UNDERSTANDING GROOTBOOM — A RESPONSE TO CASS R. SUNSTEIN

Theunis Roux

Abstract


In a typically thought-provoking essay on the significance of the recent judgment of the South African Constitutional Court in Grootboom,1 Cass R. Sunstein welcomes the contribution of this “extraordinary decision” to the international debate over the justiciability of socio-economic rights.2 In particular, he argues that the decision provides a partial answer to the objection that the judicial enforcement of such rights inevitably requires courts to assume “an unacceptable managerial role.”3 On Professor Sunstein’s reading, the Court in Grootboom successfully steers a middle course between the Scylla of complete enforceability and the Charybdis of non- justiciability. It does so by adopting what is in effect an “administrative law model of socio-economic rights,” one which reads such rights as giving courts the power to order government to “devote more resources than it otherwise would” to the regulatory problem at issue.


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