ARTICLES

 

Theoretical (dis-) position and strategic leitmotivs in constitutional interpretation in South Africa

 

 

L Du Plessis

Hons BA (Stellenbosch), B Jur et Comm, LLB, B Phil, LLD (PU vir CHO). Extraordinary Professor of Law, North-West University (Potchefstroom). E-mail: lourens.duplessis@nwu.ac.za

 

 

---

SUMMARY

This essay takes a look at the historic restoration that bequeathed this country and its people a prototypical, justiciable Constitution. The advent of constitutional democracy in South Africa went hand in hand with an about-turn in the interpretation of enacted law-texts (including the Constitution) and a critical interrogation of certain dominant beliefs about the interpretation of law in general and enacted law in particular. Hitherto mostly unnamed or unlabelled (but not entirely alien) interpretive strategies pursued and developed by users of the Constitution are discussed, concentrating mainly on the jurisprudence of the Constitutional Court.
Central to the author's approach is an acknowledgement of the decisive actuality of an interpreter's theoretical position becoming visible through (interpretive) leitmotivs. These recur as keynote or defining ideas, motifs or topoi lending direction to specific instances of construing law. Four leitmotivs pertinent to certain constellations of events in constitutional interpretation are discussed and their applicability and utility assessed, drawing on examples from constitutional case-law. The leitmotivs are: (i) transitional constitutionalism; (ii) transformative constitutionalism; (iii) monumental constitutionalism; and (iv) memorial constitutionalism. (i) and (ii) belong together as (A) programmatic leitmotivs and (iii) and (iv) as (B) commemorative leitmotivs.
The author concludes that, although scouting out and engaging with leitmotivs call for profound reading and for text analysis of a sort with which "logical" jurists are not always too comfortable, the said endeavours have the potential to be exceptionally rewarding.

Keywords: Constitution; Constitution - interpretation of; Constitutional Court -interpretive strategies; leitmotiv - Constitution - interpretation; memorial constitutionalism; monumental constitutionalism; transformative constitutionalism; transitional constitutionalism

---

OPSOMMING

In hierdie opstel word die historiese nalatenskap wat aan ons land en mense 'n prototipiese, beregbare grondwet besorg het, in oënskou geneem. Die koms van demokrasie in Suid-Afrika het hand aan hand gegaan met 'n ommekeer in die vertolking van verordende wetstekste (insluitend die Grondwet) en 'n kritiese bevraagtekening van sekere dominante opvattings oor die vertolking van die reg oor die algemeen en verordende reg in besonder. Dusver onbenoemde of ongeëtiketteerde (maar nie geheel en al vreemde) vertolkingstrategieë (nie), nagevolg en ontwikkel deur gebruikers van die Grondwet, word bespreek met klem op regspraak van die Konstitusionele Hof.
Sentraal tot die outeur se benadering is erkenning van die sleutelrol wat 'n vertolker se denkhouding in die vertolking van verordende wetstekste speel, en hierdie denkhouding kom tot uitdrukking in (vertolkende) leitmotivs. Hierdie leitmotivs herhaal hulself as sleutel- of definiërende idees, motiewe of topoi wat rigting gee aan besondere gevalle van wetsteksvertolking. Vier leitmotivs in bepaalde konstellasies van gebeure in grondwetsvertolking word bespreek en hulle toepaslikheid en nut word geëvalueer, met verwysing na voorbeelde uit ons grondwetlike presedentereg. Die betrokke leitmotivs is (i) oorganklike grondwetmatigheid; (ii) transformatiewe grondwetmatigheid; (iii) monumentale grondwetmatigheid, en (iv) kommemoratiewe (ook moontlik: kommememorabele) grondwetmatigheid. (i) en (ii) hoort saam as (A) programmatiese leitmotivs en (iii) en (iv) as (B) leitmotivs van gedenkmatige hoop.
Die outeur kom tot die slotsom dat, hoewel die identifikasie van en omgang met leitmotivs 'n diepgaande lees en teksanalise vereis waarmee "logiese juriste" nie altyd gemaklik is nie, die onderneming as sodanig in verskeie opsigte lonend kan wees.

Trefwoorde: Grondwet; Grondwet - vertolking; grondwetmatige herinnering; leitmotiv - Grondwet - vertolking; monumentale grondwetmatigheid; oorganklike grondwetmatigheid; transfomatiewe grondwetmatigheid.

---

 

 

1 Introductory observations

The constitutional makeover of a dilapidated South African state called for inimitable political prudence and integrity, and for courageous, ethical statesmanship rising above chancy brinkmanship. This essay zooms in on aspects of the historic restoration that bequeathed this country and its people a prototypical, justiciable Constitution. It is trite that a Constitution stands for the advancement of "the good" and the suppression of "evil". This clichéd truism bears regular reiteration as a reality check, to remind us of how easily benevolent governance can lose its footing on the slippery slopes of thuggish misgovernance and maladministration.

The commitment to substantial constitutionalism saw South Africa efflorescing as a champion for constitutional democracy. The Jacob Zuma regime has, however, in the meantime generously and audaciously contributed to blemishing South Africa's favourable but still vulnerable reputation. Setbacks notwithstanding, the authority of the Constitution and the integrity of constitutionalism have survived so far, while the incursive endeavours of legislatures and the executive more often than not miscarried, owing to bold judicial intercession (when appropriate) and a vigilant civil society.

The advent of constitutional democracy in South Africa has brought about a revolution in the field of the interpretation of enacted law, that is, law made by demonstrable, constitutionally authorised legislatures whose distinctive province is (or at least significantly includes) lawmaking.¹ "Enacted law" consists of the supreme Constitution² and all original (or primary) and delegated (or secondary) legislation in all spheres of government. The consequences of the interpretive revolution have been vast and very visible. Statutory interpretation in South Africa had been deficient long before the advent of constitutional democracy, but the challenge of construing a supreme Constitution, an enacted law-text beyond compare in so many respects, brought matters to a head and set off what is also referred to as a linguistic, interpretive or hermeneutical turn.

Hitherto mostly unnamed or unlabelled (but not entirely alien) interpretive strategies pursued and developed by users of the Constitution are up for discussion in the present article, with mainly the Constitutional Court under the loupe. Judges are eminent, authoritative and decidedly visible readers and expositors of the Constitution, but are not its only officially authorised exegetists. However, in the absence of a jurisprudence of interpretation attributable to judicial effort and leadership the interpretive turn would have been destined to come to naught and constitutional democracy to go awry.

The traditional, common-law theories of statutory interpretation - also manifested in and as canons of construction - emanated from and thrived on certain dominant beliefs about the interpretation of law in general and enacted law in particular. These beliefs have been challenged by judges who acknowledged more and more that anyone's interpretation of the law, including their own, draws on a pre-understanding (Vorverständnis) teeming with inarticulate premises. Presuppositions and prejudices are mental agents embedded in this Vorverständnis, engendered by, among other things, someone's life and worldview, which in its turn co-constitutes the human being in a world of cognition and experience which (s)he calls "reality". Negotiating reality compels choice, and choosing prompts positioning in and vis-à-vis reality. In scholarship and in learned professions significantly dependent on theoretical knowledge, the consolidated outcome of crucial choices instantiates someone's theoretical position or his/her philosophy.

Interpretive leitmotivs bear witness to the presence - the effectual being there - of a theoretical position. Leitmotivs recur as keynote or defining ideas, motifs or topoi lending direction to specific instances of construing law. Four leitmotivs, each pertinent to a certain constellation of events in constitutional interpretation, are discussed and their applicability and utility assessed, drawing on examples from constitutional case-law. The leitmotivs are: (i) transitional constitutionalism; (ii) transformative constitutionalism; (iii) monumental constitutionalism, and (iv) memorial constitutionalism. (i) and (ii) belong together as (A) programmatic leitmotivs and (iii) and (iv) as (B) commemorative leitmotivs. (A) is the pervasive reminder that the achievement of a negotiated transition embodied in a constitutional accord depends decisively on both well thought out strategic moves and due process, with (i) also functioning as a constitutionalism of justification. (A) furthermore measures the impact or "degree" of transition in a society on a sociopolitical and constitutional Richter Scale, and warns of either complacent in- or hectic over-action when reaping the benefits of constitutional democracy. (B) endeavours to make sense of the present in relation to the past, and vice versa, taking the pulse of hope for the future. It is, in other words, the leitmotiv of (the Constitution as) memory and promise.

Note below the schematic rendition of what is discussed in the text. The sequence in which arguments unfold in the discourse below is essentially but not entirely the same as in the scheme.

