LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

32 Chapter 2
It is for the above reason that some scholars object to remedies
that require courts to make decisions on issues that require making
socio-economic-related choices. 80 This is in addition to a greater
involvement in making what appear to be policy choices. It is indeed
because of the fear of getting involved in administrative and policy
issues that courts are reluctant to retain remedial jurisdiction and
continued supervision of their orders. 81 Courts are more comfortable
making final determinations of disputes and to avoid a multiplicity of
suits touching on the same subject matter and parties. This is because
this would make it inevitable for them to intrude deeply into functions
that are considered the preserve of other organs of state. 82
2.3.2 Democracy and separation of powers is overstated
It is important to note that those who pursue the institutional
competence objection in addition to misconceiving the doctrine of
separation of powers have a very restrictive understanding of the
notion of democracy. Democracy is not just about the vote, but also
encompasses such notions as constitutionalism and the rule of law.
This is because of the need to protect the rights of minorities and the
values they believe in. It is also submitted that both the rule of law
and constitutionalism impose many restrictions on the manner in
which government, and the majority for that case, conduct their
business. It is the responsibility of the courts to enforce these
restrictions when an infraction is brought to their attention.
According to Devenish, constitutional democracy is a complex
phenomenon of political morality in which the majority, the minority
and individuals have rights and obligations. 83 Constitutional
democracy, in as much as it should preserve the wishes of the
majority, should also protect minority rights by obligating the
majority to respect the values and interests of minorities. 84 In such a
setting, judicial review will protect the interests and rights of the
minority by checking those missteps of the majority with the potential
80 J Cassels ‘An inconvenient balance: The injunction as a Charter remedy’ in
Berryman (n 20 above) 289.
81
See ch 6 sec 6.3.
82 The courts fear to lose the support and legitimacy they enjoy from the other
organs of state. They fear that should they intrude deeply into the functions of
the other organs, these organs may respond by reducing the powers of the
judiciary or squeezing their purse. It is therefore correct that the issuance by
courts of orders whose compliance they cannot secure is a threat to the court’s
legitimacy. This is because of the fact that the courts have ‘the power “neither of
the sword nor the purse” which makes it necessary to be sensitive to the
maintenance of … [their] own authority and legitimacy.’ Cassels (n 80 above) 289.
83
G Devenish A commentary on the South African Bill of Rights (1999) 4. See also G
Kateb ‘Remarks on the procedures of constitutional democracy’ in J Roland & J
Chapman (eds) Constitutionalism: Nomos XX (1979) 148.
84
See Larbi-Odam and Others v MEC for Education (North West Province) and
Another 1997 12 BCLR 1655 (CC) para 28.