Principle and pragmatism on the Constitutional Court of South Africa

International Journal of Constitutional Law

Volumn 7, Issue 1, 2009, Pages 106-138

  Roux, Theunis ^a,b  

^a UNIVERSITY OF PRETORIA   (South Africa)

^b UNIVERSITY OF THE WITWATERSRAND   (South Africa)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 58849100417     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mon029     Document Type: Article

References (174)

1. State v Zuma 1995 (2) SALR 642 (CC).
2. See, e.g., Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs 2006 (1) SALR 524 (CC) (holding the common law definition of marriage and section 3(1) of the Marriage Act 25 of 1961 unconstitutional to the extent that they discriminated against homosexual couples) (hereinafter Fourie); Minister of Health v New Clicks South Africa (Pty) Ltd. 2006 (2) SALR 311 (CC) (setting aside various regulations relating to the pricing of medicines).
3. S. AFR. (Interim) CONST. 1993 and S. AFR. CONST, 1996.
4. The leading commentaries on South African constitutional law are CONSTITUTIONAL LAW OF SOUTH AFRICA (2d ed., Stuart Woolman et al. eds., Juta 2004-2008)
5. and IAIN CURRIE & JOHAN DE WAAL, THE BILL OF RIGHTS HANDBOOK (5th ed., Juta 2005). Though critical in certain respects, both of these commentaries regard the CCSA's record as based on legally plausible interpretations of the postapartheid constitutions. Outside South Africa, assessments of the CCSA's record have been consistently favorable.
6. See, e.g., CASS R. SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS Do 221-337 (Oxford Univ. Press 2001) (approving the CCSA's judgment in Government of the Republic of South Africa v. Grootboom 2001 (1) SALR 46 (CC) hereinafter Grootboom)
7. GREGORY S. ALEXANDER, THE GLOBAL DEBATE OVER CONSTITUTIONAL PROPERTY: LESSONS FOR AMERICAN TAKINGS JURISPRUDENCE 149-182 (Univ. Chicago Press 2006) (approving the CCSA's constitutional property rights jurisprudence)
8. Mark S. Kende, The South African Constitutional Court's Embrace of Socio-economic Rights: A Comparative Perspective, 6 CHAP. L. REV. 137 (2003) (approving the balance struck in the CCSA's socioeconomic rights jurisprudence between rights enforcement and deference to democratic decision making).
9. See James L. Gibson & Gregory A. Caldeira, Defenders of Democracy?: Legitimacy, Popular Acceptance, and the South African Constitutional Court, 65 J. POL. 1 (2003) (reporting 27.9 percent "attentive" public support for the CCSA in 1997, i.e., among citizens who had heard about the Court)
10. James L. Gibson, The Evolving Legitimacy of the South African Constitutional Court, in JUSTICE AND RECONCILIATION IN POST-APARTHEID SOUTH AFRICA, Ch. 9 (Antje du Bois-Pedain & Francois du Bois eds., Cambridge Univ. Press forthcoming 2008) (reporting 34 percent public support for the CCSA in 2004).
11. The ANC won 69.68 percent ofthe vote in the 2004 election.
12. The best example of this is the ANC National Executive Committee's 93rd anniversary statement of Jan. 8, 2005, in which it accused certain members of the judiciary, without naming them, as out of touch with the aspirations of South Africa's black majority. The statement may be accessed at http://www.anc.org.za/ancdocs/pr/2005/pr0108.html.
13. In addition to Grootboom, the other decision often cited as a significant policy reversal for the ANC is Minister of Health v Treatment Action Campaign (No. 2) 2002 (5) SA 721 (CC) (reviewing and declaring unconstitutional the national Department of Health's program on mother-to-child-transmission of HIV) (hereinafter Treatment Action Campaign).
14. See, e.g., Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787, 1794-1795 (2005)
15. John C. Yoo, In Defense of the Court's Legitimacy, 68 U. CHI. L. REV. 775, 782 (2001).
16. See the literature cited supra note 3.
17. See Fallon, supra note 8, at 1828.
18. See Gibson & Caldeira, supra note 4
19. and Gibson, supra note 4.
