LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

208 Chapter 6
have not obtained the shelter or drugs that even a cursory reading of the
judgments promised. 200
Davis also submits that the reluctance of the Court to exercise any
form of tangible control over the process of implementation has
already had negative consequences for successful litigants. In his
opinion, the order in the Grootboom case, for example, did not
contain any time frames within which the state had to act. The result
is that, more than three years later, there has been little visible
change in housing policy to cater for people who find themselves in
desperate and crisis situations. According to Davis, exercising
supervisory jurisdiction in socio-economic rights cases would have
saved the time and expenses that the parties would have to endure to
challenge state action through filing fresh suits. 201
The Constitutional Court’s reluctance to exercise supervisory
jurisdiction in socio-economic rights cases, just like its rejection of
the minimum core obligations approach, appears to be rooted in the
need to preserve the boundaries of separation of powers. The Court
has been particularly cautious to defer to the executive branch as
regards issues of budgetary allocation. 202 On those instances when it
has risen to the occasion to interpret the rights, it has also been keen
to push the cases out of its doors as soon as possible. This would not
be possible if jurisdiction were retained as the Court would have to
engage in budgetary issues in the course of its supervision. This could
be one of the factors that explain the ambivalence of the
Constitutional Court, which also explains its differentiated approach
as regards civil and political rights litigation when compared to socioeconomic
rights litigation. For instance, while affirming its powers to
make a structural interdict in the TAC case, the Court cautioned that
due regard must be paid to the roles of the legislature and the
executive in a democracy. 203
In order to show what it deems due deference to the other
branches of state, the Court has, even in the face of government
recalcitrance, struggled to convince itself that government would
comply with its orders in good faith. In the TAC case, for instance, the
Court declined to grant the structural interdict because in its opinion
‘the government has always respected and executed orders of this
Court’ and that there was ‘no reason to believe that it will not do
so’. 204 This conclusion appears to have been motivated by evidence
that emerged during the hearing that the government had ‘made
200 Davis (n 94 above) 6.
201
D Bilchitz ‘Giving socio-economic rights teeth: The minimum core and its
importance’ (2002) 118 South African Law Journal 510.
202 See ch three sec 3.2. See also generally Davis (n 3 above).
203
Para 137.
204 Para 129.