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CENTER FORHUMAN RIGHTS AND GLOBAL JUSTICE WORKING PAPER

ECONOMIC,SOCIAL AND CULTURAL RIGHTS SERIES

NUMBER3,2006

ROSALIND DIXON

CREATING DIALOGUE ABOUT SOCIO-ECONOMIC RIGHTS:

STRONG V. WEAK-FORM JUDICIAL REVIEW REVISITED

NYU School of Law New York, NY 10012No part of this paper may be reproduced in any form

without permission of the author.


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CREATING DIALOGUE ABOUT SOCIO-ECONOMIC RIGHTS:STRONG V. WEAK-FORM JUDICIAL REVIEW REVISITED

ROSALIND DIXON

SJD Candidate & Teaching FellowHarvard Law School

[email protected]

The Center for Human Rights and Global Justice was established in 2002 to stimulate cutting edge

scholarship and to make original and constructive contributions to on-going policy debates in thefield of human rights. By emphasizing interdisciplinary analyses, the Center's programs seek to

situate international human rights law in the broader context of the political, jurisprudential,economic, sociological, historical, anthropological and other influences that shape it and determine

its impact. Philip Alston is the Centers Faculty Chair; Smita Narula and Margaret Satterthwaite

are Faculty Directors; and Jayne Huckerby is Research Director.


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CHRGJ Working Paper No. 3, 2006

Abstract

The decision of the South African Constitutional Court in Government of the

Republic of South Africa v. Grootboom is one of the leading examples involving the

judicial enforcement of socio-economic rights known to comparative constitutionallawyers. South African scholars now generally agree that the approach taken by the

South African Court in Grootboom was overly weak or cautious in nature, but disagree

as to just how much stronger the Courts approach could legitimately have been, withoutover-stretching judicial competence and legitimacy. This article seeks to provide a

theoretical account which can provide guidance in answering this question, by

developing a theory of constitutional dialogue, as a preferred form of co-operativeconstitutionalism, in which courts are seen to have an important capacity, and even

responsibility, to play a broad and active role in countering both blind-spots andburdens of inertia in the legislative process, provided that the legislature is also able

to play an active role in countering inevitable errors of constitutional judgment on the part of the constitutional judiciary as to the support in the broader constitutional

culture for particular rights-based claims. Further, the article suggests that, where the

negative dimension to socio-economic rights is concerned, legislatures will generallyhave sufficient scope to engage in dialogue, wherever constitutional rights protections

are subject to a relatively flexible power of amendment and, more important, the

judiciary is willing to defer to legislative sequels evidencing clear and considered formsof disagreement. In the specific context of a case such as Grootboom, however, it

suggests that courts may need to adopt an additional degree of self-restraint in order to preserve a proper dialogical balance between courts and legislatures, and that in this

context a court could afford to adopt either a stronger approach to defining the substance

of rights or to the form of remedial relief imposed in a case such as Grootboom, but notboth, and that while each approach implies some sacrifice to the efficacy of the judicial

role, that sacrifice will generally tend to be far more tolerable in a context such as South

Africa, where weak rights rather than weak remedies are adopted.


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CHRGJ Working Paper No. 3, 2006 1

Creating dialogue about socio-economic rights:

Strong v. weak-form judicial review revisited

Rosalind Dixon*

Introduction

The decision of the South African Constitutional Court in Government of the

Republic of South Africa v. Grootboom1is perhaps one of the best known cases involving

the judicial enforcement of socio-economic rights known to comparative constitutional

lawyers. At the time of the decision in Grootboom, many scholars praised the Courts

decision, as a pragmatic and democracy-sensitive approach to the enforcement of socio-

economic rights by the judiciary, which provided important evidence of the possibility of

judicial enforcement of socio-economic rights in a way which is both appropriately

transformative and sensitive to concerns about both judicial competence and democratic

legitimacy.2

Cass Sunstein suggested, for example, that [t]he distinctive virtue of the

Courts approach in Grootboom [was] that it [was] respectful of democratic

prerogatives and of the limited nature of public resources, while also requiring special

deliberative attention to those whose minimal needs are not being met[and that] it

suggests that such rights can serve, not to pre-empt democratic deliberation, but to

*BA/LLB (UNSW); LLM (Harvard); SJD Candidate (Harvard). The author would like to thank Nicole

Fritz, Richard Goldstone, Richard Holden, Frank Michelman, Marius Pieterse, Gillian Sinnott, Mark

Tushnet, Grgoire Webber, Katie Young and the referees and editors of the International Journal ofConstitutional Law for their extremely helpful comments on earlier versions of this paper. Thanks are also

due more generally to the participants at the Law and Society Conference on ComparativeConstitutionalism in Durban, South Africa (December 2005), and to the Human Rights Fellows at the

Harvard Human Rights Program, for helpful comments and suggestions, and to the Center for International

Development at Harvard, for generous support for this research. All errors remain, of course, those of the

author.1

2000 (11) BCLR 1169 (CC).2 Cass R. Sunstein, Social and Economic Rights? Lessons from South Africa , 11 Const Forum 123

(2000).


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ensure democratic attention to important interests that might otherwise be neglected in

ordinary debate, or to ensure reasoned judgment, including reasonable priority-

setting.3

In the years following the decision, however, it has become apparent that the

Courts intervention in fact did little to change the actual status quo in South Africa in

relation to the right of access to basic emergency shelter,4

and that the Courts decision

was in fact too weak5

to some important degree.6

The debate, however, has been as to

just how much stronger the Courts approach could legitimately have been given

potential limits on judicial competence and legitimacy in this area,

7

and in particular, as

to whether the Court could legitimately have adopted a broader, more concrete

3Idat 123.4 Cf Dennis Davis, Socio-Economic Rights in South Africa: the Record of the Constitutional Court after

Ten Years, 5 ESR Rev. 3, 5 (2004) [Hereafter, Ten Years On]; Karrisha Pillay, ImplementingGrootboom: Supervision Needed, 3 ESR Rev. 13 (2002). Cf also Natasha Kim & Aaron Sawchuk,Searching for a New Rest under a Big Tress: A Case Study in the Grootboom Case and its Aftermath,

(Unpublished paper, May 2005 - Copy on File with Author); Bonny Schoonakker, Treated withContempt, Sunday Times, Opinion & Editorial 15 (Mar. 21, 2004); Sivuyile Mbambato & Bonny

Schoonakker, Wheres the Victory in This Then, Sunday Times, Crime, Law & Justice 1 (Mar. 21, 2004).5 For the concept of judicial weakness in this context: cf Mark Tushnet, New Forms of Judicial Review

and the Persistence of Rights- and Democracy-Based Worries, 38 Wake Forest L. Rev. 813, 821 (2003)

[Hereafter, New Forms of Review] (suggesting that limiting remedial powers of courts represents a

version of weak-form judicial review); 835 (noting understandings of weak-form review as dialogue);Mark Tushnet, Social Welfare Rights and the Forms of Judicial Review, 82 Tex. L. Rev. 1895 (2004)

[Hereafter, SWR] (describing weak and strong forms of judicial review, in the context of judicial

enforcement of social welfare rights). As Marius Pieterse helpfully pointed out to the author, the term

weak might be understood as having a generally negative or pejorative connotation. However, for thepurposes of this article, the terms weak/strong should thus be understood here as denoting a distinction

between limited and unlimited, rather than ineffectual/effectual judicial intervention.6 Cf e.g. David Bilchitz, Giving Socio-Economic Rights Teeth: The Minimum Core and Its Importance,

119 SALJ 484 (2002) [Hereafter, Giving SER Teeth]; David Bilchitz, Towards a Reasonable Approach

to the Minimum Core: Laying the Foundations for Future Socio-Economic Rights Jurisprudence, 19SAJHR 1 (2003) [Hereafter, Future SER Jurisprudence]; Davis, Ten Years On, supra n3; Theunis Roux,

Understanding Grootboom a Response to Cass R. Sunstein, 12 Const. Forum 41 (2002). But cf MarkS. Kende, The South African Constitutional Courts Embrace of Socio-Economic Rights: A Comparative

Perspective, 6 Chap. L. Rev. 137, 152-55 (2003) [Hereafter, Comparative Perspective]; Mark S.

Kende, The South African Constitutional Courts Construction of Socio-Economic Rights: A Response toCritics, 19 Conn. J. Intl L. 617, 624 (2004) [Hereafter, A Response to Critics] (strongly defending the

weak approach taken by the Court).7 Cf e.g. Marius Pieterse, Coming to Terms With Judicial Enforcement of Socio-Economic Rights, 20 S.

Af. J. Hum Rts 383 (2004).


