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Reply - Marius Pieterse 337
individual beneficiaries of socio-economic rights are empowered to
participate on a more-or-less equal footing with more powerful
institutional players. 19
Provided that they are sufficiently legally or constitutionally
empowered to do so, judges may contribute invaluably to the
translation of socio-economic rights through their interpretation and
vindication of these rights in the concrete contexts of particular
cases. Given that socio-economic rights are fully justiciable under the
Final Constitution, that it grants courts significant interpretative
leeway and remedial flexibility and that it requires of them to take
rights’ international law meaning into account when considering their
content, there can be little doubt that South African courts are
empowered to engage in generous, purposive and thoroughly
theorised interpretation of socio-economic rights. 20 Moreover, judges
are generally regarded as being reasonably well-equipped translators.
Judges are independent and impartial, as well as trained,
experienced and skilled in the interpretation of legal provisions and
their application in concrete cases. 21 Courts are further well-placed
to correct for problems occasioned by legislative ‘blind spots’ or
‘burdens of inertia’, 22 not least because they ‘handle real cases and
thus can test more effectively the particular implications of abstract
principles and discover problems the legislature could not forecast’. 23
But there are also important reasons not to award judges a
monopoly over the translation of socio-economic rights. Most
obviously, judges lack the direct democratic legitimacy associated
with the legislative and political branches of government. They are
also generally drawn from privileged sectors of society: as a result,
they are often unfamiliar with, or insensitive to, the needs and the
experiences of society’s materially deprived sectors. Furthermore,
South African judges have been trained in a formalist and liberalindividualist
legal culture that is not favourably disposed towards the
notion of enforceable socio-economic rights. 24
19 See D Davis ‘Socio-economic rights in South Africa: The record of the
Constitutional Court after ten years’ (2004) 5(5) Economic and Social Rights
Review 3 7.
20 See, eg, FC secs 36, 38 and 39(1). For discussion of these and other ‘enabling’
provisions, see M Pieterse ‘Resuscitating socio-economic rights: Constitutional
entitlements to health care services’ (2006) 22 South African Journal on Human
Rights 473 478-479.
21 See also M Pieterse ‘Coming to terms with judicial enforcement of socio-economic
rights’ (2004) 20 South African Journal on Human Rights 383 395.
22 Dixon (n 2 above) text accompanying n 79.
23 H Spector ‘Judicial review, rights and democracy’ (2003) 22 Law & Philosophy 285
319.
24 For a discussion of these and related problems, see Pieterse (n 21 above) 390-399.