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416 Chapter 17
6 Conclusion
‘This is not an argument!’ ‘Yes it is.’ ‘No it isn’t’. ‘Yes it is.’
‘But I paid for an argument.’ ‘No you didn’t.’ ‘Yes I did’. ‘No you didn’t.’
Monty Python’s Flying Circus, Five minute argument
I leave it to Professor Michelman (in his rejoinder) and the reader to decide
whether I have largely closed the circle between us, provided proper
amplification of Davidson’s principle of charity, used sufficiently compelling
evidence from the primary and secondary literature for my case for clarity,
and made any progress in the ongoing debate about how we ought to
reconstruct our application doctrine.
But one last word – from Donald Davidson – on the nature of this
extended kibitz with Professor Michelman: ‘[M]inimising disagreement
or maximising agreement is a confused ideal. The aim of interpretation is
not agreement but understanding.’ In short, the very possibility of the kind
of extended kibitz that Professor Michelman and I have enjoyed is
contingent upon ‘endless true beliefs’ about the Constitutional Court. To
the extent that we still part paths during this colloquy, our remaining
differences are little more than subtle, bubble comments regarding the work
of South Africa’s highest court. 57
57
As this piece went to bed, the Constitutional Court held that a private party in a
dispute with another private party governed by common law – a trust seeking to evict
learners from a public school so that it might use the property more profitably – was
subject to the formal terms of the Bill of Rights through sec 8(2) and the substantive
terms of Bill of Rights through sec 29(1)(Right to basic education). See Governing Body of
the Juma Musjid Primary School v Ahmed Asruff Essay NO CCT29/10 [2011] ZACC 13. The
judgment expressly confirms the holding in Khumalo v Holomisa regarding the role of
sec 8(2) in determining the direct application of specific provisions of the Bill of Rights
to disputes between private parties governed by common law. It is now clear that
Deputy Chief Justice Moseneke’s extra-curial remarks no longer reflect the state of the
law, and, it would appear, the Deputy Chief Justice’s position on the matter.