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106 Chapter 7
question raised in the course of socio-economic rights litigation; 40 to
reject the ‘minimum core content’ approach to deciding claims for
access to basic resources; 41 and to justify its adoption of what it has
called a ‘restrained role’ in reviewing state conduct in light of socioeconomic
rights (as embodied in its reasonableness review
approach.) 42
The Court, when it employs this rhetoric, enters into an obviously
depoliticising discourse and so erodes capacity for democratic
political action. It describes the relevant issues as ‘technical
problems for managers and planners ... in contradistinction to
political matters.’ 43 However, it cannot be denied that the Court is,
quite often, as institutionally constrained as it claims to be and that
depoliticisation on that basis alone is to some extent inevitable.
What does make the Court’s use of this depoliticising trope
problematic is not so much the fact that it defers, but that to which
it defers. In justifying the self-limitation of its powers of review and
remedy the Court has also relied on another set of arguments:
‘constitutional comity’ arguments. When it declines to decide a
particular issue, or apply a stringent standard of scrutiny, or impose
an intrusive order, it defers not only to the complexity of the issues
at hand. It also, more importantly, defers to the other branches of
government on the understanding that they are, in the context of
institutional spheres of power, the appropriate fora to decide them. 44
Certainly, at the heart of the Court’s concern with constitutional
comity in its engagement with socio-economic rights is a concern for
democracy. The Court defers to the other branches in order to
demonstrate respect for the democratic will of which they are the
repositories. 45 But the conception of democracy that underlies this
concern is, again, a peculiarly limited one: it is the kind of
‘institutional’ understanding of democracy that I referred to above.
Democracy is equated with, and reduced, to the institutions intended
to give effect to it and occurs only within those institutions. This
understanding stands in contrast to an understanding of democracy as
a certain mode of political action or a culture that takes place not
only in the democratic institutions of the official governmental
40
See eg Minister of Health v Treatment Action Campaign 2002 5 SA 721 (CC), 2002
41
10 BCLR 1033 (CC) para 128.
Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC), 2000
42
11 BCLR 1169 (CC) para 33; TAC (n 40 above) para 37.
TAC (n 40 above) para 38. See also the Court’s justification for the lenient
standard of scrutiny adopted in Soobramoney v Minister of Health, KwaZulu-
Natal 1998 1 SA 765 (CC), 1997 12 BCLR 1696 (CC) para 29.
43 Fraser (n 18 above) 299.
44 See eg Soobramoney (n 42 above) para 29; Grootboom (n 41 above) para 41; and
45
TAC (n 40 above) paras 96-114 & 129-133.
Roux (n 14 above) 10-58.