 

 

2 Common-law theories of interpretation

Juristic use of the term "theory" is notoriously loose. Sometimes it is a synonym for "rule" or "precept", for example, the "expedition theory" in the law of contract.³ A theory is, in part, "explanatory".⁴ The consensus theory in the law of contract, for instance, explains that a contract stems from a concursus animorum of the parties involved.⁵ A theory, as an idea accounting for a situation or substantiating a course of action, is justificatory as well, advancing the principles on which the practice of an activity is based.⁶ The consensus theory in the law of contract, for instance, justifies a finding that in the absence of a concursus animorum, a contract has not been concluded. The conventional theories of statutory interpretation, sometimes also referred to as "interpretative approaches", are both explanatory and justificatory in this way.⁷ The most prominent, traditional common-law theories of statutory interpretation are:

(i) Literalism: maintaining that the meaning of an enacted provision can and must be deduced primarily from the language in which it is couched,⁸ thereby placing clear language on the same footing as plain or ordinary language;⁹ in other words, language as a native speaker would use and understand it;¹⁰

(ii) Intentionalism: claiming that to discern and give effect to the intention of the legislature is the paramount rule of statutory interpretation;¹¹

(iii) Literalism-cum-intentionalism: traditionally the dominant theory of statutory interpretation in South Africa,¹² premised on a combination of literalist and intentionalist assumptions;

(iv) Contextualism: asserting that meaning is vitally dependent on context: only by reading an enacted provision and its words and language in context can its meaning(s) be determined;¹³

(v) Purposivism: looking at a particular legislative provision as part of a more encompassing instrument, and contending that meaning is to be attributed to such a provision in the light of the purpose(s) or object(s) it has been designed to achieve;¹⁴ and

(vi) Objectivism: which is meant as an antidote to the subjectivism of intentionalism; it maintains that once a law has been enacted the legislature has had its say and the text assumes an existence of its own¹⁵ and must then be concretised and brought to completion, in an actual situation, by a court acting as the legislature's delegate.

None of these theories by itself can, however, adequately explain what interpretation - let alone constitutionally induced shifts in modes of and approaches to interpretation - really entails.

 

3 Theoretical multi-functionality

Frank Michelman¹⁶ identifies literalism, intentionalism, purposivism instrumentalism and moralism as theories of constitutional interpretation in the USA context. These theories derive from approaches to interpretation akin to our own common-law theories of statutory interpretation. Michelman says of these theories that they constitute a "kind of standard list of interpretative approaches or methods available to constitution adjudicators - from which, it's sometimes imagined, a judge chooses one (or perhaps just falls into one)".¹⁷ He is adamant that the items on the said list

... cannot be alternatives among which a judge chooses; they are multiple poles in a complex field of forces, among which judges navigate and negotiate. I don't believe that any responsible constitutional adjudicator will end up, over any interesting run of cases ignoring any of the factors: perceived verbal significations, perceived concrete intentions, perceived general purposes, perceived and evaluated social consequences, perceived and intuited normative theories or unifying visions.¹⁸

German constitutional interpretation affords a special place to five theories of fundamental rights (Grundrechtstheorien),¹⁹ namely the classical liberal theory, the institutional theory, the value theory, the democratic-functional theory and the welfare-state theory. Here too none of the theories enjoys pre-eminence in the jurisprudence of the Federal Constitutional Court, and in the circumstances of particular cases the court chooses freely which theory to rely on. Theoretical multi-functionality (Multifunktionalität), as Michael Sachs²⁰ calls this free choosing, is in other words also a feature of German constitutional interpretation.

 

4 Exit literalism and intentionalism, enter constitutionalism

Constitutional supremacy as both "a constitutional fact"²¹ and a value²² has dealt the dominance of the literalist-cum-intentionalist theory of interpretation - in the areas of statutory and constitutional interpretation at least - a decided blow. Nowadays a statutory provision is first and most importantly to be understood not as the legislature supposedly intended it, but in conformity with the Constitution. The possible meaning of a statutory provision most compatible with the Constitution is, in other words, to be preferred:

The interpretative notion of ascertaining "the intention of the Legislature" does not apply in a system of judicial review based on the supremacy of the Constitution, for the simple reason that the Constitution is sovereign and not the Legislature.²³

"All statutes must be interpreted through the prism of the Bill of Rights",²⁴ which means that section 39(2) of the Constitution actually establishes a new canon of statutory interpretation, namely that legislation must be construed to promote the spirit, purport and objects of the Bill of Rights. This canon cannot be overridden by "legislative intent" couched in (allegedly) "clear and unambiguous language". The "intention of the legislature", in all its possible significations, will always be subject (and second) to the Constitution, and not only when a statute is (allegedly) inconsistent with a provision or provisions of the Constitution.²⁵ The interpretive strategy helping to give specific effect to this (new) canon of statutory interpretation in section 39(2) is known as reading in conformity with the Constitution (Verfassungskonforme Auslegung).

 

5 The notion of a "theoretical position" in law

A theory is explanatory and justificatory at the same time. A legal interpreter's theory of interpretation causes him or her to relate, intentionally or intuitively, issues of interpretation to broader questions regarding, amongst others, the role and function of language in law and the possibility of justice through the reading and realisation of written law. It also situates interpretive endeavours in a legal and constitutional tradition within prevailing understandings of matters of interpretive consequence, such as the nature and the division of power (reflected in, for example, trias politica) and the role appropriate to authorised (judicial and other) interpreters of the law in the system. An approach to interpretation is premised on and shaped by theoretical assumptions about the crucial matters just mentioned and by numerous other matters too. In constitutional interpretation these matters may, for instance, manifest in what Michelman calls "an emergent national sense of justice to which ... interpretations ... recursively" contribute.²⁶

When the notion "theory of constitutional interpretation" is thought of as a position based on assumptions about the crucial matters mentioned above, it becomes clear why one-word depictions and one-sentence definitions - all parading as "theories" of or "approaches" to constitutional interpretation - are by themselves inadequate explanations of and justifications for "constitutional interpretation" in its complexity. Literalism, intentionalism and contextualism, for instance, cannot be theories of constitutional (or statutory) interpretation, but are at most elements of theoretical positions.

A theoretical position, pertinent to constitutional interpretation, is determined by the assumptions referred to above and it is a constitutional interpreter's theoretical position, rather than any specific conventional approach to (or common-law theory of) interpretation on which (s)he may rely that co-determines interpretive outcome.²⁷ To make an assumption involves making a choice. Theoretical positions on constitutional interpretation coming from choices thus made therefore order and rank (or hierarchize) interpretive preferences.²⁸

A theoretical position, which is a theoretical disposition at the same time, is not in its entirety rationally or even consciously decided on. "Jurists in practice" (including judicial officers), especially, do not habitually devote time to reflect specifically on (and explain or justify) their theoretical positions, which mostly become discernible in the arguments they rely on to justify specific interpretive outcomes.²⁹ A theoretical position may nonetheless be reflected on, contested, defended, explained and (also consciously) changed. It may also be shared with others although, due to the uniqueness of each individual, no two theoretical positions can probably be identical in every detail. A theoretical position is constituted by multifarious interacting factors and forces, some of which result from conscious, reasoned choice, while others derive from intuitive perception. Covert and subconsciously held (theoretical) assumptions, precisely because of an interpreter's uncritical unawareness of them, often have a more decisive impact on interpretive outcome than overt and consciously reasoned assumptions.³⁰

A nation's judiciary cannot assume a theoretical position en bloc on issues of constitutional (or statutory) interpretation. The theoretical position of an individual judge may, as a matter of fact, vary from case to case depending on the measure of latitude that the law and the canons of construction allow for deciding the specific issues in a case.³¹ However, it is possible that, within a given jurisdiction or tradition, a theoretical position of a certain kind may dominate how interpreters of a constitution (and of statutes and other law too), especially the judges and legal practitioners, approach their task. An overriding theoretical position may in time even become a template for additional (or auxiliary) positions on and approaches to interpretation.³²Literalism-cum-intentionalism has long held a dominant position in statutory interpretation in South Africa,³³ with contextualism and purposivism mostly in auxiliary or secondary roles. The belief, growing in popularity, that since the advent of constitutional democracy in South Africa purposivism has been replacing literalism-cum-intentionalism as the template approach - definitely in constitutional interpretation, but increasingly so in statutory interpretation too - is not unproblematic.³⁴ It is a misapprehension that reliance on a single preferred approach to (constitutional or statutory) interpretation can eventually "make all the difference". Since 1994 it has mainly been "an emergent [new] national sense of justice" (à la Michelman)³⁵ - and not any particular interpretive approach - that has navigated constitutional and statutory interpretation in South Africa along previously unexplored pathways.