20. The best example is the Indian Supreme Court's failure to resist the executive's suspension of the writ of habeas corpus during the 1975-1977 emergency. But even in this case, the Indian Supreme Court has survived with its reputation largely intact. See Pratap Bhanu Mehta, The Rise of Judicial Sovereignty, 18 J. DEMOCRACY 70, 71, 79 (2007). The same may be said of the U.S. Supreme Court's decision in Bush v. Gore, 531 U.S. 98 (2000).
21. The term "strong-form judicial review" was coined by Mark Tushnet; see, e.g., MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 18 (Princeton Univ. Press 2007). It is used here to refer to the power that certain courts have to strike down laws for unconstitutionality, as opposed to the power merely to declare an incompatibility between an impugned law and the constitution.
22. See THE AWKWARD EMBRACE: ONE-PARTY DOMINATION AND DEMOCRACY, chs. 1, 4, 10, & 11 (Hermann Giliomee & Charles Simkins eds., Tafelberg 1999)
23. Herman Giliomee, South Africa's Emerging Dominant Party Regime, 9 J. DEMOCRACY 124 (1998).
24. It may also be that constitutional courts in new democracies are relatively immune to low public support because the political elite, even where power changes hands, regards the support of external interests (such as foreign investors) as more important. I am indebted to Patrick Lenta for this point.
25. The Indian case is, by all accounts, exactly the opposite. In that country, the Supreme Court's institutional security flows not from careful management of its relationship with the political branches but from high levels of public support. See Mehta, supra note 12, at 75.
26. Cf. CHARLES BLACK, THE PEOPLE AND THE COURT: JUDICIAL REVIEW IN A DEMOCRACY 56-86 (Macmillan 1960) (describing the "legitimating" function of judicial review during the New Deal era in the United States). For a similar argument in relation to the CCSA, see Theunis Roux, Legitimating Transformation: Political Resource Allocation on the South African Constitutional Court, 10 DEMOCRATIZATION 92 (2003) (arguing that the CCSA's legitimacy and the legitimacy ofthe political branches' transformation efforts are locked into a relationship of mutual dependence).
27. See Lynn Berat, The Constitutional Court of South Africa and Jurisdictional Questions: In the Interest of Justice?, 3 INT'L J. CONST. L. (I-CON) 39, 74 (2005).
28. Id. at 72 (citing Gibson & Caldeira, supra note 4).
29. Berat, supra note 17, at 74.
30. See the draft Constitution Fourteenth Amendment Bill, 2005, Bill 22B-05 (GA). An earlier draft of this bill is discussed in Carole Lewis, Reaching the Pinnacle: Principles, Policies and People for a Single Apex Court in South Africa, 21 S. AFR. J. HUM. RTS. 509 (2005).
31. The draft bill was withdrawn after public criticism by former Constitutional Court judges and human rights lawyers sympathetic to the ANC; however, it looks set for reintroduction after a decision to this effect at the ANC's December 2007 party conference in Polokwane.
32. See, e.g., the discussion of the events surrounding the Treatment Action Campaign case in section 3 infra.
33. See Lee Epstein & Jack Knight, Toward a Strategic Revolution in Judicial Politics: A Look Back, A Look Ahead, 53 POL. RES. Q. 62 (2000).
34. See generally, SUPREME COURT DECISION-MAKING: NEW INSTITUTIONALIST APPROACHES (Cornell W. Clayton & Howard Gilmann eds., Univ. Chicago Press 1999)
35. LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (Congressional Quarterly Press 1998).
36. See Lee Epstein, Olga Shvetsova & Jack Knight, The Role of Constitutional Courts in the Establishment of Democratic Systems of Government, 35 LAW & SOC'Y REV. 117 (2001).
37. See also Jack Knight & Lee Epstein, On the Struggle for Judicial Supremacy, 30 LAW & SOC'Y REV. 87 (1996) (applying an earlier version of this model to a study of the U.S. Supreme Court in the early 1800s).
38. Epstein et al., supra note 25, at 128-129.
39. Id. at 156.
40. See DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (FIN DE SIèCLE) (Harvard Univ. Press 1997).
41. See also William N. Eskridge Jr. & Philip P. Frickey, The Supreme Court, 1993 Term Foreword: Law as Equilibrium, 108 HARV. L. REV. 26 (1994) (applying the strategic approach in order to understand the U.S. Supreme Court's 1993 term).
