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Mazibuko v City of Johannesburg - a jurisprudential setback 339
government will, among other things, put those people that do not have a
‘significant’ enough voice to ensure their concerns will be heard in a
particularly vulnerable position in so far as the protection and enforcement
of these rights are concerned.
5 Conclusion
Under the Constitution, it is the responsibility of the judiciary to interpret
and apply the law so as to advance socio-economic rights. Consequently,
their decisions will have profound socio-economic consequences, but this
should not cause the court to fear the vigilant enforcement of these rights.
It has a duty to impartially and fearlessly interpret and apply the law with
due respect and appreciation for the separation of powers. However, the
Court should not be too amenable and defer decisions that legitimately
belong within the boundaries of the judicial function to other organs, on
the basis of orthodox arguments that were used previously to deny altogether
the justiciability of socio-economic rights. It will prove unsustainable for
the Constitutional Court to counsel, as it did in Mazibuko, that as the
judiciary is not a democratic institution of the state, it falls to parliament
and the executive to determine the content of the constitutional right at
issue.
This is a minimalist conception of representative democracy. Within
the context of constitutional democracy, it is submitted that the judiciary is
very much a democratic institution of the state. South Africa’s democracy
would be meaningless in the absence of a strong, independent and effective
judiciary. As the Court itself observed in the TAC case, if some of its
decisions are deemed to be an intrusion into the provinces of other organs,
such intrusion is legitimate as long as it is sanctioned by a democratic and
legitimate constitution. It is therefore submitted that the decision of the
Constitutional Court in the Mazibuko case, given that it sets out to guide the
adjudication of future decisions involving socio-economic rights,
represents a significant setback in the pursuit of a more progressive regime
and jurisprudence for the protection of socio-economic rights in South
Africa. This paper contends that the Court’s active involvement in socioeconomic
matters represents its participation in the activities of
government as one of its principal organs. As such, the Constitutional
Court is urged not accede too readily to invitations for constitutional
deference and yet not to usurp the functions of other state organs. The
fundamental point is that the responsibility to define the content and
scope of constitutional rights, whether they are civil and political rights or
socio-economic rights, remains primarily that of the judiciary.