 

6 Interpretive leitmotivs and the law: some illustrations

The complexity of a theoretical position precludes a full and reliable depiction of it at first glance, and is most often recognised quite piecemeal, as it were, by effects or consequences in which it manifests (aspects of) itself, and not as a holistic picture of some sort. Theoretical positions, or aspects of them, can and do, for instance, become visible in interpretive leitmotivs detectable as recurring keynote or defining ideas, motifs or topoi guiding instances of constitutional interpretation. The same leitmotiv can manifest (aspects of) different theoretical positions on constitutional interpretation, but it is hardly conceivable that contradictory or conflicting theoretical positions will manifest in a significant number of similar or corresponding leitmotivs. The conventional approaches to - or theories of - statutory interpretation, such as literalism-cum-intentionalism or purposivism, cannot really be leitmotivs because they do not (re-)present and are not the sources of any ideas of significance from within themselves.

The judgment of the Constitutional Court in MEC for Education: KwaZulu Natal v Pillay³⁶ helpfully illustrates what leitmotivs are - and how one of the eminent leitmotivs in South African constitutional interpretation can enhance and enrich an interpretive event.

Sunali Pillay, a teenage Hindu girl, enjoyed an excellent school education at the Durban Girls' High School. In breach of a stipulation in her school's Code of Conduct Sunali, upon reaching physical maturity, had her nose pierced and a gold stud inserted not for fashion purposes, but to honour a long-standing family tradition, as a religious ritual and for cultural reasons. The school management refused to grant Sunali an exemption to wear the nose stud and this kick-started a series of litigation ending up in the Constitutional Court.

The Constitutional Court dismissed a number of arguments on behalf of the school, but of significance for the present purposes was the Court's response to the school's argument that wearing a nose stud was not a mandatory tenet of either Sunali's religion or her culture, and that the refusal of the exemption she sought would therefore not force her to do something against her religion or culture. The Court per Langa CJ disagreed:

Freedom is one of the underlying values of our Bill of Rights and courts must interpret all rights to promote the underlying values of "human dignity, equality and freedom". These values are not mutually exclusive but enhance and reinforce each other ... The protection of voluntary as well as obligatory practices also conforms to the Constitution's commitment to affirming diversity. It is a commitment that is totally in accord with this nation's decisive break from its history of intolerance and exclusion. Differentiating between mandatory and voluntary practices does not celebrate or affirm diversity, it simply permits it. That falls short of our constitutional project which not only affirms diversity, but promotes and celebrates it. We cannot celebrate diversity by permitting it only when no other option remains.³⁷

Listen! Do you hear it? The "never again" - "nie wieder"? The clarion call of memorial (or Mahnmal) constitutionalism which, together with monumental, transitional and transformative constitutionalism, has guided especially the Constitutional Court's interpretive thinking decidedly enough to have earned the appellation (and reputation) of leitmotivs in constitutional interpretation in South Africa. Observations about transitional and transformative constitutionalism will follow in due course, but first more about memorial and monumental constitutionalism.

 

7 Memorial and monumental constitutionalism

A constitution both narrates and authors a nation's history - so memorial constitutionalism maintains. Two constitutions since 1994 have accordingly archived as well as effected far-reaching change in South Africa. A constitution memorialises the past, but is also a monument triumphantly shedding the shackles of what went before, and setting a nation free to take thought (and responsibility) for its future. Memorial constitutionalism is a constitutionalism of memory in a South Africa (still) coming to terms with its notorious past, but eventually also a constitutionalism of promise along the way of (still) getting to grips with the future.

Memorial constitutionalism, as interpretive leitmotiv, calls attention to and affirms the power of the unspectacular, non-monumental Constitution as vital (co-)determinant of constitutional democracy. The memorial Constitution coexists with the monumental Constitution,³⁸ kindling the hope that duly and simultaneously acknowledged, the coexistence of the Constitution's monumental and memorial modes of being - which, at a glance, may seem to be at odds - will be mutually inclusive, constructive and invigorating.

Monuments and memorials have memory in common, but in distinct ways: a monument celebrates; a memorial commemorates. The difference in (potential) meaning(s) between the two may be subtle, and some dictionaries may even indicate that "celebrate" and "commemorate" are synonyms, but according to memorial constitutionalists they are not really or, at least, not exactly synonymous. Heroes and achievements can be celebrated or lionised. The same does not apply to anti-heroes, failures and blunders: they must be remembered, yes, but they can hardly be celebrated. "Commemorate" is a feasible synonym for "remember", while "celebrate" is an exultant or jubilant mode of remembering. The closeness in meaning of "celebrate" and "commemorate" is not lamentable, however. On the contrary, it suggests their coexistence - contradictions notwithstanding. The German Denkmal and Mahnmal neatly capture the said contradictions. A Denkmal can celebrate (and may even commemorate), but a Mahnmal inevitably warns (and may even castigate). Monuments and memorials are aesthetic creations, and memorial constitutionalism contends that a constitution may, with interpretive consequences, be thought of as such a creation too.³⁹

Restrained Mahnmal constitutionalism has resounded, in post-apartheid South Africa, the "Nie wieder!" that also inspired constitutionalism in a post-Holocaust Germany.⁴⁰On the strength of this Mahnmal constitutionalism, human dignity as a value has, for instance, gained an upper hand in our constitutional project in general, and in our constitutional jurisprudence. This is true of our equality jurisprudence in particular.

MEC for Education: KwaZulu Natal v Pillay⁴¹ must be understood in this context. In a sense Pillay is (to use a Dworkinian metaphor)⁴² a chapter in a constitutional chain novel rigorously interrogating issues of identity and difference. A resoluteness not to repeat the injustices of the past has resulted in the affirmation of the status and dignity of several vulnerable groups and categories of persons who, under a culture of authority, had been marginalised and stigmatised for their non-compliance with "mainstream" morality and its preconceptions about how societal life is best organised. Emblematic of the courts' (and especially the Constitutional Court's) affirmative endeavours are the confidence and forthrightness with which, unperturbed by the conventional public-private divide, they have addressed deficiencies in laws regulating intimate relationships. Landmark judgments that come to mind in this regard are National Coalition for Gay and Lesbian Equality v Minister of Justice⁴³ (the criminalisation of sodomy was found to be unconstitutional); National Coalition for Gay and Lesbian Equality v Minister of Home Affairs⁴⁴ (the court read words into a statutory provision to extend immigration benefits that "spouses" of South African nationals enjoyed to same sex life-partners); Satchwell v President of the Republic of South Africa⁴⁵ (words were read into a statutory provision conferring financial benefits on a judge's "surviving spouse" so as to extend such benefits to a same sex life-partner); and Daniels v Campbell⁴⁶ (a surviving "spouse" reaping benefits from legislative provision for maintenance was held to include a partner in a Muslim marriage).⁴⁷Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs,⁴⁸the Constitutional Court judgment in which the statutory and common-law exclusion of same-sex life partnerships from the ambit of "marriage" was held to be unconstitutional, constitutes a high-water mark in the evolution of the constitutional jurisprudence on issues of identity and difference drawing on the compelling strength of memorial constitutionalism.

There are also some quite pedestrian cases in which memorial constitutionalism as a leitmotiv guided the Constitutional Court's reasoning decisively and had already done so since the early days of constitutional democracy.⁴⁹ In Jafta v Schoeman; Van Rooyen v Stoltz,⁵⁰ for instance, the Court was called upon to consider a challenge to the constitutionality of certain provisions of the Magistrates' Court Act⁵¹ which, in practice, had the effect that the houses of indigent judgment debtors - many of them first-time home owners who had acquired their homes with state subsidies -were attached and sold in execution to satisfy trifling debts. This, the applicants contended, was incompatible with the rights to adequate housing and security of (residential) tenure entrenched in sections 26(1) and 26(3) of the Constitution. In considering the challenge, the Court per Mokgoro J made it clear that "[s]ecurity of tenure in our historical context" had to be a crucial part of the enquiry.⁵² The Court's reasoning in this case as well as the remedial relief it eventually granted to mitigate the effects of the impugned legislation bear the hallmark of memorial constitutionalism.

 

8 Transitional constitutionalism: the one-way bridge of justification

Transitional constitutionalism as the constitutionalism of justification depicts the Constitution as a bridge from the "old" South Africa to the "new", and thereby from a culture of authority to a culture of justification.⁵³

South Africa's 1993 (transitional) Constitution⁵⁴ concluded with an unusual Postamble (or Postscript), an exhibition of efflorescent language, entitled National Unity and Reconciliation and decreed⁵⁵ to form part of the substance of the Constitution. The Postamble anticipated that the Constitution would provide "a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex". It furthermore verbalised a quest for "the pursuit of national unity, the well-being of all South African citizens and peace", requiring "reconciliation between the people of South Africa and the reconstruction of society".

