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Kibitzing with Frank Michelman on how to best read the Constitutional Court 401
4 How best to understand the case for clarity
One can describe the problem of thinness in South African constitutional
law in a number of different ways. Here is how I would state the problem:
Thinly reasoned judgments presuppose that the current information deficit in
deciding a matter – and the concomitant limits placed upon doctrinal
development – will at least partially be ameliorated as time and experience
throw up new opportunities to expand our understanding of how specific
substantive rights ought to function in given environments. The
Constitutional Court’s ongoing failure to develop coherent doctrines in a
significant number of areas of fundamental rights jurisprudence places the
Court’s very authority at risk. Moreover, the absence of clearly articulated
rules undermines rational political discourse. Reasoned disagreement can only
take place when parties agree on the general terms of the debate. The
Constitutional Court must, in terms of its institutional role, establish the
meaning of constitutional norms and thus the general framework for political
contestation. The Constitutional Court abdicates this institutional
responsibility to model rational political discourse by refusing to state, in a
comprehensive manner, the reasons that ground its conclusions.
Professor Michelman is unlikely to concur with this assessment of the
Court’s work. In any event, neither of us has claimed nor felt it necessary to
defend the Court against the claim that it has systematically failed to offer
reasoned accounts for its decisions. The former position would be ludicrous;
the latter position unnecessary. Instead, in the pages that follow, I want to
allow other voices to break in to this conversation – from the bench, from the
podium, from the academy – to offer their assessment on the thinness and the
clarity of the Court’s judgments.
4.1 Voices from the bench
Constitutional Court Justice Edwin Cameron has agreed, at least in part,
with my rather abstract characterisation of some of the Constitutional
Court’s judgments as thin, and lacking in clarity. 25 Cameron J (then of the
Supreme Court of Appeal in 2009) writes:
At this tender stage of our legal development, the doctrine of precedent has special
importance. The CC has been accused of disregarding its own decisions without
convincing reason (without, indeed, acknowledging that it has done so). That is
a grave charge … [And] this means that other courts, including the SCA, must follow
25
True Motives v Mahdi (543/07) [2009] ZASCA 4 para 102, n 53 citing Woolman
‘Amazing’ (n 1 above).