42. See Epstein et al., supra note 25, at 129 (recognizing "case authoritativeness" as one of four elements impacting on the tolerance interval for a particular case, but otherwise ascribing no constraining role to law in the determination of judicial policy choice).
43. Of course, there is a range of views in liberal legal theory about exactly how constraining law is. Nevertheless, there is a crucial difference of opinion between liberal legal theory and Critical Legal Studies (CLS) over the minimum constraints that law must be assumed to impose for strong-form judicial review to be at all legitimate.
44. See Kenn Kress, Legal Indeterminacy, 77 CALIF. L. REV. 283 (1989) (summarizing the CLS position on legal indeterminacy and defending law's claim to legitimacy in the face of such accounts). I locate my own attempted theorization of the problem posed in this essay within liberal legal theory, not because of any a priori commitment to that approach but because CLS's take on law's determinacy seems to me to preclude any interest in the way in which a constitutional court in a new democracy may go about establishing its legal legitimacy. If law is radically indeterminate, as CLS and most political science accounts assume, then the only issue of concern is how such a court establishes its institutional legitimacy.
45. I say "concrete" here because, as will become clear later, I do think that liberal legal theory is normatively compatible with certain types of long-range strategizing on the part of constitutional courts, such as the strategic pursuit of democratic consolidation.
46. Cf. RONALD DWORKIN, A MATTER OF PRINCIPLE 9 (Harvard Univ. Press 1985).
47. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 15 (1959) (accepting that constitutional adjudication deals with political questions but arguing that "what is crucial ... is not the nature of the question but the nature of the answer that may validly be given by the courts").
48. The exception is Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 YALE L.J. 2009 (1997) (examining different conceptions of the rule of law in transitional democracies, though not providing a theory of judicial review as such).
49. See also RUTI G. TEITEL, TRANSITIONAL JUSTICE (Oxford Univ. Press 2000).
50. I do not explore the implications of the claims of legal positivism for my research question in this essay, mainly because legal positivism lacks a detailed theory of constitutional adjudication. I also do not take seriously the possibility that, by deferring to the intentions of the constitutional drafters or, when the constitutional text is unclear, the preferences of the political branches, a constitutional court in a new democracy may build its legal legitimacy. The weaknesses of intentionalism are well known.
51. See, e.g., RONALD DWORKIN, LAW'S EMPIRE 359-369 (Harvard Univ. Press 1986). The problem with the second, "passivist" approach is that it permanently relegates the court to an institutional position of no consequence.
52. Id. at 369-379.
53. See DWORKIN, supra note 32, at 33.
54. See also Wechsler, supra note 33, at 15-16.
55. See RICHARD POSNER, LAW, PRAGMATISM AND DEMOCRACY (Harvard Univ. Press 2005). Posner's theory is most famously illustrated by his discussion of Bush v. Gore, 531 U.S. 98 (2000), which he sees not as a decision that bordered on the illegitimate by reason of its disrespect for settled precedent but as one laudable for its pragmatic pursuit of constitutional stability.
56. Id. at 322-356.
57. DWORKIN, supra note 35, at 380-381, emphasis added.
58. See CASS R. SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT (Oxford Univ. Press 1996). For an application of Sunstein's work to the record of the CCSA, see Iain Currie, Judicious Avoidance, 15 S. AFR. J. HUM. RTS. 138 (1999).
59. (3) SALR 391 (CC) (hereinafter Makwanyane). This was the first case heard by the CCSA and the second to be decided.
60. See RICHARD SPITZ WITH MATHEW CHASKALSON, THE POLITICS OF TRANSITION 331 (Witwatersrand Univ. Press 2000) (noting that "[t]he ANC's wish for capital punishment to be abolished was well known, and is clearly stated in its draft Bill of Rights").
61. Art. 102.
62. S. AFR. (Interim) CONST., 1993, §9.
63. Id. at §11(2).
64. See Makwanyane, at ¶¶ 20-25 (describing the 1993 Constitution's failure to deal with the issue of capital punishment as "not accidental" and locating the CCSA's power to decide the issue in the delegation of it to the Court to decide).
65. See Heinz Klug, Striking Down Death, 12 S. AFR. J. HUM. RTS. 61, 65 (1996) (describing the delegation of so important an issue to the CCSA as "extraordinary" and reflective of "a failure to understand the delicate institutional role the Court will find itself in").
