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324 Chapter 14
unarticulated and unexamined reservations to the adjudication of these
rights. 21
Of course, to be fair to the Court, it has tried, to some extent, to articulate
and examine some of its reasons for adopting a rather restrained approach
in the adjudication of socio-economic rights cases. Two major arguments,
one principled and the other pragmatic, 22 and both well known in socioeconomic
rights discourse, have been advanced by the Court:
(1) The principled argument is framed in terms of legitimacy, and claims that
the judiciary lacks democratic legitimacy to deal with matters that have
complex distributive and redistributive socio-economic effects, and that these
have to be left to the decisions of those political organs of the state that are
directly accountable to the electorate. The argument includes the understanding
that making decisions on the distribution of resources in society primarily
involves the exercise of a political rather than a judicial function. All in all, it is
urged that deference in this regard mitigates what is perceived as the antidemocratic
nature of judicial review; 23
(2) The pragmatic argument is based on the premise of competence, and views
the judiciary as institutionally incompetent to deal with questions that involve
complex policy considerations that have budgetary or redistributive
ramifications.
3 Clarifying the role of courts in adjudicating
socio-economic rights
In the light of the foregoing discussion, a key question arises: What exactly
is the judicial function and what is the role of the judiciary in adjudicating
socio-economic rights cases supposed to be? Section 165(1) of the
Constitution provides that the judicial authority of the Republic vests in the
courts, but it does not specifically define what essentially constitutes the
judicial function. The task of deciding this has been left to the courts
themselves.
In South African Association of Personal Injury Lawyers v Heath, 24
Chaskalson P described the role of the judiciary in the context of separation
of powers and the enforcement of human rights. He held that the judiciary
has a sensitive and crucial role to play in controlling the exercise of power
and upholding the Bill of Rights. 25 He stated that its function in this regard
is to be ‘an independent arbiter of issues involving the division of powers
21
K McLean ‘Towards a framework for understanding constitutional deference’ in
S Woolman & D Bilchitz (eds) Is this seat taken? Conversations at the Bar, the bench and the
academy about the South African Constitution (2012) 291.
22
See RA Edwards ‘Judicial deference under the Human Rights Act’ (2002) 65/6 The Modern LR
859 - 882, 859.
23 As above.
24
2001 1 SA 883 (CC).
25 Heath (n 24 above) para 46.