The Relationship between Courts and the Other Arms of Government in Promoting and Protecting Socio-economic Rights in South Africa: What About Separation of Powers?

Dm Davis

doi:10.4314/pelj.v15i5.20

Abstract

first contribution is a keynote speech delivered by Judge Dennis Davis, a Judge of the High Court, Cape Town and Judge President of the Competition Appeal Court. His speech was delivered on 16 November 2012, at the 3rd Human Rights Indaba on The Role of International Law in Understanding and Applying the Socio-economic Rights in South Africa's Bill of Rights, co-hosted by the Konrad-Adenauer Foundation and the Faculty of Law of North-West University, Potchefstroom Campus. Judge Davis investigates the relationship between courts and the other arms of government in promoting and protecting socio-economic rights in South Africa and airs his views on the doctrine of the separation of powers.

Highlights

THE RELATIONSHIP BETWEEN COURTS AND THE OTHER ARMS OF GOVERNMENT IN PROMOTING AND PROTECTING SOCIO-ECONOMIC RIGHTS
The idea is that various institutions of State should work to promote and to vindicate basis democratic principles which are directed to accountable control of decision making and substantive political equality between citizens
This particular submission is luminously highlighted in the instructive article of Williams referred to earlier, in which she compares the approach of the German and South African Constitutional Courts, the latter in Mazibuko and the former in a case known as Hartz IV

Summary

DM Davis

The model of constitutional democracy which is envisaged in the 1996 text of the Constitution of the Republic of South Africa (the Constitution) has been described as promoting 'a thick' conception of democracy. In turn the task should be directed to improve the principle of democratic accountability of public institutions and their commitment to constitutional rights This particular submission is luminously highlighted in the instructive article of Williams referred to earlier, in which she compares the approach of the German and South African Constitutional Courts, the latter in Mazibuko and the former in a case known as Hartz IV. The concept of reasonableness, which initially in South Africa was coupled with a substantive requirement of the primacy of treatment for the poorest of the poor, is sufficiently flexible and the doctrine of separation of powers manifestly so ambiguous and indeterminate, that courts, even if fully committed to the doctrine of separation of powers, can adopt entirely different approaches to cases involving social and economic rights. 23 I am indebted for these insights to the article by Professor Williams as cited above. 11 / 638

DM DAVIS Conclusion

DM DAVIS Bibliography