LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

38 Chapter 2
doctrine of constitutionalism. 109 The principle of the rule of law
therefore strongly compliments the doctrine of constitutionalism to
ensure that the exercise of government powers is within legally
defined parameters. This is important because it is within these
parameters that human rights are protected.
There is no doubt that in technically specialist areas, the
executive is the only branch that can regularly lay claim to expertise
necessary to give effect to all the rights. 110 The same expertise may
be called on by the legislature which, in most cases, considers draft
legislation and policy that has gone through the executive and to
which expertise has been applied. In addition, legislatures usually
harness the expertise of their members by directing them to serve on
portfolio committees that fall in their areas of technical expertise. 111
As a matter of fact, most legislative decisions take place in these
committees after technical expertise has been applied. The same, or
even a higher degree of specialisation, can be attributed to career
administrators in the executive branch of the state. 112
It is therefore important that, in designing remedies for the
violation of rights, courts should not ignore the special expertise in
the hands of the executive or legislative branches of government. 113
In spite of this, it is also important to note that, sometimes, though
109
See Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council 1998 2 SA 374 (CC); Speaker of the National Assembly v De Lille 1999 4 SA
863 (SCA); and New National Party v Government of the Republic of South Africa
1999 3 SA 191.
110 See S Liebenberg ‘The value of human dignity in interpreting socio-economic
rights’ (2005) 21 South African Journal on Human Rights 22 and K Creamer ‘The
implications of socio-economic rights jurisprudence for government planning and
budgeting: The case of children’s socio-economic rights’ (2004) 2 Law, Democracy
and Development 222. See also Pieterse (n 78 above) 388. Pieterse is, however,
quick to caution that the executive members are usually only indirectly
accountable to the citizenry. In his opinion, this is especially so with the members
of the bureaucracy who are only tenuously linked to the popular mandate. As a
result of this, Pieterse contends that there is a need to develop mechanisms
according to which the bureaucracy may be held accountable to the citizenry for
its decisions that affect human rights; this can be done through the judiciary
(388). See also Sachs (n 79 above) 140.
111 Horowitz (n 20 above) 28-29 contrasts the legislature with the courts and submits
that the random assignment of cases to judges makes it hard for expertise to be
harnessed and yet no member of the legislature will live in fear that an issue
outside his sphere of competence will be thrust upon him or her (29-30).
112
See Horowitz (n 20 above) 30. He submits that, although the political appointees
may not be as specialised as the career administrators, the difference between
them and the judges is that they have information resources close at hand.
113
See Bilchitz (n 87 above) 132. It is submitted in ch six that the courts should strive
as much as possible when they order structural interdict to harness the
knowledge and skills that may be at the disposal of the parties, including the
state. The initial response should therefore be to defer to the parties, especially
the defendant, the responsibility of coming up with a remedial plan. In
institutional cases, the defendant knows better how the administrative
mechanisms of the institution function. This expertise should be exploited. See ch
six sec 6.6.1.