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Kibitzing with Frank Michelman on how to best read the Constitutional Court 407
Although Penfold and Milo and Michelman clearly disagree on a
number of points – whether the Court rightfully exercised jurisdiction or
legitimately developed dolus in an appropriate manner – that is not of
interest to me. 40 Even if Professor Michelman claims that the Court could
exercise jurisdiction or develop the scope of dolus eventualis, and Penfold and
Milo demur, what is interesting is the point of agreement between the
authors. And that is this: Both papers criticise the majority in NM for the
thinness of the judgment. It is that thinness that drives Professor
Michelman to ‘fill-in’ the judgment in the manner that he does.
Chenwi is not nearly so sanguine about the prospects of ‘filling in’ the
Court’s recent socio-economic rights decisions: For Chenwi, Occupiers of
51 Olivia Road v City of Johannesburg operates as an archetypal example. 41
In Occupiers of 51 Olivia Road, the Court was asked to determine whether the
City of Johannesburg had the power to evict persons from unsafe dwellings
without first providing alternative accommodation. The Court never
actually established a norm that might direct other municipalities faced with
the same dilemma toward a particular outcome. Instead, it directed the
parties to redirect their energies toward a settlement with which all
interested stakeholders could live. That they did. And the Court, in its
judgment, ratified that settlement. Again, by simply ratifying the
settlement, the Court provided no framework within which all parties to
future, similar housing disputes might work. Chenwi contends that the
thinness of the judgment in Occupiers of 51 Olivia Road neither promotes a
dialogue between the three branches of government about the meaning of
section 26 of the Constitution, nor truly entertains the proposition that
citizens might have a meaningful voice in the construction of our basic
law. 42
40 But that long paragraph is not the only place in which Penfold and Milo reject
Michelman’s reading of NM. Elsewhere Penfold and Milo write: As Woolman [in
Woolman ‘The amazing, vanishing Bill of Rights’ (2007) 124 SALJ 762, 783]
comments: ‘The majority in NM acts as a trier of fact in a run-of-the-mill actio iniuriarum
matter.’ It may be suggested that the approach of the majority in NM falls within the
second instance in K v Minister of Safety and Security, ie determining whether a particular
set of facts falls within or beyond the ambit of an existing rule, in that the majority
determined that the facts fell within the ambit of dolus eventualis in circumstances which
would, in the absence of the Constitution, amount only to negligence. It may be
suggested that the approach of the majority in NM falls within the second instance in K
v Minister of Safety and Security, ie determining whether a particular set of facts falls
within or beyond the ambit of an existing rule, in that the majority determined that the
facts fell within the ambit of dolus eventualis in circumstances which would, in the absence
of the Constitution, amount only to negligence. For a variation on this argument, see …
Michelman’s ‘On the uses of interpretive “charity”.’ ... For the reasons set out in this
article, we do not find this argument persuasive.’ Penfold & Milo (n 39 above) 319.
41 2008 5 BCLR 475 (CC).
42
L Chenwi ‘A new approach to remedies in socio-economic rights adjudication: 51 Olivia
Road v City of Johannesburg’ (2009) 2 Constitutional Court Review 371.