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Balancing and the limitation of rights in the South 251 11 African Constitution Iain Currie 12 13 14 15 16 17 18 19 20 Does balancing adequately capture the nature of 267 rights? David Bilchitz Towards a framework for understanding 291 constitutional deference Kirsty Mclean Reclaiming the frontier of constitutional 319 deference: Mazibuko v City of Johannesburg – a jurisprudential setback Redson Edward Kapindu On the common saying ‘what’s true in golf is true in 341 law’: The relationship between theory and practice across forms of life Stu Woolman Theory, practice and the legal enterprise 367 David Bilchitz and Juha Tuovinen Between charity and clarity: Kibitzing with Frank 391 Michelman on how to best read the Constitutional Court Stu Woolman Old Kibitzes never die: A rejoinder to 417 Stu Woolman Frank I Michelman Judicious transparency 423 Jonathan Klaaren In search of a theory of judicious (judicial) 437 transparency: A response to Klaaren Richard Calland and Chris Oxtoby iv
PREFACE We do things differently around here. (Or rather, we like to think we do.) Throughout the year, we have jurists and academics (local and foreign), graduate students and school learners, arrive at our offices on Constitution Hill to present papers that either make us squirm in our seats or think of ostensibly mundane matters afresh. Often enough, our guests deliver presentations on topics we have yet to consider and are, therefore, new to the South African legal landscape. The creation of a safe space to push the boundaries of legal thought remains the raison d’être for the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC). One of the ways that we do things differently is to replace static presentations with vibrant conversations. Throughout our colloquia and seminars, as well as in other publications (from Constitutional Conversations to the Constitutional Court Review), we have employed a dialogical model of presentation. Instead of having individual judges, academics and students present alone, we opt for formats that place individuals in conversation with one another – in a manner that is rigorous yet collaborative, spirited rather than competitive. One new result of this methodology is this book. The colloquies that make up this work are framed in a manner that requires interlocutors to speak directly to, and not past, one another. Professor Frank Michelman of Harvard Law School (one of the authors in this volume) neatly captures the colloquium’s ethos: ‘The aim is to learn. It is aggressively to learn what there is to be learnt from puzzles [our] interlocutors pose to us, by assuming there is method in their madness and doing our best to ferret that out, using everything else we know or can guess (in part from their likeness and kinship to us) about where they are coming from.’ Hard as it may be to put our own thoughts into a coherent, compelling fashion, harder still is it to credit, and to give at least initial priority to, the claims of others who stand in apparent disagreement with our own positions. To do so takes work. Real work. And patience. The authors of this collection of colloquies are decidedly not out there playing games of ‘gotcha’. They are engaged in a collective effort to close down areas of difference (even as they take risks associated in opening up new areas of exploration). The purpose in crediting our interlocutors as we do is to sharpen the critical bite of outstanding differences. Sometimes a pair of conversants will wind up singing off the same hymn sheet. In other dialogues, presenters are forced to rethink their initial positions, and provide reassessments or clarifications thereof in footnotes that address the challenges posed by their respondents. Again: We hope that this format will help illustrate the complexity of certain topics, whilst highlighting areas of agreement and disagreement in others. The topics are diverse but all engage matters of great import for South African constitutional law. Some authors ask us to reconsider our disciplinary bias – as lawyers – by asking questions about the relationship between theory and practice across diverse forms of life, and whether law v
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76 Chapter 3 school and the purpose
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78 Chapter 3 to permit it to engage
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80 Chapter 3 residential life [and]
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82 Chapter 3 laws ‘will often hav
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84 Chapter 3 ‘core' or important
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86 Chapter 3 academy, his position
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88 Chapter 3 in other jurisdictions
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90 Chapter 3 In the United States,
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92 Chapter 3 criteria that are not
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94 Chapter 3 it was ‘not likely
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96 Chapter 3 performance of the tea
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98 Chapter 3 example, the virtues o
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100 Chapter 3 doctrines of religion
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102 Chapter 3 The reasons for think
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104 Chapter 3 in religious instruct
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106 Chapter 3 A church should, to p
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108 Chapter 3 Yet the Equality Cour
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CHAPTER 4 ON THE FRAGILITY OF ASSOC
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On the fragility of associational l
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142 Chapter 5 migrants are granted
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144 Chapter 5 Once the distinction
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146 Chapter 5 suffrage’. 17 In th
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148 Chapter 5 voters for, and then
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150 Chapter 5 From this starting po
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152 Chapter 5 because of the obviou
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154 Chapter 5 that the constitution
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156 Chapter 5 severance order, perh
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158 Chapter 5 Chief Electoral Offic
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160 Chapter 5 the attempt to distin
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162 Chapter 5 thought that politics
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164 Chapter 5 the political communi
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166 Chapter 5 Richter case. As the
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168 Chapter 6 particular understand
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170 Chapter 6 through the constitut
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172 Chapter 6 patriotism instead of
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174 Chapter 7 These statements give
