Download this publication - PULP

336 Chapter 14
Elizabeth Municipality Case, it is submitted, would only be preserved by
adopting an approach that proceeds from an examination of the right and
then to a determination of the concomitant obligations, and not vice versa. If
the primary focus is on the nature of the obligation so as to determine the
contours of the right, then that also suggests that the court’s primary focus is
on the duty-bearer rather than the claim holder, and that is problematic
because it is scarcely a rights-based approach. A rights-based approach
‘identifies right(s) holders and their entitlements and corresponding duty
bearers and their obligations, and works towards strengthening the
capacities of rights-holders to make their claims and of duty bearers to
meet their obligations’. 83 In the succinct words of Sachs J, ‘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’. The Court must begin to
engage and develop the content of the socio-economic rights under the
Constitution, instead of focusing only on the development of the content
of the socio-economic obligations of the state.
The second reason for adopting a deferential approach in Mazibuko
was premised on what the Court termed the proper role of courts in a
constitutional democracy. The Court stated that ‘ordinarily it is
institutionally inappropriate for a court to determine precisely what the
achievement of any social and economic right entails and what steps
government should take to ensure the progressive realisation of the right’.
The Court argues that this is a matter for what it calls the ‘democratic’ 84
institutions of government, the legislature and the executive, that are best
placed to investigate social conditions in the light of available budgets and to
determine what targets are achievable in relation to these rights. The Court
urges that it is indeed ‘desirable’ that this be so for the sake of democratic
accountability since it is the programmes and promises of these organs of
the state ‘that are subjected to democratic popular choice’. 85 The Court
held that ‘[n]ational government should set the targets it wishes to achieve
in respect of social and economic rights clearly’, in light of the
constitutional founding values of accountability, responsiveness and
openness. In so doing, the Court argues, citizens are enabled to hold
government politically accountable if the standard is not achieved and that
it also empowers citizens to hold government accountable through legal
challenge if the standard is unreasonable. In this way, the Court urges, socio-
83 Office of the United Nations High Commissioner for Human Rights ‘Frequently asked
questions on a human rights-based approach to development cooperation’ HR/PUB/
06/8 (2006) 15.
84 Proceeding from the understanding of constitutional democracy as stated by Roux
above, it is submitted that this terminology is incorrect. The Court is also a democratic
institution of the state. Any other sense would represent a retreat from the idea of
constitutional supremacy and pave the way for a gradual return towards parliamentary
supremacy.
85 Mazibuko (n 14 above) para 61.