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Kibitzing with Frank Michelman on how to best read the Constitutional Court 415
Professor Michelman does spend enormous energy prying apart my
apparent collapse of the various possible relationships between sections
39(2) and 172 of the final Constitution. Our application jurisprudence is
certainly the better for his efforts.
What I cannot accept, however, is the impression left by Professor
Michelman that it matters not as to whether the Bill of Rights applies
directly or indirectly as long as the Court generates an outcome that one
can, through extensive reconstruction, explain. A text – and more than a
handful of judgments – that cannot be taught in a rigourous way to secondyear
LLBs is an explication that does not do the text or our students justice.
not overturn the central holding of Du Plessis? No. (2) Can Du Plessis still be good law
when the constitutional provisions upon which it was grounded have been completely
altered? No. (3) Does not sec 8(2) expressly reject the claim in Du Plessis that the Bill of
Rights does not apply directly to private disputes governed by common law? Yes. (4)
Did a unanimous Constitutional Court in Khumalo not expressly recognise that the
substantive provisions of the Bill of Rights of the final Constitution applies directly to
all law and private disputes, where appropriate, through secs 8(2) and 8(3)? Yes. (5)
Acknowledging the force of Frank’s claim that it does not matter whether common law
disputes between private parties are engaged by sec 8(2) or sec 39(2), is it still correct, as a
matter of law, to say that Du Plessis was not overturned by Khumalo read with the text of
the final Constitution? No. (6) Should we be satisfied with the Deputy Chief Justice’s
contention that the Constitutional Court’s extant approach to the development of the
common law remains the same as it did under the interim Constitution? No. The Deputy
Chief Justice’s remarks are that much more disconcerting given that the Technical
Committee charged with drafting the Bill of Rights of the final Constitution expressly
intended for secs 8(1) and 8(2) to capture all matters involving direct application of a
substantive provision of the Bill of Rights (including, specifically, the direct application of
substantive provisions to disputes between private parties governed by the common law)
and that sec 39 was intended to be exactly what it says – a guide to interpretation of all
law in light of the spirit, purport and objects of the Bill of Rights. See C Rautenbauch
‘Remarks on the intention of the Technical Committee regarding the extension of sec 8
and sec 39’ (3 March 2011) (on file with author). See also S v Makwanyane 1995 3 SA 391
(CC), 1995 6 BCLR 665 (CC), 1995 2 SACR 1 (CC) (Chaskalson P) (on the value of
travaux preparatoires); S Woolman ‘A curious extra-curial footnote: Deputy Chief Justice
Moseneke’s aside and the tenacious hold of state action doctrines across constitutional
jurisdictions’ Presentation at South African Institute of Advanced Constitutional,
Public, Human Rights and International Law. (The paper suggests that the Deputy
Chief Justice’s remarks are consistent with ‘state action’ doctrines adopted in Canada,
Germany, Australia, the United Kingdom and the United States – and the desuetude into
which academic arguments about direct application often fall. The paper’s first
hypothesis is that judges across jurisdictions are more comfortable with indirect
application than they are with potentially upsetting the common law apple cart through
direct application. It appears to matter not what the actual text of any given Constitution
says. The second hypothesis turns on the indisputable fact that judges have started to
speak globally about constitutional law. This global conversation may reinforce existing
practices on the bench rather than disentrench them. That is, the global constitutional
conversation may justify existing practices instead of inviting novel approaches.)