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minimum core definition of the States obligations under s. 26(2), or a more time-

sensitive and coercive form of relief at a remedial stage,8

or indeed both a stronger

substantive and remedial approach (or pure strong-form approach to judicial review).9

The aim of this article is to provide a principled answer to this question, by going

back to questions of constitutional first principle, as to why we should want the

Constitutional Court of South Africa to be involved in a case such as Grootboom in the

first place, and as to why we might have concerns about the limits of judicial competence

or legitimacy in this area. In doing so, the article argues for a commitment to

constitutional dialogue between courts and legislatures, as a form of co-operative

constitutionalism which acknowledges the fullpotential of and limits to both legislative

and judicial responsiveness in the process of constitutional rights-interpretation and

enforcement. In a dialogical understanding, courts are seen to have a much greater

capacity, and at times direct responsibility, than is suggested by many other theories of

co-operative constitutionalism to play a role in countering blockages in the legislative

process in the realization of constitutional rights such as s. 26, but at the same time, limits

to judicial competence and responsiveness in the performance of such a role are also seen

to be such that courts should stop short of the kind ofpure strong-form approach

advocated by some scholars in South Africa in this area. In a case such as Grootboom,

this in turn suggests that the South African Constitutional Court could indeed have gone

further than it did, by adopting eithera strong remedies or a strong rights approach to

8 Cf e.g. Pillay, supra n4; Murray Wesson, Grootboom and Beyond: Reassessing the Socio-Economic

Jurisprudence of the South African Constitutional Court, 20 SAJHR 285, 306 (2004) (arguing for stronger

remedial relief, but rejecting stronger substantive relief involving the adoption of a minimum core

approach).9 Cf e.g. Bilchitz, Giving SER Teeth, supra n6, Bilchitz,Future SER Jurisprudence; Davis, Ten Years On,

supra n4; Roux,supra n6.


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judicial enforcement, but not both, and further, that a weak rights/strong remedies (weak-

strong) rather than strong rights/weak remedies (strong-weak) approach should generally

have been preferred by the Court in this context.

The idea of a dialogue between courts and legislatures about the meaning of

constitutional norms is certainly not new to comparative constitutional scholars: it has

been the subject of extensive academic attention over the last decade in Canada and the

United States in particular,10

and has gained increasing attention in recent years in other

Commonwealth countries in particular, such as the United Kingdom and Australia.11

It

has not, however, generally been applied squarely to the context of socio-economic

rights,12

and in addition, the language of dialogue is often used to describe very different

theories of co-operative constitutionalism, which in fact have very different

10 In the United States context, cf e.g. Dan T. Coenen, A Constitution of Collaboration: ProtectingFundamental Values with Second-Look Rules of Interbranch Dialogue, 42 Wm. & Mary L. Rev. 1575

(2001); Neal Devins and Louis Fisher, The Democratic Constitution (2004); Paul Dimond, ProvisionalReview: An Exploratory Essay on an Alternative form of Judicial Review, 12 Hasting Const L.Q. 201(1985); Louis Fisher, Constitutional Dialogues: Law and the Political Process (1988); Barry Friedman,

Dialogue and Judicial Review, 91 Mich. L. Rev. 577, 585, 647-49 (1993); Ruth Bader Ginsburg,

Speaking in a Judicial Voice, 67 NYU L. Rev. 1185 (1992); Michael J. Perry, Protecting Human Rights in a Democracy: What Role for Courts, 38 Wake Forest L. Rev. 635 (2003). In the Canadian

context, cf e.g. Peter W. Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and

Legislatures (Or Perhaps The Charter of Rights Isnt Such a Bad Thing After All), 35 Osgoode Hall L. J.

75 (1997); Christopher P. Manfredi & James B. Kelly, Six Degrees of Dialogue: A Response to Hogg and

Bushell, 37 Osgoode L. J. 513 (1999); Christopher P. Manfredi, Judicial Power and the Charter(2001);

Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (2001); Kent Roach,Dialogic Judicial Review and its Critics, 23 S.C.L.R. (2d) 49 (2004) [Hereafter, Dialogic Review].11 Cf Stephen Gardbaum, The New Commonwealth Constitutionalism, 49 Am. J. Cop. L. 707, 710

(2001). For literature endorsing the idea of dialogue in the United Kingdom and Australia specifically, cfe.g. T.R.S. Allan, Constitutional Dialogue and the Justification of Judicial Review, 23 Ox. J. Leg. Stud.

563, 571 (2003); Richard Clayton, Judicial Deference and Democratic Dialogue: The Legitimacy of Judicial Intervention under the Human Rights Act 1998, [2004] Pub. L. 33; Tom Hickman,

Constitutional Dialogue, Constitutional Theories and the Human Rights Act 1998, [2005] Pub. L. 306;

Leighton McDonald, Rights Dialogue and Democratic Objections to Judicial Review, 32 Fed. L. Rev. 1

(2004).12

For exceptions to this general rule, cf Craig Scott, Social Rights: Toward A Principled, Pragmatic

Judicial Role, 4 ESR Rev. (1999); Wesson,supra n7, at 295, 207 (arguing for a collaborative approach

between courts and the legislature in this context).


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understandings of the appropriate scope of the judicial and legislative role.13

Part of the

aim of this article is thus to provide a more particularized account of dialogue than has

been provided in the literature to date, based on the potential for the constitutional

judiciary to enhance overall inclusiveness and responsiveness in a constitutional

democracy, by playing a broad and active role in countering both blind-spots and

burdens of inertia in the legislative process, provided that the legislature is also able to

play an active role in countering inevitable errors of constitutional judgment on the part

of the constitutional judiciary as to the support in the broader constitutional culture for

particular rights-based claims.

14

Part I of the article sets out the background to Grootboom, and the subsequent

jurisprudence of the Court applying Grootboom, as the starting point for the discussion of

the appropriate role of courts in the interpretation and enforcement of provisions such as

ss. 26-27 of the South African Constitution, and ss. 26(2), 27(2) in particular. Part II then

goes on to consider why judicial enforcement might be considered desirable in the first

place in this context, and suggests that in a dialogical understanding, as compared to

some other understandings of co-operative constitutionalism, the argument for judicial

review derives from both the potential for blind-spots and burdens of inertia to arise in

the legislative process, and the capacity for courts to use both communicative and

13 Cf Christine Bateup, The Dialogic Promise: Assessing the Normative Potential of Theories of

Constitutional Dialogue, NYU School of Law, Public Law & Legal Theory Research Paper Series,

Working Paper No. 04-24 (November, 2005) (Forthcoming, Brooklyn L. Rev. (2006)). One key unifyingfeature of this literature, however, is that it is committed to both courts and legislatures playing a fairly

active role in the process of constitutional interpretation, and to judicial decisions being at least partiallyrevisable by the legislature: cf e.g. Coenen,supra n10; at 1582-83; Devins & Fishersupra n10; Dimond,

supra n10 at 202, Fisher, supra n10; Ginsburg, supra n10, at 1198, 1204-8; Friedman, Dialogue, supra

n10, at 647-49; Hogg & Bushell, supra n10, at 79-80; Manfredi & Kelly,supra n10, at 522-25; Manfredi,supra n10, at 181; Perry,supra n10, at 674-76; Roach,Dialogic Review, supra n10, at 53, 56.14

For an exploration of the concept of constitutional culture see Robert Post, Foreword The Supreme

Court 2002 Term: Fashioning the Legal Constitution: Culture, Courts and Law, 117 Harv. L. Rev. 4, 107

(2003).


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coercive means to help counter these blockages. Part III then goes on to highlight,

however, the potential for reverse burdens of inertia to arise where courts assume this

kind of role, and to argue that both judicial self-restraint as well as formal procedures for

legislative override will generally be necessary to prevent a serious risk of inertia of this

kind. Part IV examines the three options for judicial self-restraint which arise in this

context: namely (i) weak rights, (ii) intermediate rights, and (iii) weak remedies, and

suggests that in a dialogical understanding, in contrast to some other theories of co-

operative constitutionalism, the desirability of each approach will ultimately depend on

the particular constitutional circumstances, rather than abstract or categorical assumptions

about the proper limits of the judicial role. It goes on to suggest, however, that in cases

involving the negative dimension to socio-economic rights, an intermediate rights

approach will generally be sufficient to prevent a significant risk of reverse burdens of

inertia forming, while in a case such as Grootboom involving the positive dimension to

socio-economic rights, it is a trade-off which at least in the South African context will

generally favor weak rights rather than weak remedies as a preferred axis of judicial

weakness. Part V concludes by considering concerns about weak-strong enforcement of

this kind which may be raised by international human rights scholars and activists,

concerned to use international human rights-based understandings of the minimum core

as the basis for prompting more concrete and dynamic processes of rights realization in

South Africa. It argues, however, that these concerns are largely misplaced, given the

compatibility between a truly international, or state-practice driven, rather than

normative-conceptual minimum core approach and weak rights at a domestic level.


