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Mazibuko v City of Johannesburg - a jurisprudential setback 321
executive) supremacy. 11 Whilst parliamentary supremacy is a direct offshoot
of an understanding of democracy in the sense of ‘representative democracy’,
constitutional democracy, as Roux states, is a purely descriptive term that is
used to connote a system in which the people’s power to make collective
decisions is constrained by a written constitution, or at least a received set of
institutional practices that is regarded as being incapable of ordinary
amendment. Roux argues that usually, but not necessarily, the power to
decide whether the people, acting through the political branches, have
deviated from the terms of the Constitution is vested in the judiciary, and
also that usually but not necessarily, the judiciary exercises this power on
the authority of the supreme law embodied in the bill of rights. Roux
understands the term ‘constitutional democracy’ as the binary opposite of the
term ‘parliamentary sovereignty’ which connotes a system in which the
legislature has the final word in the event of inter-branch conflict over the
constitutionality of a collective decision. 12 It has been argued, quite correctly,
that since the judiciary is the final arbiter on the constitutionality of laws or
conduct in a system of constitutional supremacy and, indeed, since the courts
make the final determination on the scope of their own powers, the courts
must have mechanisms of self-restraint to prevent them from unnecessarily
interfering with the functions of the other organs of government. 13 They
need to be fully cognisant of the need to allow an appropriate margin of
discretion for the other state organs.
It is submitted that the notion of judicial deference towards other organs
of government ought to be understood within the framework of constitutional
democracy as eloquently expounded by Roux. Kirsty McLean’s paper reflects
this understanding to a large extent. However, what seems to emerge from her
paper is that she does not necessarily support or attack the nature of judicial
deference that the Constitutional Court has adopted in socio-economic rights
cases; and this seems to be deliberate as her project is only meant, it seems, to
be a principled demonstration of the use of the post-apartheid understanding
of constitutional deference in an analysis of human rights and particularly
socio-economic rights adjudication.
This paper generally affirms McLean’s project in this regard, but wishes
to go further and submit that the Constitutional Court has extended its notion
of deference too far. The paper surveys a number of decisions on socioeconomic
rights by the Court, but it will focus in more depth on the Court’s
recent decision in Mazibuko v City of Johannesburg. 14 This is a landmark
11
Executive supremacy manifests itself in dictatorships where the head of state or
government wields immense powers, sometimes issuing decrees or edicts that
override laws passed by elected institutions. It is submitted that it would be a
misnomer to refer to such a regime as reflecting parliamentary supremacy.
12 See T Roux ‘Democracy’ in Woolman et al (eds) Constitutional law of South Africa (2006)
10 - 18.
13
See I Currie & J de Waal The Bill of Rights handbook (2005) 22.
14 2010 4 SA 1 (CC).