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Towards a framework for understanding constitutional deference 307
3 Constitutional deference in the adjudication of
socio-economic rights
The second part of this article seeks to apply the framework set out above to
an analysis of the adjudication of socio-economic rights. Before doing so,
a brief overview of the development of the jurisprudence on socioeconomic
rights is provided.
3.1 A brief overview of the rhetoric of deference in South
Africa
The South African judiciary, under apartheid, has been roundly criticised
for its ‘executive-mindedness’, its failure to uphold basic rights and its overly
deferential approach to executive political will. 73 Most Appellate Division
judges, steeped in the culture of parliamentary sovereignty, characterised
their task as being solely to interpret and apply the intention of the
legislature, with little or no regard for individual liberties, thereby allowing
‘a judge in covert sympathy with a legislative programme to give full effect to
his predispositions without having to accept public responsibility for doing
so’. 74 The reality for many in the judiciary was at best a tacit complicity
in apartheid policies and, at worst, a thinly-veiled support for that system. 75
For these reasons, some commentators have questioned the wisdom of
contemporary calls for a theory of deference in post-apartheid
adjudication. 76
The term ‘deference’ is used, nonetheless, in this article, in spite of its
association with apartheid decision making. The main reasons in favour of
doing this are that it helps to ensure that South African jurisprudence
shares the terminology of other commonwealth jurisdictions, and that it
seeks to ‘reclaim’ the term from its unduly negative associations. The theory
of constitutional deference advocated in this article is markedly different to
the pro-executive, and sometimes subservient, attitude adopted by the predemocratic
judiciary. Rather, it is a framework in which to interpret and
critique all judicial decision-making.
73
See, eg, J Dugard Human rights and the South African legal order (1978) 372 - 374; CF Forsyth
In danger for their talents: A study of the Appellate Division of the Supreme Court of South
Africa from 1950-1980 (1985) 225 - 226; E Cameron ‘Legal chauvinism, executivemindedness
and justice – LC Steyn’s impact on South African law’ (1982) 99 SALJ 38,
52 - 62; D Davis & H Corder ‘A long march: Administrative law in the Appellate
Division’ (1988) 4 SAJHR 281, 284-293; CF Forsyth ‘The sleep of reason: Security cases
before the Appellate Division’ (1988) 105 SALJ 679, 707 - 708; N Haysom & C Plasket
‘The war against law: Judicial activism and the Appellate Division’ (1988) 4 SAJHR 303 -
333; W de Vos & DE van Loggerenberg ‘The activism of the judge in South Africa’
(1991) Journal for South African Law 592 608.
74 Cameron (n 73 above) 60.
75 Davis & Corder (n 73 above) 295 - 302.
76
See, eg, D Davis ‘Adjudicating the socio-economic rights in the South African
Constitution: Towards “deference lite”?’ (2006) 22 SAJHR 301 319 - 320.