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I Grootboom and the approach of the SACC

The sequence of events leading to the constitutional challenge in Grootboom

began in November 1998, when Mrs. Irene Grootboom and 900 others left their informal

settlements in the Wallacedene area, because of the increasingly intolerable nature of

their living conditions there, and moved to an area of private land earmarked for formal

low-cost housing, known as New Rust. A month after their relocation, the owner of

New Rust applied for, and was granted, an order for ejectment of Mrs. Grootboom and

her co-plaintiffs, and this order was then enforced in May 1999 by the Oostenberg

Municipality, during which process the informal housing and possessions of Mrs.

Grootboom and many of her co-plaintiffs were destroyed. The result was that Mrs.

Grootboom and the other 900 plaintiffs then moved back to Wallacedene without any

kind of housing material, and began living on the Wallacedene sports field under plastic-

sheeting. As the winter approached, this situation became increasingly untenable, and

representatives of Mrs. Grootboom wrote to the Cape municipality demanding that they

provide temporary accommodation to Mrs. Grootboom and the 900 others who were

homeless at Wallacedene, in accordance with the States obligation progressively to

realize the right of access to housing pursuant to s. 26(2) of the Constitution, and to

ensure that children have access to basic shelter, pursuant to s. 28(1)(c) of the

Constitution. When no satisfactory reply was received from the Council in response to

these demands, proceedings where then launched in May 1999 in the Cape High Court in

the name of Mrs. Grootboom, on her own behalf and on behalf of the 900 other plaintiffs.

In the High Court, Davis J. rejected the plaintiffs argument under s. 26 of the

Constitution, on the basis that s. 26(2) did not confer any individually enforceable


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minimum core entitlement to even basic temporary shelter.15

However, his Honor held

that s. 28(1)(c) did impose such an obligation where children were concerned, where a

childs parents were not able to provide them with basic shelter, and that this implied an

obligation on the part of the State to, at a bare minimum, provide tents, portable latrines

and a regular supply of water (albeit transported).16

Davis J. then granted declaratory

relief to this effect, but also went on to order that that the respondents (the Western Cape

government, and the Cape Metropolitan and Oostenberg Councils) report to the Court on

the implementation of the order within three months of the date of the order, and that

pending final resolution of the proceedings, should also provide temporary

accommodation to the child plaintiffs, and to one parent of each child who required

parental supervision.17

On appeal, the Constitutional Court upheld Davis finding that s. 26 did not

confer a minimum core right to basic shelter on the part of any individual, but held that

similar reasoning also applied in the context of s. 28(1)(c) of the Constitution.18

The

Court held that the notion of the minimum core developed by the United Nations

Committee on Economic, Social and Cultural Rights (CESCR) under the International

Covenant on Economic, Social and Cultural Rights (ICESCR) should be considered as

one of several factors which might go to the reasonableness of the States approach in a

particular context, but that a more freestanding approach to defining the minimum core in

South Africa should be rejected, given the difficulties associated with determining

whether or not the core should be defined generally or rather by reference to the needs of

15 See discussion in Grootboom, 2000 (11) BCLR 1169 (CC) para. 14.16

Idat paras. 25-26.17Idat paras. 28-33. This represented an extension of the interim relief previously granted by Josman AJ.18Idat paras. 83-84.


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specific groups, and relatedly, the difficulties for the minimum core idea presented by the

diverse needs of different citizens in terms of the realization of rights.19

Under a test of

reasonableness, however, the Court held that the State was nevertheless in breach of its

obligations under s. 26(2) of the Constitution, having failed to include in its housing plan

reasonable measures to provide for relief for people who have no access to land, no

roof over their heads, and who are living in intolerable conditions or crisis situations.20

The Court found that a reasonable housing plan would have needed to address short-,

medium- and long- term needs, and that a plan which exclude[d] a significant segment

of society could not be judged reasonable under s. 26(2).

21

Moreover, the Court

suggested that for a housing plan to be constitutionally adequate, it must also give

particular attention to the needs of the most desperate and vulnerable, and to the

relationship between the right to housing and other constitutional rights.22

The Court

then granted declaratory relief in favor of Mrs. Grootboom and the other constitutional

plaintiffs, but declined to make permanent the interim structural edict issued by the High

Court,23 or to indicate what would constitute a reasonable time-frame for implementing

such measures.24

As Mark Tushnet has suggested, the Constitutional Courts decision

was therefore weak (or limited) both at a substantive and a remedial level: that is, along

the axes of breadth, coerciveness and remedial timing, compared to the much stronger

form of review employed by Davis J., who was both willing to specify a broader notion

19

Grootboom, 2000 (11) BCLR 1169 (CC) at paras. 32-33.20Idat para. 99.21Idat paras. 43-44.22Idat para. 44.23Idat para. 99. It should be noted, however, that the Court did provide injunctive relief to enforce the

terms of an out-of-court agreement between the plaintiffs and the respondent municipality. Cf discussion

in Elisabeth Wickeri, Grootbooms Legacy: Securing the Right to Access to Adequate Housing in South

Africa, Center for Human Rights and Global Justice Working Paper, No. 5 of 2004, 22 available at

http://www.nyuhr.org/research_publications.html.24Grootboom, 2000 (11) BCLR 1169 (CC) at para. 99.


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of the states obligations at least under s. 28(1)(c), and to impose injunctive as well as

merely declaratory relief, and a clear deadline for compliance with the Courts order.25

Two years after Grootboom, in the Minister of Health v. Treatment Action

Campaign,26

the Constitutional Court was again required to consider how best to interpret

and enforce the positive dimension to the socio-economic rights guarantees contained in

ss. 26(2)-27(2) of the Constitution, this time in the context of a claim that the failure to

provide access, outside of certain designated test sites, to an anti-retroviral (nevirapine)

shown substantially to decrease the risk of mother-to-child-transmission (MTCT) of HIV,

was in breach of the right to access health care services protected by s. 27(1) of the

Constitution.

In the High Court, Botha J. approached the question in terms of the framework set

out in Grootboom, namely by asking whether the refusal to provide access outside the

pilot sites could be considered reasonable in the circumstances, and found that the States

failure to provide such access could not in fact be considered reasonable on the facts

before the Court, given in particular, that there was clear residual capacity in many

public hospitals around the country in relation to the provision of nevirapine, and that the

government had not advanced any compelling reason for denying hospitals with the

capacity to provide the drug theflexibility to do so, in appropriate cases.27

His Honor was

also prepared to issue a stronger remedy than the Constitutional Court in Grootboom,

25

Cf Tushnet,New Forms of Review, supra n5 at 821 (suggesting that limiting remedial powers of courtsrepresents a version of weak-form judicial review); 835 (noting understandings of weak-form review as

dialogue); Tushnet, SWR, supra n5 (describing weak and strong forms of judicial review, in the context of judicial enforcement of social welfare rights). As Marius Pieterse pointed out to the author, the term

weak might be understood as having a somewhat negative connotation. For clarity, the terms

weak/strong should thus be understood here as denoting a distinction between limited and unlimited, rather

than ineffectual/effectual judicial intervention.26

Minister of Health and Others v Treatment Action Campaign and Others, 2002 (10) BCLR 1033 (CC)[Hereafter, TAC].27 Treatment Action Campaign v. Minister of Health & Ors, 2002 (4) BCLR 356 (T) paras. 75-76.


