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308 Chapter 13
Pre-democratic uses of the term ‘deference’ in South African judgments
are mostly to be found where courts note the need to be appropriately deferent
to lower courts, or tribunals with regard to factual and credibility findings of
those decision-making bodies. 77 This is a form of deference to the
institutional competence of the lower courts and tribunals as they are best
placed to make certain findings, and continues to this day. Deference to the
‘fact-finder’ is excluded from consideration in this article. Post-apartheid
courts, by contrast, have begun, tentatively, to expand their use of the notion
of deference to the more sophisticated sense used in comparative
jurisdictions (notably those of Canada and the United Kingdom). The
remainder of this section is devoted to a discussion of the most important
of these decisions, illustrating the development of this jurisprudence.
The first significant judgment to consider the notion of deference was
S v Makwanyane, which abolished the death penalty. 78 Chaskalson P, with
reference to the Canadian decision of Tetreault-Gadoury v Canada, 79 noted
that, where choices have been made between ‘differing reasonable policy
options’, courts must give the legislature a measure of deference in that
choice. He cautions, however, that this deference does not afford the
legislature an ‘unrestricted licence’ to infringe constitutional rights, and the
state must still show a reasonable basis for the limitation of the right. 80
Similarly, in Ferreira v Levin 81 (discussed above), Ackermann J held that courts
should be less deferent where rights are expressly and narrowly protected.
Hence the specificity with which the right is framed, will be influential in
determining the degree of deference afforded by the courts to the legislature
or executive. Notably, both judgments concerned civil and political rights.
In a discussion of the appropriate remedy to cure a constitutional
defect in the National Coalition 82 decision, the Constitutional Court again
used the language of deference, finding that the deference owed to the
legislature in deciding what constitutes appropriate relief will depend on the
individual circumstances of each case. The Court held:
It is not possible to formulate in general terms what such deference must embrace,
for this depends on the facts and circumstances of each case. In essence, however, it
involves restraint by the courts in not trespassing onto that part of the legislative
field which has been reserved by the Constitution, and for good reason, to the
legislature. Whether, and to what extent, a court may interfere with the language
77 See, eg, Commissioner for Inland Revenue v Louw 1983 3 SA 551 (A) 569; Ndolvu v AA
Mutual Insurance Association Ltd 1991 3 SA 655 (E) 659. Prior judgments used the word as
a synonym for ‘respect’, and generally in relation to other judges or academics.
78 S v Makwanyane 1995 3 SA 391 (CC).
79
Tetreault-Gadoury v Canada (Employment and Immigration Commission) (1991) 4 CRR
(2d).
80 Makwayane (n 78 above) para 107, quoting Tetreault-Gadoury (n 79 above) 26.
81
n 67 above.
82 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 2 SA 1 (CC).