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This collection of colloquies flows from
the Constitutional Law of South Africa
Public Lecture Series held last year.
The contributors to the nine colloquies
include four Constitutional Court Justices,
four of the world’s leading constitutional
law scholars and the best of
South Africa’s own legal academy.
“Each of the topics [canvassed in this work] is engaged
by two commentators in dialogue form: the
views of one commentator are first advanced, to
which a second commentator replies. The result is
a satisfying conversation that edifies the reader both
in areas of well thought-out agreement and in areas
of disagreement. This book thus contributes greatly
to the vital debate in legal circles and civil society at
large about a select number of core problems arising
from our Constitution. It does so in a manner that
demonstrates how to argue productively about basic
questions of law and human rights. And it is full of
constructive proposals that will light the way along
South Africa’s new path. For that, the editors of and
contributors to Constitutional Conversations can only
be commended.”
- Pius Langa ‘Foreword’
Chief Justice of South Africa
“In my view, if the debates involving judges and scholars
that led to this book are anything to go by, dialogue
between the judiciary and the academic world
is likely to become increasingly fruitful in the years to
come. US Supreme Court Justice Robert Jackson,
whom I love to quote, sardonically remarked that the
‘Court does not have the last word because it is infallible.
It is infallible because it has the last word.’
We judges have to acknowledge, however, that the
last word on the infallibility of the judges themselves
will lie with the academic critics. O dialogo continua!
Long may the dialogue continue!”
- Albie Sachs ‘A gentle provocation’
Judge, Constitutional Court of South Africa
Pretoria University Law Press
PULP
ISBN:978-0-9814124-1-2
CONTENTS
• Foreword
Chief Justice Pius Langa
• Introduction: Law’s autonomy
Stu Woolman & Michael Bishop
• The South African Constitution as the last great
modernist project
Stu Woolman
• Reply: A gentle provocation
Justice Albie Sachs
• Constitutional supremacy and appellate
jurisdiction in South Africa
Frank Michelman
• Reply: On the reach of the Constitution and the
nature of constitutional jurisdiction
Justice Kate O’Regan
• The principle of democracy in South African
constitutional law
Theunis Roux
• Reply: Writing the law democratically
Danie Brand
• True in theory, true in practice: Why direct
application still matters
Stu Woolman
• Reply: Summarising Proust
Iain Currie
• Limitations: Shared constitutional interpretation, an
appropriate normative framework and hard choices
Stu Woolman & Henk Botha
• Reply: Sharing interpretation
Johan van der Walt
• The widening gyre of dignity
Stu Woolman
• Reply: The soul of dignity
Justice Laurie Ackermann
• Towards a substantive right to equality
Cathi Albertyn & Beth Goldblatt
• Reply: A cautionary note regarding substantive
equality
Karthy Govender
• The ‘arbitrary deprivation’ vortex: Constitutional
property law after FNB
Theunis Roux
• Reply: Against regulatory taking: In defence of the
two-stage inquiry
Frank Michelman
• Socio-economic rights: Revisiting the
reasonableness review/minimum core debate
Sandra Liebenberg
• Reply: On ‘dialogue’, ‘translation’ and ‘voice’
Marius Pieterse
Constitutional Conversations
Stu Woolman & Michael Bishop (eds)
PULP
Constitutional
Conversations
Stu Woolman & Michael Bishop (eds)

Constitutional
Conversations
Stu Woolman & Michael Bishop (Eds)
2008

Constitutional conversations
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Cover:
Yolanda Booyzen, Centre for Human Rights
• Main doors of the South African Constitutional Court
• Raphael: ‘The School of Athens’, c.1510/11, Vatican, Apostolic Palace
• Facade of the South African Constitutional Court
• Cyril Ramaphosa and Roelf Meyer
• Government Gazette notice
ISBN: 978-0-9814124-1-2
© 2008

ABBREVIATED TABLE OF CONTENTS
FOREWORD
Chief Justice Pius Langa
x
ACKNOWLEDGMENTS
1
2
3
4
5
6
7
8
9
10
11
INTRODUCTION: LAW’S AUTONOMY 1
Stu Woolman & Michael Bishop
THE SOUTH AFRICAN CONSTITUTION AS THE LAST 25
GREAT MODERNIST PROJECT
Stu Woolman
REPLY 37
Justice Albie Sachs
CONSTITUTIONAL SUPREMACY AND APPELLATE 45
JURISDICTION IN SOUTH AFRICA
Frank Michelman
REPLY 63
Justice Kate O’Regan
THE PRINCIPLE OF DEMOCRACY IN SOUTH AFRICAN 79
CONSTITUTIONAL LAW
Theunis Roux
REPLY 97
Danie Brand
TRUE IN THEORY, TRUE IN PRACTICE: WHY DIRECT 113
APPLICATION STILL MATTERS
Stu Woolman
REPLY 139
Iain Currie
LIMITATIONS: SHARED CONSTITUTIONAL INTER- 149
PRETATION, AN APPROPRIATE NORMATIVE FRAME-
WORK AND HARD CHOICES
Stu Woolman & Henk Botha
REPLY 187
Johan van der Walt
xii
iii

12
13
14
15
16
17
18
19
THE WIDENING GYRE OF DIGNITY 193
Stu Woolman
REPLY 217
Justice Laurie Ackermann
TOWARDS A SUBSTANTIVE RIGHT TO EQUALITY 231
Cathi Albertyn & Beth Goldblatt
REPLY 255
Karthy Govender
THE ‘ARBITRARY DEPRIVATIONS’ VOTEX: 265
CONSTITUTIONAL PROPERTY LAW AFTER FNB
Theunis Roux
REPLY 283
Frank Michelman
SOCIO-ECONOMIC RIGHTS: REVISITING THE 303
REASONABLENESS REVIEW/MINIMUM CORE DEBATE
Sandra Liebenberg
REPLY 331
Marius Pieterse
iv

FULL TABLE OF CONTENTS
FOREWORD
Chief Justice Pius Langa
x
ACKNOWLEDGMENTS
1
2
3
4
5
INTRODUCTION: LAW’S AUTONOMY 1
Stu Woolman & Michael Bishop
1 Law’s autonomy
2 The content of these conversations
2.1 The SA Constitution as the last great modernist project
2.2 Rule of law
2.3 Democracy
2.4 Application
2.5 Limitations
2.6 Equality
2.7 Dignity
2.8 Property
2.9 Socio-economic rights
3 Ideal participants in the construction of an ideal
community
THE SOUTH AFRICAN CONSTITUTION AS THE LAST 25
GREAT MODERNIST PROJECT
Stu Woolman
1 On the role of the legal academy
2 The ideal community of interlocutors
3 The South African Constitution as the last great
modernist project
4 Conclusion
REPLY 37
A gentle provocation: A reply to Stu Woolman
Justice Albie Sachs
CONSTITUTIONAL SUPREMACY AND APPELLATE 45
JURISDICTION IN SOUTH AFRICA
Frank Michelman
1 Introduction
2 History
3 Justification
4 A single system of law
5 Comparative reflections
REPLY 63
On the reach of the Constitution and the nature of
constitutional jurisdiction: A reply to
Frank Michelman
Justice Kate O’Regan
1 Introduction
xi
v

6
7
8
9
10
2 A supreme, pervasive and foundational
Constitution
3 The unity and coherence of the legal system
4 Legality
5 Jurisdiction of the Constitutional Court and the
Supreme Court of Appeal
6 Conclusion
THE PRINCIPLE OF DEMOCRACY IN SOUTH AFRICAN 79
CONSTITUTIONAL LAW
Theunis Roux
1 Introduction
2 The principle of democracy: The text
3 The principle of democracy: The cases
4 Conclusion
REPLY 97
Writing the law democratically: A reply to
Theunis Roux
Danie Brand
1 Introduction
2 What Theunis does not say
2.1 Democracy as an empty vessel
2.2 The tension between rights and democracy
3 Conclusion
TRUE IN THEORY, TRUE IN PRACTICE: WHY DIRECT 113
APPLICATION STILL MATTERS
Stu Woolman
1 Introduction
2 Application doctrine under the Interim Constitution
3 Application doctrine under the Final Constitution
3.1 Black letter law
3.2 Good faith reconstruction of Khumalo
3.3 The critique of the black letter law and the good faith
reconstruction
4 The preferred reading
5 Conclusion
REPLY 139
Summarising Proust: A reply to Stu Woolman
Iain Currie
1 Introduction
2 Burdens
3 Drafting history
4 The Woolmanian reading
5 Theory v practice
LIMITATIONS: SHARED CONSTITUTIONAL INTER- 149
PRETATION, AN APPROPRIATE NORMATIVE FRAME-
WORK AND HARD CHOICES
Stu Woolman & Henk Botha
1 Introduction
2 Delineating rights analysis and limitations analysis
vi

11
12
13
3 Balancing as a bad metaphor
3.1 Definitions of balancing
3.2 Critiques of balancing
3.2.1 Pluralism, incommensurability and complexity
3.3 Subjectivity and arbitrariness
3.4 Incrementalism and conservatism
3.5 Science and silence
4 A (thick)er conception of limitations analysis
4.1 Shared constitutional interpretation
5 Norms: ‘an open and democratic society based
upon human dignity, equality and freedom’
5.1 Intersection, convergence, and conflict amongst
constitutional values
5.2 Dignity and democracy
5.2.1 Primacy of dignity
5.3 Democracy and openness
5.3.1 Principle of democracy
5.3.2 Principle of openness
5.4 Judicial narratives
5.4.1 Prince
5.4.2 Jordan and Khosa
REPLY 187
Sharing interpretation: A reply to Stu Woolman &
Henk Botha
Johan van der Walt
THE WIDENING GYRE OF DIGNITY 193
Stu Woolman
1 Introduction
2 History
3 Definitions of dignity
3.1 Dignity 1: Individual as an end-in-herself
3.2 Dignity 2: Equal concern and equal respect
3.3 Dignity 3: Self-actualisation
3.4 Dignity 4: Self-governance
3.5 Dignity 5: Collective responsibility for the material
conditions for agency
3.6 The creation of a realm of ends
4 Uses of dignity
4.1 Dignity as a first order rule
4.2 Dignity as a second order rule
4.3 Dignity as a correlative right
4.4 Dignity as a value or grundnorm
5 Dignity and the politics of capability
5.1 First restitution
5.2 Dignity and transformation
5.3 Beyond negative liberty to means and capability
6 Conclusion
REPLY 217
The soul of dignity: A reply to Stu Woolman
Justice Laurie Ackermann
1 Introduction
2 Whence dignity?
3 Dignity as ‘attribute’ in equality
4 Collective dignity?
5 Kelsen rather than Hart
6 Conclusion
vii

14
15
16
17
TOWARDS A SUBSTANTIVE RIGHT TO EQUALITY 231
Cathi Albertyn & Beth Goldblatt
1 Introduction
2 Values and the equality right
2.1 Equality as substantive equality
2.2 The values underlying the equality right
2.2.1 Dignity
2.2.2 Equality
2.2.3 Values, purposes and the parameters of the
equality right
3 Evaluation of unfair discrimination jurisprudence
3.1 Proving discrimination in the first step of the Harksen
test
3.2 Grounds of discrimination
3.2.1 Race
3.2.2 Sexual orientation
3.2.3 Sex/gender
3.3 Unlisted/new grounds of discrimination
3.3.1 Citizenship
3.3.2 The poor
3.3.3 Intersectionality
3.4 The application of contextual approach
4 An overview of the right and its relationship with
FC section 36
4.1 FC section 9(1) (rationality)
4.2 FC section 9(2) (a defence to unfair discrimination)
4.3 FC section 9(3) (fairness) and FC section 36
4.4 Can unfairness be justified?
REPLY 255
A cautionary note regarding substantive equality:
A reply to Cathi Albertyn & Beth Goldblatt
Karthy Govender
1 Caution with respect to expansive approaches
to equality
2 Concerns about equality
2.1 Van Heerden — a flexible approach
2.2 Van Heerden — a positive obligation
3 FC section 9 fairness and FC section 36
justification
3.1 Minister of Education v Harris
3.2 Volks v Robinson
4 Conclusion
THE ‘ARBITRARY DEPRIVATION’ VORTEX: 265
CONSTITUTIONAL PROPERTY LAW AFTER FNB
Theunis Roux
1 Introduction
2 Six points
3 FNB
4 The vortex
REPLY 283
Against regulatory taking: In defence of the
two-stage inquiry: A reply to Theunis Roux
Frank Michelman
1 Introduction
2 The FNB vortex: A cause for concern?
3 Making sense of FC section 25(1)’s internal and
external limitations
viii

18
19
SOCIO-ECONOMIC RIGHTS: REVISITING THE 303
REASONABLENESS REVIEW/MINIMUM CORE DEBATE
Sandra Liebenberg
1 Introduction
2 What does ‘reasonableness review’ mean in the
context of socio-economic rights claims?
3 An alternative model of review based on
‘minimum core’ obligations
4 Re-evaluating reasonableness review
5 Towards substantive reasonableness
6 Conclusion
REPLY 331
On ‘dialogue’, ‘translation’ and ‘voice’: A reply to
Sandra Liebenberg
Marius Pieterse
1 Introduction
2 Translation through dialogue: Mapping the field
and the players
3 Minimum core, reasonableness and translation
through dialogue
4 Conclusion: Towards openness, responsiveness
and substantive participation
ix