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granting both declaratory andmandatory injunctive relief requiring the National Minister

of Health and provincial Members of the Executive Council for Health to make

[n]evirapine available to pregnant women with HIV who give birth in the public health

sector, and to their babies, in public health facilities where in the judgment of the

attending medical officer nevirapine was medically indicated, and appropriate testing

and counseling could be provided, and by granting declaratory relief requiring that the

respondents forthwithplan an effective comprehensive national programme to prevent

or reduce the mother-to-child transmission of HIV, including the provision of voluntary

counseling and testing, and where appropriate, [n]evirapine or other appropriate

medicine, and formula milk for feeding, backed by mandatory injunctive relief requiring

the respondents to report within three months as to the steps they had taken to develop

and implement such a plan.28

On appeal, the Constitutional Court endorsed the reasonableness-based approach

taken by Botha J. to defining the scope of s. 27(2), on the basis that ss. 26 and 27 were

related and must be read together,29 and that the South African Constitution

contemplates a restrained and focused role for courts in the area of socio-economic

rights enforcement.30

Like Botha J., the Constitutional Court held, however, that none of

the reasons advanced by the government were sufficient to support a finding that non-

provision was in fact reasonable in the circumstances31

, given the inflexibility in the

28Idat paras. 85-87.29 TAC, 2002 (10) BCLR 1033 (CC) para. 32.30Idat para. 38.31 The government advanced four distinct rationales for its decision not to provide nevirapine outside of the

designated sites, namely: (i) that the drug was not effective if the mother continued to breast-feed, and that

there were substantial cultural and practical barriers to ensuring bottle-feeding in conjunction with access to

nevirapine; (ii) that access to the drug could lead to the development of resistant strains of HIV; (iii) thatthere were doubts as to safety of the drug; and (iv) that providing the testing and counseling associated with

provision of the drug would impose an undue strain on the public health system as a whole. The cost of the


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governments policy,32

its effect on particularly vulnerable members of the population33

and on other constitutionally protected rights such as rights of the child,34

and that

HIV/AIDS was the single greatest threat to public health in South Africa.35

The Court

was also willing to grant a somewhat stronger remedy than it had in Grootboom, in

respect of the governments obligation to remove restrictions on the provision of

nevirapine where capacity already existed to provide it, and it was medically indicated,

and clearly affirmed itsgeneralpower to grant such a remedy in appropriate cases.36

The

Court declined, however, to adopt the second limb of Bothas remedy, preferring to adopt

a purely declaratory, non-time sensitive remedy in respect of the governments general

obligation to develop and implement a plan for the full roll-out of nevirapine to pregnant

women living with HIV.

To this extent, the Court thus largely followed the approach it had taken in

Grootboom, endorsing both a narrow, reasonableness-based approach to defining the

scope of the right of access to health care services in s. 27(2) of the Constitution over a

broader minimum-core approach, and a preference for declaratory relief over broad forms

of injunctive, time-specific relief. Further, since TAC, the Constitutional Court has not

had any direct opportunity to reconsider the approach taken in eitherGrootboom orTAC,

as in Khosa v Minister of Social Development, the only case since TAC to come before

drug itself was not advanced as a rationale for non-provision, as the manufacturer had undertaken toprovide it to South Africa at no cost, for a period of five years.32Idat paras. 80, 95.33Id at para. 70 (namely on poor, rural women outside the catchment-area of testing sites and with no

ability to pay for private health-care).34

Idat para. 77.35Idat para. 93.36Idat para. 113.


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the Court involving ss. 26(2), 27(2), the Court elected to consider the challenge primarily

in terms of s. 9(3) of the Constitution, rather than s. 26(2).37

II Why have judicial enforcement of socio-economic rights in the first place?

In thinking about the appropriateness of the approach taken by the Constitutional

Court in Grootboom or TAC, it is useful to begin by asking ourselves why the

Constitutional Court should be involved in interpreting and enforcing provisions such as

ss. 26-27 in the first place.

Some scholars might suggest that the answer to this question, at least in the South

African context, can be provided by an originalist understanding of the South African

Constitution: namely, by reference to the fact that the framers of the South African

Constitution clearly envisaged such a role for the Court in the drafting of ss. 26-27 of the

Constitution.38

There seems, however, to have been little agreement or clear

understanding on the part of the drafters of the South African Constitution as to the exact

nature and scope judicial review should take under provisions such as ss. 26-27, either in

terms of how interpretive and enforcement authority would be divided between the courts

and the legislature and executive, or in terms of the exact content to be given to

provisions such as ss. 26-27,39

and thus, little way in which to escape the need to provide

37 2004 (6) BCLR 569 (CC).38 This might be one way of interpreting recent work by Marius Pieterse in this area: cf Marius Pieterse,

Eating Socio-economic Rights: The Usefulness of Rights- talk in Alleviating Social Hardship Revisited,

Paper presented at Conference on Comparative Constitutionalism, Durban, South Africa, December 10-13,

2005.39 Cf Kende,A Response to Critics, supra n6, at 623 (noting original understanding that the South African

Constitutional Court would have some role, though not an unlimited one, in this context).


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a more theorized account of the appropriate role of South African courts versus

legislatures in this context, even if one accepts this kind of originalist starting point.40

Further, from a dialogical perspective, any theoretical account provided in this

context must start from the fact of serious indeterminacy in provisions such as ss. 26-27,

and thus the fact that the content and priority to be given to rights-based claims made

under these sections will be the subject of pervasive disagreement among South Africans.

In the context of the right to housing, for example, some South Africans clearly

favor an approach which prioritizes market-driven solutions to the housing crisis, rather

than mass forms of public housing provision, whereas other South Africans feel that

governments have a central role to play in this area.41

In other words, some South

Africans believe that the right of access to housing should be interpreted as imposing an

obligation on governments to create the conditions necessary for meaningful access to the

private housing market, whereas others believe that it should be interpreted as imposing

an obligation on government to provide access to public housing. Similarly, some South

Africans believe that access to anti-retrovirals should be seen as a categorical right on the

part of all South Africans living with HIV, regardless of their capacity to pay or the exact

40 On the limits to strictly originalist or contractualist understandings of constitutional provisions at a

deeper level, cf e.g. Frank I. Michelman, Constitutional Authorship, Solomonic Solutions, and the

Unoriginalist Mode of Constitutional Interpretation, 62 Acta Juridica 208 (1998).41

Belated Recognition for Housing Ministrys Fiat, Financial Mail (South Africa), November 20, 1998 at14 (noting a 53% approval rating of South African governments approach to housing (up from 32% in

1996)). Compare also e.g. Suthentira Govender , New homes for old, Sunday Times (South Africa),December 8, 2002 at 4 (describing eThekwini Councils R200-million public-housing building program

aimed at providing within 2 years starter homes with basic amenities to all persons living in the area who

are South African, 21 years or older, have dependants and do not earn more than R3500 a month, but

noting criticism of Councils approach); Housing Minister Needs Clear and Creative Mind, Financial

Mail (South Africa), March 7, 2003 (praising shift from focus of national housing policy on publicprovision of single-family housing to focus high-density housing, produced by public-private partnerships

and partially financed by applicants for low-cost housing).


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persons of respect for and recognition of human subjectivity (the Kantian version of

dignity) (d2))48

), or the right equality contained in s. 9(2) of the Constitution,49

and a

focus on each of these sites of intersection will often produce very different

understandings of what counts as having core versus non-core priority under ss. 26(2),

27(2).

In a case such as Grootboom, it may well be that a fully intersectional approach

will produce an overlapping consensus50

as to the scope of a minimum core right to

access land on a temporary basis, and extremely basic building materials or tent-like

shelter, but it will not produce such a consensus where more costly forms of housing or

amenities are concerned.51

Similarly, in a case such as TAC, there are likely to be very

of d1 or minimum protection generally: cf Frank I. Michelman, The Supreme Court, 1968 Term,

Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 8-9 (1969).

[Hereafter, Protecting the Poor]. Danwood Nzikenge Chirwa, The Right to Health in International Law: Its Implications for Obligations of State and Non-State Actors in Ensuring Access to Essential

Medicine, 19 S. Af. J. Hum Rts, 541 (2003) (arguing that [g]ood health is critical to a decent and

dignified life).48 Cf Chirwa,supra n47, at 544 (noting the link between development of international right to health and

human scientific experimentation during World War Two, and thus implicitly, the link between the right tohealth and dignity in the Kantian sense); Cf also Sandra Liebenberg, The Value of Human Dignity in

Interpreting Socio-Economic Rights, 21 S. Af. J. Hum Rts 1, 12 (2005) [Hereafter, Human Dignity]

(arguing for a conception of socio-economic rights based on a relational conception of dignity).49 Cf also Pierre de Vos, Grootboom, the Right of Access to Housing and Substantive Equality asContextual Fairness, 17 S. Af. J. Hum Rts 258, 265 (2001) (arguing for an equality-focused,

transformative conception of socio-economic rights in the South African context). Cf also Khosa v Minister

of Social Development, 2004 (6) BCLR 569 (CC).50 Cf John Rawls,Political Liberalism (1993).51 For example, a focus on the right to life would have suggested that all individuals should at the very least

have a right to access land on a temporary basis, and to have access to tents or extremely basic building

materials of a kind necessary to prevent the person from being exposed to a serious risk of death from

exposure to the elements, and probably also a right to access portable toilets, electricity generators and safe

water sources, where necessary to prevent serious risks to life, and a focus on d1 would also support thesame kind of access to land and basic materials, and basic facilities, in order to guarantee individuals the

absolute minimum necessary for a decent existence. However, while a focus on d2 and equality would tendto favor treating access to land on a temporary basis and basic building materials as core, given the

extremely low marginal cost of such measures, and that the homeless are the absolute worst-off class in

South Africa in terms of housing , they would suggest a more limited notion of the minimum core than a

focus on either life or d1, at least in the first instance, given the potential costs associated with providing

basic amenities to persons in informal housing, and the need in an equality-based approach, to ensure thateveryone had access to some form of housing, before providing more adequate forms of housing of this

kind. See further n52,supra.


