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Kibitzing with Frank Michelman on how to best read the Constitutional Court 413
apposite sections of 8 and 39(2) mean? Professor Michelman offers two
responses: (1) First, it is the law of the land and the cases spell that out; (2)
second, it is not impossible to reconstruct what the Court is doing in section
39(2) cases (that might best have been fit under sections 8(2) and 8(3)).
Professor Michelman is correct on both accounts. But I am going to
emphasise the words ‘not impossible’. Professor Michelman, as a rule,
teaches students at Harvard Law School who are in their seventh (or greater
year) of tertiary education at one of the world’s greatest universities. I taught
for several years as a lecturer, at my alma mater, Columbia Law School,
students in their seventh (or greater year) of tertiary education. For such
students, the nuances and the contradictions of the Constitutional Court’s
jurisprudence are well within their intellectual grasp.
Let me be unabashedly elitist about the inputs and the outcomes.
Current students at the LLB and LLM level in South Africa quite often have
a difficult time reading the most simplified (dumb-downed) accounts of the
Constitutional Court’s doctrines. Reading and understanding actual cases
often proves extremely challenging.
But what goes for students proves equally true for practitioners and
jurists in South Africa. As I have already noted, a significant percentage of
practitioners and jurists have some difficulty understanding application issues
and the structuring of standard bill of rights arguments. It is not, as with our
students, a matter of incapacity. In large part, many have not been exposed
to constitutional law as a field of study – and so feel more comfortable with
more common forms of statutory interpretation or common law analysis
(thus the familiarity afforded by section 39(2)). The Constitutional Court
bears some responsibility here for not making the structure of Bill of Rights
analysis crystalline clear in a jurisdiction that has no extended history of
such analysis.
In response to Professor Michelman’s question as to why the structure
of application analysis should matter, I have suggested two basic responses.
First, naturalness, textual plausibility and non-surplusage favour my
account. Second, the often self-defeating effort to teach students,
practitioners and jurists how the Constitutional Court constructs Bill of
Rights analysis again favours a straightforward exegesis of the text as to
how meaning and purpose ought to be allocated amongst the four clauses
that have a bearing on the application of the Bill of Rights.
Professor Michelman does not spend all that much time explaining his
view of the extension of sections 8(1) and 8(2) of the final Constitution. His
text suggests that section 8(1) applies to statutes – whether they govern
disputes between the state and a person, or disputes between natural and/
or juristic persons. In Professor Michelman’s view, nothing much turns on
whether disputes between private parties governed by the common law (or