FOREWORD
The respective enactment and coming into force of the Interim and
Final Constitutions in South Africa was nothing short of a legal
revolution. The new basic law mandated an entirely fresh approach to
legislation, adjudication and the implementation of laws in this
country. Since 1994, judges, scholars, practitioners and ordinary
people have started to walk this new path of constitutional
democracy.
The way, however, is not always certain. The provisions of our Bill
of Rights are expressed in a manner that calls explicitly for judicial
application of open-textured political values such as dignity, equality
and freedom. They call implicitly for judicial choice from amongst a
variety of possible solutions to various deep problems of governance
and social interaction. It thus falls ultimately to judges to decide
finally where we must place our feet as we walk our path.
But that is not to say that judges should decide uninformed and
unadvised. Instead they must take counsel. There is a great need for
South Africans to come together and talk about these problems, to
evaluate the various possible routes, and to consider which seem
best. The Bill of Rights is not self-executing. Its requirements are not
uncontroversial. And not all South Africans are of accord. The need to
engage one another could not be more pressing: robust and respectful
engagement will yield concrete and valuable suggestions to courts,
government and the people on the best path forward.
The essays in this book together make a valuable contribution to
South Africa’s ongoing collective engagement with several deep
questions of constitutional and human rights significance. Here,
between two covers, we are presented with the considered views of
three Constitutional Court justices and twelve leading constitutional
scholars on a host of issues: the relationship between judges and
scholars in our constitutional democracy; the contested meaning of
the rule of law and its implications for the jurisdiction of our highest
courts; the nature of democracy in South Africa; the distinction
between direct and indirect application of fundamental rights; the
unavoidable normative and political character of justifying limitations
of fundamental rights; the call of substantive equality; the meaning
and significance of human dignity as a constitutional right and value;
the contours and the limits of the constitutional protection of private
property; and how best to fulfil the promise of socio-economic rights.
Each of these topics is treated by two commentators in dialogue
form: the views of one commentator are first advanced, to which a
second commentator replies. The result is a satisfying conversation
that edifies the reader both in areas of well thought-out agreement
and in areas of disagreement. Where the contributors converge on a
particular conclusion, we are placed in a position to assess a variety
of arguments supporting that outcome. We are reassured because the
tendency to converge on a given solution, in favourable conditions of
x

unrushed academic discourse, is a strong reason to take that solution
very seriously indeed. Where contributors diverge, however, we
nevertheless gain from the opportunity to assess their conflicting
points of view and supporting premises and, from a newly informed
and enriched perspective, to make up our own minds.
This book thus contributes greatly to the vital debate in legal
circles and civil society at large about a select number of core
problems arising from our Constitution. It does so in a manner that
demonstrates how to argue productively about basic questions of law
and human rights. And it is full of constructive proposals that will light
the way along South Africa’s new path. For that, the editors of and
contributors to Constitutional conversations can only be commended.
Pius Langa
Chief Justice of South Africa
Johannesburg, South Africa
June 2008
xi

ACKNOWLEDGMENTS
The publishers and the editors would like to thank Juta Law and
Academic Edge CC for permission to use material from the following
chapters in Stu Woolman, Theunis Roux & Michael Bishop (eds)
Constitutional Law of South Africa, 2 nd Edition (2008):
• Frank Michelman ‘The Rule of Law, Legality & the Supremacy of
the Constitution’ in Stu Woolman, Theunis Roux & Michael Bishop
(eds) Constitutional Law of South Africa, 2 nd Edition (2005)
Chapter 11;
• Theunis Roux ‘Democracy’ in Stu Woolman, Theunis Roux &
Michael Bishop (eds) Constitutional Law of South Africa, 2 nd
Edition (2006) Chapter 10;
• Stu Woolman ‘Application’ in Stu Woolman, Theunis Roux &
Michael Bishop (eds) Constitutional Law of South Africa, 2 nd
Edition (2005) Chapter 31;
• Stu Woolman & Henk Botha ‘Limitations’ in Stu Woolman, Theunis
Roux & Michael Bishop (eds) Constitutional Law of South Africa,
2 nd Edition (2006) Chapter 34;
• Stu Woolman ‘Dignity’ in Stu Woolman, Theunis Roux & Michael
Bishop (eds) Constitutional Law of South Africa, 2 nd Edition
(2006) Chapter 36;
• Cathi Albertyn & Beth Goldblatt ‘Equality’ in Stu Woolman,
Theunis Roux & Michael Bishop (eds) Constitutional Law of South
Africa, 2 nd Edition (2007) Chapter 35;
• Theunis Roux ‘Property’ in Stu Woolman, Theunis Roux & Michael
Bishop (eds) Constitutional Law of South Africa, 2 nd Edition
(2004) Chapter 36;
• Sandra Liebenberg ‘The Interpretation of Socio-Economic Rights’
in Stu Woolman, Theunis Roux & Michael Bishop (eds)
Constitutional Law of South Africa, 2 nd Edition (2004) Chapter
33.
The publishers and the editors would also like to thank the Centre for
Human Rights, the South African Institute for Advanced
Constitutional, Public, Human Rights and International Law, Juta Law,
the Constitutional Court Foundation, and Academic Edge CC for
sponsoring the Constitutional Law of South Africa Public Lectures
Series at the Women’s Jail on Constitution Hill and for making the
conversations in this book possible.
xii

DEDICATIONS
‘To my grandfather, Thomas Mullins’
Michael Bishop
‘To my Uncle, Harry, who revealed to me the magic of books’
Stu Woolman

1
INTRODUCTION:
LAW’S AUTONOMY
Stu Woolman & Michael Bishop
1 Law’s autonomy
One of the wonderful things about law is its enormous variation in
rhetorical forms. You can be a formalist. Well, actually, only other
people can be formalists (since it has, sadly, come to be used solely
as a term of derision.) But that still leaves open the possibility of
being a critical legal scholar (who can drive a Rolls Royce at Harvard
but still advance the needs of the proletariat), a realist (who drives
fast, and yet always manages to be late for therapy), a pragmatist
(who makes the best of a lousy car), an original intentist (who was
born in 1994 and drives a new model BMW), a Brit crit (who drives a
really lousy car and truly believes she is part of the vanguard of the
proletariat), a positivist (who knows that there is a clear difference
between a good car and a lousy car, but can’t remember whether her
car is parked closer to the core or the penumbra), a feminist (who
doesn’t think there’s anything ‘funny’ about her car), a poststructuralist
(who drives two cars in binary opposition to one
another), a critical race theorist (who drives a really lousy car
because its ‘black’ and ‘you really wouldn’t understand’), a critical
latino theorist (who waited 3 months for the factory to deliver
something in beige), a natural law theorist (who believes God created
his car), a minimalist (who drives a lousy car and understands that the
car speaks for itself), a lit crit (who can tell a thousand illuminating
stories about her car), an ubuntuist (who drives a new BMW because
it ‘is because we are’), an experimentalist (who drives a lousy car but
1

2 Chapter 1
thinks of it as an opportunity to learn just about everything that can
go wrong with an engine), a plain meaning person (who drives a box
on wheels) or an ordinary meaning person (who simply drives a car).
That’s just a list of jurisprudential schools. You can argue by
deduction, induction, analogy, history, tradition, precedent, storytelling,
politics or even logic. And if you go to the Constitutional
Court, you can hire Trengove, Marcus, Moerane, Chaskalson,
Unterhalter, Mtshaulana, Arendse, Gaunlett, Soni, Cockerell,
Semenya, Budlender, or Kemp J Kemp to argue for you.
What, if anything, does this list of lists have to do with the volume
— Constitutional conversations — that sits before you? Academics, like
lawyers, must be free to employ a number of different, but largely
consistent, rhetorical forms in advancing their arguments. The
authors of Constitutional conversations have been set free to write
what they like — and to employ their preferred rhetorical forms. And
that they have done. Without naming names, we can count feminists,
experimentalists, ubuntuists, minimalists, critical legal scholars,
natural law theorists, realists, pragmatists, ordinary meaning readers,
plain meaning interpreters, and formalists amongst the contributors
to this collection. That said, their interpretive freedom — for this
collection — is subject to a particular form of bounded rationality.
One requirement, of all the authors who have written for
Constitutional conversations is that they take the text of the Final
Constitution, the reasoning of cases, the political institutions that
govern us, the fellow academics who contribute to our greater
understanding of our field, and a whole range of other quotidian
academic considerations — like logic and research — quite seriously.
We know that the correct reading of a founding provision may turn on
the placement of a comma — and that a bad outcome may flow from
an errant reading of a preposition. Our aim, as the editors and the
authors of Constitutional conversations, is to produce a book that
provides some insight into a select number of the problems thrown up
by our basic law. We hope, collectively, to have succeeded in making
greater sense of the system of constitutional law within which we
operate and, should we have any talent, to have made a modest
contribution towards the creation of a system of constitutional law
that is both more coherent and more just. Moreover, the authors for
Constitutional conversations do not merely dabble in doctrine — they
create it. Some of the authors have done so from the bench — the
Constitutional Court (though they operate here in an extra-curial
capacity). Others operate from the relatively objective distance
provided by the academy. In every contribution — save for the odd,

Stu Woolman & Michael Bishop 3
entirely speculative colloquy 1 — the theoretical work of our authors
begins with a close reading of the text and then draws down upon and
engages those jurists and academics who have previously attempted
to make sense of systems of law in constitutional democracies. Even
when we move away from the law to less derivative disciplines, the
authors of this work never for a moment deny the law its autonomy. 2
For a failure to recognise law’s autonomy risks trivialising the laws
that govern us and the concerns of those governed by our law. No such
trivialisation is to be found in this work: All the authors are deeply
committed to the project of constitutionalism in South Africa.
This book benefits immensely from two sources.
The first source is Stu Woolman, Theunis Roux and Michael Bishop
(eds) Constitutional Law of South Africa, 2 nd Edition (2008)(‘CLoSA’).
This four volume treatise is the leading internationally-recognised,
most widely cited, scholarly commentary on the subject. One reason
for its status — in the courts and the secondary literature — is that this
76 chapter work covers every dimension of court practice,
institutional constitutional law and all of the operational provisions
and the substantive provisions of the Bill of Rights. However, what
really distinguishes Constitutional Law of South Africa from other
commentaries, and places it on an equal footing with the finest works
in other jurisdictions, is its sustained engagement with its subject
matter. Many of the chapters are of monograph length and quality. 3
We would be quite remiss, however, if we did not acknowledge that
Constitutional Law of South Africa — and the 40 authors who have co-
1 See S Woolman ‘The South African Constitution as the last great modernist
project’ in S Woolman & M Bishop (eds) Constitutional conversations (2008)
Chapter 2; A Sachs ‘A gentle provocation: A reply to Stu Woolman’ in S Woolman
& M Bishop (eds) Constitutional conversations (2008) Chapter 3.
2 See Woolman (n 1 above) 26-27.
3 Constitutional Law of South Africa takes its readers beyond the black letter law.
It offers complete reconstructions of legal doctrine, provides alternative readings
of constitutional provisions, and proffers appropriate criticism of the judiciary’s
decisions and the legislature’s enactments. Constitutional Law of South Africa
achieves these ends through comprehensive treatment of the case law and
relevant statutes; a thorough review of the secondary literature; and the ability
to draw, where appropriate, on relevant foreign and international jurisprudence.
Constitutional Law of South Africa fills a unique space in the South African legal
academy and the profession. Constitutional Law of South Africa fills a unique
space in the legal academy and the profession. By being both broad and deep, it
holds our basic law together. The book serves as a home for what the editors like
to describe as an ‘ideal community of interlocutors’. Constitutional Law of South
Africa creates a space where academics, practitioners and jurists can engage one
another across the entire range of extant constitutional issues. The table of
contents and the contributors to Constitutional Law of South Africa can be found
in the compact disk at the back of the book. We cannot thank enough those 40
some odd authors for making CLoSA, the CLoSA Conference and this book
possible. Their contributions can now also be found at http://www.westlaw.com.
For more on Constitutional Law of South Africa, see our website, http://
www.closa.co.za. For those who wish to secure the treatise itself, see Juta Law’s
website at http://www.jutalaw.co.za.