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different notions of what counts as the absolute core of the right to access health-care

services, according to whether one prioritizes the need to respond to urgent and concrete

threats to life (life), urgent demands for palliative care and treatment for debilitating and

painful disease (d1), demands which count as inherently reasonable from a cost-benefit

point of view, and thus, refusal of which might tend to demean citizens sense of self-

worth (d2),52

or the need to respond to claims made on behalf of the poorest and most

neglected South Africans, from a health-care point of view (equality). In the TAC Case

itself, for example, a focus on the rights to life, d2and equality might well have favored

treating access to nevirapine as within the scope of a minimum core right of access to

health-care services, but a focus on d1 would not have favored treating such a claim as

having any core or priority status, over and above a claim by those already suffering from

full-blown AIDS to have access to life-improving anti-retrovirals. And conversely, in the

context of current debates in South Africa about more general rights of access to anti-

retrovirals, a focus on the rights to d1, life and equality might well favor treating such

access as within the scope of the States minimum core obligations under s. 27(2), but a

focus on d2 would tend to imply that such a right of access was far more contingent,

according to the cost to the State involved in providing general access of this kind.

52 I suggest that a focus on d2 would imply priority to those claims where the marginal benefit to the

individual is very high, and the marginal cost to the state is low. For the idea that these kind of

proportionality considerations may be relevant to the definition of the core: cf Craig Scott & Phillip

Alston, Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoneys Legacy and Grootbooms Promise, 16 S. Af. J. Hum. Rts 206, 251-52 (2000) (suggesting that

Soobramoneys claim under s. 27 to access to renal dialysis and thus to life-prolongation wasdisproportionate to the call on societys resources his treatment would have involved, it should be defined

as falling outside the minimum core of the right to health). Cf also Liebenberg,Human Dignity, supra n48,

at 22 (suggesting that a failure by society to respond in proportion to the seriousness of the deprivations

faced by its members represents a failure to value their fundamental dignity as human beings).

Liebenbergs conception of d2 is perhaps somewhat more demanding that the one I set out, as the version Ihave sketched would treat only those claims where marginal benefit clearly outweighs marginal cost as

requiring a response in this context.


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It is quite possible that there are both moral and Constitutional right answers to

these questions.53

(The author certainly thinks there are, at least in respect to some of

these questions). However, as free and equal citizens, with extremely different life

experiences and perspectives, it is both likely and reasonable that South Africans should

reach a variety of different answers to these questions, both as a moral and Constitutional

matter,54

and thus, little chance that these questions can be resolved eitherby reference to

some actual shared understanding on the part of South Africans as to the concrete content

of ss. 26-27, orby reference to any agreed objective concept of Constitutional or social

morality. Rather, rights-based controversies must be resolved in South Africa (at least

for the time being) according to more majoritarian principles of democracy, providing

that those democratic processes are appropriately deliberative and inclusive in nature.55

Against this kind of understanding, scholars such as Jeremy Waldron have quite

rightly argued that there will be little basis for judicial enforcement which is strictly

counter-majoritarian in nature,56

as such enforcement will fail to respect principles of

equality among citizens in the process of constitutional deliberation.57

In a dialogical understanding, however, this does not mean that courts should

have little or no role in the interpretation and enforcement of provisions such as ss. 26-27

53 Jeremy Waldron,Law and Disagreement165-187 (1999) (on the irrelevancy of moral realism to debates

about constitutional interpretive authority).54 Cf Rawls,supra n50, at 56-58 (1993) (explaining the concept of burdens of judgment of this kind, and

the link to the existence of reasonable disagreement in a democracy).55

For the importance of processes of deliberation and justification in this context, cf David Dyzenhaus,The Legitimacy of Legality, 46 U. Toronto L. J. 129 (1996); Frank I. Michelman, Foreword The

Supreme Court 1985 Term: Traces of Self-Government, 100 Harv. L. Rev. 4, 34 (1986) [Hereafter,Traces of Self-Government] (suggesting that a commitment to constitutional democracy implies

resolving normative disputes by conversation, a communicative practice of open and intelligible reason-

giving, as opposed to self-justifying impulse and ipse dixit). For the relevance of this understanding in the

South African context in particular, cf Etienne Mureinik, A Bridge to Where? Introducing the Interim Bill

of Rights, 10 S. Af. J. Hum. Rts 31 (1994).56 Cf Alexander M. Bickel, The Least Dangerous Branch (1962).57 Waldron,supra n53.


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(or any other provision of the South African Constitution for that matter). Rather, a

dialogical understanding would argue that even in relatively well-functioning

democracies, majoritarian political processes are in fact often subject to both serious

blind-spots and burdens of inertia which mean that the results reached by a process

which relies on either very strong judicial deference to the legislature (super-weak

judicial review58

), or pure legislative supremacy, will often fall short of a fully

responsive, deliberative constitutional ideal,59

and that in this context, active and

reflexive forms of judicial review will have an important capacity to help increase the

inclusiveness and responsiveness of overall processes of constitutional deliberation.

In a dialogical understanding, legislative blind-spots can arise in the legislative

process for a number of reasons. First, legislatures may fail to foresee the application of

laws in rights-infringing ways because of time pressures in the process of legislative

deliberation, or because of other forms of bounded rationality in the legislative process

(blind-spots of application).60

Secondly, they may also fail to anticipate the impact of

laws on the enjoyment of rights, because of a failure fully to appreciate the perspective of

rights claimants with very different life-experiences and perspectives to themselves

(blind-spots of perspective).61

And thirdly, legislators who are focused on achieving a

particular legislative objective, and who have limited legal experience, may also be

58 Of the kind arguably adopted by the Constitutional Court prior to Grootboom, in Soobramoney v.

Minister of Health, KwaZulu-Natal, 1997 (12) BCLR 1696 (CC), for example. For a discussion criticizing

the super-weak nature of the Courts approach in this case, cf Scott & Alston,supra n52.59

Waldron has at times acknowledged the possibility of failures of this kind, but suggests that they arenon-core rather than core arguments against legislative supremacy: cf Jeremy Waldron, The Core

Case Against Judicial Review, Paper Presented to the Harvard Law School Constitutional LawConference, October 14-15, 2005.60 Cf Guido Calabresi, Foreword The Supreme Court 1990 Term: Antidiscrimination and Constitutional

Accountability (What the Bork-Brennan Debate Ignores), 105 Harv. L. Rev. 80, 104 (1991); Dawn E.

Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, 63 Law & Contemp.

Probs. 7, 34 (2000).61 Cf Martha Minow, Foreword The Supreme Court 1986 Term: Justice Engendered, 101 Harv. L.

Rev. 10 (1987) [Hereafter, Justice Engendered].


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subject to blind-spots as to the ways in which a rights-based claim might be

accommodated at tolerably low cost to the relevant legislative objective (blind-spots of

accommodation).62

In addition, legislative processes may also be subject to burdens of inertia in

achieving various forms of rights-based protection,63

because constitutional checks-and-

balances make legislation a time-consuming process, subject to real capacity-constraints

in any given legislative session. In these circumstances, a legislature may well fail to

address rights-based claims because of other competing legislative priorities which

appear more immediately electorally salient (priority-driven burdens of inertia).

Alternatively, burdens of inertia may also arise because an issue splits the internal

cohesion of the party in control of the legislature, and thus imposes high internal costs on

the coherence and integrity of the party, as the price of achieving a particular legislative

outcome (coalition-driven burdens of inertia).64

And finally, where the realization of a

rights-based claim requires sustained and complex forms of administrative action, there is

real potential for blind-spots and burdens of inertia to intersect in the legislative process,

to produce bureaucratic burdens of inertia, whereby the realization of rights-based

commitments is hampered by a combination of administrative delay, and a lack of

appropriate legislative oversight of administrative action.

