Abstract

This article argues that South African courts should apply proportionality review to state resource-allocation decisions in socio-economic-rights cases. Amartya Sen and Martha Nussbaum’s capabilities approach, which is evidently harmonious with the purposes of South Africa’s project of transformative constitutionalism, can be developed to yield review standards which can be utilised by the judiciary when adjudicating resource-allocation decisions in socio-economic-rights cases. When applying proportionality review to an impugned allocative decision, it is important that courts observe certain tenets common to both the capabilities approach and transformative constitutionalism. Furthermore, courts play a crucial role in interpreting the content of socio-economic rights with reference to the capabilities these rights represent in varying contexts during the first stage of a two-stage rights analysis. Only thereafter should the weight assigned to the capabilities content of the right be balanced against the weight assigned to the state’s resource-based justificatory arguments when a proportionality review standard is applied at the second stage of the rights analysis. By consistently requiring proportionate state resource allocation aimed at the realization of socio-economic rights, courts can contribute to a culture of justification, our project of transformative constitutionalism, and efforts to alleviate structural poverty in South Africa.