4 Chapter 1
authored CLoSA — has given Constitutional conversations its heft. For
readers looking for a deeper treatment of the topics canvassed in
Constitutional conversations, we reproduce, in a compact disk (CD)
found at the back of the book, the 8 full length CLoSA chapters upon
which the 8 lead essays draw.
The book also succeeds because of the structure of the conference
from which much of its content flows: the Constitutional Law of South
Africa Conference & Public Lecture Series. That three day, three
night indaba was, by design, grounded in a large number of the
existing chapters of Constitutional Law of South Africa, 2 nd Edition.
Eight of those often monograph length treatments have been chapters
reconstituted, abbreviated and often radically reconceived chapters
as the lead essays in this work. (Again, the 8 original full length
chapters can be found on the compact disk (CD) at the back of this
work.) However, neither the lead essays nor Constitutional Law of
South Africa (‘CLoSA’) provide the frission that gives this new work
life. That frission is created, in large part, by the conference’s
respondents. For those of us who have written lead chapters, it is fair
to say that our work has been enriched when we read others who offer
significantly different perspectives on the same phenomena. Such
perspectives have, in many instances, awakened the lead authors
from their dogmatic slumber. 4
Such an awakening is an unalloyed good. Constitutional lawyers in
South Africa cannot for a moment sit idly back and assume that the
Constitution and all our cherished political institutions provide easy
answers for the depredations of apartheid or the desolations of our
current political order. Whether we like the gloss a fellow academic
or jurist may place on the case law or not, that academic or jurist will
invariably remind us that the Final Constitution is but a way station,
a stop on a never-ending journey towards a more just political order. 5
2 The content of these conversations
2.1 The SA Constitution as the last great modernist project
The opening conversation concerns, appropriately, the role that the
legal academy plays in the interpretation of the constitutional text.
As this collection flows, in part, from a much larger work that
purports to cover all aspects of constitutional law, it is important to
know a little about the players in this initial exchange. One
4 For just such a perspective, see J van der Walt Law and Sacrifice (2006) and J van
der Walt ‘A Reply to Woolman and Botha on Limitations’ in S Woolman & M Bishop
(eds) Constitutional conversations (2008) Chapter 11.
5 Woolman (n 1 above) 32.

Stu Woolman & Michael Bishop 5
interlocutor is an editor for this book, Stu Woolman. Woolman just
happens to be the editor-in-chief and lead author of the four-volume
treatise Constitutional Law of South Africa. The challenger is none
other than Albie Sachs, a Justice of the Constitutional Court: a famous
author and a well-known-jurist; a famous freedom fighter and one of
the chief architects of our basic law. 6
Woolman opens his end of the conversation by recalling a casual
remark Justice Albie Sachs made — to Professor Jack Greenberg and
himself — after a lecture on Grootboom at Columbia Law School in
2001. 7 Justice Sachs suggested, in passing, that legal academics ‘had
played an important role during the transition’. The clear implication
of this bon mot was that their time has passed and that academics
were no longer genuinely needed by the Court. The Court, according
to Sachs, was perfectly capable of handling the cases that seized it
without the assistance of academic commentary.
Woolman’s first response is to explain the current role of a South
African constitutional law scholar. He notes that ‘in the real world’
academics must first attempt to understand any given constitutional
opinion, as well as the law underlying the constitutional dispute. To
the extent that the opinion is less than transparent, the academic
must offer a good faith reconstruction. Where the Court’s judgment
remains opaque, and perhaps wrong, it is the academic’s responsibility
to criticise the Court’s judgment. And where the Court’s
judgment runs entirely off the rails and misconceives the meaning of
the constitutional text, the academic’s job is to offer a preferred
reading. Woolman then notes that academics are not merely
handmaidens to the Court. They belong to, and write for, an ‘ideal
community of interlocutors’ that — through continuous dialogue —
attempts to get as close as possible to ‘the truth’ about the
constitutional text and the law it generates. Woolman’s ‘ideal
community’ embraces judges, advocates, attorneys, fellow academics,
students and other denizens of this republic. However, even
as it grapples with the exigencies of the moment, the ‘ideal
community’ keeps a careful eye on future generations of lawyers,
jurists, academics, students and citizens.
The need for such an ‘imaginary domain’ — to employ Drucilla
Cornell’s felicitous phrase — and our Court’s sometimes parsimonious
explication of the basic law signals the potential for something of a
crisis in our constitutional jurisprudence. 8 We cannot afford a Court
6 See eg A Sachs The jail diary of Albie Sachs (1966); A Sachs The soft vengeance of
a freedom fighter (1990).
7 Government of the Republic of South Africa & Others v Grootboom & Others 2001
1 SA 46 (CC), 2000 11 BCLR 1169 (CC).
8
D Cornell The imaginary domain: Abortion, pornography and sexual harassment
(1995).

6 Chapter 1
stuck in a perpetual ‘present’: a constitutional groundhogs’ day. 9
There are two further obstacles to the realisation of our ‘ideal
community’. 10 Firstly, the courts, particularly the Constitutional
Court, do not seem to take academic commentary — the life-blood of
the ideal community — particularly seriously, to the extent that they
acknowledge it at all. While the Justices of our Constitutional Court
are unusually, and admirably, involved in public discourse, their
judgments do not reflect extended or even peripheral engagement
with academia. Secondly, although significant disagreement exists
within academia about the nature of the academy’s role and the
nature of the Court’s role, Woolman believes that a primary
responsibility of both academics and the Court is to ‘model rational
political discourse’. 11 It is hard to know how the Court can discharge
this responsibility if it consistently issues under-theorised judgments
and fails, where possible, to engage differences of view (often
expressed by members of the academy) regarding the meaning of
various provisions of the basic law.
Justice Sachs suggests that his aside in a collegial chat at
Columbia was not meant as a rebuke, but a ‘gentle provocation’. He
then recalls how, leading up to the enactment of the Interim
Constitution, academics were far ahead of judges in anticipating the
structure and the content of the Constitution and the changes it could
be expected to bring about. Many apartheid-era judges resented the
imposition of such radical change and attempted to carve out a
separate space for non-constitutional common law.
According to Justice Sachs, he, and many of his colleagues, found
great aid in academic writings before and after the drafting of the
Interim Constitution. But he then notes that after the Court produced
some ground-breaking judgments that would ‘la[y] the foundations of
[the] new constitutional jurisprudence’ the academic response to
these judgments was ‘virtually ... zero.’ He contends that while
certain issues such as direct application, equality and socio-economic
rights generated intense academic debate, many other cases arrived
and departed without comment.
The South African legal academic community might well wish to
ask this question: Is there a dearth of first-rate academic writing in
South Africa? The answer might well be yes. (The reasons for that
answer are rather complex and beyond the scope of this
introduction.) But that cannot be the whole story. There is,
9 S Woolman ‘The amazing, vanishing Bill of Rights’ (2007) 124 South African Law
Journal 762.
10 On the relationship between an ideal community and an open community, see
Lourens du Plessis ‘Interpretation’ in S Woolman et al (eds) Constitutional Law of
South Africa (2nd Edition, OS, 2008) Chapter 32.
11 J Rawls Political liberalism (1993).

Stu Woolman & Michael Bishop 7
undoubtedly, enough good writing that anticipates the issues that
ultimately seize the Court. Moreover, the Constitutional Court in
Mhlungu avers that constitutional interpretation must takes the form
of ‘a principled judicial dialogue, in the first place between members
of this Court, then between our Court and other courts, the legal
profession, law schools, Parliament, and, indirectly, with the public
at large.’ 12 If there is enough good writing in our journals and books,
and if the Court must, by its own lights, undertake a principled
dialogue with academia, then it is reasonable to ask whether it is
possible to engage in a meaningful and principled conversation when
the Court fails to acknowledge the presence, and the contributions,
of other parties to that conversation?
2.2 Rule of law
The ‘rule of law’ functions as a fundamental principle of any
constitutional democracy. In its most basic form, it reflects, in
Thomas Jefferson’s well-turned phrase, the idea that a free people
‘should have a government of law, not men’. That is, all actors, the
governors and the governed, are bound by the same set of rules.
Legality, an earlier incarnation of the rule of law doctrine, requires
that any act which does not comply with the law and the Final
Constitution must be found invalid.
According to Professor Michelman, these two doctrines — when
married to various other constitutional injunctions — say FC section
39(2)’s requirement to interpret statutes and to develop the common
law in light of constitutional dictates — have the potential to turn
legal disputes into constitutional matters. As a result, no case — as a
matter of logic — falls beyond the jurisdiction of the Constitutional
Court. Michelman’s conclusion is striking, and controversial. On an
ordinary language reading of the text, the Constitutional Court is a
specialist court without plenary jurisdiction. Michelman’s reading
challenges this very basic assumption.
Professor Michelman examines both the causes and the
consequences of the Constitutional Court’s decision to fashion the
rule of law doctrine and the principle of legality as constitutional
doctrines rather than have them remain common-law doctrines. He
demonstrates that the decisions that articulated these principles —
Fedsure, Pharmaceutical Manufacturers, and their progeny — render
the continued separation between the jurisdiction of the
Constitutional Court and the Supreme Court of Appeal largely
12 S v Mhlungu 1995 3 SA 867 (CC), 1995 7 BCLR 793 (CC) para 129.

8 Chapter 1
illusory. 13 The Constitutional Court can, if it wishes to do so, decide
that virtually any case possesses a constitutional dimension subject to
its jurisdiction. 14 In a short but fascinating section, Michelman
suggests that, at least with regard to development of the common
law, the division of jurisdiction between the Constitutional Court and
the Supreme Court of Appeal can be reconceived as part of the debate
between HLA Hart and Ronald Dworkin. If, like Hart, we believe that
there are ‘open spaces’ in the law then it makes sense to leave the
detail of the common law to the specialists on the Supreme Court of
Appeal. On the other hand, if we follow Dworkin’s lead and believe
that can be but one right answer, then the Constitutional Court ought
to have the final say on all matters raising constitutional issues. In his
final section, Michelman explains how the South African jurisdictional
debate fits within the broader international, comparative constitutional
conversations about how constitutional jurisdiction should
best be divided between domestic courts. He intimates that South
Africa might not be ill served by a twin-peak system in which two
courts share the final say on constitutional questions.
Justice Kate O’Regan responds quite forcefully to several of
Professor Michelman’s conclusions. Firstly, she takes issue with
Michelman’s definition of constitutional law as the law that simply
structures all government action. She argues that the South African
Constitution has a substantially broader and deeper influence: it
merely ‘restates the legal basis for all law in a normative manner, and
so has a substantive effect on ... legal reasoning and the common
law.’ Secondly, Justice O’Regan rejects the notion that the Constitution
could give rise to multiple parallel legal systems where
constitutional law and common-law causes of action exist side-byside.
She stresses that the Constitution creates a unitary legal system
which encompasses common law, statutory law and customary law
and ‘subjects them all to the discipline of compliance with
constitutional norms and values.’ The Court’s acceptance of the
proposition that this single legal system encompasses multiple forms
of law does not, O’Regan J opines, commit us to legal pluralism. The
Constitution remains the law from which all other law derives its
13 Pharmaceutical Manufacturers Association of SA & Another: In re Ex parte
President of the Republic of South Africa & Others 2000 2 SA 674 (CC), 2000 3
BCLR 241 (CC); Fedsure Life Assurance Ltd & Others v Greater Johannesburg
Transitional Metropolitan Council & Others 1999 1 SA 374 (CC), 1998 12 BCLR
1458 (CC); President of the Republic of South Africa & Another v Modderklip
Boerdery (Pty) Ltd (Agri SA & Others, Amici Curiae) 2005 5 SA 3 (CC), 2005 8 BCLR
786 (CC).
14 See F Michelman ‘The Rule of Law, Legality and the Supremacy of the
Constitution’ in S Woolman et al (eds) Constitutional Law of South Africa (2nd
Edition, OS, 2005) Chapter 11 (CD track 3). But for a functionalist view of
constitutional jurisdiction that does not conclude that all matters are potentially
constitutional matters, see S Seedorf ‘Constitutional Jurisdiction’ in S Woolman
et al (eds) Constitutional Law of South Africa (2nd Edition, OS, 2008) Chapter 4.

Stu Woolman & Michael Bishop 9
force. Thirdly, O’Regan J contends that the principle of legality, as
currently conceived, could never have operated as a common-law
principle under this dispensation. It is, rather, a unique and necessary
by-product of our constitutional democracy. She also demurs from
Michelman’s contention that the rule of doctrine turns the
Constitutional Court’s specialist jurisdiction into plenary jurisdiction.
With respect to this simmering jurisdictional dispute between the
Constitutional Court and the Supreme Court of Appeal, Justice
O’Regan declines to offer any definitive resolution. She does,
however, make two important points about the nature of
‘constitutional matters’: (a) the Final Constitution operates — in some
form — in all the courts and tribunals of South Africa; and (b) the
distinction between constitutional matters and non-constitutional
matters cannot be drawn on the basis of a hard-and-fast distinction
between fact and law.
As many readers are aware, the difficulties in defining the Court’s
jurisdiction and the sustained criticism of that division are part of
what lie behind the proposed (but currently shelved) constitutional
amendment that would make the Constitutional Court an apex court
with plenary jurisdiction. Michelman and O’Regan’s contributions
thus give rise to two questions on the future of that proposal: Has the
‘textually’ limited specialist jurisdiction of the Court contributed
some degree of confusion about its role in entrenching the basic law?
Would the currently moribund amendment put an end to that
confusion?
2.3 Democracy
In UDM, 15 the Constitutional Court — in a poke at the legal academy
and in the service of a strategy designed to finesse its obligation to
state clearly the form of democracy to which the Final Constitution
commits us — noted that no academic commentary had yet provided
a meaningful account of the form of democracy to which the Final
Constitution commits South Africa. Into that breach, Professor
Theunis Roux quite consciously stepped. 16 His monograph in
Constitutional Law of South Africa — and his ruminations in these
pages — provide an answer to the Court’s strategic non-denial denial
15 United Democratic Movement v President of the Republic of South Africa &
Others (African Christian Democratic Party & Others Intervening); Institute for
Democracy in South Africa & Another as Amici Curiae (No 2) 2003 1 SA 495 (CC),
2002 11 BCLR 1213 (CC) para 25.
16
See T Roux ‘Democracy’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2006) Chapter 10 (CD track 4).