62 This kind of accommodation is certainly not be costless from the point of view of existing legislative

policy: accommodation of rights-based concerns will necessarily imposesome cost on the achievement ofthe legislative objective: Cf Tushnet,New Forms of Judicial Review, supra n5, at 835. In a constitutionalist

conception of democracy, however, where the polity is committed to giving some priority to rights, or tocertain super-valued individual interests in freedom, dignity or equality, the premise is that modest costs of

this kind should be considered not only justified, but required, as part of commitment to substantive

equality in the practice of collective self-government.63 Cf William N. Eskridge Jr & Philip P. Frickey, Foreword The Supreme Court 1993 Term: Law as

Equilibrium, 108 Harv. L. Rev. 27, 88-91 (1994).64 Cf Mark Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 Stud. Am.

Pol. Dev. 35, 40 (1993).


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So, for example, in the context of the facts considered by the Constitutional Court

in Grootboom and TAC, one could argue that various levels of South African parliament

were subject to blind-spots of perspective both in responding to the rights-based claims of

South Africans who were completely displaced and homeless rather than simply living in

sub-standard informal housing situations, and in responding to the rights-based claims of

women who were poor, pregnant, HIV positive and living in rural areas outside

designated pilot sites, and thus had no means of obtaining access to anti-retrovirals. This

is not necessarily to say that National and provincial representatives had not advertedto

the possibility that some South Africans were homeless, or that these women would not

be able to access anti-retrovirals (this would be something closer to a blind-spot of

application). Rather, the suggestion is that legislators who did not share the perspectives

of those who were homeless, or poor, HIV-positive and pregnant, were not able fully to

understand the degree to which access to emergency housing or nevirapine mattered to

the plaintiffs, in terms of their capacity to live decent and healthy lives, and feel respected

as equal members of the community, entitled to basic human dignity, without hearing

directly from such persons, in their own voice, as to the nature of their particular

experiences and understandings, and thus their urgent sense of need.65

Further, one could argue that National and provincial political processes in both

contexts were also subject to clear bureaucratic and coalition-driven burdens of inertia

prior to the Constitutional Courts intervention in these cases. In the area of the right to

housing, for example, the South African government had pledged to build 1 million

homes by the year 1999 as part of its plan for the progressive realization of the right of

65 Cf Minow,Justice Engendered, supra n61.


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access to housing, but had only built 250 000 of those homes by 1997,66

and 700 000 by

1999.67

And in the context of anti-retroviral treatment, the South African government

had first investigated the possibility of providing access to anti-retrovirals in 1998, but

had not adopted even a limited pilot or trial program providing access to nevirapine to

pregnant women until 2001-2002,68

due to both serious bureaucratic inertia at an early

stage of the process, and to more squarely coalition-driven forms of inertia after 1999, as

substantial divisions emerged within the ANC as to the likely benefits associated with the

roll-out of anti-retrovirals.69

From a dialogical perspective, these kinds of omission and delay, which are not

driven by any absolute resource-constraint or supported by any principled form of

justification, will have profound significance for the legitimacy of the overall system of

constitutional ordering, given a commitment to ensuring that all limitations on the

enjoyment of rights to freedom, dignity and equality, including rights to the progressive

realization of access to housing, social security, and health-care services, must be

reasonable and justifiable in a democracy such as South Africa.70 In the South African

context in particular, they will also raise difficulties in terms of commitments to the

transformation ofthe South African constitutional order, from a system based on radical

66 Cf Marcia Klein, Development SA Govt Builds on Housing Promise, Business Times (South Africa),

July 6, 1997, at 3.67 Sven Lunsche, ANC Good Deeds Come to Grief at Local Level, Business Times (South Africa), May

30, 1999, at 10.68

Minister of Health and Others v. Treatment Action Campaign and Others, 2002 (10) BCLR 1033 (CC)para. 1 (discussing date of roll-out to test-sites).69 Cf Lee-Ann Alfreds, & Celean Jacobson Long Walk to Save South African Lives, Sunday Times (SouthAfrica), August 10, 2003, at 4 (noting more than five year delay in the provision of access to anti-

retrovirals, and the shift from cost- and bureaucratic to more political explanations for this delay); Claire

Bisseker, Aids, Medicine, Drugs, State President, Financial Mail (South Africa), September 22, 2000, at

35 ([p]ressure on Mbeki is mounting within the ANC Alliance. Several Cosatu unions, its president

Willie Madisha, the SA Communist Party and the leaders of the ANCs health committee are all callingfor Mbeki to drop his stance refusing to provide comprehensive access to anti-retroviral drugs).70 South African Constitution 1996, s. 36.


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inequality and arbitrary forms of State coercion, into a system which respects and fulfils

the freedom, dignity and equality of all South Africans, as the necessary preconditions for

a system of legitimate democratic legal-ordering (and thus, legitimate legal coercion).71

In some theories of co-operative constitutionalism, courts are not seen to have any

particular responsibility for countering blind-spots or burdens of inertia of this kind.72

In

a departmentalist account, for example, the role of courts is seen simply in terms of the

resolution of specific constitutional controversies as they arise in the course of concrete

disputes between an individual and the State, and not in terms of a broader moral or

political persuasion function, and thus blind-spots and burdens of inertia must

ultimately be countered (if at all) through popular process of mobilization, rather than

forms of representative dialogue.73

Similarly, in a conversational understanding, while

71 For the transformative nature of the 1993 and 1996 South African Constitutions, cf Karl Klare, LegalCulture and Transformative Constitutionalism, 14 S. Af. J. Hum. Rts 146 (1998). Cf also LawrenceLessig, Code and Other Laws of Cyberspace (1999); Cass R. Sunstein, Designing Democracy 67-69

(2001). For the relationship between socio-economic rights guarantees and commitments to democracy,

and freedom cf e.g. Frank I. Michelman, Welfare Rights in a Constitutional Democracy, 3 Wash. U. LQ

659 (1979) (providing argument for link between protection of socio-economic rights and effectiverepresentative democracy); Sunstein, supra n2, at 124 (2000) (providing democracy or process-drivenrationale for socio-economic rights protection); Cecile Fabre, Constitutionalising Social Rights, 6 J. Pol.

Phil. 263 (1998) (providing an autonomy-based rationale for socio-economic rights protection).72 It may be that these theories in fact diverge from dialogue theory at an earlier stage, by treating the basisfor socio-economic rights protection in South Africa as more purely legal-positivistic rather than moral-

political in nature. (I am indebted to Frank Michelman for encouraging me to see this connection.) For the

purpose of this article, however, it is assumed that the principal difference arises at the level of institutional

design, rather than constitutional first principles.73 For a definition of departmentalism, see e.g.; Michael Stokes Paulsen, The Most Dangerous Branch:

Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994); Mark Tushnet, Alternative Forms ofJudicial Review, 101 Mich. L. Rev. 2782 (2003) [Hereafter, Alternative Forms]; Keith E. Whittington,

Extrajudicial Constitutional Interpretation: Three Objections and Responses, 80 N.C L. Rev. 773, 283

(2002). It should be noted that there are versions of departmentalism which are closer to dialogue theory,in that they see courts as having an important role in both deciding concrete cases, and in seeking to

persuade the broader constitutional culture to favor a particular vision of the constitution: cf e.g. Fisher,supra n9; Robert C. Post & Reva B. Siegel, Protecting the Constitution from the People: Juricentric

Restrictions on Section Five Power, 78 Ind. L. J. 1, 25 (2003). In this context, the major difference

between departmentalist and dialogue theories is that the former sees popular engagement as the arbiter of

disagreement between the various branches of government, in competing to advance their vision of the

Constitution, whereas dialogue theory sees a much greater role for inter-branch comity, and representativedialogue, as resolving ordinary (rather than extraordinary) disagreements of this kind: cf Allan, supra n10

at 571; Johnsen,supra n60 at 36.


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courts are seen to have an important potential role in countering legislative blind-spots,

they are not seen to have any particular role in countering legislative burdens of inertia.

Robert Bennett has suggested, for example, that in a conversationalist understanding,

courts role is simply to deliberate and not to decide, and thus as [i]t is conversation

rather than the substance of decisions that is key to the conversational perspective, the

inertia of the system in passing legislation is of no particular moment.74

In a dialogical understanding, however, legislative blind-spots and burdens of

inertia are of such profound significance to the legitimacy of the overall system of

constitutional ordering, that there is an urgent need to identify ways in which other social

and governmental institutions, including courts, might have the capacity to help mitigate

or counter these forms of legislative blockage. And in this context, a dialogical

understanding would emphasize both the concrete, coercive and more communicative

aspect to constitutional judicial decision-making processes in the common law world,75

as

pointing to a much broader potential role for the courts in helping counter blind-spots and

burdens of inertia in the broader political process, than either departmentalist or

conversationalist theories suggest.

