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Towards a framework for understanding constitutional deference 315
and 27 respectively, thereby watering down children’s rights to socioeconomic
goods. In TAC, the Court decided the constitutionality of a
violation of a negative aspect of the right to healthcare using the
reasonableness test, rather than a more exacting level of scrutiny. 122 And
finally, in Khosa, the Court used the reasonableness test to interpret the
term ‘everyone’ in the manner of a limitations analysis. 123
The final observation relates to the remedies used. It is in the arena of
remedies that the court has, arguably, been most deferent. This has resulted in
the state often failing to implement an order effectively, or timeously. Most
discussion of deference in the case law and secondary literature, both in
South Africa and comparatively, considers deference primarily in relation to
the interpretation, and limitations or proportionality analysis, of rights
determinations. Deference also operates, however, in the remedies that are
provided, and it is important to tease out the differences in approach in these
two aspects of the adjudication process. Moreover, the reasons for adopting a
particular approach to constitutional deference in interpretation and
enforcement respectively may differ.
There are two main ways in which the approach to interpretation and
enforcement can relate: Either they can reinforce the other, or they can
counteract the effect of the other. In the first, the approach to
constitutional deference in interpreting the right or statute in question is
mirrored by the approach to constitutional deference in the remedy. Thus,
for instance, if a court adopts a highly deferential approach in interpreting
a right restrictively, and in assessing the evidence before it, it may similarly
be deferential in granting an unobtrusive remedy, such as a declaration of
unconstitutionality.
The second, and more interesting, relationship is that where the
approach to the one is used to counteract the other. For example, where a
court adopts a low level of deference to the interpretation of a right and
level of scrutiny, and then finds that the state has infringed the right, it
may, for reasons of constitutional deference, adopt a highly deferential
remedy, or vice versa. One could also speculate that where a court, or
similar institution, is bound by its constitution to adopt a deferential
remedy, or where its findings are not binding, it may be less deferential in
its interpretive enquiry and scrutiny of evidence. An example can be found in
the United Kingdom, where British courts may make orders of
incompatibility only where they find an infringement of the Human
Rights Act (although, in practice, these are always acted upon by the
government). The South African courts seem to have also adopted this
latter approach, preferring a more rigorous level of scrutiny of the evidence
and justifications put before it by the state, to counter the effect of adopting
122 TAC (n 104 above) paras 46 & 80 - 81.
123
Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 SA
505 (CC) para 50.