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338 Chapter 19
Since court judgments carry significant authority and imply a
measure of finality, judicial interpretations of socio-economic rights
may sometimes foreclose or unduly limit dialogue over constitutional
meaning. This result is particularly unwelcome in socio-economic
rights matters: A significant number of differently situated persons
may possess diverse needs implicated by a single right. It may also be
pernicious where such finality is implied in relation to an overbroad
or unduly restrictive interpretation of a right. 25 Because of the
substantial costs associated with access to justice, it is further
possible that courts may continuously be seized by socio-economic
rights claims representing the interests of relatively privileged sectors
of society and that their translation of the rights in such cases may
reflect such interests at the expense of the concerns of the most
vulnerable.
Nevertheless, we may expect courts to remain vital venues for
dialogue over constitutional meaning, not least since the Constitution
itself foresees such a role for them. 26 Because judges are in charge of
court proceedings and of transcribing the outcome of such
proceedings in the form of judgments, their role is not only to
contribute to courtroom dialogue over constitutional meaning, but
also to direct its terms and to determine the manner in which all
participants conduct themselves. Given that their judgments have an
impact on the contours of future dialogue, even in contexts beyond
those in which they were conceived, the manner in which courts
conduct themselves in this respect is of particular significance.
It is therefore important that any judicial ‘approach’ to socioeconomic
rights adjudication neither monopolises the process of
translation through dialogue, nor foregoes participation therein. Any
such approach must further be open to dialogic contributions by as
many of the entities discussed above as possible. It should aim to
maximise the progressive potential of each individual contribution
without unduly favouring any one of them, lest it be tainted by the
shortcomings associated with exclusive translation by the favoured
entity. Finally, the approach should simultaneously remain true to the
aim of translation (turning conceptually empty background norms into
vehicles for the effective confrontation of denial of need) and enable
all parties to the dialogue to participate freely in the overarching
societal discourse on transformation.
25
See Liebenberg (n 17 above) 7.
26 See FC secs 39, 165 and 172(1).