The Postamble found its way into the transitional Constitution as an attempt to break a deadlock in the constitutional negotiations resulting from the constitution-makers' inability to agree, in precise terms and in time for the adoption of the transitional Constitution, on how to deal with "gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge" from the past.⁵⁶ The Postamble thus envisaged, in broad terms, the eventual adoption of cut-off dates and "mechanisms, criteria and procedures" for amnesty "in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past". The Promotion of National Unity and Reconciliation Act⁵⁷ was subsequently enacted, stipulating conditions - and laying down procedures to apply - for such amnesty.

Much of the spirit and tenor of the Postamble survived in the Preamble to the 1996 Constitution - with implications for the latter as a possible textual source-in-writing of transitional constitutionalism as interpretive leitmotiv.

"What is the point of our Bill of Rights?" Etienne Mureinik asked in one of the earliest commentaries on South Africa's first (or transitional) Bill of Rights,⁵⁸ and then set out to answer this question, exploring the bridge metaphor in the Postamble to the transitional Constitution:⁵⁹

If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification - a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.

Justification and transition-as-a-bridge are not intrinsically related, but combining them presented an unusually powerful image of the "culture of justification" that many - like Mureinik - believed to be the quintessence of the new constitutional dispensation in South Africa. To this day Mureinik's articulation of (especially) what "the new Constitution" clearly "must be a bridge to" has been cited with approval and appreciation by many South African courts and by the Constitutional Court in particular,⁶⁰ and has thereby indeed established itself as an interpretive leitmotiv of consequence, more aptly depicted as justificatory rather than transitional constitutionalism. The constitutionalism of justification is a more elegant alternative for justificatory constitutionalism.

Much within the precincts of "the culture of justification" in administrative law is, at any rate, under the regulative authority of the Promotion of Administrative Justice Act,⁶¹ a statute required by section 33(3) of the Constitution and enacted to give specific effect to the fundamental right to just administrative action entrenched in the Bill of Rights.⁶² Some Constitutional Court judgments have, however, also contributed substantially to establish a culture of justification as a benchmark for administrative action.

In Pharmaceutical Manufacturers Association of SA. In re: The Ex Parte Application of the President of the RSA⁶³ the Constitutional Court, for instance, proclaimed the essential unity of the Constitution and (administrative) common law in dealing with the exercise of public power,⁶⁴ rejecting a suggestion - of the Supreme Court of Appeal in Commissioner of Customs and Excise v Container Logistics (Pty) Ltd; Commissioner of Customs and Excise v Rennie Group Ltd trading as Renfreight⁶⁵ -that any common law from an era predating the inception of a constitutional culture of justification has continued to survive undisturbed. The judgments in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism⁶⁶ and Minister of Health v New Clicks South Africa (Pty) Ltd,⁶⁷ duly accounting for the effects of the Promotion of Administrative Justice Act, have also contributed significantly to the culture of justification in administrative law.

A constitutionalism of justification is most certainly not only of consequence in relation to administrative justice, and the Constitutional Court's judgment in First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance,⁶⁸ (the FNB case) developing a set of guidelines for determining when a deprivation of property is arbitrary and hence unjustified, is therefore also a crucial contribution to the kind of jurisprudence Mureinik must have anticipated when he spelt out his understanding of crossing the bridge of transition in South Africa. Adjudicative determination of the issue of arbitrariness was overdue and necessary for the peace of mind of propertied beneficiaries under section 25 of the Constitution (the property clause) and to promote legal certainty. The advantages of this landmark judgment have, however, been eroded to some extent by what could be construed as the Constitutional Court's subsequent retreat from its FNB⁶⁹ position in, for instance, the case of Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett v Buffalo City Municipality; Transfer Rights Action Campaign MEC for Local Government and Housing, Gauteng.⁷⁰ The flexible and context-sensitive manner in which the FNB⁷¹guidelines, as conceptual distinctions, were converted into a multi-factor balancing test,⁷² probably paved the way for deviation from them in Mkontwana.⁷³

If the FNB case⁷⁴ has had the potential to conduce property owners' peace of mind, then the Constitutional Court judgment in Alexkor Ltd v The Richtersveld Community,⁷⁵ and the preceding judgment of the Supreme Court of Appeal in the same case⁷⁶ certainly have the potential to kindle the property aspirations of prospective beneficiaries of section 25, and especially communities and individuals whose property was taken away from them under a colonial and apartheid culture of authority.⁷⁷ The Richtersveldd judgments have gone a long way towards bringing the common law on indigenous title within the ambit of a constitutionalism of justification - just as the FNB case⁷⁸ had done with the Roman-Dutch based common law of property.

A high threshold of justification applies when legislative and administrative action, likely to compromise the rudiments of constitutional democracy, is up for constitutional review. In the course of such a review South Africa's two highest courts have emerged as staunch guardians of, for instance, participatory democracy in law-making. Both the Supreme Court of Appeal, in King v Attorneys Fidelity Fund Board of Control,⁷⁹ and the Constitutional Court in Doctors for Life v Speaker of the National Assembly⁸⁰ as well as Matatiele Municipality v President of the Republic of South Africa,⁸¹ required the National Assembly's meticulous compliance with its constitutional obligations⁸² to facilitate public involvement in its legislative and other processes, and in its committees, and to conduct its business in an open manner. The absence of meticulous compliance with these obligations, it was held, renders legislative action and legislation ensuing from such action null and void.⁸³ The case of African Christian Democratic Party v The Electoral Commission⁸⁴ was also an instance of guarding the rudiments of popular democracy not by strictly enforcing procedural requirements, but by relaxing them (through purposive interpretation) in order to "promote enfranchisement rather than disenfranchisement and participation [in] rather than exclusion from municipal elections".⁸⁵

The South African Constitutional Court has also earned itself a complimentary reputation for its "... 'universalist interpretation' of constitutional rights, in a series of judgments relating mostly to criminal processes",⁸⁶ beginning with judgements such as S v Makwanyané⁸⁷ and S v Zuma.⁸⁸ Vigilance in guarding the due process of the law in criminal proceedings is very much a distinctive attribute of a constitutionalism of justification.

 

9 Transformative constitutionalism: the bridge bridging

Transformative constitutionalism, in the words of Karl Klare,⁸⁹

... connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law ... a transformation vast enough to be inadequately captured by the phrase "reform," but something short of or different from "revolution" in any traditional sense of the word. In the background is the idea of a highly egalitarian, caring, multicultural community, governed through participatory, democratic processes in both the polity and large portions of what we now call the "private sphere".

Klare wrote these words in an article on transformative constitutionalism in which he paid tribute to Etienne Mureinik, the principal proponent of a constitutionalism of justification.

Some critical legal scholars have questioned justificatory constitutionalism's use of the bridge metaphor to depict transition as a once-off, linear progression from "the old dispensation" to "the new", and thus from a culture of authority to a culture of justification. André van der Walt, for instance, claims that

... the bridge metaphor ... allows for another interpretation where the bridge is not simply an instrument for getting out of one place and into another, but an edifice that is inherently related to the abyss which it spans. Here, the focus is not on the two spaces on either side of the abyss, but on the abyss itself - the bridge is functionally and inherently linked to and obtains its significance from the abyss beneath it, so that the bridge is not a temporary instrument for a single crossing, one way, but allows and invites multiple crossings, in both directions, since there is no inherent value attached to being one side of the bridge rather than the other. In this alternative interpretation of the bridge metaphor the danger is to stay on one side, while the bridge allows us to connect one side with the other.⁹⁰

Wessel le Roux adds that it is not the bridge itself which is significant but the act of bridging, of linking the past and the future, reality and imagination, in order to create new ideas in the present.⁹¹ Memorial constitutionalism makes very much the same point: South Africa is still coming to terms with its notorious past along the way of still getting to grips with the future. The past cannot and should not be left behind - there is in other words no once-off crossing of the bridge - and the promise of the future gains much of its significance from engagement with the past.⁹²

Michael Bishop calls the bridge that Van der Walt and Le Roux metaphorically envision "a transformative bridge" and explains its significance as follows:

[V]an der Walt and le Roux offer a space in which dialogue and transformation are truly possible, in which new ways of being are constantly created, accepted and rejected and in which change is unpredictable and constant. I would call this a transformative bridge because it envisions constant change and re-evaluation without end, rather than a move from one point to another ... [T]he transitional bridge is a path, while the transformative bridge is a space.⁹³

What emerges from the discussion so far is that transformative constitutionalism has every potential to impact constitutional (and, more generally, legal) interpretation profoundly and guide, as a leitmotiv, both the interpretive mind-set (also read: theoretical position(s)) and the interpretive style (also read: methodology) of especially judicial interpreters of the Constitution, in an irrevocably new direction.⁹⁴South Africa's Constitution is furthermore thoroughly transformative in many respects, and in section 7(2) it invites (and arguably compels) the optimum realisation of the rights entrenched in the Bill of Rights, requiring the state not only to respect and protect, but (also) to promote and fulfil those rights.

