Enabling agency: the Constitutional Court and social policy

Abstract

South Africa’s Constitutional Court has developed a reputation within and outside the country for promoting a social policy regime which actively seeks to reverse racial and economic domination. It has, however, also been sharply criticised for not doing enough to challenge the domination which produces poverty or to hand down rulings which dictate strongly pro-poor outcomes. The article seeks to explain why the Court has played a role in social policy and argues that this is a product of a consensus between the judiciary and the other two branches of government on the need to correct the effects of racial domination. It also assesses whether the courts have contributed to an expansion of social policy which challenges domination. It argues that they have done this only where they have ignored the demand that they impose a ‘minimum core content’ of social entitlements and have supported collective action by organisations representing the poor. It concludes that a court which enables agency is more likely to serve the poor than one which dictates policy outcomes.