Download this publication - PULP

Kibitzing with Frank Michelman on how to best read the Constitutional Court 411
How good a witness for the case against thinness is Professor Michelman?
It’s hard to know. His writing and his correspondence recognise that the
argument against thinness is ‘formidable’ 52 and that the Constitutional
Court’s collective inclination [my locution, manifestly not Professor
Michelman’s preferred description] towards minimalism is of ‘dubious’
normative value at this juncture of South Africa’s constitutional history. 53 At
other times, Professor Michelman appears reluctant to attribute anything
other than ‘occasional opacity’ to the Constitutional Court. 54 I am not
certain that much can be made of these different locutions.
5 How best to read the Constitutional Court’s
application jurisprudence
5.1 Closing the circle
As I had initially hoped, this reply reflects a fairly charitable attempt to
maximise areas of agreement and sharpen the small, but remaining, areas of
disagreement between Professor Michelman and myself. More
importantly, this exercise in aggressive learning has improved our
understanding of the Constitutional Court – and how best to read its texts,
and the underlying text, the Constitution.
Some open questions still remain. To a large extent they turn on
questions that first animated this exchange: how best to understand the
text of the Constitution with regard to issues of application and how best to
understand the application jurisprudence of the Constitutional Court.
5.2 Can you teach your application theory in the classroom?
Making sense of Khumalo and the post-Khumalo jurisprudence
Here’s an experiment the reader can do in the classroom. Teach a roomful
of students Du Plessis v De Klerk and explain how the majority reached its
conclusion about the limited reach of the Bill of Rights under the
interim Constitution. Show them the text of interim Constitution sections
7(1), 7(2) and 35 and help them to understand why Kentridge J concluded
that the Bill of Rights under the interim Constitution was, as all
constitutions have traditionally been, limited to regulating relationships
between the state and individuals.
The next time that you see them, show them the text of sections 8(1),
8(2), 8(3) and 39(2) of the final Constitution. Ask them to apply these
52 Michelman (n 1 above) 1.
53
E-mail from Michelman on 29 December 2009.
54 As above.