66. See Makwanyane, at ¶¶ 87-89. Other judgments in this case that largely followed Justice Chaskalson's lead on the relevance of public opinion include Justice Didcott's judgment (at ¶188) and Acting Justice Kentridge's somewhat more qualified judgment (at ¶¶ 200-201).
67. Makwanyane, at ¶88.
68. For academic commentary on this passage, see Alfred Cockrell, Rainbow Jurisprudence, 12 S. AFR. J. HUM. RTS. 1, 18-19 (1996) (arguing that this passage embodies the CCSA's "official position" on the place of "popular morality" within substantive constitutional reasoning)
69. Myron Zlotnick, The Death Penalty and Public Opinion, 12 S. AFR. J. HUM. RTS. 70, 73 (1996) (noting that Justice Chaskalson does concede that public opinion might have "some relevance to the inquiry" but pointing out that he does not in the end indicate "what weight is to be given to public opinion")
70. Max du Plessis, Between Apology and Utopia: The Constitutional Court and Public Opinion, 18 S. AFR. J. HUM. RTS. 1, 2 (2002) (citing this passage in the context of an article explaining how the CCSA has sought to educate the public through the use of critical morality).
71. Cf. Klug, supra note 45, at 62 (arguing that the "blunt dismissal" of the relevance of public opinion in Justice Chaskalson's judgment was "mediated" in other judgments by "recognition of a national will to transcend the past")
72. Hugh Corder, Judicial Authority in a Changing South Africa, 24 LEGAL STUD. 253, 268 (2004) (arguing that the CCSA attempted to "trigger" public support for its decision elsewhere in the judgment by grounding its decision in "traditional African concepts of human solidarity").
73. Cf. Karl E. Klare, Legal Culture and Transformative Constitutionalism, 14 S. AFR. J. HUM. RTS. 146, 173 (1998) (arguing that the rejection of public opinion in Makwanyane flows from the CCSA's desire to "buttress the legitimacy - the 'law-ness,' if you will - of its decision by repeated affirmation of the law/politics distinction").
74. See Du Plessis, supra note 48, at 5-6 (reporting on the results of a survey conducted in December 1995, six months after the decision in Makwanyane was handed down, showing 75 percent support for the reintroduction of the death penalty).
75. S. AFR. (Interim) CONST. 1993, §8(2)
76. and S. AFR. CONST. 1996, §9(3).
77. See SPITZ, supra note 41, at 306-307 (describing the history of the inclusion of "sexual orientation" as a listed ground of unfair discrimination in the 1993 Constitution).
78. See National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SALR 6 (CC) (challenge to various laws criminalizing sodomy)
79. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SALR 1 (CC) (challenge to immigration legislation).
80. (1) SALR 524 (CC).
81. Marriage Act 25 of 1961 §30.
82. For a full discussion of the legal issues in this case, see Beth Goldblatt, Same-sex Marriage in South Africa: The Constitutional Court's Judgement, 14 FEMINIST LEG. STUD. 261 (2006).
83. Fourie, at ¶¶ 115-161.
84. Id. at ¶136.
85. Id. at ¶170.
86. Justice O'Regan dissented only from the remedy ordered by the majority, not the reasoning in respect of the substantive issues at stake. Id. at ¶¶ 163-165.
87. Id. at ¶139.
88. Id. at 170.
89. Id. at 169.
90. Id. at 171.
91. See also Justice O'Regan's judgment at ¶¶ 166-167 (recognizing "the important democratic and legitimating role of the Legislature in our society" but arguing that, since the definition of marriage had been developed by the courts at common law, the "responsibility" for changing the definition in line with the Constitution lay primarily with the courts).
92. In the first democratic election in 1994, the ANC's support stood at just over 62 percent. In the last general election, in 2004, the ANC won just short of 70 percent of the votes.
93. The ANC supported the inclusion of "sexual orientation" as a ground of unfair discrimination in the 1993 Constitution (see SPITZ, supra note 41, at 306-307), even though some of its leading members, including the current party president Jacob Zuma, are openly homophobic.
94. See Azanian People's Organisation (AZAPO) v President of the Republic of South Africa 1996 (4) SALR 671 (CC) (constitutionality of the Promotion of National Unity and Reconciliation Act 34 of 1995, in so far as it extended immunity from civil and criminal prosecution to the perpetrators of apartheid human rights abuses)
95. Christian Education South Africa v Minister of Education 2000 (4) SALR (CC) (constitutionality of corporal punishment in schools).