Klare typifies the South African Constitution as "post-liberal" because it simultaneously entrenches conventional liberal democracy and the basic tenets of (and normative preconditions to) an all-out transformation of South African society.⁹⁵

The distinctive traits of the transformative South African Constitution are said to be (among others) "the attainment of substantive equality, the realisation of social justice, the infusion of the private sphere with human rights standards and the cultivation of a culture of justification in public law interactions".⁹⁶ Pius Langa, South Africa's former Chief Justice, in an extra-curial writing, conceives of such traits as challenges posed by the transformative Constitution, namely to procure equal access to justice for all, to educate law students who will be up to the demands of the kind of legal and social order envisaged in the Constitution, to rid the legal culture of its formalism, and to create a climate for and, indeed, conduce national reconciliation.⁹⁷The transformative nature of the Constitution has far-reaching implications for its interpretation and necessitates a decisive makeover of legal culture, especially as it manifests in the conventional manners (and assumptions) of adjudicative reasoning pertinent to the interpretation and implementation of enacted law. Klare writes in this regard:⁹⁸

The Constitution invites a new imagination and self-reflection about legal method, analysis and reasoning consistent with its transformative goals. By implication, new conceptions of judicial role and responsibility are contemplated. Judicial mind-set and methodology are part of the law, and therefore they must be examined and revised so as to promote equality, a culture of democracy and transparent governance.

According to Klare the drafters of the Constitution, having dramatically reworked substantive constitutional foundations and assumptions, could not have intended the new Constitution to be interpreted with reliance on conventional legalist methods of interpretation, thereby having its transformative qualities restrained by "the intellectual instincts and habits of mind of the traditional common or Roman-Dutch lawyer trained and professionally socialized during the apartheid era".⁹⁹Transformative constitutionalism thus inspires preference for non-formalist, non-legalist and non-literalist approaches to constitutional interpretation and, very importantly, it explodes the myth that an a- or non-political legal interpretation -and constitutional interpretation, in particular - is achievable.

South African courts (and the Constitutional Court in particular) have on several occasions in the course of construing the Constitution, made boldly transformative moves. Most of the judgements where this happened could well be depicted as instances of transformative constitutionalism, though in much of its jurisprudence on intimate relationships - which is outcome-wise very progressive - the Constitutional Court tended to rely on a rather conventional formalist, legalist and literalist approach to constitutional interpretation, thereby dashing Klare's hopes that transformative constitutionalism would go hand in hand with an innovative mode of constitutional interpretation shedding conventional -isms.¹⁰⁰

The Constitutional Court judgements most directly and evidently inspired by transformative constitutionalism as an interpretive leitmotiv are probably those dealing with the state's obligation to implement socioeconomic rights. Government of the Republic of South Africa v Grootboom¹⁰¹ heralded a wholehearted (judicial) acceptance of the justiciability of the socioeconomic entitlements enshrined in the Bill of Rights (in sections 26 and 27 in particular). It furthermore emphasised competent courts' responsibility to enforce these entitlements by carefully crafting appropriate "orders with teeth" to redress government authorities' disinclination and/or incapacity to procure access to the commodities to which the said entitlements pertain. The Grootboom judgment blazed the trail for the bold and far-reaching declaratory and mandatory orders in Minister of Health v Treatment Action Campaign,¹⁰² compelling the fulfilment of the state's constitutional mandate (and obligation) to supply and administer Nevirapine to HIV-positive women and their babies.¹⁰³

Generally speaking, it is transformative constitutionalism that pilots and shapes meaningful implementation of the socioeconomic rights enshrined in the Bill of Rights. According to Sandra Liebenberg¹⁰⁴ South Africa's transformative Constitution, with its decided emphasis on socioeconomic rights, "aims to facilitate the transformation of society by setting right the wrongs of the past", but also "aims at facilitating the construction of a new political, social and economic order 'based on democratic values, social justice and fundamental human rights'".¹⁰⁵ The Constitution is, in other words, both backward-looking and forward-looking - an insight that also resonates favourably with memorial constitutionalism.

 

10 Intermezzo

So far only tentative conclusions can follow from a still incomplete catalogue of leitmotivs in action, gleaned from actual instances of constitutional adjudication. Working with the samples selected it has become clear that an incontrovertible classification of judgments with reference to dominant leitmotivs determining their outcome is not achievable. The impetus of memorial constitutionalism, for instance, decisively codetermined the outcome of Constitutional Court cases in which rights to criminal due process in accordance with the exigencies of a constitutionalism of justification were meticulously upheld. It also appeared that a progressive and activist - backward- and forward-looking - adjudication of socio-economic rights issues can draw momentum both from transformative and memorial constitutionalism.

How then do leitmotivs help us to do "better" constitutional interpretation? To begin with, they show up rights interpretation and application as more than just an intellectual or "logical" process of deduction and subsumption. It is also an engaging performance of aesthetic significance, into the spirit of which an interpreter can enter. Most dictionaries give, as the primary meaning of "leitmotiv", something like "[a] theme associated throughout a [musical] work with a particular person, situation, or sentiment".¹⁰⁶ This phenomenon is especially associated with the opera music of Richard Wagner. Some dictionaries will concede that a leitmotiv can also be "[a] recurrent idea or image in a literary work etc.".¹⁰⁷ The entry "leitmotiv" is absent from most dictionaries of philosophy, dictionaries of ideas and dictionaries of the humanities and social sciences. The Woordeboek van die Afrikaanse Taal (WAT), on the other hand, generously explores quite a range of meanings of the word "leitmotiv"¹⁰⁸ (also "leidmotief", "leimotief" and "leitmotief"¹⁰⁹).

It is significant that "leitmotiv" is so closely associated with music, for there is much to say for the contention that reading and applying a Constitution (and, as a matter of fact, any enacted law) is more like performing a piece of music than like reading a newspaper. Enacted laws are made and meant to have effect, and their provisions must accordingly be construed to be of consequence. Its effect-directedness makes an enacted law-text - a constitution- or a statute-in-writing - very much like sheet music. Its meaning and effects cannot be grasped sufficiently simply by reading it. Its "execution" or "performance" must also be experienced, or must at least be imaginable, to fully understand it. The actual effect of a constitutional provision can also not be gauged simply by reading and attaching meaning to signifiers that appear on paper, but rather from the manner in which the provision is (or could be) construed and applied in a real-life situation. Someone who can read music well can also "hear" the music when reading a score. The interpreter of enacted law-texts, especially someone with experience, reads those texts in a similar way. (S)he can imagine what a provision will "sound" like in a concrete, real-life situation. This could be because (s)he is seeking a solution to an actual problem or because (s)he hypothesises (and thus "conceives of") potentially problematic situations.¹¹⁰ Actual or potential applications of any law, including provisions of enacted law such as the Constitution, determine their construction decisively: there is a unity in the duality of what is traditionally known (and unfortunately all too often too categorically distinguished) as interpretation and application.

 

11 Finale (and concluding perspectives)

"Objection!" a disillusioned (and by now wary and weary) reader of the Constitution may bellow, and then continue: "Enough of a Constitution with its perennial erosion and inevitable disempowerment of tried and tested common-law principles; with its enfeebling overemployment and mixing-up of assorted values; with its prolific production of sonorous jargon like subsidiarity, 'judicial self-restraint', trias politica, 'reading in conformity with the Constitution' and, on native African soil, ubuntu, ubuntu and ubuntu."¹¹¹ Must "leitmotiv" really be squeezed into an arsenal already replete with the law's construction equipment such as ideas, values, concepts, principles, rules, canons, theories and doctrine? Do we, in any event, need "leitmotiv" in our "lawspeak?" Our seemingly well informed, hypothetical denigrator is clearly sceptical (to say the least) about any possibility that working with (the notion of) leitmotivs can add value to the construction of enacted law.

A preponderance of opinion has it that the idea of leitmotivs sits most comfortably with pen-art (that is, creative writing such as poetry, prose and drama), the plastic arts and the performing arts (especially music). It is unnecessary, however, to devote time to proving or disproving this proposition, for it is also widely accepted that leitmotivs do occur and indeed thrive in text genres other than those just mentioned, and most certainly in law-texts too, albeit sporadically and often unnamed as such.

