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Kibitzing with Frank Michelman on how to best read the Constitutional Court 409
approach to rights in which the content of the right must be fleshed out. 47
In such cases, the Court is not long detained by the right invoked and
proceeds rather immediately to limitations analysis. Does Snyckers’s argument
service the case against thinness? A Constitutional Court averse to rulegenerating
decisions and more inclined to decisions that stick to the facts of
the case is invariably going to produce ‘thin’ judgments. And by thin, again, I
simply mean short on the kinds of reasons that can be extended and applied in
future cases.
The final two academic witnesses in the case against thinness are
Professor Michelman and myself.
Can the cases we address – NM, Masiya and Barkhuisen (amongst
others) 48 – service a more modest argument regarding thinness? They can.
The argument runs like this:
[T]he Court often … substitutes … dignity, equality and freedom [value
analysis] for … the more rigorous interrogation of constitutional challenges
[that should be] required in terms of the specific substantive rights found in
chapter 2 of the Constitution. If the drafters of the Constitution had intended
such a substitution, the structure and the language of the Bill of Rights would
have reflected that intention. It doesn’t ... By continually relying on section
39(2) of the Constitution to decide challenges both to rules of common law
and to provisions of statutes, the court obviates the need to give the specific
substantive rights in chapter 2 the content necessary to determine the actual
validity of the rule being challenged in the instant matter and of similar rules
challenged in subsequent matters. This strategy also enables the court to skirt
the nuanced process of justification that section 36 … or some other express
limitations clause in a specific substantive right might require. The persistent
refusal to give rights identifiable content, by avoiding direct application,
results in a Bill of Rights [with less identifiable content and] meaning than it
should contain. 49
47 Snykers (n 82 above) 1 - 2, n 2. (This article echoes ‘(at times loud[ly]) the lament issued
by Woolman in Woolman ‘The amazing, vanishing Bill of Rights’ ... The echoes are at
their loudest in Woolman’s complaint that the Court’s liking for outcomes based
jurisprudence could, at its logical extreme, amount to a violation of the rule of law, or
what is still sometimes called palm tree justice, at the cost of institutional legitimacy. Two
phenomena struck me most about Woolman’s focus: the Court’s hard preference for
indirect application of the Bill of Rights (as opposed to the rights within it), and the
aligned or consequential withering away of the textual purchase of particular rights in the
Bill, ie, the increasingly arbitrary link between the nature of the intellectual exercise at
issue and the wording of the particular right in the Bill that is ostensibly being analysed
in such an exercise … Had the criminal rights jurisprudence of the Court seen a history
of fostering a self-conscious discipline of affording to particular rights their doctrinal
autonomy, the apparent ease with which the Court appears to forge ahead on its path
toward doctrinal agnosticism would no doubt have been absent, or at least, such slights
would have sounded a more jarring note.’)
48 Barkhuizen v Napier 2007 7 BCLR 691 (CC); Masiya v Director of Public Prosecutions 2007 5
SA 30 (CC), 2007 8 BCLR 827 (CC); NM v Smith 2007 5 SA 250 (CC), 2007 7 BCLR 751
(CC).
49 Woolman ‘Amazing’ (n 1 above) 763.