96. (5) SA 721 (CC).
97. Subsection (2) provides that: "The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization" of this right.
98. (1) SALR 46 (CC).
99. See, e.g., Mark Heywood, Preventing Mother-to-child HIV Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action Campaign's Case against the Minister of Health, 19 S. AFR. J. HUM. RTS. 278, 306 (2003).
100. Treatment Action Campaign v Minister of Health 2002 (4) BCLR 356 (T).
101. See Heywood, supra note 72, at 308.
102. See Treatment Action Campaign at ¶¶ 96-106.
103. Id. at ¶135.
104. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
105. See Heywood, supra note 72, at 292 (commenting that the "disjuncture between the provinces was to be the undoing of the government's legal case").
106. Id. at 304.
107. Id. at 306.
108. See Louis Henkin, Is There a "Political Question" Doctrine? 85 YALE L.J. 597 (1976)
109. Mark Tushnet, Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine, 80 N. CAR. L. REV. 1203 (2002).
110. The CCSA has never formally considered whether the political question doctrine could be applied in South Africa, but the thrust of the jurisdictional provisions in section 167 of the 1996 Constitution makes this possibility extremely unlikely. See L.W.H. Ackermann, Opening Remarks on the Conference Theme, in A DELICATE BALANCE: THE PLACE OF THE JUDICIARY IN A CONSTITUTIONAL DEMOCRACY 10 (Jonathan Klaaren ed., SiberInk 2006) (retired justice of the CCSA remarking that, "[i]n a substantive constitutional state such as ours, there can be no so-called 'political question' doctrine leading to a conclusion different to that dictated by the Constitution").
111. See also the cases discussed in note 104 infra.
112. (3) SALR 191 (CC).
113. Act 73 of 1998.
114. (3) SALR 191 (CC), at ¶¶ 29-30.
115. Id. at ¶15.
116. Id. at ¶19.
117. Id. at ¶21.
118. Id. at ¶11.
119. Id. at ¶24.
120. Id.
121. See S. AFR. CONST. 1996 §§ 26(2) and 27(2) (expressly giving the Court the power to decide whether the state has adopted "reasonable legislative and other measures" progressively to realize socioeconomic rights).
122. See also Justice O'Regan's opinion at ¶123 (pointing out that there are other rights, apart from the right to vote, "which contain broad equitable defining characteristics," and that there is, therefore, no hard-and-fast rule against the "inclusion of an equitable consideration at the threshold level of the right").
123. See Grootboom and Treatment Action Campaign.
124. New National Party 1999 (3) SALR 191 (CC) at ¶¶ 122.
125. Cf. JEREMY WALDRON, LAW AND DISAGREEMENT 282 (Oxford Univ. Press 1999) (calling the right to participate in the making of laws "the right of rights" and conceding the importance of the judicial protection of this right in a book otherwise skeptical of judicial review).
126. (3) SALR 191 (CC) at ¶21.
127. (1) SALR 495 (CC) (hereinafter United Democratic Movement).
128. Section 46(1), read with item 23A of Annexure A to Schedule 6 of the 1996 Constitution.
129. The Loss or Retention of Membership of National and Provincial Legislatures Act 22 of 2002.
130. Constitution of the Republic of South Africa Amendment Act 2 of 2003.
131. S. AFR. CONST. 1996 §§ 74(1) and (2) for special majorities for constitutional amendments that impact on the founding values and constitutional rights.
132. United Democratic Movement at ¶11.
133. In Ferreira v Levin N.O.; Vryenhoek v Powell N.O. 1996 (1) SALR 984 (CC) at ¶180, the majority held that: "Whether or not there should be regulation and redistribution is essentially a political question which falls within the domain of the Legislature and not the Court." The use of the phrase "political question" in this passage is similar to its use in United Democratic Movement, supra note 98, and should be read as meaning nothing more than that the decision whether or not to enact a particular statute is the prerogative of the legislature.
