In this thesis, the South African Constitutional Court’s emerging model for the adjudication of social and economic (SE) rights is used as a starting point from which to consider how courts may give effect to these rights whilst respecting principles of democratic decision-making. The court has chosen to measure government action in this area against a standard of reasonableness. Reasonableness has historically been employed as a highly deferential standard of judicial review in South Africa and other common law jurisdictions. It is also a flexible standard. These features have given rise to charges that an approach based on reasonableness cannot but result in vagueness and weak enforcement of SE rights. The argument in this thesis is that these flaws are not an inevitable consequence of a reasonableness-centred model for SE rights adjudication. The judges’ approach is informed by evolving notions of judicial restraint. A range of factors impact on the intensity of review in SE rights cases. These factors will be relevant, whatever the approach adopted, because courts are bound to adjudicate SE rights within the limits of their constitutional mandate and institutional expertise. The most effective way of creating greater legal certainty and consistency in the judgments is for both judges and litigators to engage with these underlying factors. This thesis draws on Indian and United Kingdom jurisprudence. Studies of both these jurisdictions show that political sensitivity is no longer an automatic bar to the justiciability of disputes. United Kingdom administrative law jurisprudence is used to show that reasonableness, as a standard of review, has the capacity to place onerous demands on government bodies. The Indian case-study serves as a warning against an ad hoc approach to judicial intervention and restraint in SE rights cases. Cases from this jurisdiction illustrate the importance of identifying and working with the factors that inform the intensity with which judges will interrogate government decision-making in SE rights disputes. This kind of engagement will allow courts to move towards a stronger, more principled approach to the rights.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:565250 |
| Date | January 2011 |
| Creators | Pillay, A. |
| Publisher | University College London (University of London) |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://discovery.ucl.ac.uk/1306800/ |
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