Download this publication - PULP

Kibitzing with Frank Michelman on how to best read the Constitutional Court 395
in section 8 and leaving more general interpretive matters to the section that
bears the name ‘interpretation’, section 39; (b) that a lack of clarity on this
matter makes it difficult for non-Constitutional Court judges, practitioners
and students to construct Bill of Rights arguments; and (c) that, ironically, as
Sprigman and Osborne presciently pointed out over a decade ago, 9 Du Plessis v
De Klerk is not dead but actually lives on in the (rather confused) application
jurisprudence of the Constitutional Court.
3 Davidson revisited: How best to understand the
‘principle of charity’
Recall that the real gravamen of Professor Michelman’s complaint in his article
is that my penchant for ‘housekeeping’, or my ‘normative pre-commitments’ or
my failure to work hard enough to understand the Court’s approach to its
own application jurisprudence led me to reach conclusions not supported, in
his view, by NM or Masiya. Whether the conclusions I reached were
supported by the case law more generally is an issue that Professor Michelman
expressly refrained from addressing. 10
Professor Michelman begins his article – and his critique – with the
following quote from Davidson:
Charity is forced on us; whether we like it or not, if we want to understand
others, we must count them right in most matters. 11
Now, as big guns go in analytic philosophy, Davidson’s principle of charity
plays a critical role in one of the most powerful and best known theories
about truth and interpretation. So at least, on the surface, there appears be a
charge, again limited to two texts (NM or Masiya), that I have violated a
widely accepted canon of engagement with the language and the texts of
others. Perhaps the charge is far weaker – and does not amount to a charge
that I have made one or more philosophical errors. Perhaps the charge flows
from (a) the degree of censoriousness with which [Professor Woolman] has
approached the Constitutional Court’s work [in NM or Masiya]; and (b) the
weight [Professor Woolman] place[s] on niceties of the “application”
debate’. 12
9 C Springman & M Osborne ‘Du Plessis is not dead: South Africa’s 1996 Constitution
and the application of the Bill of Rights to private disputes (1999) 15 SAJHR 25. But see,
at n 57 below, the brief discussion of Governing Body of the Juma Musjid Primary School v
Ahmed Asruff Essay [2011] ZACC 13. The Constitutional Court confirms that sec 8(2)
applies substantive provisions of the Bill of Rights to common law disputes between
private parties and that Khumalo v Holomisa is good law. ‘Du Plessis, he dead.’
10 Michelman (n 1 above) 2.
11
Davidson (n 4 above) 197.
12 E-mail from Michelman on 29 December 2009.