10 Chapter 1
(that the Court itself had no coherent account of the kind of
democracy the South African Constitution requires.) 17
Roux’s starting point is the placement of a comma in FC section
1(d). This comma implies that the purpose of all democratic
structures is to ‘ensure accountability, responsiveness and openness.’
From this humble beginning, and after a patient and close reading of
the entire text of the Final Constitution, Roux concludes that
‘democracy’ cannot denote mere majority rule. The Final
Constitution’s vision of democracy requires structures that enable the
people to engage in representative, direct and participatory forms of
democracy which ensure that government remains accountable, open
and responsive. At a minimum, democracy stands for the proposition
that the rights in the Bill of Rights are not in conflict with majority
rule: they are, rather, in a ‘constructive tension’ with each other. But
Roux’s real point here is actually somewhat stronger. Rights, on his
account, are necessary conditions for meaningful representative,
participatory and direct democracy.
Roux acknowledges that the Court has yet to accept his two
principles of democracy. In UDM, New National Party and Masondo,
the Constitutional Court declined to endorse a deep, multifaceted
principle of democracy and offered instead a much shallower reading
of the constitutional text. 18 Roux’s response is that these cases do not
preclude a deeper understanding of democracy. Roux shows how
UDM, the decision that offers the most powerful case against his deep
reading, can be read not as addressing the content of ‘democracy’,
but rather as supporting a meta-principle that, where the Final
Constitution offers no clear answer to a ‘deep’ question, courts
should defer to the government in politically sensitive cases.
More recent cases in the Constitutional Court, African Christian
Democratic Party 19 and Matatiele I, 20 demonstrate growing support
for Roux’s principle of democracy. Roux’s reading, in fact, was
vindicated by the Constitutional Court in two cases that came down
several months after he had articulated his position in his chapter on
‘Democracy’ in Constitutional Law of South Africa. In Doctors for Life
International and Matatiele II, the Court struck down legislation that
had been promulgated without the kind of public participation
17 See T Roux ‘Principle and Pragmatism on the South African Constitutional Court’
(2009) International Journal of Constitutional Law (forthcoming).
18
UDM (n 15 above); Democratic Alliance & Another v Masondo NO & Another 2003
2 SA 413 (CC), 2003 2 BCLR 128 (CC); New National Party of South Africa v
Government of the Republic of South Africa & Others 1999 3 SA 191 (CC), 1999 5
BCLR 489 (CC).
19 African Christian Democratic Party v Electoral Commission & Others 2006 (3) SA
305 (CC), 2006 (5) BCLR 579 (CC).
20
Matatiele Municipality & Others v President of the Republic of South Africa &
Others 2006 5 SA 47 (CC), 2007 1 BCLR 47 (CC).

Stu Woolman & Michael Bishop 11
contemplated by our basic law. 21 In so doing, the Court’s decisions
corroborate Roux’s central thesis: democracy means more, much
more, than mere majority rule.
By and large, Danie Brand concurs with Theunis Roux’s reading of
the Constitution. The gravamen of Brand’s complaint has more to do
with the style of Roux’s writing — not its elegance or its turn of
phrase, which can hardly be faulted, but the manner in which Roux
leaves out considerations about South African democracy that Brand
believes matter. First, Brand asks why Roux does not consider the
existence of a positive constitutional duty to build democratic
institutions and a concomitant duty to ensure that these institutions
operate in a manner that promotes representative, participatory and
direct democracy. Second, Brand suggests that apart from a nod in
the direction of the counter-majoritarian dilemma, Roux does not
fully engage the inevitable tension between constitutional
adjudication and various forms of democracy. Brand is particularly
concerned with the tension between constitutional adjudication and
extra-institutional, extra-formal democratic political action. He
suggests, ever so delicately, that Roux does not address these two
issues because Roux sees his project as a quasi-Dworkinian description
of legal principle. That is, the language Roux employs ‘enjoys’ the
status of an objective, empirically verifiable description of the legal
text and its consequences for the case law. Brand contends this
unstated claim to objectivity masks the normative choice that is
always present in such a description. More importantly, Brand argues,
such an implicit claim actually discourages democratic engagement
by denying any space for alternative readings.
Brand’s last charge regarding Roux’s style is, perhaps, his most
provocative claim. In short, Brand asks whether the form of our
expression bears a meaningful relation to the substance of a debate.
Does, Brand seems to ask, a healthy democracy require not only the
lively exchange of different substantive positions, but that those
positions are expressed in a particular way? A different, but related,
question is whether the denotation of ‘democracy’ is always open and
thus invariably contested? In sum, can we have democracy without an
essentialist conception of democracy, and does the hurly-burly of
21 Matatiele Municipality & Others v President of the RSA & Others (No 2) 2007 6 SA
477 (CC), 2007 1 BCLR 47 (CC); Doctors for Life International v Speaker of the
National Assembly & Others 2006 6 SA 416 (CC), 2006 12 BCLR 1399 (CC).

12 Chapter 1
democratic politics itself invariably result in some degree of
instability in our conception of democracy?
2.4 Application
At the CLoSA Conference and Public Lecture Series, one of the
editors, Professor Stu Woolman, limited his address to a theoretical
critique of the Constitutional Court’s approach to direct application
and indirect application of the Bill of Rights. (The primary question
raised by application, for the uninitiated, concerns the parties that
are and are not burdened by the specific substantive rights found in
Chapter 2 of the Final Constitution.) And that remains the central
purpose of his contribution to this collection. He argues that the
Constitutional Court in Khumalo v Holomisa 22 — while acknowledging
and endorsing the possibility of horizontal application under the Final
Constitution — wilfully misread the wording of the application
provisions in FC section 8 and that its five paragraphs on the subject
are patently incoherent. Woolman meticulously roots out the textual
errors in the Khumalo Court’s approach. He then demonstrates that
even a good faith reconstruction of Khumalo cannot stand up to even
the most generous scrutiny. In place of the good faith reconstruction,
Woolman proffers a preferred reading of FC section 8 and FC section
39(2) that makes sense of the division between direct application and
indirect application of the Bill of Rights. This preferred reading —
while still imperfect — makes the best possible sense of the
Constitutional Assembly’s poorly drafted sections on direct
application.
Professor Iain Currie first notes that he had the unenviable task —
especially given the constraints of a conference paper — of responding
to Woolman’s long and theoretically ambitious contribution in
Constitutional Law of South Africa. 23 Without immediately conceding
anything regarding the merits of that contribution, Currie suggests
that such ambition reflects an ‘old-fashioned’ model of academic
discourse: And by ‘old-fashioned’, Currie simply means scholarship
that engages carefully all of the available and relevant materials —
the text, the judgments, and the work of fellow commentators. He
then offers a brief historical summary of the debate over application,
and notes how, under the Final Constitution, courts have been far less
‘vexed’ by the relationship between direct application and indirect
application than academics. Currie suggests that the reason for this
absence of engagement is that there is no practical difference
between the two forms of application: Both approaches should
22 Khumalo v Holomisa 2002 5 SA 401 (CC), 2002 8 BCLR 771 (CC).
23
See S Woolman ‘Application’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2005) Chapter 31 (CD track 5).

Stu Woolman & Michael Bishop 13
produce the same results in all cases. While conceding the undeniable
and persuasive theoretical power of Woolman’s account, Currie still
believes he can legitimately ask whether there ‘is any reason other
than the beauty and the internal coherence of our theories to bother
with the distinction between direct application and indirect
application?’ 24
In this collection, Woolman answers Currie’s question with an
emphatic ‘Yes!’ He notes how, in a string of recent judgments, the
Constitutional Court has, once again, finessed the clear difference
between indirect application and direct application. Woolman
contends that the continuous use of indirect application empties the
substantive provisions of the Bill of Rights of their content. (Quite
often now, fundamental rights analysis is conducted under the vague
and rather flaccid banner of FC section 39(2)’s injunction to develop
or to interpret the law — statutory, common, customary — in light of
the ‘spirit, purport and objects of the Bill of Rights’.) Such a move —
employing indirect application first — does not merely denude the Bill
of Rights of its content. It creates an environment in which the Court
sits as a court of equity and fails to provide the clear and meaningful
body of precedent that must guide lower court judges crafting
opinions, lawyers drafting heads of argument, government officials
creating policy and citizens merely attempting to conform their
behaviour to the dictates of the basic law. The Court’s casual
casuistic approach does not just get application analysis back to front.
It constitutes a paradigmatic violation of the rule of law.
2.5 Limitations
The Final Constitution, like the Canadian Charter, adopts a two-stage
structure for analysis. At the first stage, a court must determine
whether the exercise of a right has been impaired by law or conduct.
At the second stage, the government or the party looking to uphold
an impugned law — but not conduct — has an opportunity to justify
that limitation if it serves ‘an open and democratic society based on
human dignity, equality and freedom’. As Professors Woolman and
Botha have written elsewhere:
The limitation clause has a four-fold purpose. First, it functions as a
reminder that the rights enshrined in the Final Constitution are not
absolute. ... Secondly, the limitation clause tells us that rights may only
be limited where and when the stated objective behind the restriction is
designed to reinforce the values that animate this constitutional
project. ... Thirdly, the test set out in the limitation clause — with a bit
of judicial amplification — allows for candid consideration of those
public goods or private interests that the challenged law sets in
24 See I Currie & J de Waal The Bill of Rights handbook 5th Ed (2005).

14 Chapter 1
opposition to the rights and freedoms enshrined in Chapter 2. Fourthly,
the limitation clause could be said to represent an attempt to finesse
the ‘problem’ of judicial review by establishing a test that determines
the extent to which the democratically elected branches of government
may craft laws that limit our constitutionally protected rights and the
extent to which an unelected judiciary may override the general will by
reference to the basic law. But the presence of FC s 36 serves as a
reminder that the counter-majoritarian dilemma is neither a paradox
nor a problem, but an ineluctable consequence of our commitment to
living in a constitutional democracy. 25
In addition to those thorny issues identified above, the limitations
clause of the Final Constitution throws up a number of other difficult
problems. How do courts divide the analysis between the two stages?
What type of arguments can be used to justify limitations? What
mechanisms, if any, should judges use to compare the conflicting
interests that are inevitably at stake under FC section 36? Can we ever
truly justify a limitation of rights — or must we simply own up to the
fact that we make hard choices that grant ascendency to one
preferred vision of the good over another and that such a choice
invariably requires sacrifice in the deepest, and sometimes cruelest,
sense of the term? These hard questions form the basis for the
exchange between Woolman & Botha and Van der Walt.
Woolman and Botha provide us with a fresh take on how we
conceptualise the limitation of rights. The traditional metaphor used
by academics and courts is that of ‘balancing’ — weighing the purpose
of the right against the objective of the limitation. Woolman and
Botha decry the use of ‘balancing’ on several grounds — but it offends
them mostly because it is, in the words of Justice William Brennan,
‘doctrinally destructive nihilism.’ 26 Limitations analysis often requires
the courts to choose between incommensurable goods that, by
definition, share no common metric of value. In addition, they suggest
that ‘balancing’ often masks a judge’s subjective preferences (and
prejudices), permits a conservative approach to constitutional
analysis, and promotes a faux empirical analysis that tends to silence
marginalised communities. In place of balancing, Woolman and Botha
suggest a ‘thick(er)’ and more experimental conception of limitations
analysis. This approach focuses on an ongoing dialogue between
various courts, between the courts, the legislature and the executive,
between the courts and the parties before them, and between the
courts and other interested parties in the broader community,
regarding the meaning of the Final Constitution. While the Court
retains an important role in articulating ‘rolling’ general norms that
give content to our basic law, other parties have a responsibility to
25 S Woolman & H Botha ‘Limitations’ in S Woolman et al (eds) Constitutional Law of
26
South Africa (2nd Edition, OS, 2006) Chapter 34 (CD track 6).
New Jersey v TLO 469 US 325, 369 (1985).

