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322 Chapter 14
decision in the Constitutional Court’s socio-economic rights
jurisprudence.
Among other things, the court not only pronounced on the obligations
of the state with regard to the right of access to sufficient water in terms of
section 27(1)(b) of the Constitution, but it also expressly pronounced on the
‘proper role of courts’ in determining the content of socio-economic rights in
a constitutional democracy – an important exposition as it relates to the
notion of judicial deference in these cases towards other organs of
government. 15 The court sought to settle the boundaries in view of the fact
that, notwithstanding its modest stream of decisions on this cluster of rights
thus far, the understanding of the nature of obligations imposed by the
Constitution on the state, and the role of the courts in that regard, seems
unstable.
The approach taken by the Constitutional Court in this case is highly
deferential to the legislature and the executive. So deferential, this paper
argues, as to signify a retreat from the socio-economic rights promised by the
Constitution and from the role the court has played in promoting the much
neglected socio-economic rights of the voiceless, powerless and
marginalised members of South African society. The lines drawn by
judicial deference in socio-economic rights cases, resting with the Mazibuko
case, have relinquished the proper frontier of the judicial province and there
is a need for the Court to reclaim its own territory.
This paper sees a useful analogy for this discourse in the approach
taken in the jurisprudence of the International Court of Justice (ICJ) in
relation to the exercise of its non-contentious (Advisory Opinion)
jurisdiction. The paper suggests that the approach of the ICJ in this regard,
as the principal judicial organ of the United Nations (UN), could provide
a useful guide as to how courts should address the scope and meaning of
the judicial function within the framework of separation of powers in
socio-economic rights discourse.
2 Justifications for judicial deference in socioeconomic
rights cases: What are the grounds?
Although there is a growing trend to stress the universality,
interdependence, interconnectedness and indivisibility of all human rights
and that they should all be treated on the same footing and with the same
emphasis, 16 this apparent consensus masks a deep and enduring
15
16
Mazibuko (n 14 above) paras 46 & 57.
According to para 5 of the Vienna Declaration and Programme of Action (1993): ‘All human
rights are universal, indivisible and interdependent and interrelated. The international
community must treat human rights globally in a fair and equal manner, on the same
footing, and with the same emphasis. While the significance of national and regional