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338 Chapter 14
word ‘everyone’ in that section … This Court has adopted a purposive
approach to the interpretation of rights. Given that the Constitution expressly
provides that the Bill of Rights enshrines the rights of ‘all people in our
country’, and in the absence of any indication that the section 27(1) right is to
be restricted to citizens as in other provisions in the Bill of Rights, the word
‘everyone’ in this section cannot be construed as referring only to
‘citizens’. 87
Again, the Mazibuko decision does not attempt to refer to its previous decision
in Khosa, and how its analysis on the nature of obligations imposed by
section 27(1) of the Constitution and the role courts have to play vis-à-vis
the political process, relates to the Makwanyane and Khosa decisions. It is
submitted that in view of the positions adopted in these two previous
decisions, it would be very difficult to justify the overly deferential
approach to the role of political institutions in determining the content of
the rights under section 27(1) in view of the fact that the section applies to
everyone who is subject to the jurisdiction of South Africa, including those
who cannot protect their rights adequately through the (popular)
democratic process.
Finally, it is submitted that this approach is at odds with the judicial
function of the Court vis-à-vis the Constitution. Section 167(3)(a) of the
Constitution states that the Constitutional Court is the highest court in all
constitutional matters, and section 167(7) provides that a constitutional
matter includes any issue involving the interpretation, protection or
enforcement of the Constitution. Put differently, any matter that involves
the interpretation, protection and enforcement of the Constitution falls
within the jurisdictional province of the Constitutional Court. Thus the
court can only justify its position that the determination of ‘precisely what
the achievement of any social and economic right entails’ is a matter for the
legislature and the executive and not the courts if it can show that this issue
does not involve the interpretation, protection and enforcement of the
Constitution. If it does involve these matters, and there is a dispute, then the
Court must interpret the right and this would include defining the scope of
the right.
On the facts of the Mazibuko decision, it is submitted that the issues before
the Court did indeed trigger all three requisite aspects: the interpretation, the
protection and the enforcement of constitutional rights. The Court should
not have said that the task of determining what a right entails, which is an
interpretative task, lies anywhere other than with the Constitutional Court.
Thus, the implications of the Mazibuko decision, in so far as the case is
held up as a guide for the approach the courts should take in socioeconomic
rights cases, are significant and profound. Leaving the question of
the interpretation of the scope of rights to non-judicial branches of the
87 Khosa (n 60 above) paras 46 - 47.