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poverty as attributable to natural causes outside the control of the
state or society. 35 What these rhetorical tropes have in common for
Ross is that they are used to mask complicity and justify inaction in
the face of poverty. For example: political actors attribute
deprivation to the personality traits of impoverished people so that
the complicity of the legal and political system in creating poverty can
be obscured. Challenges to the status quo can thereby be avoided and
the positions of the relatively affluent can likewise be justified. So it
becomes the fault of impoverished people themselves that they are
poor and they, and no one else, are the ones who can do something
about it. 36
Courts use these rhetorical strategies for the same purposes. They
are invoked most often in the course of assertions of the so-called
‘judicial can’t’ 37 — when courts seek to justify their decision not to
decide a particular matter or issue. An unfortunate by-product of
their invocation, both in the political discourse and by courts, is that
their use de-politicises: The effect of personalising the causes of
poverty or attributing them to other causes outside the control of
society is also to place them outside the realm of political
contestation. Political engagement with them becomes futile. 38
Our Constitutional Court’s engagement with socio-economic
rights has shown invocation by the Court of such depoliticising
rhetorical tropes. The ‘judicial can’t’ most often invoked by the Court
in socio-economic rights cases has been the bogeyman of separation
of powers. 39 A central theme of the Court’s socio-economic rights
jurisprudence has been its efforts to develop a suitable theory of
deference so as to avoid intruding unduly into the spheres of power of
the legislature and the executive (and the state administration). The
Court has, in this respect, struggled with basic questions such as
which kinds of issues it is competent to engage with at all, what its
standard of scrutiny should be where it does engage with the issues,
and what the scope of its power is to provide relief.
What is interesting is the basis upon which the Court has sought to
justify the choices it has made in this regard. It has relied in the first
place on ‘institutional capacity’ arguments — its perceived lack of the
requisite technical expertise and institutional capacity properly to
engage with the issues. The Court has utilised these institutional
capacity arguments to justify its choice not to decide a particular
35
Ross (n 30 above) 1502 - 1509.
36 Ross (n 30 above) 1510.
37 R Cover Justice accused: Anti-slavery and the judiciary process (1975) 119-120.
38
See in this respect, in general, Fraser (n 18 above).
39 Roux (n 14 above) 10-58.