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Kibitzing with Frank Michelman on how to best read the Constitutional Court 405
[T]he judgments of the Constitutional Court in these cases also leave one with a
sense of wasted opportunity. Masetlha seems a retrogressive decision, at least to
an administrative lawyer, for allowing an unfortunate exception to the
established principles of procedural fairness. And Sidumo and Chirwa appear to be
far apart in the constitutional vision or ethos expressed by the majority in each
case, for the former encourages the interconnectedness of rights while the latter
disavows it. As I have argued above, Chirwa is unsatisfying in other respects as
well: none of the Court’s approaches to the ‘administrative action’ issue is
unproblematic, and the majority’s reasoning on the question of jurisdiction is not
only unconvincing but also contradicts the Court’s own jurisprudence. The
decision in this case certainly clears up the intersection between labour law and
administrative law, but the cost of that tidiness may be thought unacceptably
high. 34
These cases – when read with Fredericks – create a miasma of constitutional
labour law and constitutional administrative law: just as Professor
Hoexter predicted. Moreover, the above account cannot be dismissed as
one lone academic’s opinion. In the recent decision of Gcaba v Minister of
Safety and Security, the Constitutional Court acknowledged that a significant
number of High Court and Supreme Court of Appeal cases (the
Constitutional Court lists over 30) had gone in opposite – and conceptually
inconsistent – directions because the jurisprudence of the Constitutional
Court had been both radically under-theorised and contradictory in
conclusion. 35 Van der Westhuizen J opens Gcaba with something of an
apology for sowing the seeds of this confusion:
One of the purposes of law is to regulate and guide relations in a society. ... Yet the
legislature, courts, legal representatives and academics often create complexity and
confusion rather than clarity and guidance. In the case of fairly new legislation based
on a young Constitution this is perhaps understandable. Sometimes a jurisprudence
needs to develop along with the insight and wisdom emerging from a debate over
some time. The legislature may also have to intervene in appropriate circumstances,
for example, when incremental development results in uncertainty or an
otherwise unsatisfactory situation. 36
One must give the Gcaba Court some credit for identifying a problem and taking
responsibility for it. The Court then accepts the need to correct its course: ‘One
of the purposes of law is to regulate and guide relations in a society ... Yet the
... courts ... often create complexity and confusion rather than clarity and
guidance.’ 37
34 Hoexter (n 33 above) 234.
35 [2009] ZACC 26.
36
Gcaba (n 35 above) paras 1 & 2.
37 Gcaba (n 35 above) para 1 (my emphasis).