Judicial deference and democracy in socio-economic rights cases in South Africa

Abstract

In this article I evaluate the manner in which South African courts have chosen to deal with the range of institutional problems (problems with institutional capacity, legitimacy, integrity and security, as well as pure separation of powers problems) they face in the adjudication of constitutional socio-economic rights claims. I investigate, that is, judicial deference in socio-economic rights cases – the strategy of courts, when faced with difficult technical or contested social questions in such cases to leave decision of those issues, in different ways and to varying degrees, to the other branches of government.