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392 Chapter 17
At about the same time, I was entering my second year of writing on the
Court’s ‘application’ jurisprudence and was trying to come to grips with that
body of work in the post-Khumalo era. I had taken a line, largely unwavering,
since I began thinking about the subject with my late great friend Etienne
Murienik. But that line – easily adopted as criticism and opposition under the
interim Constitution – now had to take account of the Constitutional Court’s
only pronouncement on the final Constitution’s application clause. In a
unanimous judgment, the Court held that the Bill of Rights does apply
directly and horisontally where the content of a right so allows, and so
dictates. That conclusion was not for me my core concern. Rather, as
something of a mechanic when it comes to topics such as application,
interpretation and limitation, I was troubled by what I thought was Justice
O’Regan’s gossamer thin five-paragraph explanation for the Constitutional
Court’s take on the subject. 2
I knew what I wanted to say. The question was: How do I say it best,
without being rude or intemperate? Professor Michelman, to his credit and
my benefit, worked through the core of an exceedingly long rough draft of
the ‘Application’ chapter. What followed was a month of intense
engagement about my text, the judgment in Khumalo and the relevant
clauses of the final Constitution. During this exchange, I picked up such
terms of art as ‘textual plausibility’, ‘naturalness’, ‘surplusage’, ‘range of
application’, ‘prescriptive content’, and, most important of all, ‘the good
faith reconstruction’. However, our exchanges did not constitute legal
language lessons. They were, and still remain, part of an effort to set out the
black letter law, a good faith reconstruction of the Court’s jurisprudence
where the Court itself has been silent, and a preferred reading where the
good faith reconstruction cannot, in my view, do the work the text
naturally and plausibly requires. Throughout these exchanges, Professor
Michelman continually pushed me to make my arguments leaner, meaner
and more rigorous. (And he often supplied the necessary language to do
so.)
What I came to learn about good faith reconstructions throughout our
various exchanges was not just a technical, if important, part of my
tutelage (though Professor Michelman would never describe our
exchange as such). What Professor Michelman did for me is what he does
for all constitutional law scholars that I know: He makes their work better.
And that itself is a lesson in academic collegiality and analytical rigour –
or, if, one likes, ‘aggressive learning’. 3
2
Khumalo v Holomisa 2002 5 SA 401 (CC), 2002 8 BCLR 771 (CC).
3 I cannot emphasise that enough. Professor Michelman is, in my opinion, one of the most
influential legal academics in South Africa because of what he has done, and continues
to do, for others. See, eg, H Botha et al (eds) Rights and democracy in a transformative
constitution: Festschrift for Frank Michelman (2003).