Stu Woolman & Michael Bishop 15
‘experiment’ with different laws, policies and practices that fit within
these rolling norms. Thus, courts, the other branches of government
and the rest of South African society are enjoined to participate in a
shared project of constitutional interpretation that reveals best
practices over time. Experimental constitutionalism thus displaces
the standard account of the Court as the single, final oracle of
constitutional interpretation.
As part of this thick(er) conception of limitations analysis,
Woolman and Botha stress the need to engage with all five values in
FC section 36: democracy, openness, dignity, equality and freedom.
Harmonising these values is no easy task. Indeed, they invariably pull
in different directions in every hard case that comes before the Court.
As Woolman and Botha note:
The[se] tensions ... are constitutive of the South African constitutional
order. ... Any attempt to eradicate these conflicts and to deny the
distinctive meaning each of these values would do real violence to the
constitutional text and deny the commitment to openness and to
plurality on which it is premised.
Professor Johan van der Walt takes the cue for his riposte from a
parenthetical in Woolman and Botha’s chapter in Constitutional Law
of South Africa. Woolman and Botha write that ‘powers of judicial
review are best understood, not as a part of a battle for ascendancy
between courts and legislatures (though they may turn into that) ...
but, rather, as shared project of constitutional interpretation.’ For
Van der Walt, the real problem with respect to the call for shared
interpretation, for a meaningful open-ended constitutional politics, is
that it has been inappropriately constrained by these brackets. These
words, he contends, should be allowed to ‘spill ... deconstructively
into the rest of [the] text.’ For Van der Walt, the heart of the matter
— ‘where we must dance’ — is the tension between the possible and
the impossible, the immanent and the imminent, the sayable and the
unsayable. It is this constant tension, and the sacrifice at the heart of
this tension, notes Van der Walt, that ‘affords the notion of shared
interpretation its grave significance’. On this point, Woolman, Botha
and Van der Walt would, ultimately, appear to be in accord.
2.6 Equality
The right to equality has been one of the most widely and effectively
litigated rights in the Court’s first 12 years. And understandably so. If
nothing else, apartheid South Africa was defined by the racist
subjugation of a majority of its citizens. One of the primary promises
of the new Bill of Rights was, therefore, that all people would be
treated equally before the law, that nobody would be unfairly
discriminated against and that people who belonged to groups that

16 Chapter 1
had previously been disadvantaged would be the beneficiaries of
programs aimed at systematic and thorough historical redress.
In their chapter, Professor Cathi Albertyn and Beth Goldblatt
develop the rather speculative thesis that the right to equality
supports a vision of substantive equality. 27 Their construction of
substantive equality does not aim to provide a complete answer to the
hard question — ‘equality of what?’ It reflects, however controversial,
a set of intuitions about ‘a social democratic vision that entails
equality of opportunities and outcomes.’
After considering the basic values underlying the right to equality,
Albertyn and Goldblatt conduct a brief but detailed analysis of the
Constitutional Court’s jurisprudence on FC section 9(3): the right not
to be subject to unfair discrimination. While generally supportive of
the Court’s approach, Albertyn and Goldblatt raise a number of
legitimate concerns. Firstly, the Court has, despite purporting to
recognise feminist theories, failed to apply them meaningfully to
cases — such as Volks 28 and Jordan 29 — that go to the heart of unfair
differentiation between men and women. Secondly, the authors note
how, in these (and other) cases, the Court reverts to an approach to
equality analysis that fails to grasp the impact of the alleged
discrimination on the complainants.
Karthy Govender questions an approach to equality that focuses
almost exclusively on achieving substantive equality (especially
where substantive equality looks to be a stand-in for historical
redress). He begins by noting that South Africa has, in fact, made
relatively rapid egalitarian changes to its laws through a rather
cautious and judicious use of the right to equality. Govender links his
preferred approach to Justice Sach’s concern in Walker that too
expansive an approach to indirect discrimination would allow ‘every
tax burden, every licensing or town planning regulation’ to be
challenged simply because it had disproportionate effects on
different groups. 30 While Justice Sachs’ approach was not adopted in
Walker, Govender argues that the Van Heerden Court achieved a
similar goal through the vehicle of FC section 9(2). 31 The Court’s FC
section 9(2) analysis — the historical redress provision — enables it to
adopt a flexible approach that pays particular attention to the
27
C Albertyn & B Goldblatt ‘Equality’ in S Woolman et al (eds) Constitutional Law of
South Africa (2nd Edition, OS, 2007) Chapter 35 (CD track 8).
28 Volks NO v Robinson & Others 2005 5 BCLR 446 (CC).
29
S v Jordan & Others (Sex Workers Education and Advocacy Task Force & Others as
Amici Curiae) 2002 6 SA 642 (CC), 2002 2 SACR 499 (CC), 2002 11 BCLR 1117 (CC).
30 Pretoria City Council v Walker 1998 2 SA 363 (CC), 1998 2 BCLR 257 (CC).
31
Minister of Finance & Another v Van Heerden 2004 6 SA 121 (CC), 2004 11 BCLR
125 (CC).

Stu Woolman & Michael Bishop 17
allegedly deleterious effect of the law or the conduct in question on
a complainant’s dignity.
Both contributions also consider the complex relationship
between the FC section 9(3) inquiry into fairness and the FC section
36 justification analysis. Albertyn and Goldblatt contend that while
the Court has managed to draw a theoretical line between the two
inquiries, that line often breaks down in cases where there is no law
of general application to justify the unfair discrimination. Govender
in turn argues that FC section 36 has a distinct role to play where the
justification for unfair discrimination relies upon a government policy
that does not address the discriminatory impact of law or policy on a
particular complainant.
Despite these observations, it is worth asking whether the analysis
of unfair discrimination in terms of FC section 9(3) exhausts all
aspects of justification that occur in terms of FC section 36 — or
whether there remains a distinction with a difference. Does the
phrase ‘reasonable and justifiable unfair discrimination’ — the upshot
of a finding of unfair discrimination under FC section 9 and an
upholding of the limitation of the equality claim under FC section 36
— make any sense? Despite the repeated rhetoric of separate
inquiries, a majority of the Court has yet to hold that a finding of
unfair discrimination in terms of FC section 9 can be justified under
FC section 36. Whatever the respective merits of their arguments,
Albertyn, Goldblatt and Govender’s contributions keep this
conversation alive. 32
2.7 Dignity
Over the first 10 years of South Africa’s constitutional jurisprudence,
it was fashionable to be a dignity-sceptic: dignity was said to be so
‘over-used’, ‘over-cited’, ‘over-indulged’ as to mean anything and
everything and therefore nothing. Neither Woolman nor Ackermann
are dignity-sceptics. Quite the contrary. The question for them is not
how great a role dignity should play — it already plays a pivotal role
— but what the right to dignity really means and does.
Woolman first traces the history of dignity’s inclusion in the
Constitution — and then marks the import of South African history and
a certain strand of Western philosophy for understanding what dignity
means. He deduces from Kant’s various formulations of the
categorical imperative, and the Constitutional Court’s jurisprudence
32 For an account which questions whether the same considerations employed in a
finding of unfair discrimination can then be used to justify the unfair
discrimination, see S Woolman & H Botha ‘Limitations’ in S Woolman et al (n 25
above) 34-33 and 34-40.

18 Chapter 1
on dignity, five definitions of human dignity employed by the Court.
These definitions range from (1) the conventional command not to
treat a person simply as a means, but also as an end, to (2) the need
to treat people with equal concern and respect, to (3) the recognition
of others as self-governing and self-actualising beings, and finally to
(4) the recognition that our own dignity is linked to the material
conditions in which our fellow South Africans live. Woolman thus gives
discernable, concrete content to what sceptics like to glibly dismiss
as a term that means anything and everything and therefore nothing.
Secondly, Woolman explains the different ways in which dignity —
in all its guises — is employed in the Final Constitution. Woolman
argues that dignity has four distinct roles: as a first order rule; as a
second-order rule; as a correlative right; and as a grundnorm. As a
first order rule litigants can rely on dignity to secure relief that would
not be available under any other right. As a second order rule dignity
informs — and even determines — the content of other rights — in
particular the right to equality. Dignity also operates as a correlative
right: the Court requires that litigants simultaneously assert all
relevant rights — and dignity often features in challenges based upon
privacy, freedom and security of the person, freedom of trade,
occupation and profession and various socio-economic rights. Dignity
as a grundnorm refers to the role dignity plays as a value that informs
the interpretation of all the substantive rights found in the Bill of
Rights and many of the remaining provisions of the Constitution.
In his concluding section, Woolman asks how dignity can be used
to promote the transformation of South African society. He suggests
that dignity can be profitably linked to Amartya Sen’s theory of
capabilities. 33 Such a view of dignity would require that all people are
not only free from interference by the State and other private actors,
but that they are provided with the material conditions that enable
them ‘to pursue [their] preferred way of being in the world.’
Justice Ackermann, one of the primary architects of the
Constitutional Court’s dignity jurisprudence, expresses his broad
agreement with Woolman’s take on dignity, particularly his reliance
on Kantian principles. However, the Justice still articulates what he
believes to be a number of small but significant points of
disagreement.
But they are not, in fact, small at all. In a path-breaking account
of the relationship between dignity and the possession of a soul,
Ackermann suggests that our study of dignity should not only focus on
the external content of human dignity — or what Ackermann prefers
33 See A Sen Development as freedom (1999).

Stu Woolman & Michael Bishop 19
to call ‘human worth’ — but on the inner content of human dignity —
and our ability to come to grips with or to ‘fathom what [the]
uniqueness of personhood is.’ For Ackermann, such a study must
consider the teachings of the Abrahamic religions: Christianity, Islam
and Judaism. While he stresses that the Final Constitution is,
ultimately, a secular document, he argues persuasively that dignity
cannot be properly understood without reference to its spiritual
underpinnings. Nowhere else in the South African literature has this
claim been made — and we are fortunate to have one of the leading
readers of our Constitution explain to us how the role of human worth
in religious teachings enhances our secular account of this right and
this value.
Ackermann then expresses some concern over Woolman’s
definitions of dignity. He takes issue with Woolman’s location of the
demands for ‘equal concern and equal respect’ and ‘self
actualisation’ within the right to dignity. He believes them to be more
appropriately located in the right to equality (FC section 9) and the
value of freedom (FC sections 7, 36, 39). Ackermann then contends
that Woolman’s distinction between ‘first-order’ and ‘second-order’
rules evince a Hartian or positivist approach to constitutional law.
(Woolman has repeatedly denied the charge that a commitment to
‘rules’ in law — and in particular the law which emanates from the
right to dignity — necessarily commits him or anyone else to
positivism.) 34 Our Constitution, Ackermann claims, ‘cries out for a
Kelsenian approach’. According to him, only a Kelsenian approach to
the Constitution, in general, and dignity, in particular, is consistent
with the aspirational character of our basic law.
2.8 Property
The property clause of the Interim Constitution reflected a necessary,
if tenuous, compromise between the interests of white propertyowners
and the transformative goals of the ANC. The Final
Constitution alters that compromise, but still recognises the need to
weigh the imperatives of transformation against the ‘stability’ that
flows from the protection of private interests, and thus of apartheidera
economic arrangements.
The property clause itself covers a broad range of issues: from
compensation for the expropriation of property, to restitution and the
redistribution of land. This colloquy focuses primarily on deprivation
and expropriation of existing rights in land. The primary bone of
34 See S Woolman ‘Dignity’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2005) Chapter 36 (CD track 7); S Woolman ‘The Widening
Gyre of Dignity’ in S Woolman & M Bishop (eds) Constitutional conversations
(2008) Chapter 12.

20 Chapter 1
contention in the exchange between Professors Theunis Roux and
Frank Michelman is whether the test adopted by the Constitutional
Court in FNB to determine whether a person was arbitrarily deprived
of property is appropriate for South Africa. 35 While both agree on the
content and the effects of the test established in FNB, they disagree
on its desirability.
In FNB, the Court held that ‘arbitrary’ in FC section 25(1) means
that the deprivation of property occurs without ‘sufficient reason’
taking into account all the relevant factors including the nature of the
property, the extent of the deprivation and the purpose of the
deprivation. In addition, the level of scrutiny applied to a law will vary
from basic rationality to strict proportionality depending on
circumstances of the particular case before the court. The impact of
FNB — both authors agree — is to largely reduce the six tests implicit
in FC section 25 into a single inquiry. The result is, in Roux’s words, a
‘reasonableness vortex’. 36 For Roux, such a vortex is dangerous
because it renders it impossible to predict in advance the outcome of
any application of FC section 25. As a result, government cannot know
whether its plans will pass constitutional muster because the level of
scrutiny that will apply will depend on the ‘facts’ of the particular
case as ‘understood’ by the Court. It also means that uncompensated
expropriations will be dealt with as arbitrary deprivations, instead of
expropriations that simply need to be compensated. The problem
with FNB is that there may be occasions when the government would
simply want to compensate persons for the expropriation of property.
The reasonableness vortex makes such an expropriation impossible —
as a matter of doctrine — and means that South African courts will be
unable to develop an equivalent of American ‘regulatory takings’
doctrine that rests on a distinction between deprivation and
expropriation.
Michelman, on the contrary, is far more optimistic about the
consequences of FNB. In a detailed analysis of FNB, Roux’s arguments
and American law, Michelman demonstrates — with the experience of
an American property lawyer familiar with regulatory takings doctrine
— why South Africa is far better off with a general proportionality
test. He contends that it was virtually inevitable that the Court would
collapse expropriations and deprivations. The real ‘problem’, notes
Michelman, is that the Court will treat uncompensated expropriations
as arbitrary deprivations because they are uncompensated. If we are
happy to accept that proposition, then it does not matter where we
35
36
First National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service & Another; First National Bank of SA Ltd t/a Wesbank v Minister
of Finance 2002 4 SA 768 (CC), 2002 7 BCLR 702 (CC).
See T Roux ‘Property’ in S Woolman et al (eds) Constitutional Law of South Africa
(2nd Edition, OS, 2004) Chapter 46 (CD track 9).

