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312 Chapter 13
These considerations are relevant to the manner in which a court should exercise
the powers vested in it under the Constitution.’ 105 This case is notable for it is
the first time the Court expressly considered the question of how deference, or
the doctrine of separation of powers, relates to the approach which it should
adopt in the adjudication of socio-economic rights rather than the broader,
but related, question of whether it should adjudicate them.
In a discussion of why the Court should not adopt a minimum core interpretation
of sections 26(1) and 27(1), it found that
[c]ourts are not institutionally equipped to make the wide-ranging factual and
political enquiries necessary for determining what the minimum-core standards
… should be, nor for deciding how public revenues should most effectively be
spent.
… Courts are ill-suited to adjudicate upon issues where court orders could have
multiple social and economic consequences for the community. The
Constitution contemplates rather a restrained and focussed role for the courts,
namely, to require the state to take measures to meet its constitutional obligations
and to subject the reasonableness of these measures to evaluation ... In this way
the judicial, legislative and executive functions achieve appropriate constitutional
balance. 106
On the second issue of the appropriate remedy to be granted, the Court
addressed a similar argument made by the state, also under the separation
of powers doctrine, that the only appropriate remedy is for the Court to
issue a ‘declaration of rights’, as it is the executive’s sole prerogative to make
policy. 107
The Court responded as follows:
This Court has made it clear on more than one occasion that although there are
no bright lines that separate the roles of the legislature, the executive and the
courts from one another, there are certain matters that are pre-eminently within the
domain of one or other of the arms of government and not the others. All arms of
government should be sensitive to and respect this separation. This does not mean,
however, that courts cannot or should not make orders that have an impact on
policy. 108
The Court was therefore clear that it would not adopt a rigid adherence to a
functionalist separation of powers and would, where necessary, make
declaratory or mandatory orders that impinge on the traditional roles of the
other branches of government, when this is ‘mandated by the Constitution
itself’. 109
105
TAC (n 104 above) para 22.
106 TAC (n 104 above) paras 37 - 38.
107 TAC (n 104 above) paras 96 - 97.
108
TAC (n 104 above) para 98 (footnote omitted).
109 TAC (n 104 above) para 99.