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326 Chapter 14
effective realisation of socio-economic rights depends upon policy choices and
that it is precisely in choices of this nature where judges lack two essential
qualifications: expertise and political accountability. 30 This argument
however does not seem unassailable.
Judges in common law jurisdictions have engaged in policy considerations
for a very long time. Richardson has argued, for instance, that judges make
law and are expected to make law and in doing so, they necessarily weigh
policy considerations. 31
Wade similarly contends that judges ‘are up to their necks in policy, as they
have been all through history’. 32 Hunt argues that ‘judicial law making is not
incidental or peripheral to policy matters’. He argues that, on the contrary,
‘it has shaped concepts and principles with crucial policy content, such as the
law of negligence and rules of natural justice’. 33 In Port Elizabeth Municipality
v Various Occupiers (the Port Elizabeth Municipality Case), 34 Sachs J stated that:
The integrity of the rights-based vision of the Constitution is punctured when
governmental action augments rather than reduces denial of the claims of the
desperately poor to the basic elements of a decent existence. Hence the need for
special judicial control of a process that is both socially stressful and
potentially conflictual. 35
Sachs J suggests that, firstly, the socio-economic rights guaranteed by the
Constitution provide the people with claims. This rights-based vision seeks to
reduce or avert the denial of these claims.
As I will later demonstrate, the Mazibuko decision represents a
complete retreat from this position as the Court denies that the people have
such claims under the Constitution. This leaves very little of the rights-based
vision of the Constitution put forward by Sachs J. Secondly, the effective
guarantee of socio-economic rights frequently involves the distribution
and/or redistribution of resources, and in this case Sachs J requires ‘a
process that is both socially stressful and conflictual’ which, according to
her, is the very reason why the judiciary has to engage with these issues.
This addresses the competence concern in the sense that the courts are
seen as competent to deal with polycentric conflict-ridden issues that are
socially stressful. However, in the unanimous Court decision in Mazibuko,
which included Sachs J himself, retreated from this position and pushed
the frontiers of its deference towards other state organs much further.
30 E Mureinik, ‘Beyond a charter of luxuries: Economic rights in the Constitution’ (1992) 8
SAJHR 464 467.
31
WS Richardson ‘Public interest litigation’ (1995) 3 Waikato LR 1.
32 HWR Wade Constitutional fundamentals (1989) 78.
33 See P Hunt Reclaiming social rights: International and comparative perspectives (1996) 66.
34
2005 1 SA 217 (CC).
35 Port Elizabeth Municipality (n 35 above) para 18.