Download this publication - PULP

Rejoinder to Stu Woolman 419
managed, as measured by reasonably discoverable, valid considerations of law and
legal administration.
In particular, I shall be questioning Woolman’s diagnosis from these cases of ‘a
court uncomfortable with the direct application of the specific substantive
provisions of the Bill of Rights’ and ‘in full flight from any meaningful
engagement with chapter 2 of the Constitution’. Whether a wider survey of the
jurisprudence would warrant an over-all diagnosis of an excessive flight from
substance is a question on which I hazard no judgment here. All I say here is
that NM and Masiya do not, to my eye, support the diagnosis, nor is that, in my
view, the best way for us to regard these cases. One feature common to both is the
Constitutional Court’s seeming gravitation to its inherent power to develop the
common law in terms of Constitution sections 173 and 39(2) as opposed to its
judicial review power in terms of sections 8 and 172(1) B when undertaking
modification of common law rules under pressure from the Bill of Rights.
Woolman believes the Court moves too freely to the inherent power. He
associates that tendency, as symptom or cause (or both), with excessive flight from
substance. I aim to raise a doubt about any such connection. 7
In that set of claims, all that may still remain actively contentious between
Woolman and Michelman is my denial of a correlation between the
Constitutional Court’s (undoubted) gravitation to section 39(2) and the
total sum of the expositions and elucidations so far received from the
Court of the concrete, substantive requirements for which the several
rights-granting clauses in the Bill of Rights are meant to speak. 8 I return
soon to that matter, but I need first to say a bit more on the general idea of
a flight from substance.
4 On flight from substance and judicial pragmatism
Given that I have demurred on the question of ‘an overall diagnosis of a flight
from substance’ and that Stu (for now) withdraws his claim to that effect, 9 there
is no active contention between us on that point. There may, however, be
some shades of difference between us worth noticing. Stu marshals a set of
observations by himself and other scholars regarding the Constitutional Court’s
7 Michelman ‘Charity’ (n 1 above) 2 (citations omitted). I added, in a footnote, that I would
not be addressing another arguable symptom or cause of flight that I know to be of
concern to Professor Woolman, which is ‘the Court’s readiness on some occasions to
move to the ‘justification phase of a Bill of Rights case either without having decided the
question of a substantive infringement, ... or, perhaps, having found an infringement on
the basis of a merely ‘notional’ reading of the right in question. Michelman ‘Charity’ (n
1 above) 2 (citations omitted).
8 That Stu still maintains some attachment to the view I deny appears from his
pointing to the Constitutional Court’s readiness to treat constitutional challenges to
common-law norms under sec 39(2) (as opposed to sec 8(2)) as one factor among
several that might, in combination, support a revival of the flight from substance
account. See S Woolman ‘Between charity and clarity: Kibitzing with Frank Michelman
on how to best read the Constitutional Court’ in S Woolman & D Bilchitz Is this seat
taken? Conversations at the Bar, the bench and the academy about the South African Constitution
(2012) 391.
9 See Woolman (n 8 above) 393 - 394.