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364 Chapter 15
He is certainly correct that no group of 11 women and men are in a
position to lay down basic norms that will resolve all of the potential
problems, in a given area, that may seize the Court. But no one has suggested
that they need a ‘theory of everything’ that would both dispose of the matter
before the Court and all future cases. The only claim pressed in these pages
is that if the Court should choose to follow an experimentalist mode of
adjudication, then its decisions are likely to be better reasoned (empirically)
and more compelling (normatively). 56 Moreover, the Court need not be
stuck in time. Its general norm setting should allow for an assessment of
rolling best practices, and a rejigging of the general norms that the times and
the environment dictate.
Academics have a critical role to play in this experimentalist process
of constitutional theory building. We are, first, another set of eyes. We can
see – on occasion – that which the Court and its members cannot:
Experience, reflection, theories about how different areas of the law work
make academics an invaluable resource for the Court. (We may know a
good property ‘swing’ when we see one: and we should – if we are André
van der Walt 57 or Theunis Roux 58 – be able to identify problems and
flaws.) We are, second, free from various encumbrances that may limit the
Court’s capacity for reflection and theory: Neither the pressures of time, nor
the exigencies of the parties before the Court, nor the need for intrainstitutional
collegiality nor inter-institutional comity detain us. We have
only one goal: to read the Court’s judgment’s carefully, to reflect back to the
Court what we see and hear, and to make the Court’s future judgments
better. We are here to assist the Court in building its various theories –
keeping in mind all the time, that what works for one period of time might
56
I actually contend elsewhere that the use of ‘meaningful engagement’ in a series of cases
over the last few years holds out some hope for actual movement in the direction of
experimental constitutionalism. See S Woolman The selfless constitution (n 43 above).
See, eg, Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo 2010
2 SA 415 (CC); Residents of Joe Slovo Community, Western Cape v Thubelisha Homes [2009]
ZACC 16, 2010 3 SA 454 (CC), 2009 9 BCLR 847 (CC); Abahlali Basemjondolo Movement
SA v Premier of the Province of KwaZulu-Natal [2009] ZACC 31, 2010 2 BCLR 99 (CC);
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). The
problem with these cases, and others, is that although the Court creates the space for
polycentric, multi-stakeholder problem-solving, its persistant refusal to set clearly
articulated norms (and its general preference for mere ratification of a settlement
agreement) closes down the possibility for genuine experimentation (over time) in other
(future) cases and in other (institutional) settings. The various stakeholders in novel
cases (or settings) will lack a general set of norms by which their behaviour,
expectations and strategies can be assessed, compared, measured and altered. For
example, the absence of clear guidelines regarding the content of the right to a basic
education in sec 29(1) of the Constitution actually made ‘meaningful engagement’ – as
the Court requested in Governing Body of the Juma Musjid Primary School (Court Order) –
impossible and forced the Court to show its cards in Governing Body of the Juma Musjid
Primary School v Ahmed Asruff Essay CCT 29/10 [2011] ZACC 13.
57 AJ van der Walt Constitutional property law (2005).
58 T Roux ‘Property’ in S Woolman et al (eds) Constitutional law of South Africa (2003) (2nd
ed) ch 46; T Roux ‘The “arbitrary deprivation” vortex: Constitutional property after
FNB’ in S Woolman and M Bishop (eds) Constitutional conversations (2008) 265.