Stu Woolman & Michael Bishop 21
draw the line between deprivations and expropriations. FNB’s all-inone
test then looks to be completely sensible. In any event, FC
sections 25(2) and (3) will apply to instances of total acquisitive
expropriation: such expropriations will remain common in South
Africa for some time to come. Furthermore, Michelman believes that
Roux’s worry that FNB makes it impossible to predict outcomes will
diminish over time as the case law creates precedent, and thus rules,
that can be applied to future matters.
This exchange between Roux and Michelman has consequences
that extend beyond their immediate concern with the correct
interpretation of the property clause. The adoption of a
‘reasonableness’ approach to rights analysis has prompted Roux and
others to express concern about a mode of constitutional analysis that
possesses the potential to empty many of these rights of their
content.
In his second demurral from Roux’s characterisation of FNB,
Michelman suggests a reading that can give FC section 25(1) and FC
section 36(1) distinct and meaningful roles. While arbitrariness is
ordinarily viewed in terms of different points on the same axis —
which makes undertaking FC section 25(1) analysis and FC section
36(1) analysis duplicative — Michelman believes that the two sections
can operate on different axes. He argues that while FC section 25(1)
must be understood in terms of an ordinary means-ends rationality
test, FC section 36(1) can deployed when a court is asked to come to
grips with how various burdens are distributed. For example, in
Mkontwana, the law at issue required owners to pay their tenants
unpaid utility bills. 37 The law achieves the goal of ensuring that rates
are paid, but may unfairly place the burden solely on landowners.
According to Michelman, the law would not be arbitrary under FC
section 25(1), but would be unjustifiable under FC section 36(1).
2.9 Socio-economic rights
Socio-economic rights, it is safe to say, have generated some of the
liveliest debate amongst South African academics. The debate has,
for some time, revolved around the Constitutional Court’s decision to
adopt a reasonableness approach rather than a minimum-core
approach. The first approach requires only that government acts
reasonably in trying to fulfill gradually socio-economic rights. The
minimum-core approach sets minimum standards that the State must
37
Mkontwana v Nelson Mandela Metropolitan Municipality & Another; Bissett &
Others v Buffalo City Municipality & Others; Transfer Rights Action Campaign &
Others v MEC, Local Government and Housing, Gauteng, & Others (KwaZulu-
Natal Law Society and Msunduzi Municipality as Amici Curiae) 2005 1 SA 530 (CC),
2005 2 BCLR 150 (CC).

22 Chapter 1
immediately enforce. Liebenberg’s and Pieterse’s colloquy breathes
new life into this debate.
Professor Liebenberg contends that the major problem with a
minimum core approach is that it stifles dialogue: It relies on a single
top-down decision of what a socio-economic right requires. It
therefore closes down further debate — in government and in civil
society — about the content of the socio-economic rights found in FC
sections 25, 26, 27, 28, 29 and 35. Liebenberg further argues that the
alleged clarity of a minimum-core approach is illusory. It is illusory
because it traps us in programs focused solely on survival — from
which we may never escape — and eschews equally hard decisions
about how to transform South African society in a number of equally
important non-survival settings. Liebenberg thus concludes that ‘the
minimum core approach is in danger of encouraging minimalism in
social provisioning when the context may in fact render such
minimalism unnecessary and inappropriate.’
On the other hand, reasonableness review allows a contextsensitive
test that is responsive to democratic dialogue. The major
drawback of this approach, as Liebenberg notes, is that it collapses
the traditional two-stage rights analysis and does not properly engage
‘with the content, scope and underlying values of the relevant rights’.
Liebenberg suggests argues that a reasonableness approach might
overcome this deficiency if courts were to conduct more substantive
evaluations of the content of socio-economic rights. Moreover, the
reasonableness approach already possesses some of the strengths of
the minimum-core argument by requiring a higher level of scrutiny
where the very lives of the complainants are on the line. 38
Professor Marius Pieterse’s response focuses on Liebenberg’s
belief that both extant reasonableness review and minimum core
doctrines stifle dialogue about the content and the contours of
existing socio-economic rights doctrine and discourse. Pieterse
stresses the importance of this dialogue in ‘translating’ socioeconomic
rights from ‘conceptually empty, abstract principles into
more concrete, claimable entitlements.’ This dialogue must occur not
only between the judiciary and the other branches of government,
but between other players in the ‘constitutional community’ —
NGO’s, social movements, and, ultimately, the citizenry at large.
Each of these players has different strengths and different roles to
play. Social movements, for example, provide a voice for the people
who are most in need of socio-economic rights. Academics offer
38 See further S Liebenberg ‘The interpretation of socio-economic rights’ in S
Woolman et al (eds) Constitutional Law of South Africa (2nd Edition, OS, 2007)
Chapter 33 (CD track 10); S Liebenberg Adjudicating fundamental rights under a
transformative constitution (2008).

Stu Woolman & Michael Bishop 23
‘thoroughly theorised interpretations’ that can assist the state, the
courts and civil society. On this fresh account, courts come to be
viewed as venues for translation: forums in which various actors can
debate the meaning of socio-economic rights.
Within this polycentric framework, Pieterse agrees with
Liebenberg that a minimum-core approach stifles participation by
non-governmental players because it is a ‘once-off’, ‘top-down’
imposition of a singular — hotly contested — point of view. However,
Pieterse has misgivings about the ability of reasonableness review to
successfully translate socio-economic rights into meaningful norms
that take account of a multiplicity of different views — and which
would provide information that would otherwise be unavailable to the
Court in normal adversarial proceedings. Reasonableness review, as
currently applied by the courts, limits dialogue to exchanges between
the judiciary and the other branches of government about the virtues
of existing government programs. It thereby ‘dampens’ the voices of
claimants and discourages them from approaching courts for
immediate relief.
The reframing of the struggle between the reasonableness
approach and minimum core approach in terms of dialogue and
translation certainly reinvigorates an old debate. However, one might
ask whether ongoing ‘dialogue’ about the meaning of socio-economic
rights could become an end in itself and thereby obstruct the full
realisation of FC sections 26, 27, 28 and 29.
3 Ideal participants in the construction of an ideal
community
Where would we be without our authors? Four justices of the
Constitutional Court — Chief Justice Pius Langa, Justice Kate
O’Regan, Justice Albie Sachs and Justice Emeritus Laurie Ackermann
— have taken the time, and made the effort — to engage the academy
in a respectful conversation about the meaning of our basic law.
Professor Frank Michelman, of Harvard Law School, and Professor
Theunis Roux, Director of the South African Institute for Advanced
Constitutional, Human Rights, Public & International Law, have
contributed twice to this work: to have four contributions from two of
the best constitutional law academics in their respective jurisdictions
is another signal achievement of this work. But despite such apparent
genuflection, there exists no hierarchy in this book. And so we are
quick to note that we are equally fortunate to have first rate
contributions from South Africa’s best constitutional law scholars: Iain
Currie, Karthy Govender, Sandra Liebenberg, Marius Pieterse, Johan
van der Walt, Cathi Albertyn, Beth Goldblatt, Henk Botha and Danie
Brand.

24 Chapter 1
Three institutions and three persons deserve to be singled out.
Without the Centre for Human Rights, the Constitutional Law of
South Africa (CLoSA) Public Lectures Series would not have taken
place. It took the prescience and the sustained commitment of the
Centre’s former Director, now Dean of the University of Pretoria’s
Faculty of Law, Professor Christof Heyns, to make CLoSA, the
conference and this work possible.
Without the Pretoria University Law Press, its production
manager, Lizette Besaans and its graphic designer Yolanda Booyzen,
this book would never have had its spine cracked.
Finally, allow us to again thank Theunis Roux and the South
African Institute for Advanced Constitutional Public, Human Rights
and International Law (SAIFAC). As a co-editor of CLoSA, as a cosponsor
of the CLoSA conference, and as a co-author of this work,
Theunis has been our tipping point. Without him, something might
have happened on all three fronts — eventually. But nothing truly
great would have come of any of these endeavours. Words cannot
express the debt that we owe him.

2
THE
SOUTH AFRICAN
CONSTITUTION AS THE
LAST GREAT
MODERNIST PROJECT
Stu Woolman
1 On the role of the legal academy
Several years ago, at my alma mater, Columbia Law School, I had the
honour of introducing Justice Albie Sachs to a packed audience eager
to hear what he had to say about the Court’s then recent judgment in
Grootboom. 1 After the talk, as the Justice, his host Jack Greenberg
and I stood about chatting, the Justice — nodding in my direction —
remarked that ‘they (legal academics) played an important role
during the transition.’ 2
Perhaps only another son of South Africa, Roger Federer, could
have delivered a backhand so adroitly. The Justice’s intimation — and
the challenging question embedded in it — was clear. While legal
academics had occupied a critical position during those heady days of
South Africa’s velvet revolution, now that all of the country’s political
institutions — and especially the Court — were up and running, our
role, as legal academics, was much harder to divine.
1
Grootboom & Others v Government of the Republic of South Africa & Others 2001
1 SA 46 (CC), 2000 11 BCLR 1169 (CC).
2 It may seem a bit churlish to ask how Justice Sachs’ bon mot could function as a
gentle provocation to South African academics while I was teaching at Columbia,
convalescing from a long-term illness and having a quiet conversation with just
Professor Jack Greenberg and Justice Sachs at Columbia Law School. See A Sachs
‘A gentle provocation: A reply to Stu Woolman’ Constitutional conversations
(2008) Chapter 3.
25

26 Chapter 2
There is, of course, more than a measure of truth to the notion
that legal academics — like all academics — are handmaidens to the
institutions and phenomena about which they write. But that does not
make us epiphenomenal.
What is our ‘phenomenological’ status, our role? What do we do
exactly? Well, we fix things. Indeed, I tend to see my job as that of a
mechanic — someone who pays attention to what is being written,
identifies a problem and offers a solution. Perhaps, the analogy to a
therapist is more apt, since what we really do is listen closely and
reflect back to those who make our laws what we hear them saying:
We have no power, in fact, to intervene. Only lawmakers have the
ability to correct their mistakes. But even the tags of mechanic or
therapist are insufficient to the task of describing the role we play:
Sometimes we are architects. Courts, faced with the pressures of
deciding the cases and doing justice to the persons before them, hope
primarily to get ‘it’ — the judgment — right. And that is as it should
be. Academics, however, do not face such constraints.
In my academic guild of constitutional law-masons, we take the
text of the Constitution, the reasoning of cases, the political
institutions that govern us and a whole range of other quotidian
academic considerations — like logic and research — quite seriously.
We know that the correct reading of a founding provision may turn on
the placement of a comma — and that a bad outcome may flow from
an errant reading of a preposition. 3 Our aim is to produce work that
makes sense of the system of constitutional law within which we
operate and, should we have any talent, to make a modest
contribution towards making that system both more coherent and
more just. Moreover, we do not merely dabble in theory — we create
it. Our work in theory offers good faith reconstructions of our courts’
jurisprudence (providing doctrines where none exist), critiques of
that jurisprudence (where warranted), and preferred readings of the
cases and the text (if necessary).
Our theoretical work begins with the close reading of texts and
then draws down upon and engages those academics who have
previously attempted to make sense of our system of law, systems of
law in other constitutional democracies, and systems of law
generally. This theoretical engagement necessarily takes us beyond
3
On the importance of a comma for understanding the meaning of ‘democracy’ in
our Constitution, see T Roux ‘Democracy’ in S Woolman et al (eds) Constitutional
Law of South Africa (2nd Edition, OS, 2006) Chapter 10, available at
www.westlaw.com. For a poorly reasoned decision that founders on the shoals of
an incorrect gloss on the word ‘in’, see Kaunda & Others v President of the
Republic of South Africa 2005 4 SA 235 (CC), 2004 10 BCLR 1009 (CC). For a
critique of this errant reading, see S Woolman ‘Application’ in S Woolman et al
(eds) Constitutional Law of South Africa (2nd Edition, OS, 2005) Chapter 31.

Stu Woolman 27
the law — to the fields that immediately abut our own: philosophy,
political science, history, literature, sociology, economics, psychology;
and, sometimes, in disciplines as far a field as cognitive
science, artificial intelligence and information studies. But even when
we move away from the law, we never for a moment deny the law its
autonomy. For even if the law can sometimes seem like the most
derivative of academic disciplines, the discipline still demands that
we treat its texts with respect. And such respect begins with the
recognition that legal texts possess a logic and a power of their own.
Indeed, a failure to recognise law’s autonomy risks trivialising the
laws that govern us and the concerns of those governed by our law.
Our mission then is to step back and suggest how a body of law
hangs together — or if it does not cohere, then to explain why it falls
apart. In both instances — the good faith reconstruction, on the one
hand, or the preferred reading, on the other — we offer judges and
lawyers the intellectual scaffolding upon which to build a better — a
more just — legal system.
These roles — of mechanic, of therapist, of architect, of mason,
of critic — are those that legal academics occupy in the real world: if
we do our job well. But we, as writers, also belong to an ideal
community. When we write, we address ourselves to this ideal
community.
The notion of an ideal community throws up a number of
questions. Who constitutes such a community? Who is in — and who is
out? Does such a community really exist? Or, is it a fantasy? And if it
is just a fantasy, and not the real thing, are there conditions peculiar
to South Africa that block the formation of such an ideal community?
2 The ideal community of interlocutors
In our ideal community — of which you, the reader, are a part — we
constitutional law academics address our Constitutional Court of 11
women and men; and not just this Court, but every court; and not just
the judges on the bench, but the advocates and the lawyers who
appear before them; and not just these practitioners, but the future
judges, legislators and lawyers who sit in our classrooms and who will
someday read what we write today.
Academic discourse can, of course, be quite direct. I have penned
any number of pointed replies. But even when we address our fellow
academics directly, we are looking over their shoulders at a
community of interlocutors that has yet to take shape. We are always
oriented toward a future listener, toward a community unusually
expansive and porous, the kind of ‘true democracy’ of which Whitman

