Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2014.This dissertation is an evaluation of the concept of a minimum core content to the
constitutional right to health, with particular reference to HIV-positive persons in
South Africa. The analysis involves an assessment of what the minimum core entails;
whether such a formulation is necessary in the South African health context; the
application of the concept in national and international law; as well as enforcement and
implementation in the South African context.
An appraisal of the South African social reality reveals the extent of the suffering of
HIV-positive individuals and the difficulties experienced in accessing health care,
especially for the vulnerable and disempowered. The problem is exacerbated by a
critical inadequacy in national jurisprudence which fails to generate certainty in respect
of the minimum, basic entitlements of affected people.
Such a shortcoming maligns transformative constitutionalism, which requires the
judiciary to develop a construction of human rights that accords with the canons of the
Constitution. It is argued that one such course of action is the adoption of the minimum
core, which prescribes a basic level of human rights that is guaranteed to all people –
and which may withstand legislative challenge on the basis of resource constraints or
progressive realisation.
Reference to international law, in terms of Section 39(1) of the Constitution, assists us
to overcome the shortcoming in domestic legislation in this regard. Of particular
relevance is covenantal guidance offered by the ICESCR, and its guidelines of
interpretation, which include the CESCR General Comments and the WHO
recommendations.
It is postulated that a minimum obligation to HIV-positive individuals under the right
to health encompasses the duty of treatment and prevention and control in respect of
the epidemic, on a non-discriminatory basis.
Enforcement and implementation of such core obligations must be strictly and
timeously effected. Of crucial importance in such a process is a competent judiciary
that is able to resist an undue deference to the legislature. A review of court judgments,
however, reveals an inadequate judicial approach to the implementation of socioeconomic
rights and an appeal is made to the Constitutional Court to re-commit itself
to an interpretation of the Bill of Rights that accords with Constitutional values, such
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