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330 Chapter 14
fashion new remedies to secure the protection and enforcement of these allimportant
rights. 53
Courts therefore should not hasten to defer the definition of the content
and scope of socio-economic rights to other branches of the government
as this is an abdication of their own responsibility.
4 Exploring judicial deference in South African
socio-economic rights jurisprudence
As stated in the introduction, the Constitutional Court’s approach to the
enforcement of socio-economic rights has been unstable.
It first considered the subject in Ex Parte Chairperson of the Constitutional
Assembly: In Re Certification of the Constitution of the Republic of South Africa (1st
Certification case), 54 and responded lucidly to the objection that the
inclusion of socio-economic rights in the Constitution would breach the
principle of separation of powers as follows:
It is true that the inclusion of socio-economic rights may result in courts
making orders which have direct implications for budgetary matters. However,
even when a court enforces civil and political rights such as equality, freedom
of speech and the right to a fair trial, the order it makes will often have such
implications. A court may require the provision of legal aid, or the extension of
state benefits to a class of people who formerly were not beneficiaries of such
benefits. In our view it cannot be said that by including socio-economic rights
within a bill of rights, a task is conferred upon the courts so different from that
ordinarily conferred upon them by a bill of rights that it results in a breach of
the separation of powers. 55
This early case injected hope that socio-economic rights would soon be placed
on an equal footing with civil and political rights in the context of
justiciability, but hope began to wane after the remarks of Chaskalson P in
Ferreira: 56
Whether or not there should be regulation and redistribution is essentially a
political question which falls within the domain of the legislature and not the
court. It is not for the courts to approve or disapprove of such policies. What
the courts must ensure is that the implementation of any political decision to
undertake such policies conforms with the Constitution. 57
Chaskalson’s position is that the Court may not review the policy adopted
by the legislature (or executive) or the political decision to undertake a policy,
53
1997 3 SA 786 (CC) para 19.
54 1996 4 SA 744; 1996 10 BCLR 1253 (CC).
55 First Certification judgment (n 54 above) 78.
56
n 6 above.
57 Ferreira (n 6 above) para 180.