LENDING AND BORROWING (Carlos Esp6sito et al. eds., 2013).