LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

234 Chapter 7
allows an undemocratic judiciary to make judgments on matters that
require democratic deliberation. Secondly, the judiciary is
institutionally deficient, and is not able to deal with some of the
issues to which the enforcement of socio-economic rights gives rise.
This includes issues such as making budgetary and policy choices. It
has also been contended that the courts are ill-suited to adjudicate
socio-economic rights because litigation of these rights is polycentric.
While the Constitutional Court has rejected the separation of
powers doctrine as a reason for keeping courts away from socioeconomic
rights, it has not escaped from the influence of this
doctrine. The need on the part of the Court to uphold the doctrine of
separation of powers is reflected in the way it has construed the
obligations engendered by socio-economic rights. The Constitutional
Court has been very careful not to construe the rights in ways that
would result in courts assuming what appear to be legislative or
executive functions. 26 The courts have respected the fact that
functions such as making budgetary and policy related choices are
reserved for the legislative and executive organs of state: ‘[A court
may] disagree with the allocation of resources … and one may
justifiably debate priorities but … [the CC] has not sanctioned the
reallocation of public funds by courts.’ 27 The doctrine of separation
of powers and awareness of the courts’ institutional limitations has
also influenced the approach of the courts in dealing with remedies
for violation of socio-economic rights. The courts have been very
careful not to grant remedies that their institutional capacity does not
allow them to grant or enforce. This partly explains why the
Constitutional Court has been very reluctant to use the structural
interdict as a readily available remedy.
The separation of powers concerns cannot be dismissed simply on
the basis that the courts are mandated by the principles of checks and
balances and the doctrine of constitutionalism to enforce the rights.
There is no doubt that the judiciary may have some features that
make it qualified to adjudicate socio-economic rights. This
notwithstanding, the judiciary is also constrained in a number of
respects. The courts are technically handicapped and may have to
rely on the judgment of other organs of state. 28 This is especially so
in dealing with, for instance, budgetary issues or policy questions that
need technical skills or democratic deliberation. Budgetary
considerations may give rise to questions that are hard for the
judiciary to answer because some of them may relate to priority
26
See Du Plessis and Others v De Klerk and Another 1996 3 SA 850 (CC), 1996 5 BCLR
27
658 (CC) para 181.
The City of Johannesburg v Rand Properties (Pty) Ltd and Others Case 253/06
28
(Supreme Court of Appeal) (unreported) para 45.
See Steinberg (n 19 above) 270.