Representing the Poor: Law, Poverty and Democracy

• Jurisdiction: South Africa
• Pages: 521-541
• Citation: (2011) 22 Stell LR 521
• Author: Henk Botha
• Published date: 16 August 2019
• Date: 16 August 2019

521

REPRESENTING THE POOR: LAW, POVERTY

AND DEMOCRACY

Henk Botha

BLC LLB LLM LLD

Professor of Public Law, Stellenbosch University*

1 Introduction

The title of the article refers to the representation of the poor.

“Representation” is used here to refer to different contexts and institut ional

settings. First, it denotes the ways in which the interests and viewp oints of

the poor are voiced, championed, overlooked and/or effaced in a nd through

representative legislative bodies.1 Secondly, it refers to the ways in which

courts, th rough constitutional interpretation and enforceme nt, afrm and

reinforce the rights of the p oor to democ ratic participation and citizen ship,

or fail t o challenge their exclusion f rom effective democratic re presentation.

The represent ation of the poor in and through representative in stitutions and

through constitutional litigation and adjudication also touches upon a thi rd

meaning, which refer s to the por trayal of “the poor” and the construction

of thei r interests in legal and political discourse. This dimension is closely

connected to the rst two. The scope and meaning assigned to the rights of the

poor to democratic r epresentation and participation are, after all, inseparably

linked to whether they a re port rayed as active citizens or largely passive

subjects of state authority.

The article considers d ifferent jud icial const ructions of democracy,

and asks whethe r and to what extent these understandi ngs can help

reinforce the effective representation of the poor and afrm their r ights to

democratic cit izenship and par ticipation. Conversely, to what ext ent do

these i nterpretat ions insulate relat ions of inequality and subordination from

democratic debate and contestation and contribute to t he silenci ng of the poor?

The emphasis on judicial understand ings of democracy draws att ention to the

adjudicative setting, and raises question s about the capacity of courts to serve

as open democrat ic spaces in which t he meaning of constitutional norms and

* Thanks to Thabani Matsha kaile for re search assistance and to partici pants in t he La w and Povert y

Colloquium for valua ble s uggestions The ar ticle also benefited from t he i ncisive comments of an

anonymous refe ree

1 Representation, in thi s sense, i s intimat ely bound u p with t he claim of democratic states t o rest on the

consent of the governed or to in stitute the rig ht of the p eople to self-govern ment At the same t ime,

however, it r aises questio ns about di stortions i n the demo cratic proc ess, throug h which the right of the

poor to part icipate in and inf luence the outc omes of political decisi ons is substantia lly diminishe d

(2011) 22 Stell LR 521

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commitments can be contested.2 At t he same time, however, the topic p oints

beyond the judiciary to legislatures as the primar y institutions representing

the pe ople and to the people themselves. How is “the people” conceived in

constitutional discours e? How is the relationship between the p eople and

their representatives construed? And wh at are the conditions unde r which

legislative bodies can be said to have made authoritative pronouncements in

the name of the people they claim to repre sent?

Two conicting conceptions of democracy are juxtaposed in t his article,

which are both derived from the Constitutional Court’s jurisprud ence. The rst

can be labelled a dialogic, participatory and pluralistic model of democracy. This

model underscores t he agency and voice of those traditionally excluded from

full citizenship; posits a dialogue between the people a nd thei r rep resentatives;

and requires the state to take positive step s to secure conditions under which

citizens can exercise rights of democratic participation. It also embraces a

vision of political equalit y which is suspicious of laws and pr actices which

may have the effect of insulating social and political power from mechanisms

designed to promote democratic acc ountability, or allowing the wealthy and

powerful to pass off t heir pa rticular interests as the com mon good. This

understandi ng sets the bar quite high for legislative enactments to qualify as

authoritative pronouncements made i n the name of the people. It is suspicious

of the idea of an identity of the people and their representatives, and assumes

an active role for the cou rts in policing legislative and bureau cratic decisions

to ensure th at they emanate from inclusive participatory processes and do

not impinge on basic norms of democratic accountabil ity and responsiveness.

The second co nception, by contrast, conceives of democracy in more formal

terms as the capacity of duly elected legislatures t o enact law within their

constitutional area of c ompetence. Between elections, there is lit tle that the

people can do to hold their repr esentatives accountable. Moreover, except i n

the case of a brea ch of clear, unambiguous con stitutional provisions, courts

should defer to the democratic legitimacy and i nstitutional competence of the

political branches.

The interplay b etween these two understand ings calls for a far more

extensive study of the Constitutional Cou rt’s jurispru dence than can be

underta ken here, as judicial understandings of democrac y inuence decisions

on issues as diverse as access to court, the application of the Bill of R ights to

private relations, limitation analysis, remedies, and the subs tantive meaning of

a broad range of constitutional norms such as equ ality, freedom of expression

2 These include questions ab out the exte nt to which the court s’ actual j urispruden ce has sec ured a spa ce

in w hich the poor can challenge official interpret ations of constit utional norms w hich ent rench th eir

continued social , economic and political marginal isation See, generally, J Dugard & T Roux “The Record

of the Sou th Africa n Constitut ional Court in Providi ng an Ins titutional Voice for the Poor: 1995-2004”

in R Gargarel la, P Domingo & T Roux (eds) Cou rts and Social Transfor mation in New Dem ocracies: An

Instituti onal Voice for the Poor? (2006) 107 More theoretic al questions relate to t he spatial and aesth etic

dimensions of adjudica tion (see W le Roux “From Acropolis to Metropoli s: The New Constitutional Court

Building and South African Street Demo cracy” (2001) 16 SAPL 139) and to whether the divers e needs

and voices of the poor can be ad equately represe nted in the language of th e law Much of the lat ter debate

has centred o n the tension betwee n the Constitutio n’s transformative aspi rations and the cons ervatism of

South Af rican legal c ulture See K Klare “L egal Cultur e and Transfor mative Constit utionalism” (1998)

14 SAJHR 146

522 STELL LR 2011 3

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