134. United Democratic Movement at ¶¶ 23-75.
135. Id. at ¶49.
136. See Theunis Roux, Democracy, in CONSTITUTIONAL LAW OF SOUTH AFRICA, supra note 3, at 10-65-10-68
137. Glenda Fick, Elections, in CONSTITUTIONAL LAW OF SOUTH AFRICA, supra note 3 at 29-17 (expressing concern that the CCSA does not indicate which aspect of democracy it is referring to).
138. See Doctors for Life International v Speaker of the National Assembly 2006 (6) SALR 416 (CC) (striking down several health-related bills for failure by the legislature to facilitate public involvement in its processes)
139. Matatiele Municipality v President of the Republic of South Africa (2) 2007 (1) BCLR 47 (CC) (striking down a constitutional amendment for the same reason).
140. (4) SALR 235 (CC).
141. Id. at ¶¶ 23-29.
142. Id. at ¶¶ 212-271.
143. Id. at ¶37.
144. See, e.g., State v Zuma 1995 (2) SALR 642 (CC) at ¶¶ 13-18
145. Makwanyane, at ¶¶ 9-10
146. Executive Council, Western Cape Legislature v President of the Republic of South Africa 1995 (4) SALR 877 (CC) at ¶100
147. Mashavha v President of the Republic ofSouth Africa 2005 (2) SALR 476 (CC) at ¶32.
148. The majority acknowledges these concerns at ¶19 of its judgment.
149. Kaunda 2005 (4) SALR 235 (CC) at ¶231.
150. Id. at ¶237.
151. Id. at ¶¶ 237-238.
152. Id. at ¶¶ 243-244.
153. Id. at ¶247.
154. See S. AFR. CONST., 1996, §167.
155. (4) SALR 768 (CC).
156. The CCSA had earlier decided one property rights case under the 1993 Constitution, Harksen v Lane N.O. 1998 (1) SALR 300 (CC) (also a routine case, involving a challenge to a provision of the Insolvency Act 24 of 1936 and decided mainly under the equality clause).
157. See Theunis Roux, The 'Arbitrary Deprivation' Vortex: Constitutional Property Law after FNB, in CONSTITUTIONAL CONVERSATIONS (Stuart Woolman & Michael Bishop eds., Pretoria Univ. Law Press, forthcoming 2008).
158. The literature on this topic is vast. For a representative example, see BRUCE ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION (Yale Univ. Press 1977).
159. First National Bank, 2002 (4) SALR 768 (CC) at ¶57.
160. Id. at ¶100.
161. Id.
162. Id.
163. The unpredictability of the First National Bank test for arbitrariness is illustrated by the fact that, in the next constitutional property rights case to come before the CCSA, the two lower courts reached diametrically opposed results by applying different levels of review to roughly the same set of facts. See Mkontwana v Nelson Mandela Metropolitan Municipality 2005 (2) BCLR 150 (CC).
164. Grootboom at ¶¶ 31-33
165. Treatment Action Campaign at ¶¶ 26-39.
166. Compare Martin Shapiro's argument that all constitutional rights, in the end, reduce to reasonableness, in MARTIN SHAPIRO & ALEC STONE SWEET, ON LM, POLITICS AND JUDICIALIZATION 179 (Oxford Univ. Press 2002).
167. Grootboom at ¶37.
168. Id. at ¶40.
169. Id. at ¶41.
170. See David Bilchitz, Giving Socio-economic Rights Teeth: The Minimum Core and its Importance, 119 S. AFR. L.J. 484 (2002)
171. David Bilchitz, Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socio-economic Rights Jurisprudence 19 S. AFR. J. HUM. RTS. 1 (2003)
172. Dame Brand, The Proceduralisation of South African Socio-economic Rights Jurisprudence, or "What Are Socio-economic Rights For?," in RIGHTS AND DEMOCRACY IN A TRANSFORMATIVE CONSTITUTION (Henk Botha et al. eds., SUN Press 2 003).
173. See Mark S. Kende, The South African Constitutional Court's Construction of Socio-economic Rights: A Response to Critics, 19 CONN. J. INT'L L. 617, 622 (2004).
174. See Mark S. Kende, The Fifth Anniversary of the South African Constitutional Court: In Defense of Judicial Pragmatism, 26 VT. L. REV. 753, 766 (2002) (referring to the CCSA's decisions on the death penalty and gay and lesbian equality and arguing that "the Court has been pragmatic in selecting only a few cases on which to expend its institutional capital").