In several places in the constitutional text, a formulaic reference to "an open and democratic society" occurs, and in most instances it is followed by the further qualifier "based on human dignity, equality and freedom". The three key values just mentioned can also be referred to as the "triumvirate" of values. The Preamble, in an anticipatory vein, speaks of a democratic and open society whose foundations were laid with the adoption of the Constitution. In Chapter 1 of the Constitution, entitled Founding Provisions, and especially in section 1(a), human dignity, the achievement of equality and the advancement of human rights and freedoms are said to be values on which the state is founded. This is serious business, which is why amendments to sections 1 and 74(1) of the Constitution require an "extraordinarily enhanced" majority of 75 per cent, surpassing the two-thirds benchmark for a "standard" or "ordinarily enhanced" majority.

Section 7(1) introduces the Bill of Rights as "a cornerstone of democracy in South Africa" affirming, among other values, "the democratic values of human dignity, equality and freedom". Section 39(1) enjoins adjudicative fora, construing legislation and developing common and customary law, to "promote the values that underlie an open and democratic society based on human dignity, equality and freedom". Of the same tenor are stipulations in section 36(1) regarding the extent to which a law of general application may limit a constitutional right. The limitation must, among other things, be "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom".

These are but some examples of the constitutional references to a free and open society and the triumvirate of values on which it is based. The said examples come from section 1 of the Constitution and from the Bill of Rights, and they closely link (the ideal of) an open and democratic society with the triumvirate of values, tellingly instantiating a leitmotiv which recurs as the keynote or defining idea, motif or topos¹¹² throughout the Bill of Rights, but arguably also throughout the Constitution as a whole. This leitmotiv is the (ideal of an) open and democratic society based on human dignity, equality and freedom.

A leitmotiv could - in some instances more than in others - have a lot to do with values and principles and especially with reading and communicating (and "digesting") them. But a leitmotiv is not a value or a principle per se, and vice versa. It is, as its name indicates, a motif of a sort - also referred to as a literary device. )udiciously invoked, however, a leitmotiv is, in point of fact, much more than a literary device. It can, for instance, be quite useful in contemplating and developing a reading (and listening) strategy for non-literary texts too. The examples from the Bill of Rights above indeed show that the notion of a "leitmotiv" can also work quite efficiently with law-texts, and especially with the Constitution.

A leitmotiv is usually thought of as a phenomenon on the move, recurrently establishing and asserting itself, and frequently encountered in a text. But it is not all about movement, generated by, amongst other impulses, the recurrence of a prospective leitmotiv. A broad interest in the consequences of the motif's amassing power and attaining precedence to the point where it achieves the status of a leitmotiv is also up for scrutiny. The movements of a leitmotiv can then, for the time being, be reined in, since a host of other factors can at this point join in to add to or subtract from the status and weightiness of a prospective leitmotiv. Recall the founding provisions in section 1 of the Constitution. As explained before, they are entrenched more rigidly than other sections of the Constitution, requiring among other things an "extraordinarily enhanced" majority (75 per cent versus 66⅔ per cent) for their amendment. This in itself, directly and indirectly, enhances the status of these provisions. The full implications of this proposition stand to be determined from case to case and vis-a-vis - but also in interactive "partnership" with - other texts. Scouting out and engaging with leitmotivs call for profound reading and for text analysis of a sort with which "logical" jurists are not always too comfortable, but which at all times have the potential to be exceptionally rewarding.

 

BIBLIOGRAPHY

Literature

Bishop M "Transforming Memory" in Le Roux W and K Van Marle (eds) Law, Memory and the Legacy of Apartheid: Ten Years after AZAPO v President of South Africa (Pretoria University Law Press Pretoria 2007) 33-50        [ Links ]

Böckenförde E "Grundrechtstheorie und Grundrechtsinterpretation" 1974 NJW 1529-1538        [ Links ]

Böckenförde E State, Society and Liberty. Studies in Political Theory and Constitutional Law (Berg New York 1991)        [ Links ]

Cowen DV "Prolegomenon to a Restatement of the Principles of Statutory Interpretation" 1976 TSAR 131-167        [ Links ]

Cross R, Bell J and Engle G Statutory Interpretation 3^rd ed (Butterworths London 1995)        [ Links ]

Devenish GE Interpretation of Statutes (Juta Cape Town 1992)        [ Links ]

Du Bois F (ed) Wille's Principles of South African Law 9^th ed (Juta Cape Town 2007)        [ Links ]

Du Plessis L "Re-reading Enacted Law-texts. The Epoch of Constitutionalism and the Agenda for Statutory and Constitutional Interpretation in South Africa" 2000 SA Pubic Law 257-302        [ Links ]

Du Plessis L "The (Re-)systematization of the Canons and Aids to Statutory Interpretation" 2005 SALJ 591-613        [ Links ]

Du Plessis L "German Verfassungsrecht under the Southern Cross. Observations on South African-German Interaction in Constitutional Scholarship in Recent History with Particular Reference to Constitution-making in South Africa" in Hufen F (ed) Verfassungen - Zwischen Recht und Politik. Festschrift zum 70. Geburtstag für Hans-Peter Schneider (Nomos Baden-Baden 2008) 524-536        [ Links ]

Du Plessis L "Interpretation" in Woolman S et al (eds) Constitutional Law of South Africa 2^nd ed (Juta Cape Town 2008) 32-1 - 32-193        [ Links ]

Dworkin R Law's Empire (Fontana Press London 1986)        [ Links ]

Dyzenhaus D Truth, Reconciliation and the Apartheid Legal Order (Juta Cape Town 1998)        [ Links ]

Fish S Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Legal Studies (Clarendon Press Oxford 1989)        [ Links ]

Hosten WJ et al Introduction to South African Law and Legal Theory 2^nd ed (Butterworths Durban 1995)        [ Links ]

Klare K "Legal Culture and Transformative Constitutionalism" 1998 SAJHR 146-188        [ Links ]

Langa P "Transformative Constitutionalism" 2006 Stell LR 351-360        [ Links ]

Le Roux W "Bridges, Clearings, Labyrinths: The Architectual Framing of Post-apartheid Constitutionalism" 2004 SA Pubic Law 629-665        [ Links ]

Le Roux W "The Aesthetic Turn in the Post-apartheid Constitutional Rights Discourse" 2005 TSAR 101-120        [ Links ]

Liebenberg S Socio-economic Rights: Adjudication under a Transformative Constitution (Juta Cape Town 2010)        [ Links ]

Maxwell PB and Langan P The Interpretation of Statutes 12^th ed (Sweet and Maxwell London 1976)        [ Links ]

Michelman FI "A Constitutional Conversation with Professor Frank Michelman" 1995 SAJHR 477-485        [ Links ]

Michelman FI "The Rule of Law, Legality and the Supremacy of the Constitution" in Woolman S et al (eds) Constitutional Law of South Africa 2^nd ed (Juta Cape Town 2005) 11-1 - 11-44        [ Links ]

Mureinik E "A Bridge to Where? Introducing the Interim Bill of Rights" 1994 SAJHR 31-48        [ Links ]

Oxford University Press The Shorter Oxford English Dictionary on CD-ROM 5^th ed (Oxford University Press Oxford 2002)        [ Links ]

Pearsall J (ed) The New Oxford Dictionary of English (Oxford University Press Oxford 1998)        [ Links ]

Peters A "The Globalization of State Constitutions" in Nijman J and Nollkaemper A (eds) New Perspectives on the Divide between National and International Law (Oxford University Press Oxford 2007) 251-308        [ Links ]

Pieterse M "What Do We Mean when We Talk about Transformative Constitutionalism?" 2005 SA Public Law 155-166        [ Links ]

Roux T "Principle and Pragmatism on the Constitutional Court of South Africa" 2009 ICON 106-138        [ Links ]

Sachs M (ed) Grundgesetz Kommentar 3^rd ed (Beck München 2002)        [ Links ]

Snyman J "Interpretation and the Politics of Memory" 1998 Acta Juridica 312-337        [ Links ]

Steyn LC et al Die Uitleg van Wette 5^th ed (Juta Cape Town 1981)        [ Links ]

Van der Walt AJ "Dancing with Codes: Protecting, Developing and Deconstructing Property Rights in a Constitutional State" 2001 SALJ 258-311        [ Links ]

Van der Walt AJ "Retreating from the FNB Arbitrariness Test Already? Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett v Buffalo City Municipality; Transfer Rights Action Campaign v MEC for Local Government and Housing, Gauteng (CC)" 2005 SALJ 75-89        [ Links ]

Case law

African Christian Democratic Party v The Electoral Commission 2006 3 SA 305 (CC)

