the claimant group.94 For its critics, this refusal to define content allows reasonableness
review to take place in “a normative vacuum”:95 a criticism made more resonant after the
minimal standard of reasonableness applied in recent cases.96 In Mazibuko, for example,
the Constitutional Court was required to assess whether Johannesburg’s reforms for
providing water to Soweto residents, which allocated a minimum quota of free water and
a new pre-paid metered delivery system, were consistent with the constitutional right to
have access to water. In applying a highly deferential standard of reasonableness, the
court refused to engage in the question of what a minimum requirement of water might
be, despite evidence that the 8 kilolitre monthly quota would be too meagre for many
households. It is worth questioning whether proportionality might have changed the
court’s position in this determination. Below, I offer reasons as to why the principle of
proportionality itself, and yet not proportionality analysis, would have assisted in this
inquiry.
It is possible that the context-driven articulations of reasonableness can link the standard
of review to the remedy. This is the case, for example, in doctrines such as “meaningful
engagement” in the right to housing jurisprudence. The absence of a meaningful
engagement between the parties, before an eviction, can point to the unreasonableness of
government policy. But so, too, can meaningful engagement be prescribed as the remedy,
94
LIEBENBERG, supra note 32 at 175–76.
Bilchitz, supra note 58, at 143.
96
Mazibuko v. City of Johannesburg 2010 (3) BCLR 239; see also Nokotyana v. Ekurhuleni Metropolitan
Municipality 2010 (4) BCLR 312.
95
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