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Mazibuko v City of Johannesburg - a jurisprudential setback 325
between the various spheres of government, and the legality of legislative and
executive action measured against the Bill of Rights, and other provisions
of the Constitution’. 26 This exercise, according to Chaskalson P, requires
independence and involves the weighing up of information, the forming of
an opinion based on information and the law, and the giving of a decision
on the basis of a consideration of relevant information and the law. 27
As has been pointed out, the Ferreira case stressed that ‘the protection
of fundamental freedoms is pre-eminently a function of the court’. 28 The
Ferreira case concerned civil and political rights, but this statement is equally
applicable to socio-economic rights. Thus, when a litigant approaches the
Court because his or her constitutional right of access to sufficient water is
being violated or is under threat of violation, it is pre-eminently a judicial
task to determine whether the conduct or law in question constitutes such
violation or threat of violation. Such a decision will involve the weighing
up of information, the forming of an opinion based on the available
information (or facts and the law, and the giving of a decision on the basis of
a consideration of the relevant information (or facts) and the law. In the TAC
case, the Constitutional Court provided a lucid statement of the role of
courts with regard to socio-economic rights. It stated that:
The primary duty of courts is to the Constitution and the law, ‘which they must
apply impartially and without fear, favour or prejudice’. The Constitution requires
the state to ‘respect, protect, promote, and fulfil the rights in the Bill of Rights’.
Where state policy is challenged as inconsistent with the Constitution, courts have
to consider whether in formulating and implementing such policy the state has given
effect to its constitutional obligations. If it should hold in any given case that the
state has failed to do so, it is obliged by the Constitution to say so. In so far as that
constitutes an intrusion into the domain of the executive, that is an intrusion
mandated by the Constitution itself. 29
Thus, the Court seems to suggest that where a court delves into policy issues
with a view to assessing the compatibility of such policies with the
Constitution, whilst that might be viewed as an intrusion into an area that
is not pre-eminently within its domain, it is an intrusion that is
constitutionally mandated. One might call this a technical constitutional
justification for the court to engage complex polycentric policy issues. The
Court points out that the reason it would engage in such an exercise is to
decide on ‘whether in formulating and implementing such policy the state
has given effect to its constitutional obligations’. It is submitted that the
Court cannot do this without defining the content of such obligations.
The question remains: Is it essentially inconsistent with the judicial function
for the court to deal with policy issues? Some have argued that the most
26 Heath (n 24 above) para 26.
27 Heath (n 24 above) para 34.
28
n 7 above.
29 TAC (n 8 above) para 99.