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334 Chapter 14
deference towards other branches of government. Chenwi and Tissington
conclude their paper with the following postscript:
On 24 August 2009, the Constitutional Court reportedly quietly issued an
order suspending the evictions ‘until further notice’. The eviction order was
suspended after the Western Cape provincial Minister of Housing,
Bonginkosi Madikizela, submitted a report to the Court stating that ‘he had
“grave concerns” that the “massive relocation” might end up costing more
than it would to upgrade Joe Slovo’. He also raised concerns about the
absence of a plan regarding those who would not be accommodated in the
new housing in Joe Slovo, since the houses would not be enough, and they
would therefore be left behind in TRAs. The suspension of the eviction order
has been welcomed by the Joe Slovo residents. 76
It is interesting that the concerns about the lack of planning for those who
would not be accommodated in the new housing scheme, and about the
history of broken promises, were raised in argument before the Court by
the applicants and amici curiae. What is deeply worrying is that the Court
was unwilling to make the necessary order on the basis of these
submissions, and would address these concerns only when it received the
confirmatory provincial ministerial report on those very same concerns. This
shows a deep level of deference towards other organs, particularly the
executive.
In the Mazibuko case, the Court, in a unanimous decision, came out
even more clearly on what it perceives as the justification for its deferential
approach. It is clear from the text of the decision that the Court purposely
intended the decision to provide a general guide on how socio-economic
rights cases are to be prosecuted and adjudicated generally and this
underscores the importance of the decision. The Court has said that the
‘reasons are essentially twofold. The first reason arises from the text of the
Constitution and the second from an understanding of the proper role of
courts in our constitutional democracy’. 77 This role of the Court, as
McLean has ably articulated in her paper, and as explained above, is
understood from two angles: legitimacy and institutional competence.
With respect to the first (textual) reason, the Court in the Mazibuko case
argues that section 27(1) and (2) must be read together to delineate the scope
of the positive obligation imposed upon the state to provide access to
sufficient water, and that this obligation requires the state to take
reasonable legislative and other measures to progressively achieve the
right of access to sufficient water within available resources. The Court
stresses that this obligation ‘does not confer a right to claim sufficient water
from the state immediately’. 78 The absence of such a right then, it appears,
is used by the Court to justify leaving a large deferential space for the
76 Liebenberg (n 75 above) 23.
77
Mazibuko (n 14 above) para 56.
78 Mazibuko (n 14 above) para 56.