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The relationship between theory and practice across forms of life 361
conversation between conflicting parties shall take place. 46 Two features of
these bubbles deserve closer attention. They may not be limited to the initial
parties to the ‘litigation’. Other interested stakeholders – amici et al – may
participate in the conversation. 47 The aim, again, is two-fold: greater
elicitation of information; greater normative legitimacy of any decision
ultimately taken. The other feature of these participatory bubbles is that they
may not remain within the domain of the courts. We can easily imagine – and
have witnessed in South Africa – greater community participation in hearings
called by the South African Human Rights Commission 48 or other chapter 9
institutions, 49 national or provincial legislatures, 50 school governing
bodies, 51 or other social and political fora. The Constitutional Court has
shown itself alive to the need for ‘participatory bubbles’ when provincial
legislatures take decisions that affect the lives of the denizens within their
boundaries. 52 South Africa, despite the limits imposed by its largely one party
state, has the tools available to make participatory bubbles the norm in normsetting
environments.
Third, participatory bubbles lose their cohesion – and the pressure to
produce better than zero-sum outcomes – if the courts fail to articulate the
norms within which a preferred solution is meant to occur. If experimental
constitutionalism is judged to be an attractive set of principles by which to
establish constitutional norms (by widespread public agreement) and to
assess best practices (by inviting as many stakeholders as possible to design
an optimal remedy for a specific social problem) then the jurisprudence of
South African minimalism – or avoidance in the South African vernacular
– must be one of the first judicial doctrines to go. Several of the
Constitutional Court’s recent judgments must leave one concerned about
the ability of the Court to articulate such norms. Put somewhat differently,
the process of general norm-setting by the courts that initiates a process of
rolling best practices by other parts of the state never gains sufficient traction
when constitutional norms remain radically under-theorised.
46
See Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of
Johannesburg [2008] ZACC 1, 2008 3 SA 208 (CC), 2008 5 BCLR 475 (CC). See also
L Chenwi ‘A new approach to remedies in socio-economic rights adjudication: 51
Olivia Road v City of Johannesburg (2009) 2 Constitutional Court Review 371.
47 See, eg, Shilubana v Nwamitwa 2009 2 SA 66 (CC), 2008 9 BCLR 914 (CC).
48 See, eg, SA Human Rights Commission ‘Report on Equality and Voluntary Associations’
available at www.sahrc.org.za.
49 See, eg, M Bishop & S Woolman ‘Public Protector’ in S Woolman et al (eds) Constitutional
law of South Africa (2005) (2nd ed) ch 24A; C Albertyn ‘Commission for Gender
Equality’ in Woolman et al (eds) Constitutional law of South Africa (2003) (2nd ed) ch
24D.
50 See M Bishop ‘Vampire or prince? The listening constitution and Merafong Demarcation
Forum v President of the Republic of South Africa’ (2009) 2 Constitutional Court Review 318.
51 See S Woolman & B Fleisch The Constitution in the classroom: Law and education in South
Africa, 1994 – 2008 (2009).
52
See, eg, Merafong Demarcation Forum v President of South Africa [2008] ZACC 10, 2008 5
SA 171 (CC), 2008 10 BCLR (CC).