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Mazibuko v City of Johannesburg - a jurisprudential setback 327
An innovative way in which courts, most notably in India, have dealt
with the controversial question of their competence is to rely on expert
bodies to study the situation and submit reports to the Court. 36 Courts have
also appointed commissions to propose remedial relief and monitor its
implementation. 37 Desai and Muralidhar submit that the use of
commissions has enabled the court to check the facts as alleged by the
petitioner and the state after a proper scrutiny without affecting its role as an
adjudicator. 38 Such a process is not unique to common law jurisdictions. It
is not uncommon for courts to appoint assessors who are experts in relevant
fields to assist the court to arrive at a proper, sound and informed decision.
The Constitutional Court could adopt this measure to avoid excessive
deference and the dilemma of having either to abdicate its judicial role or
to usurp executive and legislative responsibilities. 39
To further appreciate the meaning and scope of the expression
‘judicial function’ lessons may be drawn from the approach taken by the
International Court of Justice (ICJ) when it assumes jurisdiction in noncontentious
cases. In Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, 40 the ICJ stated that ‘the Court has recalled many times in the past
that Article 65, paragraph 1, of its Statute, which provides that “The Court
may give an advisory opinion …” should be interpreted to mean that the
Court has a discretionary power to decline to give an advisory opinion
even if the conditions of jurisdiction are met’. 41
This passage clearly shows that the ICJ has a lot of room for according
due deference to other organs of the UN such as the General Assembly and
the Security Council. In requests made to the Court to provide Advisory
Opinions, the issue as to whether the question posed is of a judicial or legal
36 AH Desai & S Muralidhar ‘Public interest litigation: Potential and problems’ in
BN Kirpal et al Supreme but not infallible: Essays in honour of the Supreme Court of India
(2000) 159. See, eg, Indian Council for Enviro-Legal Action v Union of India (1996) 3SCC
212.
37
As above.
38 As above.
39 Ferraz has argued that whilst ‘the South African reasonableness approach is seen as too
deferential and abdicative of the judiciary’s role in protecting rights, the Brazilian
individually enforceable rights approach is deemed too intrusive and usurpative of the
prerogative of elected representatives to define how the limited resources of the state
should be allocated among unlimited social needs’. He further argues that ‘the
emerging co-operative constitutionalism theories, which try to apply the institutional
dialogue theories of judicial review to social rights adjudication, do not solve the dilemma’
and that ‘they are currently largely procedural, and therefore liable to the same charges of
abdication levelled at the reasonableness approach of the South African Constitutional
Court’. But if they try to become more substantive, he urges, they will certainly attract
the accusations of usurpation currently levelled at more assertive courts such as the
Brazilian ones. He therefore concludes that the dilemma might be insoluble until either a
more stable consensus emerges on what social and economic rights entail or the
expectation that rights necessarily imply strong judicial remedies gradually wanes. See
OLM Ferraz ‘Between usurpation and abdication? The right to health in the courts of
Brazil and South Africa’ http://papers.ssrn.com (accessed 16 March 2010).
40
(1996) (I) ICJ Reports 234 - 2115.
41 Legality of the threat or use of nuclear weapons (n 40 above) para 14.