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394 Chapter 17
I expect that we will still part ways on application, but that parting to me
seems rather minor – even if that means that I appear incorrigible in my views on
the subject. To the extent that I turn my attention to the problem of thinness, and
the need for the Constitutional Court to model rational discourse, I rely on
three primary sources: (1) the curial and extra-curial writings of three
Constitutional Court judges – Justice Edwin Cameron, Justice (now Emeritus)
Kate O’Regan, Deputy Chief Justice Dikgang Moseneke, and one High Court
Judge – Judge Dennis Davis; (2) the analysis of Constitutional Court doctrine
offered by fellow academics and practitioners – Cora Hoexter, Lilian Chenwi,
Dario Milo, Glenn Penfold, Anton Fagan, Martin Brassey, Jason Brickhill and
Frank Snyckers; and (3) my own rather piecemeal work as a legal ethnographer
who worries that many judges fear constitutional analysis, or do not know
how to handle a constitutional matter, because the Constitutional Court has not
made patently clear the manner in which constitutional claims ought to be
handled. Professor Michelman himself is a source for my argument regarding
the need for greater clarity. In his critique of my position in ‘The amazing,
vanishing Bill of Rights’, Professor Michelman writes:
… I have chosen to devote this space to seeing what might be said on the other
side, specifically with regard to NM and Masiya, on behalf of a court that, I
quite agree with Woolman, has left itself with a lot of explaining to do. The
controlling opinions are indeed, as Woolman says ‘thinly reasoned’, if by that
we mean they are insufficiently explained ... In developing [various] claims, I
shall quite openly engage in filling in passages that may strike readers as
excessively indulgent of the Court, if not entirely fanciful. 8
Now, Professor Michelman’s good faith reconstructions of both NM and
Masiya are not fanciful at all. What reconstructions demonstrate –
convincingly enough for me to think again about some of my original
contentions – is the kind of judgment that ‘ought’ to issue from the
Constitutional Court if the Constitutional Court is concerned with (a) being
fully understood by its broad audience of other judges, lawyers, law students
and ordinary South Africans; (b) modelling, in a patient manner, rational
political discourse in a contemporary South Africa sorely lacking in that
domain.
The third reworked ground for agreement flows from my recognition
that Professor Michelman’s critique of my application argument has more
than a little merit. But I have never really denied the strength of this account.
I have always admitted the obvious: that a poorly drafted text does not allow
for one clear literal construction. To that extent, I have said that some
interpretations of section 39(2) – such as those muscular realist readings offered
by both Professor Michelman and Professor Currie – cannot simply be ignored
and could, potentially, do the work that I ascribe to other sections of the
constitutional text. However, to the extent that it matters, I stand firm on three
propositions: (a) that clear textual markers support cabining ‘application’ issues
8 F Michelman (n 1 above) 2 - 3 citing Woolman ‘Amazing’ (n 1 above) 762 790 n 51.