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304 Chapter 13
The institutional competence of the courts is the consideration on
which the South African courts set most store in the adjudication of socioeconomic
rights. As discussed in more detail below, this contrasts with the
approach of the courts to the adjudication of civil and political rights, where
the Constitutional Court has held that deference to the ‘practical difficulties’
faced by the administration, does not mean that decision makers should not
be held to account for infringement of constitutional rights: ‘It is the
remedy that must adapt itself to the right, not the right to the remedy.’ 61
In socio-economic rights adjudication, by contrast, it appears to be that the
right is shaped by the remedy.
2.3 The nature of the subject matter
The third consideration relates to the nature of the subject matter under
review. There are a number of ways in which this can affect the level of
deference applied by a court. First, where the action is one characterised by
greater political discretion, courts will tend to be more deferential to the
decision-making of the executive or legislature. One of the clearest decisions
demonstrating this consideration is found in the British decision of A v Secretary
of State for the Home Department, where Lord Bingham expressly stated that one
of the reasons for affording deference to the executive in its conclusion that
the United Kingdom is facing a ‘threat to the life of the nation’ is because this is
a ‘pre-eminently political judgment’:
The more purely political (in a broad or narrow sense) a question is, the more
appropriate it will be for political resolution and the less likely it is to be an
appropriate matter for judicial decision. The smaller, therefore, will be the
potential role of the court. It is the function of political and not judicial
bodies to resolve political questions. Conversely, the greater the legal content
of any issue, the greater the potential role of the court, because under our
Constitution and subject to the sovereign power of parliament it is the
function of the courts and not of political bodies to resolve legal questions. 62
This simple distinction between ‘legal’ and ‘political’ questions, however,
threatens to unravel, particularly where two competing rights or interests are at
play. The example above, for instance, begs the question: Why is the
interpretation of what constitutes a ‘threat to the life of the nation’ purely a
political question where it also constitutes a statutory pre-condition for
legitimate derogations from the HRA? Surely this could be characterised
equally as a legal question? The decision by a court to label a matter
‘political’, therefore, will often be used as a mask for a prior decision to afford
the decision-maker a high level of deference, based on one of the other two
factors, or even on a non-principled factor, such as an unwillingness to
61
Bel Porto School Governing Body v Premier, Western Cape 2002 3 SA 265 (CC) para 186.
62 n 31 above, para 29.