28 Chapter 2
famously wrote: ‘I am large. I contain multitudes.’ The ‘large’,
capacious book upon which this collection is based — Constitutional
Law of South Africa — is one of many collective efforts to will such an
ideal democratic community into being.
Let me say a few more words about the community I imagine
before me. Constitutional Law of South Africa — the work out of
which this collection flows — is an act of collective responsibility. The
book has some 57 authors who represent nine domestic law schools,
six foreign law schools, five NGO’s, six law firms and legal
consultancies, and half a dozen members of the bar and bench. But if
Constitutional Law of South Africa is an act of collective
responsibility, then what, you may ask, is it an act of collective
responsibility for? Our collective responsibility is to get things right.
To get as close to ‘the truth’ as possible.
Ours is, however, also a fractious community — and as I shall
discuss in the concluding section, the invocation of ‘the truth’ elicits
catcalls and wolf-whistles from some members of the academy. Even
at the outset, it seems clear that my vision of an ideal community of
interlocutors has its detractors — from within.
In this section, I want to concentrate on what I think may be some
of the barriers to the formation of an ideal community of interlocutors
in South Africa. The first barrier is that of not being read, not reading,
and therefore blocking the primary condition for an ideal community
of interlocutors: conversation.
My sense of this problem flows from two sources — the academic
journals and the judgments of our courts. Our journals reflect a
penchant for publishing mere restatements of the law and the all too
common they-do, we-do piece of comparative jurisprudence. Even
worse, from my limited vantage point, is the failure of scholars to
engage with what other scholars have written — as if they were the
first persons to ‘discover’ a body of law in Africa.
This lack of engagement is, I am afraid, replicated on our bench.
But perhaps the sources of the problem still lies not in the bench.
Perhaps we, in the academy, are not producing what the courts need
or want and thus not carrying our share of the conversation. Or
perhaps we are not producing enough of it and the general quality is
so low as to not be worth remarking upon. Needless to say, I share
some of these concerns.
However, I have read enough cases, and know enough about the
inner workings of our highest Court, to think that the problem might
lie, in part, elsewhere. My well-informed hunch is that the Court does

Stu Woolman 29
not really read what we write. 4 That might explain the following
scenario. The UDM Court expressly notes that no academic has
answered the question: What kind of democracy does the Final
Constitution demand? 5 Theunis Roux set himself the task of answering
— in the most sophisticated and compelling manner possible — that
very question. He succeeded. 6 And yet his efforts have gone
unnoticed — or unremarked upon by the bench. Or take New Clicks. 7
In all of New Clicks’ 850 page glory, the judgments, collectively, take
unbelievably limited stock of academic interventions that engage the
gravamen of the complaint. If there is one thing South African legal
academia can boast, it is that it possesses some first rate, world class
administrative law scholars: Cora Hoexter, Hugh Corder, Iain Currie,
Danie Brand, Jonathan Klaaren and Jacque de Ville — amongst others.
Their reward is what one might charitably describe as a footnote
dump (citing all of the texts one might care to consult without remark
or engagement in a single footnote). These cases are not aberrations.
If one takes the Constitutional Court cases of 2007 as an example,
then one confronts a paucity of references to works that I know to be
germane to the issues raised in these matters. 8
Another — alternative or supplementary — explanation is that
many Justices do not think that members of the academy ought to be
criticising the bench. That deeply embedded sense of hierarchy is an
4
Justice Sachs claims, without merit, that nothing was written about the First
Certification Judgment. However, each year, I use Matthew Chaskalson and
Dennis Davis’ trenchant analysis of the decision in order to teach my students
about the inextricable link between law and politics. See M Chaskalson & D Davis
‘Constitutionalism, the Rule of Law and the First Certification Judgment’ (1997)
13 South African Journal on Human Rights 430. While the First Certification
Judgment Court strives mightily to maintain the artificial distinction between law
and politics, Chaskalson & Davis demonstrate how a very specific view of
constitutional politics drives the refusal to certify the text.
5 United Democratic Movement v President of the Republic of South Africa &
Others (African Christian Democratic Party & Others Intervening; Institute for
Democracy in South Africa & Another as Amici Curiae) (No 2) 2003 1 SA 495 (CC),
2002 11 BCLR 1179 (CC).
6 T Roux ‘Democracy’ in Woolman et al (n 3 above) Chapter 10.
7
Minister of Health & Another v New Clicks South Africa (Pty) Ltd & Others 2006 2
SA 311 (CC), 2006 1 BCLR 1 (CC).
8 Of the 23 number of judgment handed down from January 2007 through October
2007: seven judgments cite no academic literature at all; three judgments cite
one academic piece; of the remaining 13 judgments, the results are variable. The
Constitutional Court hits a highwater mark in Sidumo of 19 citations. Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others 2008 2 BCLR 158 (CC).
Sidumo, however, had four discrete opinions (and the majority of citations, as
usual, came in the dissenting judgments). The remaining 12 judgments contained
a total of 84 academic citations. As Ronald Reagan noted ‘Facts are stupid
things’, and a mere summing up of totals does not tell us much about the
literature cited. Three characteristics jump out at this reader: (1) high numbers
of academic citations appear only in multiple opinion judgments; (2) many of the
authorities cited are foreign academic authorities; (3) the number of citations to
actual constitutional texts (articles or books) — as opposed to texts (articles or
books) that deal with some specialised branch of the law such as contracts,
delict, court practice or labour law — is extremely small.

30 Chapter 2
anachronism — an English inheritance that we would do well to
abandon. No one likes to be criticised. But silence hardly promotes
the robust, vibrant and reasoned discourse that the Court ought to be
modelling — especially in a country with a very short history of truly
open, no-holds-barred debate, one-party rule, a relatively weak
media and a thin civil society.
And yet, despite this silence, or rather the lack of written
engagement, the Justices of our Constitutional Court are anything but
aloof. The Justices regularly attend conferences that raise knotty
questions of doctrine, present papers about both pressing
constitutional issues and more general theoretical concerns and
appear at book launches of works critical of their endeavours. It is
hard to imagine a group of Justices more engaged personally and
professionally with the academic community, and the broader South
African society of which it is a critical part. Having recognised its
primary role as that of deepening constitutional democracy and
entrenching the rule of law, the Court has, thankfully, not been afraid
to roll up its sleeves and get its hands dirty. This very work contains
the responses of four Constitutional Court judges engaging the
concerns of colleagues in the ivory tower. And, I think, they engage
us because their concerns are our concerns.
How does one reconcile these two different modes of
engagement? Perhaps the Constitutional Court, like so many other
courts of its kind, is more concerned with the legitimation of its own
authority — through its judgments — than sparring with academics
who take a different line on the matter at hand (and who, by taking
a different line, necessarily call the Court’s authority into question.)
And perhaps it is enough that our Justices participate in talks, book
launches and conferences — here and abroad — in a manner that
clearly suggests that ‘justice’ is not delivered by immortals from on
high, but by men and women just like you and I. 9
9
I must admit, however, that I am not entirely convinced by this line of argument.
That the problem may be one of authority often happens as judgments circulate
chambers. The academic arguments that buttress the Court’s opinion or the
opinion of a particular justice are circulated in memoranda that develop over
time into the final judgment. By the time the Court and its members have staked
out their various positions and arrived at their various conclusions, the
sophisticated engagement with academic interventions is no longer necessary.
And that engagement often winds up on the cutting room floor. Again, this
eventuality is, perhaps, not surprising. Academic pieces are written within a vast,
open space. Legal judgments must, to some degree, close down that space to
arrive at a conclusion that ‘coheres’ with its other statements of law and does not
speculate open how all reasonably similar or related disputes might operate. John
Rawls could call his magnum opus A theory of justice (1973). The Court must
deliver the only recognised just and legitimate outcome. That, however, is no
excuse for a failure to recognise the sources from which the Court draws its
conclusions, and for the failure to mark off the space for arguments that support
its conclusions from those that do not.

Stu Woolman 31
3 The South African constitution as the last great
modernist project
Talk of ‘truth’ with a capital T is rather unfashionable in some
quarters these days. Fortunately, such a philosophical fashion has not
yet taken root here: South Africa remains, to my mind, the last great
modernist project. Our Final Constitution is certainly written as if it
is such. It commits us to great ideals and the material transformation
of the lives of those who cannot yet enter the public square without
still experiencing shame. There is simply too much truth yet to be
told. Part of our collective responsibility — for those of us who write
for this collection, for Constitutional Law of South Africa and for
other scholarly outlets — is to put our basic law on as solid a footing
as possible, so that other members of the legal fraternity may do what
they need to do to realise the great ends of this modernist project.
How should academics do this? We must do exactly what I suggest
that the Constitutional Court must do: Model rational political
discourse. The law does not simply secure its authority by arriving at
the right answers. It secures its authority by getting there the right
way. If those who make the law refuse to say what they mean — or
mean what they say — then it falls to the rest of us to try to offer a
good faith reconstruction of their meaning. And when that good faith
reconstruction fails to cohere with the basic dictates of logic, reason
or justice, then it falls to us to say so.
This collection of colloquies — and the book upon which those
colloquies are based, Constitutional Law of South Africa — offers a
fine example of what I mean when I talk about modelling rational
discourse. Frank Michelman has written the definitive restatement
and critique of our Rule of Law doctrine. 10 He has done what no court
of 11 women and men — who must often compromise on their
conclusions — could do. He has put the Court’s jurisprudence on a
more solid footing — and we are all the better for it. Justice O’Regan,
both as an architect of that jurisprudence and a former member of
the academy, honours us by responding to Professor Michelman’s good
faith reconstruction and, in so doing, gets us all a little closer to the
truth. Indeed, the same can be said about this collection’s exchanges
on democracy, application, limitation, dignity, equality and socioeconomic
rights.
There are those who question whether we can make such claims
regarding truth or justice. They claim — not without reason — that law
as it is currently practised — by lawyers and legal academics such as
10
F Michelman ‘The rule of law, legality and the supremacy of the constitution’ in S
Woolman et al (n 3 above) Chapter 11.

32 Chapter 2
myself — fails to take crisis as its departure point, and thus fails to
take the needs and the concerns of those it serves seriously. 11 They
argue that the law is willing to sacrifice those persons most in need of
its protection and then allege, with some merit, that the law does so
in the name, but not necessarily the service, of a just and fair social
order. These charges are serious indeed. Professor Johan van der Walt
has recently devoted an entire book to elucidating these theses. 12
And when he writes that law constitutes ‘the sacrificial selfdestruction
of hospitality, the self-destruction that takes place with
every attempt to give effect to hospitality,’ it is hard not to concede
that even when we take the moral salience of every action — be it
public or private — into account, that all law and all human action
involves some form of sacrifice. In Van der Walt’s words:
[T]he horizontalising demand for justification will require agents of
disempowerment to provide concrete information as to why the
particular form of disempowerment cannot or could not be avoided. This
information will not, of course, level the playing field, or it will only
level it on a symbolic level. However, the consistent demand for
information that justifies the curtailment of fundamental rights will
serve consistently to destabilise the position of anyone implicated in
such curtailments. Constant exposure to public scrutiny will leave their
positions less entrenched then they would have been were they able to
rely on privileges and immunities. 13
Those of us who work in the guild of constitutional law-masons —
whether academics, jurists, practitioners and students — cannot for a
moment sit idly back and assume that the Constitution and all our
lovely political institutions provide an answer for the depredations of
apartheid or the desolations of our current political order. Van der
Walt is correct in noting that the Constitution is but a way station, a
stop on a never-ending journey towards a more just political order.
The virtue of such work as his is to wipe any smugness off the face of
those of us who work within this constitutional order and think that
such work is enough to set things right in a country where some 50 per
cent of us — at one time or another — experience hunger and
homelessness. Every act in every day South African life, Van der Walt
reminds us, possesses an unavoidable moral salience. Or rather, we
avoid that moral salience — and the sacrifices those acts entail — at
the peril of our ‘souls’.
11 See T Madlingozi ‘Legal academics and progressive politics in South Africa: Moving
beyond the Ivory Tower’ (2006) 2 PULP Fictions: A Space for Dialogue 5. But see A
Kok ‘A Reply to Tshepo Madlingozi’ (2006) 2 PULP Fictions: A Space for Dialogue
25.
12
See J van der Walt Law and sacrifice (2006).
13 n 10 above, 73.