Alexkor Ltd v Richtersveld Community 2004 5 SA 460 (CC)

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 4 SA 490 (CC)

Commissioner for Customs and Excise v Container Logistics (Pty) Ltd; Commissioner for Customs and Excise v Rennies Group Ltd t/a Renfreight 1999 3 SA 771 (SCA)

Commissioner, SA Revenue Service v Executor, Frith's Estate 2001 2 SA 261 (SCA)

Daniels v Campbell 2004 5 SA 331 (CC)

Doctors for Life International v Speaker of the National Assembly 2006 6 SA 416 (CC)

Du Tott v Minister for Welfare and Population Development 2003 2 SA 198 (CC) Ferreira v Levin; Vryenhoek v Powell 1996 1 SA 984 (CC)

First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC)

Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC)

Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd. In re: Hyundai Motor Distributors (Pty) Ltd v Smit 2001 1 SA 545 (CC)

J v Director-General Department of Home Affairs 2003 5 SA 621 (CC)

Jafta v Schoeman; Van Rooyen v Stoltz 2005 2 SA 140 (CC)

Jaga v Dönges; Bhana v Dönges 1950 4 SA 653 (A)

Kanhym Bpk v Oudtshoorn Munisipaliteit 1990 3 SA 252 (C)

King v Attorneys' Fidelity Fund Board of Control 2006 1 SA 474 (SCA)

Manyasha v Minister of Law and Order 1999 2 SA 179 (SCA)

Matatiele Municipality v President of the Republic of South Africa 2007 1 BCLR 47 (CC)

Matiso v The Commanding Officer, Port Elizabeth Prison 1994 3 SA 592 (SE)

MEC for Education: KwaZulu Natal v Pillay 2008 1 SA 474 (CC)

Minister of Finance v Van Heerden 2004 6 SA 121 (CC)

Minister of Health v New Clicks South Africa (Pty) Ltd 2006 2 SA 311 (CC)

Minister of Health v Treatment Action Campaign (No 2) 2002 5 SA 721 (CC)

Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs 2006 1 SA 524 (CC)

Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett v Buffalo City Municipality; Transfer Rights Action Campaign v MEC for Local Government and Housing, Gauteng 2005 1 SA 530 (CC)

Nasionale Vervoerkommissie van Suid-Afrika v Salz Gossow Transport 1983 4 SA 344 (A)

National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC)

National Coalition for Gay and Lesbian Equality v Minister of Justice 2000 2 SA 1 (CC)

Pharmaceutical Manufacturers Association of SA. In re: The Ex Parte Application of the President of the RSA 2000 2 SA 674 (CC)

President of the Repubicc of South Africa v Hugo 1997 4 SA 1 (CC)

Prinsloo v Van der Linde 1997 3 SA 1012 (CC)

Public Carriers Association v Toll Road Concessionaries (Pty) Ltd 1990 1 SA 925 (A)

Qozoleni v Minister of Law and Order 1994 3 SA 625 (E)

Raats Röntgen and Vermeulen (Pty) Ltd v Administrator Cape 1991 1 SA 827 (C)

Randburg Town Council v Kerksay Investments (Pty) Ltd 1998 1 SA 98 (SCA)

Richtersveld Community v Alexkor Ltd 2001 3 SA 1293 (LCC)

Richtersveld Community v Alexkor Ltd 2003 6 BCLR 583 (SCA)

S v Makwanyane 1995 3 SA 391 (CC)

S v Mhuungu 1995 3 SA 867 (CC)

S v Motshari 2001 2 All SA 207 (NC)

S v Zuma 1995 2 SA 642 (CC)

Satchwell v President of the Republic of South Africa 2002 6 SA 1 (CC)

Secretary for Inland Revenue v Brey 1980 1 SA 472 (A)

Shabalala v Attorney-General, Transvaal 1996 1 SA 725 (CC)

Stellenbosch Farmers' Winery Ltd v Distillers Corp (SA) Ltd 1962 1 SA 458 (A)

Stopforth v Minister of Justice; Veenendaal v Minister of Justice 2000 1 SA 113 (SCA)

Venter v R 1907 TS 910

West Rand Estates Ltd v New Zealand Insurance Co Ltd 1925 AD 245

Legislation

Constitution of the Republic of South Africa, 1996

Constitution of the Republic of South Africa 200 of 1993

Magistrates' Court Act 32 of 1944

Promotion of Administrative Justice Act 3 of 2000

Promotion of National Unity and Reconciliation Act 34 of 1995

Internet sources

Buro van die WAT Date Unknown Woordeboek van die Afrikaanse Taal http://woordeboek.co.za [date of use unknown]        [ Links ]

LIST OF ABBREVIATIONS

ICON International Journal of Constitutional Law

NJW Neue Juristische Wochenschrift

SAJHR South African Journal on Human Rights

SALJ South African Law Journal

Stell LR Stellenbosch Law Review

TSAR Tydskrif vir Suid-Afrikaanse Reg

WAT Woordeboek van die Afrikaanse Taal

 

 

