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Mazibuko v City of Johannesburg - a jurisprudential setback 329
to defer in its processes to other actors, the ICJ has held very tenaciously to
its judicial mandate, irrespective of the multi-polar socio-political character
of the issues before it or the likely consequences of its decisions.
It is submitted that a useful analogy can be drawn between the role of the
ICJ in the UN system and the role of the courts in the South African
domestic sphere. First, the judiciary is a principal organ of government,
just as the ICJ is the UN’s principal judicial organ, and when determining
questions of constitutionality, including the enforcement of socioeconomic
rights, judicial decisions should be viewed as representing the
judiciary’s participation in the activities of government just as the ICJ has
stressed its judicial role as a form of participation in the work of the UN.
This therefore calls for active dialogue between the various branches
of government over fundamental rights and freedoms. 47 Gauging the
propositions of both the Constitutional Court, as well as the ICJ, the essence
of the judicial function is to be an independent arbiter, applying the
Constitution and the law impartially and without fear, favour or
prejudice. 48 This involves ascertaining the existence or otherwise of legal
principles and rules applicable to a given scenario, and specifying the scope
and general trend of those principles and rules. In discharging this
function, there may be an interplay of polycentric socio-economic factors,
but as the ICJ noted in the Nuclear Weapons case, that does not per se
detract from the judicial character of the issue before the Court as long as
the Court is called upon to weigh issues of fact against the content of the
law 49 – in this case, constitutional guarantees of socio-economic rights. To
this end it is submitted that the definition of the content of rights, whether
they be civil and political rights or socio-economic rights, falls within the
heartland of the judicial function.
As the Constitutional Court observed in the TAC case, where state
policy is challenged as inconsistent with the Constitution, the court had to
consider whether the state, in formulating and implementing such policy,
had failed to give effect to its constitutional obligations and was obliged to
point this out. 50 Further, the Court emphasised that in so far as the
Court’s order ‘constitutes an intrusion into the domain of the executive,
that is an intrusion mandated by the Constitution itself’ 51 and that, whilst
such orders can affect the policies of government or other organs of state and
have budgetary implications, ‘government is constitutionally bound to give
effect to such orders whether or not they affect its policy and has to find the
resources to do so’. 52 Further, as the Court emphasised in Fose v Minister of
Safety and Security, if it is necessary to do so, the courts may even have to
47 See Edwards (n 21 above) 866.
48
See sec 165(2) of the Constitution.
49 See Heath (n 22 above).
50 n 28 above.
51
As above.
52 As above.