LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

34 Chapter 2
their representatives to account to them. 91 Unlike the politicians, the
judges are insulated from the political pressures and their
professional ideals allow them to decide matters in a more
dispassionate and impartial manner. 92 They will therefore be able to
entertain and consider in a more or less impartial manner the
complaints of aggrieved members of society who may consider
themselves to have been let down by the political process. Such
persons may have been prevented from participating in the political
process by weaknesses such as lack of political power or economic
disadvantage. 93
It should also be noted that, simply because a government has
been constituted by the majority does not mean that it exercises its
powers without restrictions. A constitution, while giving adequate
powers to the elected representatives of the people, should also
structure political power in a manner that prevents abuse. 94 This is
the essence of the doctrine of constitutionalism. This doctrine
requires that government powers be limited to those set out in the
91 Abramovich (n 35 above) 197. South Africa offers a good example of the
deficiencies of representative democracy. By the South African system of
proportional representation, the voters cast their votes for political parties with
the hope that the political parties will represent their wishes. However, the
system does not establish clear legal processes through which the voters can hold
the political parties to their promises. Instead, the voters will have to wait for
another election to remove those parties that did not fulfil their election
promises. Many irremediable wrongs may have occurred during this waiting
period. This problem is made worse by the fact that the political parties have a
highly centralised decision-making system. Decisions are taken by the political
mantle of the party consisting of the elitist leadership. While decisions may be
influenced by such pressure groups as labour unions, these pressure groups are
sometimes highly patronised by the leadership.
92
A Chayes ‘The role of the judge in public law litigation’ (1979) 89 Harvard Law
Review 1281 1307-1308. See also Sachs (n 79 above) 139-140.
93 Davis et al (n 86 above) 2.
94
K Govender ‘Assessing the constitutional protection of human rights in South
Africa during the first decade of democracy’ in Buhlungu et al (eds) State of the
Nation: South Africa 2005-2006 (2005) 93 97. Limitation of political powers is
made more pertinent by the history of South Africa. South Africa experienced
decades of dictatorial and discriminatory rule which had been sustained, among
others, by the constitutional system of parliamentary supremacy. This
constitutional system had produced a government that enjoyed a clear majority
in the legislature in spite of the fact that it comprised of the minority white
group. The constitutional system did not produce any real restrictions of power to
forestall abuse. Generally, the judiciary was controlled by the executive and did
not have powers to review the activities of the other organs or to test them
against established constitutional standards. To turn this page in history, South
Africa needed a supreme constitution that effectively provides protection against
abuse of power. This is exactly what the 1996 Constitution does. For a detailed
discussion of South Africa’s constitutional history, see Dugard (n 69 above); and E
Hassen The soul of a nation: Constitution making in South Africa (1998) Oxford 5-
27.