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Towards a framework for understanding constitutional deference 311
An important refinement by the Constitutional Court is to be found
in the recent decision of Pillay, 100 concerning the right of a school girl to
wear a nose stud in school as part of her right not to be discriminated
against on the basis of religious and cultural practices. The school
authorities argued that the Court should show a measure of deference to
school ‘governing bodies that are statutorily required to run schools and
have the necessary expertise to do so’. In making this argument, they
invoked the doctrine of margin of appreciation used by the European
Court of Human Rights. 101 The Constitutional Court rightly rejected this
argument, pointing out that it had previously decided that the doctrine ‘is not
a useful guide when deciding either whether a right has been limited or
whether such a limitation is justified’. 102 The Court held that, while
judicial deference is appropriate in the review of administrative action where
the decision maker is especially well qualified to decide a particular matter,
no institutional deference is necessary or desirable where a court is to
determine whether the right to equality has been infringed. Specifically, the
Court held:
The question before this Court, however, is whether the fundamental right to
equality has been violated, which in turn requires the Court to determine what
obligations the school bears to accommodate diversity reasonably. Those are
questions that courts are best qualified and constitutionally mandated to answer.
This Court cannot abdicate its duty by deferring to the school’s view on the
requirements of fairness. That approach is obviously incorrect for the further
reason that it is for the school to show that the discrimination was fair. A court
cannot defer to the view of a party concerning a contention that that same party
is bound to prove. 103
The Constitutional Court’s approach to civil and political rights
(exemplified in Pillay) stands in contrast to its record in the adjudication
of socio-economic rights. In Minister of Health v TAC, 104 the Constitutional
Court for the first time expressly considered the question of how deference
and the doctrine of separation of powers relates to its adjudication of
socio-economic rights. The Court did so by raising two preliminary issues.
The first concerned the deference the Court was to show the executive
regarding policy formulation and the second related to the remedy which
the Court should provide. In the words of the Court:
99 Intertrade Two (Pty) Ltd v MEC for Roads and Public Works, Eastern Cape 2007 6 SA 442 (C)
para 46; Tantoush v Refugee Appeal Board 2008 1 SA 232 (T) para 108.
100 n 70 above.
101 Pillay (n 70 above) para 80.
102
Pillay (n 70 above) para 80 (footnotes omitted). The Court referred to the National
Coalition (n 83 above) and Makwanyane (n 78 above) decisions as authority for this. See
R v Secretary of State for the Home Department, ex parte Daly [2001] 2 WLR 1622 paras 26-
27 for a discussion by the British courts as to why the doctrine of margin of appreciation
adopted by the European Court of Human Rights is not appropriately applied within
their domestic context.
103
Pillay (n 70 above) para 81.
104 Minister of Health v Treatment Action Campaign (no 2) 2002 5 SA 721 (CC).