In this context, dialogue theory shares much the same starting points as the kind

of democratic minimalist understanding of co-operative constitutionalism developed by

74 Cf Robert W. Bennett, Counter-conversationalism and the Sense of Difficulty, 95 N.W.U. L. Rev. 845,

891 (2001). Theories of this kind have been advocated in the United States by Robert Bennett, and inCanada by Tsvi Kahana (Understanding the Notwithstanding Mechanism, 52 U. Toronto L. J. 221

(2002)), but seem also to gaining increasing prominence in understandings of the remedial structure created

by the British Human Rights Act 1998 (UK): cf Francesca Klug, Values for A Godless Age (2000)

(advancing a highly participatory, conversational account of the idea of dialogue about rights).75

By constitutional court, I simply mean a court with constitutional jurisdiction, rather than a specializedcourt of the kind common in civil law systems: cf Michael Rosenfeld, Constitutional Adjudication in

Europe and the United States: Paradoxes and Contrasts, 2 I.CON. 633 (2004).


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Cass Sunstein.76

However, in comparison to democratic minimalist theories, dialogue

theory would point to courts as having a much broader range of tools available to them in

seeking to counter blind-spots and burdens of inertia, both in terms of the potential

depth of their reasoning, and the extent to which they are able to directly substitute a

new, responsive equilibrium for that reached by the legislature (rather than simply

remand the matter to the political branches),77

in part because of the emphasis which

dialogue theory places on the multiple different possible sites of representative self-

government,78

and on open and vigorous forms of democratic contestation and

justification in achieving both actual and perceived constitutional legitimacy.

79

A dialogical understanding would suggest, for example, that both the concrete, ex

postnature of the jurisdiction of the South African High Court, Supreme Court of Appeal

and Constitutional Court (at least in most cases) and coercive nature of these courts

powers under s. 172 of the Constitution will mean that they are particularly well-placed

to help counter blind-spots of accommodation,80

and that the fact that judges on these

76 Cf Cass R. Sunstein, One Case at a Time (1999) [Hereafter, One Case at a Time].77Id, at 16-19 (for the idea of depth versus shallowness in constitutional reasoning), 24-27 (for arguments

for judicial remands of this kind which promote additional and more transparent legislative deliberation).78 In a dialogical understanding, in a modern, representative democracy legislative action is ultimately no

more ouraction than that of the courts: cf Michelman, Traces of Self-Govt,supra n56. This in turn implies

that courts should not automatically remand matters to the legislature, wherever legislative blind-spots or

burdens of inertia are identified, but should rather attempt to counter that blind-spot or inertia by directlysubstituting a new legal equilibrium, where they have both the power and competence to do so, as in

contrast to a democratic minimalist understanding, this will not imply any inherent loss to the process of

active self-government, but will rather prevent an unnecessary displacement in other legislative priorities.

(For the idea that the remand of a question to the legislature necessarily has the effect of displacing other

legislative priorities: cf Tushnet,New Forms of Judicial Review, supra n5, at 834.)79 Cf e.g. Minow, Justice Engendered, supra n61, at 95 (suggesting that [w]e need settings in which to

engage in the clash of realities that breaks us out of settled and complacent meanings and createsopportunities for insight and growth. This is the special burden and opportunity for the Court: to enact and

preside over the dialogue through which we remake the normative endowment that shapes current

understandings).80Cf William N. Eskridge & John Ferejohn, Super-Statutes, 50 Duke L. J. 1215, 1275 (2001); Scott,

supra n12 (suggesting that courts have the potential to combine reflective, principled reasoning with theability to test and enrich a legal principle in light of concrete facts in a specific context involving socio-

economic rights implementation).


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courts have substantial experience in resolving concrete common law and statutory

disputes, and lack any direct interest or stake in the outcome of a particular case, will also

mean that they will often be able to identify possibilities for accommodation which may

not have been apparent to legislators or administrative officials involved in drafting a law

or policy, in ways which can have an important capacity to help counter blind-spots of

accommodation. Further, it would suggest that both this narrow dispute resolution-

function of South African constitutional courts (which means that these courts are

accessible as of right, and must provide reasons to a losing party before the court), and

the broader publicity and authority which attaches to their rulings, will mean that in cases

such as Grootboom and TAC, they are able to provide a forum for rights-claimants who

are not represented in the legislature to come forward both individually and collectively

to make their claims heard in the broader political debate, regardless of their lack of

power in the broader legislative process, in a way which substantially counters blind-

spots of perspective in the broader political process.81

In the context of the kind of burdens of inertia which arose in Grootboom and

TAC, a dialogical understanding would also suggest that the concrete, coercive nature of

judicial power will provide courts with the capacity directly to counter various forms of

inertia, by using powers of invalidation, reading-in or injunctive relief, actually to disrupt

a particular legal equilibrium, and that the broader publicity and authority which attaches

to judicial decisions, particularly at an ultimate appellate level, will give courts the power

indirectly to counter priority- and coalition-driven burdens of inertia, by increasing media

81Cf Minow, Justice Engendered, supra n61, at 93-95 (arguing for the potential for the United States

Supreme Court to play this kind of role); Wesson,supra n8, at 295 (arguing in the socio-economic rightscontext in particular that courts can play a role in pointing out when particular sectors of society

vulnerable minorities have been neglected or excluded).


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attention to a particular rights-based claim, in a way which helps put individual rights-

claims on the broader public- and political- agenda.82

Further, in contrast to all three other theories of co-operative constitutionalism,

dialogue theory would suggest that once courts are engaged in the business of judicial

review in some way, courts may actually have a direct responsibility to use both their

communicative and factical83

or coercive powers to the fullest extent possible in order

to help counter blind-spots and burdens of inertia, within the constraints of a commitment

to preserving overall democratic responsiveness. First, in contrast to conversationalist

theories, a dialogical understanding suggests that where courts fail to counter either

legislative blind-spots or burdens of inertia, they will be directly implicatedin the process

of illegitimate State coercion, rather than mere bystanders to legislative failures of

inclusion or responsiveness, because of the inherently coercive rather than simply

communicative nature of judicial decision-making in any particular context.84

Secondly,

82 Cf e.g. Roach, Dialogic Review, supra n10 at 54 ([d]ialogic review may serve as a means of placingimportant and uncomfortable issues on the legislative agenda). While the link between judicial and mediaattention to an issue has to date been demonstrated most definitively in the United States context (see e.g.

Roy B. Flemming et al, One Voice Among Many: The Supreme Courts Influence on Attentiveness to

Issues in the United States, 1947-92, 41 Am. J. Pol. Sci. 1224, 1226 (1997); Roy B. Flemming et al,Attention to Issues in a System of Separated Powers: The Macrodynamics of American Policy Agendas,

61 J. Pol. 76, 84 (1999) (also showing the relationship between media and public attention to an issue),

there is also clear evidence in South Africa of a similar linkage existing, in an area such as access to

nevirapine. So, for example, a lexis search of two leading South African news-publications for mention ofanti-retroviral access in South Africa in the period 2000-2002, which showed that the number of hits for

anti-retroviral or nevirapine (which had any relevance to access in South Africa) almost quadrupled in

the year following the date on which the TACdecision was handed down by Botha J (12/14.01), compared

to the previous 12 months (to 17 up from 4).83

For the idea of the facticity or practical efficacy of law: cf Jurgen Habermas, Between Facts andNorms (William Rehg trans., 1996).84 Cf Robert Cover, Violence and the Word, 95 Yale L.J. 1601, 1601 (1986) (judicial decisions dealwith pain and death); Sanford Levinson, Law as Literature, 60 Texas L. Rev. 373, 386 (1982)(As

Chairman Mao pointed out, a revolution is not a tea party, and the massive disruption in lives that can be

triggered by a legal case is not a conversation); Frank I. Michelman, Justification (and Justifiability) of

Law in a Contradictory World, in Justification: NOMOS XXVIII71 (J. Roland Pennock & John W.

Chapman eds, 1986)([j]udges produce socially potent arbitral decisions about specifically who must (orneed not) do (or suffer) specifically what. It is this arbitral use of power that demands justification);

Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 Yale L. J. 1860, 1895 (1986)


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in contrast to theories of departmentalism (or judicial restraint), dialogue theory suggests

that where courts refrain from using the publicity and authority which attach to their

decisions to highlight potential blind-spots and burdens of inertia, they will be actively

legitimizing that equilibrium, in ways which make it more difficult for individuals and

social movements in the broader constitutional culture to contest the legitimacy of the

status quo, rather than merely exercising a form of passive restraint.85

And thirdly, in

contrast to theories of democratic minimalism, dialogue theory suggests that where courts

decline directly to counter blind-spots or burdens of inertia, but instead remand a question

back to the legislature, they will be unnecessarily displacing other legislative priorities,

and thus further increasing the potential for priority-driven and bureaucratic burdens of

inertia to arise in the first place.

