LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Legal nature of socio-economic rights 37
to rely on the independence guaranteed to them by the Constitution,
ensure that justice is done to all without fear, favour or prejudice. 105
It is important to note, however, that for the courts to
successfully discharge their functions they also require a great deal of
support from the other organs of state. If the executive receives court
directions with hostility and unwarranted criticism, the mutual
respect between it and the judiciary will be destroyed. 106 Such
hostility makes it hard for the judiciary to effectively and freely
discharge its functions. This is because the courts are highly
dependent on the executive for survival and enforcement of their
orders as they have neither the power of the sword nor the purse.
Lack of support or hostility from the executive will erode the
legitimacy of the judiciary and deepen the counter-majoritarian
dilemma. 107
The doctrine of constitutionalism is complemented by the longestablished
principle of the rule of law. According to Dicey, the rule
of law comprises three fundamental tenets. The regular law of the
land is supreme, so that individuals should not be subjected to
arbitrary power; state officials are subject to the jurisdiction of the
ordinary courts of the land in the same manner as individuals; and the
constitution is a result of the ordinary law of the land so that courts
should determine the position of the executive and bureaucracy by
principles of private law. 108 In its most elementary form, the rule of
law demands that everything government does must be authorised by
the law.
However, over the years, this principle has seen tremendous
development. It will not allow government conduct to pass simply
because it has been authorised by law if it violates fundamental rights
and liberties. Even in those countries without written constitutions,
like the United Kingdom, the principle of the rule of law has led to
the development of certain restrictions to the exercise of public
power akin to those imposed by constitutions. In contrast, countries
with written constitutions such as South Africa have merely co-opted
the principle of the rule of law by applying it simultaneously with the
105 Sachs (n 79 above) 139.
106 See generally G Kanyeihamba ‘The culture of constitutionalism and the doctrine
of separation of powers’ paper presented at the Public Lecture on State of
Separation of Powers in Uganda, organised by the Human Rights and Peace
Centre, Faculty of Law, Makerere University, 15 March 2007, available at http://
www.huripec.ac.ug/Guest_Lecturers.pdf (accessed 10 October 2007).
107 See M Corbett ‘Human rights: The road ahead’ in C Forsyth & J Schiller (eds)
Human rights: The Cape Town conference (1979) 6.
108
A Dicey Introduction to the study of the law of the constitution (1885) (1982) 1.
See also R Brewer Judicial review in comparative law (1989) 90.