VAN DER WESTHUIZEN J
[87] The present challenge deals with section 9(1) and section 26(2) of the
Constitution. The concepts of rationality82 and reasonableness are thus central. A
policy which is irrational could hardly be reasonable. Whether a policy which meets
the requirements for rationality would necessarily be reasonable does not have to be
decided here.
[88] In the area of the right of access to adequate housing, of which the provision of
temporary or emergency accommodation is a part, the question is essentially one of
reasonableness. The availability of resources is an important factor in determining
the reasonableness of the measures employed to achieve the progressive realisation of
the right.83 This does not mean that the state may arbitrarily decide which measures to
implement. The measures taken must be reasonable. While there will be a range of
possible measures that may be reasonable and the Court will not set aside a policy for
the mere reason that other measures may have been more desirable or favourable, the
enquiry must still take place.84
[89] A policy that, for example, differentiates between general housing needs and
emergency situations might well be understandable. The question is whether it is
reasonable to differentiate within the category of emergencies between people
82
In Harksen above n 38 at para 43 Goldstone J, interpreting section 8(1) of the interim Constitution, posed the
question whether the differentiating measure bears a rational connection to a legitimate governmental purpose.
83
Grootboom above n 12 at para 46. See also Soobramoney v Minister of Health, KwaZulu-Natal [1997] ZACC
17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC) at para 11 where Chaskalson P held that both the
obligations imposed and rights conferred by section 26 are limited by the availability of resources.
84
Grootboom above n 12 at para 41.
41
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