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176 Chapter 7 which is S v Makwanya
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178 Chapter 7 going on, we could no
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180 Chapter 7 underlies constitutio
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182 Chapter 7 capacity to have righ
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184 Chapter 7 whether a foetus is a
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186 Chapter 7 exercising duties. In
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188 Chapter 7 ‘people’ depends
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190 Chapter 7 and allow for prejudi
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192 Chapter 7 individuals without a
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194 Chapter 7 The second factor out
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196 Chapter 7 differential capaciti
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198 Chapter 7 3.1 ‘Progressive re
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200 Chapter 7 realised now and thos
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202 Chapter 7 Even a law of general
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204 Chapter 7 and whether it repres
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206 Chapter 7 Finally, the Court in
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CHAPTER 8 ANIMAL RIGHTS AND THE INT
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Animal rights and the interpretatio
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222 Chapter 9 But I am getting ahea
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224 Chapter 9 famously presented as
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226 Chapter 9 the two clauses of se
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228 Chapter 9 conceived, then, is t
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230 Chapter 9 African extended fami
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232 Chapter 9 tarianism. It is only
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234 Chapter 9 beings in their being
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236 Chapter 9 large. Ubuntu is a de
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238 Chapter 9 self-determination ha
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1CHAPTER 0WHERE DIGNITY ENDS AND UB
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Where dignity ends and ubuntu begin
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252 Chapter 11 If enacted in this f
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254 Chapter 11 factors - inviting c
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256 Chapter 11 3 Criticism of balan
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258 Chapter 11 4 The case for balan
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260 Chapter 11 If two principles co
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262 Chapter 11 Botha’s contention
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264 Chapter 11 values to be given t
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12 David CHAPTER DOES BALANCING ADE
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Does balancing adequately capture t
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292 Chapter 13 The article is struc
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294 Chapter 13 The debate regarding
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296 Chapter 13 government. 21 The d
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298 Chapter 13 Canadian courts woul
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300 Chapter 13 other forms of socia
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302 Chapter 13 polycentricity has i
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304 Chapter 13 The institutional co
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306 Chapter 13 they will protect as
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308 Chapter 13 Pre-democratic uses
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310 Chapter 13 same institutional a
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312 Chapter 13 These considerations
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314 Chapter 13 3.2 Socio-economic r
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316 Chapter 13 a fairly weak interp
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14 RECLAIMING THE FRONTIER OF CONST
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342 Chapter 15 1 Introduction The w
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344 Chapter 15 The second problem i
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346 Chapter 15 My uncle, the master
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348 Chapter 15 and error put us in
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350 Chapter 15 (a) Dworkin writes:
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352 Chapter 15 data is poured into
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354 Chapter 15 naturally (and here
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356 Chapter 15 constitutional inter
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358 Chapter 15 Carolyn has formal t
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360 Chapter 15 and policies designe
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362 Chapter 15 However, let us assu
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364 Chapter 15 He is certainly corr
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16 David CHAPTER THEORY, PRACTICE A
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Theory, practice and the legal ente
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17 CHAPTER BETWEEN CHARITY AND CLAR
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18 Frank CHAPTER OLD KIBITZES NEVER
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Rejoinder to Stu Woolman 419 manage
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Rejoinder to Stu Woolman 421 (or mo
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19 Jonathan CHAPTER JUDICIOUS TRANS
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Judicious transparency 425 2 The me
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Judicious transparency 427 commenta
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Judicious transparency 429 without
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Judicious transparency 431 open - w
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Judicious transparency 433 The argu
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Judicious transparency 435 the disc
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CHAPTER 20 IN SEARCH OF A THEORY OF
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Response to Klaaren 439 implementat
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Response to Klaaren 441 imposed in
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Response to Klaaren 443 transparenc
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Response to Klaaren 445 Furthermore
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