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somehow not subject to further political contestation — either
because of the finality with which courts usually present their
decisions, 28 or because of the presentation by courts of their
engagement with contested social issues as value-neutral, conducted
on the basis of an objective set of materials, 29 or because courts in
their judgments use language and rhetorical strategies to describe
social issues as incapable of political engagement (as, for example,
too technically complex for political engagement, or of private rather
than public concern, or simply as insoluble, so that political
engagement with it becomes futile). 30
The gap that Theunis’ failure to engage this non-institutional
aspect of the tension between rights and democracy leaves in his
account of the principle of democracy in South African constitutional
law is illustrated in his CLoSA chapter’s discussion of the relationship
between democracy and socio-economic rights. First, as he recounts,
these rights are said to be supportive — indeed, constitutive — of
democracy in that access to the basic resources that they guarantee
enables impoverished people to participate as fully-fledged members
of society in the democratic process. 31 Second, he relates how these
rights in their justiciable form have been said to raise the countermajoritarian
dilemma in particularly acute form and so to stand in
particularly acute tension with democracy. 32
Both these aspects of the relationship between socio-economic
rights and democracy have indeed been the focus of sustained
scholarly and judicial engagement in South Africa and elsewhere. But
there is a third aspect to the relationship between socio-economic
28 See eg H Botha ‘Freedom and constraint in constitutional adjudication’ (2004) 20
South African Journal on Human Rights 249.
29 See eg UDM (n 3 above) para 11: ‘This case is not about the merits or demerits of
the disputed legislation. That is a political question and of no concern to this
Court. What has to be decided is not whether the disputed provisions are
appropriate or inappropriate, but whether they are constitutional or
unconstitutional.’ For a discussion of this problem, see Botha (n 28 above) 249-
250 and K Van Marle ‘Revisiting the politics of post-apartheid constitutional
interpretation’ (2003) Tydskrif vir die Suid-Afrikaanse Reg 549 552-553.
30 See Fraser (n 18 above); T Ross ‘The rhetoric of poverty: Their immorality, our
helplessness’ (1991) 79 Georgetown Law Journal 1499 1499-1500; LA Williams
‘Welfare and legal entitlements: The social roots of poverty’ in D Kairys (ed) The
politics of law. A progressive critique 3 ed (1998) 569 569. For my own
engagement with this issue see D Brand ‘The “politics of need interpretation” and
the adjudication of socio-economic rights claims in South Africa’ in AJ van der
Walt (ed) Theories of social and economic justice (2005) 17.
31
Roux (n 14 above) 10-57 — 10-62.
32 As above.