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Reply - Marius Pieterse 345
for upholding their constitutional commitments in the course of these
efforts. 50 In particular, it appears reluctant to proclaim its own vision
of the transformative project despite the fact that it has been tasked
to uphold the Constitution ‘without fear, favour or prejudice’. 51 It
largely defers instead to an executive-driven economic policy
environment that may depart, in important respects, from such a
vision. 52
This is, perhaps, understandable. However, the record also
indicates that the Court views its accountability-enhancing function in
a very ‘business as usual’ manner. While the Court has insisted on
robust justification for non-compliance with the negative obligations
implied by socio-economic rights (which correspond largely to
‘classical’ civil rights violations), the evaluative and remedial
paradigms presented by the reasonableness approach for the
adjudication of positive socio-economic rights claims do not suggest
any meaningful departure from conceptions of the judicial role under
pre-constitutional administrative law. 53 The unfortunate result is that
the judicial contribution to the debate over transformation is no
different than it would have been in a constitutional setting where
socio-economic rights had either not been entrenched at all or had
functioned only as directive principles of state policy.
4 Conclusion: Towards openness, responsiveness and
substantive participation?
A Constitutional Court is like a parachute, it has to be open to work. If
the Court turns inward, to whom do those seeking justice reach out? 54
This reply has attempted to strengthen Liebenberg’s call for the
modification of the reasonableness approach. This modification
should embrace substantive engagement with the content of socioeconomic
rights as well as more rigorous scrutiny of justifications for
laws and policies that cause, exacerbate or fail to address
deprivations of basic socio-economic resources. 55 I have argued that
50
See T Roux ‘Legitimating transformation: Political resource allocation in the
South African Constitutional Court’ (2003) 10 Democratisation 92; DM Davis
‘Adjudicating the socio-economic rights in the South African Constitution:
Towards ‘deference lite’?’ (2006) 22 South African Journal on Human Rights 301
318.
51 FC sec 165(1).
52
See Davis (n 50 above) 315-316.
53 See D Bilchitz ‘Giving socio-economic rights teeth: The minimum core and its
importance’ (2002) 119 South African Law Journal 484 495; Currie (n 41 above)
72; CR Sunstein ‘Social and economic rights? Lessons from South Africa’ (2001) 12
Constitutional Forum 123.
54 G van Bueren ‘Alleviating poverty through the Constitutional Court’ (1999) 15
South African Journal on Human Rights 52 73.
55 Liebenberg (n 3 above) 321-327.