1 Organs of state whose distinctive province significantly includes lawmaking will be organs of the executive who are competent delegated lawmakers.
2 Constitution of the Republic of South Africa, 1996.
3 Hosten et al Introduction to South African Law 704-705.
4 Pearsall New Oxford Dictionary 1922. Scholarly or scientific theories are examples of such explanatory models.
5 Du Bois Wille's Principles 736-737.
6 Pearsall New Oxford Dictionary 1922.
7 Michelman 1995 SAJHR 482.
8 For examples, see Steyn et al Uitleg van Wette 64-67.
9 Maxwell and Langan Interpretation of Statutes 28-29.
10 Cross, Bell and Engle Statutory Interpretation 1.
11 Steyn et al Uitleg van Wette 2.
12 For a classical verbalisation of this theory, see Venter v R 1907 TS 910 913 per Innes J. For recent examples of one of South Africa's two highest courts (the Supreme Court of Appeal) still adhering to it, see Randburg Town Council v Kerksay Investments (Pty) Ltd 1998 1 SA 98 (SCA) 107A-B; Public Carriers Association v Toll Road Concessionaries (Pty) Ltd 1990 1 SA 925 (A) 942I-J; Manyasha v Minister of Law and Order 1999 2 SA 179 (SCA) 185B-C; Commissioner, SA Revenue Service v Executor, Frith's Estate 2001 2 SA 261 (SCA) 273G-I.
13 West Rand Estates Ltd v New Zealand Insurance Co Ltd 1925 AD 245 261; Jaga v Dönges; Bhana v Dönges 1950 4 SA 653 (A) 664H; Secretary for Inland Revenue v Brey 1980 1 SA 472 (A) 478A-B, S v Makwanyane 1995 3 SA 391 (CC) para 10; Ferreira v Levin; Vryenhoek v Powell 1996 1 SA 984 (CC) paras 52, 54, 57, 70 per Ackermann J and para 170 per Chaskalson P; S v Motshari 2001 2 All SA 207 (NC) para 8.
14 See eg Stelenbosch Farmers' Winery Ltd v Distilers Corp (SA) Ltd 1962 1 SA 458 (A) 473F; Nasionale Vervoerkommissie van Suid-Afrika v Salz Gossow Transport 1983 4 SA 344 (A) 357A; Kanhym Bpk v Oudtshoorn Munisipaliteit 1990 3 SA 252 (C) 261C-D; Raats Röntgen and Vermeulen (Pty) Ltd v Administrator Cape 1991 1 SA 827 (C) 837A; Stopforth v Minister of Justice; Veenendaal v Minister of Justice 2000 1 SA 113 (SCA) para 21.
15 For a discussion of this approach, see Cowen 1976 TSAR 156-158; Devenish Interpretation of Statutes 50-51.
16 In a talk on constitutional interpretation before a South African audience witnessing the beginning of their own tradition of constitutional interpretation. A transcript of this introductory talk/address during a seminar of the Centre for Applied Legal Studies at the University of the Witwatersrand is available as Michelman 1995 SAJHR 477-485. The seminar took place from 23 to 25 January 1995.
17 Michelman 1995 SAJHR 482.
18 Michelman 1995 SAJHR 483.
19 Böckenförde 1974 NJW. An English translation of this article occurs in Böckenförde State, Society and Liberty 175-203. See also Sachs Grundgesetz Kommentar 53-55
20 Sachs Grundgesetz Kommentar 55.
21 By virtue of s 2 of the Constitution.
22 By virtue of s 1(c) of the Constitution. See also Michelman "Rule of Law" 11-34 - 11-36.
23 Froneman J in Matiso v The Commanding Officer, Port Eiizabeth Prison 1994 3 SA 592 (SE) 597E.
24 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd. In re: Hyundai Motor Distributors (Pty) Ltd v Smit 2001 1 SA 545 (CC) para 21.
25 The court in Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd. In re: Hyundai Motor Distributors (Pty) Ltd v Smit 2001 1 SA 545 (CC) para 21 motivated the overriding significance of the canon of statutory interpretation derived from s 39(2) as follows: "All law-making authority must be exercised in accordance with the Constitution. The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens and includes all in the process of governance. As such, the process of interpreting the Constitution must recognize the context in which we find ourselves and the Constitution's goal of a society based on democratic values, social justice and fundamental human rights. This spirit of transition and transformation characterizes the constitutional enterprise as a whole."
26 Michelman 1995 SAJHR 485.
27 Michelman 1995 SAJHR 484-485.
28 Michelman 1995 SAJHR 484-485.
29 Michelman 1995 SAJHR 483-485 gives examples of this.
30 Fish Doing What Comes Naturally 358.
31 See eg Public Carriers Association v Toll Road Concessionaries (Pty) Ltd 1990 1 SA 925 (A) 943C-944A.
32 In Du Plessis 2005 SALJ 591-613 the present author, for instance, showed how such a template position in South Africa occasioned the development of a hierarchical order of primacy involving the canons of and aids to statutory interpretation.
33 Du Plessis "Interpretation" 32-32 - 32-33.
34 Du Plessis "Interpretation" 32-52 - 32-56.
35 Michelman 1995 SAJHR 485. Also see Du Plessis "Interpretation" 32-52 - 32-56.
36 MEC for Education: KwaZulu Natal v Pillay 2008 1 SA 474 (CC).
37 MEC for Education: KwaZulu Natal v Pillay 2008 1 SA 474 (CC) paras 63-64, 65.
38 The image of the Constitution as monument and memorial emerged from legal scholars' engagement with the work of the South African philosopher, Johan Snyman, on the politics of memory. See Snyman 1998 Acta Juridica 317-321.
39 Le Roux 2005 TSAR 107.
40 Du Plessis L "German Verfassungsrecht" 531.
41 MEC for Education: KwaZulu Natal v Pillay 2008 1 SA 474 (CC).
42 Dworkin Law's Empire 228-238.
43 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC).
44 National Coalition for Gay and Lesbian Equality v Minister of Justice 2000 2 SA 1 (CC).
45 Satchwell v President of the Republic of South Africa 2002 6 SA 1 (CC).
46 Daniels v Campbell 2004 5 SA 331 (CC).
47 For more examples, see Du Toit v Minister for Welfare and Population Development 2003 2 SA 198 (CC); J v Director-General Department of Home Affairs 2003 5 SA 621 (CC).
48 Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs 2006 1 SA 524 (CC).
49 See eg S v Mhlungu 1995 3 SA 867 (CC) para 111; President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC) para 41; Shabalala v Attorney-General, Transvaal 1996 1 SA 725 (CC) para 41; Minister of Finance v Van Heerden 2004 6 121 (CC) para 27.
50 Jafta v Schoeman; Van Rooyen v Stoltz 2005 2 SA 140 (CC).
51 Magistrates' Courts Act 32 of 1944.
52 Jafta v Schoeman; Van Rooyen v Stoltz 2005 2 SA 140 (CC) paras 25-34.
53 Mureinik 1994 SAJHR 31-32.
54 Constitution of the Republic of South Africa 200 of 1993.
55 By virtue of s 232(4) of the said transitional Constitution.
56 For more on the nature of the compromise the parties reached, see Dyzenhaus Truth, Reconciliation 1-6.
51 Promotional of National Unity and Reconciliation Act 34 of 1995.
58 Ch 3 of the transitional Constitution.
59 Mureinik 1994 SAJHR 31-32.
60 Here are but a few examples: Qozoleni v Minister of Law and Order 1994 3 SA 625 (E) 634E-F; Prinsloo v Van der Linde 1997 3 SA 1012 (CC) para 25; Pharmaceutical Manufacturers Association of SA. In re: The Ex Parte Application of the President of the RSA 2000 2 SA 674 (CC) para 85 n 107; Matatiele Municipality v President of the Republic of South Africa 2007 1 BCLR 47 (CC) para 100.
61 Promotion of Administrative Justice Act 3 of 2000.
62 In s 33(1) of the Constitution.
63 Pharmaceutical Manufacturers Association of SA. In re: The Ex Parte Application of the President of the RSA 2000 2 SA 674 (CC).
64 The judgement predates the commencement of the Promotion of Administrative Justice Act.
65 Commissioner for Customs and Excise v Container Logistics (Pty) Ltd; Commissioner for Customs and Excise v Rennies Group Ltd t/a Renfreight 1999 3 SA 771 (SCA).
66 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 4 SA 490 (CC).
67 Minister of Health v New Clicks South Africa (Pty) Ltd 2006 2 SA 311 (CC).
68 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC) para 100.
69 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC) para 100.
70 Mkontwana v Nesson Mandela Metropolitan Municipality; Bissett v Buffalo City Municipality; Transfer Rights Action Campaign v MEC for Local Government and Housing, Gauteng 2005 1 SA 530 (CC). For a critical discussion of this case, see Van der Walt 2005 SALJ 75-89.
71 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC) para 100.
72 Roux 2009 ICON 106-138.
73 Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett v Buffalo City Municipality; Transfer Rights Action Campaign v MEC for Local Government and Housing, Gauteng 2005 1 Sa 530 (CC).
74 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC) para 100.
75 Alexkor Ltd v Richtersveld Community 2004 5 SA 460 (CC).
76 Richtersveld Community v Alexkor Ltd 2003 6 BCLR 583 (SCA); but not so much the judgement in the Land Claims Court as the court of first instance - Richtersveld Community v Alexkor Ltd 2001 3 SA 1293 (LCC).
77 Mureinik 1994 SAJHR 32.
78 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC) para 100.
79 King v Attorneys' Fidelity Fund Board of Control 2006 1 SA 474 (SCA).
80 Doctors for Life International v Speaker of the National Assembly 2006 6 SA 416 (CC).
81 Matatiele Municipality v President of the Republic of South Africa 2007 1 BCLR 47 (CC).
82 In s 59(1) of the Constitution.
83 The Supreme Court of Appeal in King v Attorneys' Fidelity Fund Board of Control 2006 1 SA 474 (SCA) could of course not make a declaration of invalidity because adjudication of the National Assembly's fulfilment of this obligation is, in terms of s 167(4)(e) of the Constitution, within the exclusive jurisdiction of the Constitutional Court.
84 African Christian Democratic Party v The Electoral Commission 2006 3 SA 305 (CC).
85 African Christian Democratic Party v The Electoral Commission 2006 3 SA 305 (CC) para 23.
86 Peters "Globalization of State Constitutions" 300-301.
87 S v Makwanyane 1995 3 SA 391 (CC).
88 S v Zuma 1995 2 SA 642 (CC).
89 Klare 1998 SAJHR 150.
90 Van der Walt 2001 SALJ 295-296.
91 Le Roux 2004 SA Public Law 634.
92 Van der Walt 2001 SALJ 296.
93 Bishop "Transforming Memory" 37.
94 On the impact of transformative constitutionalism on constitutional interpretation and adjudication, see Klare 1998 SAJHR 146-188; Pieterse 2005 SA Public Law 155-166; Langa 2006 Stell LR 351-360.
95 Klare 1998 SAJHR 153; also see Pieterse 2005 SA Public Law 163-164.
96 Pieterse 2005 SA Public Law 161. Also see Langa 2006 Stell LR 353-354.
97 Langa 2006 Stell LR 354-359.
98 Klare 1998 SAJHR 156.
99 Klare 1998 SAJHR 156.
100 Klare 1998 SAJHR 156.
101 Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC).
102 Minister of Health v Treatment Action Campaign (No 2) 2002 5 SA 721 (CC).
103 Minister of Health v Treatment Action Campaign (No 2) 2002 5 SA 721 (CC).
104 Liebenberg Socio-economic Rights 25.
105 See the preamble to the Constitution; Liebenberg Socio-economic Rights 27.
106 See eg Oxford University Press Shorter Oxford English Dictionary.
107 Oxford University Press Shorter Oxford English Dictionary.
108 WAT Date Unknown http://woordeboek.co.za.
109 WAT Date Unknown http://woordeboek.co.za.
110 Du Plessis 2000 SA Public Law 295.
111 Metaphorically expressing itself as umuntu ngumuntu ngabantu: "a person is a person because of people" or "a person is a person through other persons"; see S v Makwanyane 1995 3 SA 391 (CC) para 10.
112 Topos: a traditional or conventional literary or rhetorical theme or topic; plural topoi.