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306 Chapter 13
they will protect as ‘fundamental human rights’ and those which are nonjusticiable
or which require a greater degree of deference. This approach of
differing levels of review is notably expounded by Justice Stone in the
United States Supreme Court in United States v Carolene Products Co in the
fourth footnote. In that footnote, Justice Stone explained that the new
deferential method expounded by the Court in that case did not mean that
the same level of deference was necessarily to be applied in all
constitutional litigation and that legislation aimed at ‘particular religious,
or national, or racial minorities’, for example, may call for a ‘more
searching judicial enquiry’. 68 This approach has been adopted in the
United Kingdom, for instance, where the House of Lords, in R v Carson,
affirmed that in equality matters ‘severe scrutiny’ is appropriate. 69
Similarly, in South Africa, the Constitutional Court has stated no
institutional deference is necessary or desirable where a court is to
determine whether the right to equality has been infringed. 70
Socio-economic rights, by contrast, are a good example of a category
of rights where many judges would accept that a highly deferent approach
should be adopted – that is, if they are to be considered justiciable at all.
In the same vein, decisions with resource-allocation implications are another
category of cases where courts will generally show a great degree of
deference to the decision making of the executive or legislature. 71 As
Fredman points out, however, just as the distinction between ‘legal’ and
‘political’ decisions is dubious, the category of ‘social or economic’ decisions,
or those with resource implications, is difficult to sustain. 72
In addition to these three contextual factors, others can be postulated.
For instance, it is arguable that the subject matter should affect the level of
review imposed where the agency has an interest in the outcome and may be
perceived as biased in the decision-making process. In such cases, it is
important for the court to be seen as an independent arbiter. A good
example is where political rights are involved, such as the right to vote.
Where a dispute arises around voting regulations or practices, a court
should be quick to adjudicate the matter and apply a high level of scrutiny
to the actions of the agency. This justification arises out of a more
pragmatic conception of separation of powers.
68 US v Carolene Products Co 304 US 144 (1938) 152 n 4. See the discussion of this case in
DJ Solove ‘The darkest domain: Deference, judicial review, and the Bill of Rights’ (1998-
1999) 84 Iowa LR 941 989 - 995.
69 R (on the application of Carson) v Secretary of State for Work and Pensions; R (on the application of
Reynolds) v Secretary of State for Work and Pensions [2005] UKHL 37 para 57.
70 MEC for Education, KwaZulu-Natal v Pillay 2008 1 SA 474 (CC) para 81.
71 A Sachs ‘The judicial enforcement of socio-economic rights: The Grootboom case’ (2003)
56 Current Legal Problems 579 588 - 589; Lord Hoffmann ‘The Combar lecture 2001:
Separation of powers’ (2002) Judicial Review 137 paras 19 & 26. Contrast M
Chamberlain ‘Democracy and deference in resource allocation cases: A riposte to Lord
Hoffmann’ (2003) Judicial Review 12 paras 5 - 10; Lord Steyn (n 35 above) 357.
72 Fredman (n 63 above) 58 - 59.