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The relationship between theory and practice across forms of life 363
fundamental rights and on sufficient consultation with those who are affected
by them, if compromises are negotiated, and if principled compromises are
sought. 54
Minister Bengu’s approach to the problems of South African of primary and
secondary education in a post-apartheid dispensation fits this notion of
experimental constitutionalism perfectly. The Minister understood the basic
norms that governed South Africa. He had consulted all of the relevant
stakeholders – simply too numerous to mention here. And he, and his
national Department of Education, had then generated a white paper that
would become the South African Schools Act. At the same time, Minister
Bengu recognised that the law and policy reflected in South Africa were
always going to be provisional. They represented a good faith effort to solve
the problems that faced primary and secondary schools in post-apartheid
South Africa. But he could not say, in advance, which policies would serve
the general commonweal and whether the norms that underwrite the new social
contract in our (then) new commonweal would not, themselves, change over
time.
5 Conclusion
Tiger Woods did not become the greatest golfer to ever grace a course by resting
on his laurels or sticking with the swing that allowed him to reach the pinnacle of
his sport. Indeed, at a point in time when no one would have argued that he was
– by far – the best in the game (2005), he changed his coach (Butch Harmon)
and began a long process of reconstructing his swing. The immediate result was
a patch of play that was erratic – which, in turn, led to a long stretch of
disappointing results (read: absence of wins). However, within two years of
painstaking effort – theorising and practice, hand in hand, for thousands of
hours – Tiger Woods had, with the careful assistance of another brilliant pair
of eyes (Hank Haney’s), rebuilt his swing into something even better than that
swing which had already smashed innumerable records. He is now repeating
the same excruciating endeavour under the tutelage of Sean Foley.
The same sort of commitment to experimentation must drive the
jurisprudence of our Constitutional Court. It is not enough to shift the
blame, as the Deputy Chief Justice does, when he writes that
... those who plead cases before court are themselves steeped in a tradition that
seeks to preserve rather than innovate legal reasoning and rules, particularly
within the sphere of the common law. The result is that reliance on
constitutional provisions is often half-hearted and an afterthought. 55
54 See Department of Education White Paper II: The organisation, governance and funding of
55
schools GN 1229 (November 1995) 6.
Moseneke (n 34 above) 11.