III Why not havepure strong-forms of judicial enforcement:

Given both blind-spots and burdens of inertia in the realization of socio-economic

rights such as ss. 26-27, and the potential and indeed responsibility - for South African

courts to help counter these forms of legislative failures, the question one might ask is as

to why courts should not have the kind of broad and prescriptive role in the interpretation

(rejecting the idea of a cozy conversation), 1905 (suggesting that constitutional disputes involve angry

disagreement rather than cozy talk). It may well be that this form of coercion is somewhat more indirect

where positive rather than negative rights are concerned, but in this context, judicial intervention will often

be a matter of life and death, or at the very least, of substantial consequence to the basic ability of citizensto live a decent life free from severe forms of state or market violence, and judicial coercion via the

enforcement of a states property laws is always in the background to such forms of violence.85 Cf Bickel, supra n56, at 69; Larry Kramer, The People Themselves: Popular Constitutionalism and

Judicial Review 102-3 (2004). That is, if constitutional adjudication like common law adjudication is

perceived as somehow more neutral or apolitical than legislative decision-making: cf Duncan Kennedy, ACritique of Adjudication [fin de sicle] 236-264(1997) (analyzing the legitimation effect of adjudication

if understood in this way, and seeking to disrupt this conception of adjudication by a process of inverseforegrounding/back-grounding). Cf also Roberto Mangabeira Unger, Democracy Realized: The

Progressive Alternative (1998).


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and enforcement of these rights suggested by the supporters ofpure strong-form review

in a case such as Grootboom.

From a dialogical perspective, however, there is always a concern to ensure that

judicial intervention which is aimed at countering legislative blind-spots and burdens of

inertia also respects concerns about the limits to judicialcompetence and responsiveness

in this area, given concerns about overall democratic responsiveness in the process of

constitutional deliberation.

Like all three other theories of co-operative constitutionalism considered above,

dialogue theory does not assume that courts should intervene in the political process only

in the event of clear error orpatentunreasonableness or irrationality on the part of the

legislature or the executive in light of shared understandings as to the scope and priority

to be given to particular rights-based claims,86

but rather, that courts are entitled to

intervene either coercively or communicatively (or in the case of dialogue, potentially in

both ways), in circumstances where there are arguable failures of foresight, perspective,

accommodation or responsiveness in its view. From a dialogical perspective in

particular, this kind of intervention will be aimed at introducing new ideas, perspectives

or even equilibria into the political process, with a view to encouraging both the

legislature, and the broader constitutional culture, to reconsider its allegiance to the

previous status quo, in a way which both reflects and acts reflexively on existing

democratic understandings.87

86 Cf James B. Thayer, The Origin and Scope of American Doctrine of Constitutional Law, 7 Harv. L.

Rev. 129 (1893) (arguing for a theory of judicial restraint based on a clear error rule).87 Cf e.g. Minow,Interpreting Rights, supra n84, at1903; Max du Plessis, Between Apology and Utopia the Constitutional Court and Public Opinion, 18 S. Af. J. Hum. Rts 1, 28-29, 34 (2002) (arguing that the

South African Constitutional Court has an educative role viz constitutional culture, which requires it toteac[h] citizens why their opinions must yield to the dictates of the Constitution, so that the judgments

courts reach ultimately command the allegiance, upon deeper reflection, even of those who find a result


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Where a court adopts this kind of normative democratic experimentalism,88

however, in some cases it will inevitably end up misjudging the degree of support for

particular rights-based claims within constitutional culture, or encounter unpredictable

forms of opposition from within the culture, and thus, create the danger of new failures of

democratic responsiveness, or reverse burdens of inertia, arising, as a consequence of

judicial intervention,89

unless it leaves room for subsequent legislative modification of

the results it reaches.

Of course, under the terms of the South African Constitution, judicial intervention

will always be somewhat less prone to causing reverse burdens of inertia than under the

archetypical model of super-strong judicial power enjoyed by the United States

Supreme Court under United States Constitution,90

as s. 74(1) of the South African

disagreeable). In a dialogical understanding I advance, the need for reflexivity or normative

experimentation of this kind is driven in part by the understanding that, absent a clear majority either in

support of or against a particular rights-based understanding, the existing position is in a sense dictatorialsolution, which is produced by a particular process of agenda-setting, rather than truly principled majoritygovernment: cf Kenneth J. Arrow, Social Choice and Individual Values (1951). Among constitutional

theorists, Robert Bennett has as a descriptive matter already identified these problems as a serious

challenge to a pure majoritarianism: Bennett, supra n74, at 863-65. But cfWaldron, supra n53, at 89(suggesting that the Arrovian difficulty will not arise in a large number of legislative settings).88 For the idea of experimentalism in democratic politics: cf Michael C. Dorf & Charles F. Sabel, A

Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267 (1998) (arguing that courts should

protect and promote democratic experimentalism across a wide-range of policy areas, in the hope ofgaining information on how best to regulate particular areas of social life). Further, for the potential link

between democratic experimentalist ideas and weak forms of judicial review: cf Tushnet,New Forms ofJudicial Review, supra n5, at 822.89 Cf e.g. James Allan, The Author Doth Protest Too Much, Methinks: A Review of K Roach, The

Supreme Court on Trial: Judicial Activism or Democratic Dialogue 20 N.Z.U. L.R. 519, 531 (2003).90 Amendments under Art V of the United States Constitution require the support of two-thirds of both the

House of Representatives and the Senate, plus three-quarters of the states, and the procedure is generallyconsidered to be extremely onerous in nature: cf e.g. Donald S. Lutz, Toward a Theory of Constitutional

Amendment, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment

(Sanford Levinson ed, 1985). This fact, combined with the fact that the United States Supreme Court has

announced a rule of strong judicial supremacy (cf e.g. Cooper v. Aaron, 358 US 1 (1958); City of Boerne v.

Flores, 521 US 507 (1997)), this gives the decisions of the United States Supreme Court a super-strongdegree offormal finality. This is not necessarily to say, however, that they enjoy the same degree of

protection against override as a more informal, longer-term matter: cf e.g. Devins & Fisher,supra n10.


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Constitution contains a far more flexibleamendment procedure than Art V of the United

States Constitution.91

However, even a relatively flexible formal power of amendment of this kind will

not necessarily be sufficient to avoid the danger of reverse burdens of inertia in a large

number of cases, given the potential costs associated with its use. First, the opportunity

costto the legislative majority associated with the use of a formal power of amendment,

in terms of the political resources which must be diverted toward marshalling the degree

of internal or bipartisan support necessary for the passage of an amendment, will be much

higher than the cost involved in the passage of ordinary legislation, and this necessarily

increases the strength of disagreement that will be required, before the legislature will be

willing to intervene to correct reverse burdens of inertia.92

Secondly, reliance on a power

of amendment may also incur costs, in terms of unintended consequences for the

enjoyment of constitutional rights, because it will generally be difficult for the legislature

to create narrow or specific carve-outs from the scope of rights of the kind found in a

constitutional bill of rights, given the very general and parsimonious way in which those

rights are generally expressed.93

91 Amendments to the terms of the South African Bill of Rights will generally require only two-thirdsmajority support in the National Assembly, as well a the support of at least two-thirds of the provinces in

the National Council of Provinces, and while amendments which purport to alter the founding values of the

Constitution, to dignity, non-racism, non-sexism and the achievement of equality and the advancement of

human rights and freedoms, will require the support of at least a 75% majority of the National Assembly,

as well as the support of at least two-thirds of the provinces in the National Council of Provinces (s. 74(1),the fact that ANC currently controls approximately 70% of the seats in the Assembly means that s. 74(1)

remains a somewhat more flexible amendment procedure than that contained in Art V: cfhttp://electionresources.org/za/2004/ - last accessed February 9, 200692 Cf Tushnet,New Forms of Judicial Review, supra n5, at 834.93 Constitutional parsimony is generally seen as integral to the ability of a bill of rights to perform one of its

most central functions: namely, to serve as the focal point for a sharedpopularvocabulary for claiming

recognition and accommodation of super-valued individual interests, and thus carve-outs which detractfrom this will tend to be seen as a substantial threat to both the integrity and efficacy of a bill of rights. The

difficulty of creating carve-outs of this kind will also be exacerbated where a court may be inclined to treat


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As a result, even judicial review conducted against the background of a bill of

rights subject to a strong rather than super-strong degree of formal entrenchment will

generally need to be subject to some further degree of weakening by a court, in order to

avoid a significant danger of reverse burdens of inertia arising.

IV How should judicial review be weakened?

(a) intermediate approaches to soci

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