Coming to Terms with Judicial Enforcement of Socio-Economic Rights

Abstract

The debate about judicial involvement in socio-economic rights, inaugurated in the SAJHR in 1992 and still continuing, should be reconceptualised so that it can make a constructive contribution to contemporary discussions about an appropriate judicial role in a socially just constitutional dispensation. Many of the fears raised by participants in this debate about the legitimacy and competence of the judiciary in socio-economic rights matters are misplaced. The provisions of the 1996 Constitution require a dramatic reconceptualisation of both the operation of separation of powers generally and of the role played by the judiciary within the doctrine. However, the continuing influence of South Africa’s pre-constitutional legal culture means that judges remain uncomfortable with the role that the Constitution requires them to play. Post-1996 South African courts are not only permitted, but are constitutionally obliged to give meaning to socio-economic rights through interpretation, to evaluate government compliance with the duties they impose, to pronounce on the validity of legislation and policy in the socio-economic sphere and to remedy state non-compliance with socio-economic obligations. This article engages briefly with these obligations in an attempt to illustrate that it is possible to strike a balance between judicial vigilance and deference in every stage of socio-economic rights adjudication. It also notes that the Constitutional Court has carried out these obligations in a remarkably tentative manner in the socio-economic rights cases it has heard, despite its unequivocal affirmation of its authority in such cases.

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