Judicial Deference and Democracy in Socio-Economic Rights Cases in South Africa

• Jurisdiction: South Africa
• Citation: (2011) 22 Stell LR 614
• Published date: 16 August 2019
• Pages: 614-638
• Date: 16 August 2019

614

JUDICIAL DEFERENCE AND DEMOCRACY IN

SOCIO-ECONOMIC RIGHTS CASES IN SOUTH

AFRICA

Danie Brand

BLC LLB LLM LLD

Associate Professor, University of Pretoria*

1 Introduction

In t his article I evaluate t he manner in which Sout h African courts have

chosen to deal with the ra nge of institutional problems ( problems with

institutional c apacity, legitimacy, integr ity and security, as well as pure

separation of powers problems) they face in the adjudicat ion of constitutional

socio-economic rights clai ms. I investigate, that is, judicial deference in

socio-economic rights cases – the strategy of courts, when faced with difcult

technical or contested social questions in such cases to leave decision of those

issues, in d ifferent ways and to var ying degree s, to the other branches of

govern ment.1

I attempt an evaluation, or, more directly, a particu lar critique of the strategy

of judicial deference in socio-economic rights cases. I ask how comfort ably

or uncomfort ably judicial deference ts with what I see as the constitutional

imperative that court s should, t hrough their work in socio-economic r ights

cases, seek to adva nce, or at least to avoid limiting, the kind of democracy

(a t hick, or empowered conception of democr acy) envisaged in the South

African Const itution.2

Of course, neithe r judicial deference nor the inst itutional problems it

is intended to address are u nique to socio-economic rights adjudication.

Deference operates also more generally in constitutional and in administrat ive

* My thanks to col leagues at the D epartment of Publi c Law at the Un iversity of Pretoria for com ments

on an ea rlier version of t his article presented at a departm ental resear ch seminar; to Sandra Liebenberg

and Geo Q uinot for inv iting me to part icipate in t he Law and Poverty Colloquiu m in Stellenb osch,

where I p resented yet another vers ion of the a rticle; to th e participa nts in the Colloquium for questions

and subse quent discus sions; to th e two anony mous referees who reviewed the arti cle for search ing and

challengin g observations; and to Karl Klare, Koos Malan, Kar in van Marle and Lucy Williams for reading

and comment ing on the article i n various stages of it s development

1 See K McLean Constitutio nal Defe rence, Courts and So cio-Economic Rights in S outh Af rica (200 9)

3-4 and 25-26 for a similar descri ption of deference See al so, more recently, K McLean “Towards a

Framework for Under standing Const itutional Defere nce” (2010) 25 SAPL 445

2 Constitution of the Republic of South Af rica, 1996 (“the Constitution” or “the South A frican

Constitut ion”) More about this c onception of democr acy later, but see in g eneral terms for a description

D Brand “Writ ing the Law Demo cratically: A Re ply to Theunis R oux” in S Woolman & M Bishop (eds)

Constitut ional C onversations (2008) 97; T Roux “Democracy” in S Woolm an, T Roux & M Bishop

(eds) Constit utional Law of South Africa 2 ed (OS 2006 ); B Cousin s & A Cla assens “Co mmunal La nd

Rights and D emocracy in Post-A partheid South A frica” in P Jones & K Stokke (eds) Democra tising

Developmen t: The Politics of Socio-Econo mic Rights in Sou th Africa (2005) 245 246-247; S Liebenberg

Socio-Eco nomic Rights: Adjudicat ion under a Transform ative Constitu tion (2010) 63- 65

(2011) 22 Stell LR 614

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law review in South Africa and elsewher e.3 I focu s on deference specically

in socio-economic rights adjudication for no deep conceptual reason, nor

because I claim that deference ope rates differently in th is context than

elsewhere. I do so, simply put, because my intere st is in the rst place in the

effective enforcement of socio-e conomic rights specically a nd in deference

only to the extent that it relates to t hat enforcement. From the point of view

of claimants, deference has so far i n our courts’ socio-economic rights

jurisprude nce operated as an obsta cle to effective enforcement, leading in

those cases where claims are succ essful to attenuated forms of relief4 and

explicitly forming the basis for rejection of claims in the few cases so far

where claimants have been unsuccessful.5 My focus on deference is i ntended

to a ddress this problem – I seek to debunk deferenc e as an obstacle to the

effective enforcement of so cio-economic rights.6

To do so, the article consists of a description, an evalu ation and a modest

proposal. I rst, in pa rt 2 below, describe the ma nner in and extent to

which judicial deference and the democratic justication for it operates in

South African socio-economic rig hts adjudication. I then, in par t 3 below,

present a critique of such deference along two distinct but related lines:

that judicial deference both reects a conception of democrac y at odds

with the constitutional vision of democracy and, more i mportantly, actively

counteracts t he construction of that constitut ional vision of democracy – that

3 For engagements with deference in constitut ional review generally in South Afric a see H K lug

“Introduc ing th e Devil : An Instit utional Analysis of t he Power of Constitutiona l Review ” (1997) 13

SAJHR 185; P L enta “Demo cracy, Right s Disagre ements and Judicial Review” (200 4) 20 SAJHR 1; T

Roux “Leg itimating Tra nsformation: Political Resou rce Allocatio n in the South Afric an Constit utional

Court” (20 03) 10 Democratization 92; T Roux “Principle and Pra gmatism on the Cons titutional Cour t of

South Afric a” (2009) 7 I Con 106 For the most prominent e ngagements with defe rence in admin istrative

law re view in South Africa, see H Corder “Without Deference, with Respect: A Re sponse t o Justice

O’Regan” (2004) 121 SALJ 438; DM Davis “To Defer and When? Administr ative Law and Constitut ional

Democracy ” (200 6) Act a Jur idica 23; C Hoexter “Th e Fut ure of Judic ial Rev iew i n Sout h Af rican

Administ rative Law” (2000) 117 SALJ 484; C Hoexter Administrative Law in South Africa (2007) 138-147;

K O’Regan “Break ing Ground: Some Th oughts on the Seismi c Shift in Our Adm inistrative L aw” (2004)

121 SAL J 424 For a sa mple of engageme nts with defe rence in ad ministrat ive law review outside South

Africa, see TR S Allan “Common Law Reason and the Limits of Judicial Deference” in D Dyzenhaus

(ed) The Unit y of Public Law (2004) 289; J Jowell “Of Vir es and Vacuums: The Constit utional Conte xt

of Judicial Review” (1999) Public La w 428; DJ Mullan “Deference: Is it Usefu l Outside Canada?” (20 06)

Acta Juridic a 24; D Dyzenhaus “ The Politics of Judicial Deference: Judicial Rev iew and Democra cy” in

M Taggart (ed) The Prov ince of Administra tive Law (1997) 279

4 See, for example, Govern ment of the Republic of S outh Africa v Groot boom 2001 1 SA 46 (CC) para 41

5 See, for example, Maz ibuko v City of Johanne sburg 2010 4 SA 1 (CC) pa ras 63 and 159 For a ful ler

descriptio n of this point, see Liebe nberg Socio-Ec onomic Rights 67-6 8

6 The most p rominent e ngagements w ith deference in the context of socio-eco nomic right s in th e South

African context ( M Pieterse “Coming t o Terms wit h Judicial Enforcement of Socio-Econom ic Rights”

(2004) 20 SAJHR 383; DM Davis “Adjudicati ng the Socio-Econom ic Rights in the South Af rican

Constitut ion: Towards ‘Deference Lite’?” (2006) 22 SAJHR 301; DM Davis “ Socio-Economic Rights in

South Afr ica: The Record of the Constit utional Court after Ten Years” (2004) 5 ESR Review 3; McL ean

Constitut ional Deferenc e; and Liebenber g Socio-Econo mic Rights 66-76) al l share my ass umptions that

deference is a pro minent feat ure of the approac h of South African courts to the adjudication of socio-

economic r ights cases and additionally t hat it either ca n or in fact d oes operate a s an import ant obstacle

to the robust en forcement of these rig hts (see, for example, Lieb enberg Soci o-Economic Rights 67 a nd

in par ticular Dav is (2006) S AJHR 301-327) For an additional insightful engagement with deferenc e in

the conte xt of socio- economic rig hts from outside South Africa t hat operates on the s ame assump tions

(although drawing on t he expe rience of South Africa n cour ts) see R D ixon “Cre ating D ialogue over

Socio-Econom ic Righ ts: Strong- Form Versus Weak Form Judic ial Review Revisited ” (2007) 5 I Con

391

JUDICIAL DEFERENCE AND DEMOCRACY 615

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