Stu Woolman 33
Van der Walt’s observations are not new. After the Holocaust,
Stalin’s purges and the dropping of atomic bombs on Hiroshima and
Nagasaki, and after the victory of Allied forces and the creation of the
various international institutions founded at Bretton Woods, members
of the Frankfurt School articulated a trenchant critique of modernity
that remains difficult to admit in full, but equally impossible to reject
out of hand: That liberation and domination in the modern democratic
constitutional state are flip-sides of the same coin. That is, the
liberation from one form of political economy, that of monarchy and
mercantilism, invites new forms of domination that flow from
another, that of the bureaucratic, democratic capitalist state. Adorno
puts this basic thesis as follows:
The dual nature of progress, which always developed the potential of
freedom simultaneously with the reality of oppression, gave rise to a
situation in which peoples were more and more inducted into the control
of nature and social organisation, but grew at the same time, owing to
the compulsion which culture placed upon them, incapable of
understanding in what way culture went beyond such integration. ...
They make common cause with the world against themselves, and the
most alienated condition of all, the omnipresence of commodities, their
own conversion into appendages of machinery, is for them a mirage of
closeness. ... The concept of dynamism ... is raised to an absolute,
whereas it ought, as an anthropological reflex of the laws of production,
to be itself critically confronted, in an emancipated society, with need.
The conception of unfettered activity, of uninterrupted procreation, of
chubby insatiability, of freedom of frantic bustle, feeds on the bourgeois
concept of nature that has always served solely to proclaim social
violence as unchangeable. ... It was in this, and not in their alleged
levelling down, that the positive blue-prints of socialism ... were rooted
in barbarism. It is not man’s lapse into luxurious indolence that is to be
feared, but the savage spread of the social under the mask of universal
nature, the collective as a blind fury of activity. The naïve supposition of
an unambiguous development towards increased production is itself of a
piece of that bourgeois outlook which permits development in only one
direction because, integrated into a totality, dominated by quantification,
it is hostile to qualitative difference. If we imagine emancipated
society as emancipation from precisely such totality, then vanishing lines
come into view that have little in common with increased production
and its human reflections. 14
14
T Adorno Minima moralia: Reflections from damaged life trans EFN Jephcott
(1951) 146–156. Horkheimer describes the French Revolution as a ‘condensed
version of later history’ and in words even more prescient for the common era
writes:
More and more, economic questions are becoming technical ones. The
privileged position of administrative officers and technical and planning
engineers will lose its rational basis in the future; naked power is
becoming its only justification. The awareness that the rationality of
domination is already in decline when the authoritarian state takes over
society is the real basis for its identity with terrorism.

34 Chapter 2
I do not think it surprising then that those persons who helped to
bring about the end of apartheid — almost half a century after the
world had declared itself rid of Nazi Germany — would imbue their
founding document with a bit of grim realism about the emancipatory
powers of the post-apartheid state. We find in FC section 12 a
preoccupation with the worst forms of abuse that the state — and
modern society — can visit upon the individual. FC section 12 reminds
us that the post-apartheid state retains the power to put people in
prison without reason and without end, and that ours remains a
society in which bodies are raped, tortured and otherwise exploited.
Take FC section 12(1)(b) — the right not to be detained without trial.
All of the original interpreters of our basic law understood that FC
section 12(1)(b) was designed to remind us of apartheid’s many
depredations. As Ackermann J writes in De Lange:
When viewed against its historical background, the first and most
egregious form of deprivation of physical liberty which springs to mind
when considering the construction of the expression ‘detained without
trial’ in s 12(1)(b) is the notorious administrative detention without trial
for purposes of political control. This took place during the previous
constitutional dispensation under various statutory provisions which
were effectively insulated against meaningful judicial control. Effective
judicial control was excluded prior to the commencement of the detention
and throughout its duration. During such detention, and facilitated
by this exclusion of judicial control, the grossest violations of the life
and the bodily, mental and spiritual integrity of detainees occurred. This
manifestation of detention without trial was a virtual negation of the
rule of law and had serious negative consequences for the credibility and
status of the judiciary in this country. 15
14
15
15
M Horkheimer ‘The authoritarian state’ in A Arato & E Gebhardt (eds) The
essential Frankfurt School reader (1982) 95 105. Perhaps no better explanation
exists for the current existential and political crisis in the West and in the Middle
East. More However, and more, as pessimistic economic as questions both Adorno are becoming and Horkheimer technical are ones. about Thethe
human privileged condition, position they of were administrative by no means officers fatalists. and technical Both imagined and planning that neo-
Marxist engineers dialectic will — as lose opposed its rational to liberal basis enlightenment in the future; conceptions naked power of development
becoming and progress its only — might justification. strengthen The ‘freedom’ awareness and that bring the about rationality the end of of
is
exploitation. domination See is T already Adorno & in M decline Horkheimer when Dialectic the authoritarian of enlightenment state takes (1972). over
De Lange society v Smuts is the NO real & basis Others for 1998 its identity 3 SA 785 with (CC), terrorism. 1998 7 BCLR 779 (CC) para 26.
Sachs J sounds similar concerns when he writes that in terms of the
M Horkheimer ‘The authoritarian state’ in A Arato & E Gebhardt (eds) The
essential Interim Frankfurt Constitution School ... reader the words (1982) ‘detention 95 105. without Perhaps trial’ no better stood explanation
alone as
exists an for express the current bar to existential physical restraint and political by the crisis State in the and West accordingly and the had Middle to
East. function However, as the as pessimistic sole textual as basis both for Adorno analysing and the Horkheimer constitutionality are about of allthe
human forms condition, of coercive they State were power by no involving means fatalists. physical restraint. Both imagined Now it that is just neo-
Marxist one dialectic item in an — as extensive opposed and to nuanced liberal enlightenment catalogue, and conceptions therefore needs of development
be and given progress a specific — might significance strengthen which ‘freedom’ both justifies and bring its place about in the the end list of
to
exploitation. and separates See T Adorno it from & M the Horkheimer other items. Dialectic It accordingly of enlightenment reclaims (1972). its
commonly accepted identity in South Africa as relating to a specific and
De Lange unmistakable v Smuts NO prohibition & Others of 1998 the 3 special SA 785 and (CC), intense 1998 form 7 BCLR of 779 deprivation (CC) para of26.
Sachs liberty J sounds that similar scarred concerns our recent when history. he writes that in terms of the
n 10 above, Interim para Constitution 173. ... the words ‘detention without trial’ stood alone as

Stu Woolman 35
Many, but by no means all, of our Constitutional Court justices
understand that various commonplace acts of barbarism under
apartheid will find renewed expression in our post-apartheid state,
and that genuine emancipation requires constant vigilance against
new forms of domination. I would suggest that a majority of the De
Lange Court recognised that permitting presiding officers (who were
neither magistrates nor judges) to imprison, indefinitely and
repeatedly, recalcitrant witnesses in insolvency proceedings was of a
piece with the apartheid practice of detention without trial, and that
this identification of a ‘new’ form of exploitation underwrites the
Court’s finding that this particular statutory grant of power to punish
is unconstitutional.
Ackermann J’s words may seem rather tepid compared to
Adorno’s largely nihilistic critique of modernity. And that is not just
because judges are not philosophers. The Frankfurt School’s post-
Marxist dismissal of the Enlightenment’s commitment to truth is not,
as I noted at the outset of this section, a philosophical fashion that
has taken root here. South Africa remains the last great modernist
project. FC section 12 will not, therefore, be read as a double-edged
sword by our courts. It will be read instead as a reminder that
exploitation remains a dominant, if not ineradicable feature of our
landscape, and that it falls to our politicians, judges, lawyers and
various organs of civil society to ensure that the great emancipatory
ends of our modernist project are not undermined by new forms of
exploitation. Academics — whether modernist or post-modernist in
inclination — have an important role to play in this great
emancipatory project: speaking truth to power, even when that
power is exercised by the virtuous women and men who sit on our
highest Court.
4 Conclusion
Have we academics, as I write here seven years after the Grootboom
lecture, answered Justice Sach’s crisply struck backhand? In my mind,
I see us, collectively stretched, answering with a forehand volley to a
momentarily empty space. I see the Justice giving chase.

3 Reply
A gentle provocation: A reply to Stu Woolman
Justice Albie Sachs
Actually, Stu Woolman, it wasn’t a deft backhander. Even when I still
had my right arm and could play a reasonable game of ping-pong, my
backhand was only average. No, it was more of a carefully calculated
drop-shot; what I recall saying to you was meant as a gentle
provocation.
I felt that in the run-up to the creation of our constitutional
democracy, academics had been far ahead of judges in preparing for
the conceptual transformations that lay ahead. There was a heady
and inspiring surge of legal energy in academe. Top minds were
actively and directly engaged in the constitution-making process. Law
faculties put on workshops and educational programmes to get the
profession and the country ready for immense jurisprudential change.
Etienne Mureinik recorded his marvellous turn of phrase about the
Constitution being a bridge from a culture of authority to a culture of
justification. I still recall how Canadian law professor David Beatty
put the concept of proportionality right there on the map, telling us
in effect: It’s proportionality, stupid. And simultaneously Thandabantu
Nhlapho was preparing us for the era when customary African
law would both gain greater legitimacy and yet achieve far more
forward thrust.
The judges, on the other hand, seemed to be to be frozen in
positivistic time. Some were downright sullen. A fine incumbent of
the newly-renamed Supreme Court of Appeal, whom I remembered
37

38 Chapter 3
fondly as an enlightened colleague at the Cape Town Bar, clearly
believed until his retirement that, freed of apartheid deformation,
the common law did everything that the Constitution purported to do,
only in a more measured and legally appropriate way. And what a
furore arose when the UCT Law Faculty invited Cape judges (as nonpaying
participants!) to join members of the legal profession at a
workshop on the new Constitution. What could academics teach the
judiciary, when, after all, judges declared the law, while academics
only analysed what the judges said? A small minority, headed by
Judge-President Gerald Friedman wanted to go, and the compromise
was that they could attend, but only on condition they didn’t ask
questions or take part in discussion. My informant told me that the
first hand that went up at the workshop was that of Gerald Friedman!
When I had been in practice at the Cape Bar thirty years earlier,
it had been axiomatic that dead authors could be quoted, but live
ones only if they had been ‘elevated to the Bench’. The most we could
do with South African writers was to quote from authoritative
textbooks; indeed we never went to court without Gardiner and
Landsdown on Criminal Law, and Herbstein and Van Winsen on Civil
Procedure. Yet the understanding was that these treatises did no
more than systematise what the cases had decided. There was no
question of the authors engaging with the decisions and offering their
own opinions. And if we even thought of reading journal articles, we
never imagined citing them in argument. Heaven forbid. Why, then,
was the dominant legal tradition in South Africa so rigidly hierarchical
in respect of the relation between judges and academics?
When working on my PhD at Sussex University I came across some
clues. I discovered writings by Max Weber on why Roman Law was not
received in England as it was in the rest of Europe. I later summarised
what he had said as follows:
[O]ne is forced to ask why a certain intellectual style developed amongst
lawyers in England, as opposed, say, to those in continental Europe. Max
Weber has suggested that the answer lies in the success of the English
legal profession in keeping legal education under its control and out of
the hands of the Universities. Rather than regarding native genius as an
explanation of the character of legal reasoning, he sees the legal
profession as the creator of the concept of native genius, which it used
as a weapon in defence of its group interest. Thus it was in the interests
of the legal profession to assert the superiority of their indigenous
practical wisdom over the imported speculations of the University
professors, and this led to a continuing emphasis on the virtues of the
English case-law.
I added that the profession had been so successful in this respect that
not only did it continue to control the qualifications for legal practice,

Reply - Justice Albie Sachs 39
but had even succeeded in getting the Universities, which they
treated as subalterns, to extol its timeless virtues.
Then much later when I myself had been ‘elevated’ from being
professor to the Bench, I came across an address in which US Supreme
Court Justice William Brennan provided further illumination.
Criticising what he saw as the deadening role of the desiccated,
precedent-based legal text-book, he explained, in an address entitled
Reason, passion and ‘The progress of the law’, that the judicial
branch in his country had been born not on the lofty peaks of pure
reason, but in the trenches of partisan politics. 1 In response, two
important checks on judicial discretion had been institutionalised —
the recording of precedent, and the requirement of a public and
reasoned explanation of the judicial result. The outcome was an
endless string of cites of precedent that began to dominate judicial
opinions.
The effect of this practice was to distance the judge from the
outcome of the case: It appeared that precedent alone determined
each outcome. Brennan observed that the rise of the legal treatise,
with its strangely disembodied character, intensified this distancing
process:
The goal of the treatise — to classify reported cases into objective and
determinative categories of legal principle — appealed to the positivist
minds of the late-nineteenth century. As one historian had put it:
The legal treatise was regarded by its admirers as above all
demonstrating the ‘scientific’ nature of the law. Through classification
of subjects, it sought to show that law proceeds not from will but from
reason. Through its ‘black letter’ presentation of supposed ‘general
principles’ of law it sought to suppress all controversy over policy while
promoting the comforting ideal of a logical, symmetrical and, most
importantly, inexorable system of law.
Conspicuously absent from the treatises was any narrative voice. The
earliest treatises contain no commentary whatsoever, and even in later
editions authors eschewed personal commentary on the cases and
principles. The absence of commentary was consistent with, and no
doubt helped to reinforce, the nineteenth-century conception of law as
something that judges discovered but did not help define. 2
Brennan added that we could now begin to understand why this
conception of judge-as-oracle arose, and why the legal community
clung so tenaciously to it.
1
(1988) 10 Cardozo Law Review 3.
2 As above.

40 Chapter 3
This brings me to my next question: working with a pristine
Constitution that represented a total rupture with the past, and with
no local precedent to guide us, what materials could we as judges use
to orient our decisions? If I look at my early judgments I can see that
what I was seeking was not authoritative pronouncement. It was
philosophy, a phrase, a persuasive argument. It was rationale. It was
a formulation that added structure and texture to what Brennan
refers to as ‘passion’, that is ‘the range of emotional and intuitive
responses to a given set of facts or arguments, responses which often
speed into our consciousness far ahead of the lumbering syllogisms of
reason.’ Sometimes I wanted to store up ideas in the larder of whoknows-when-it-might-be-useful.
But usually the spur to ‘scorn
delights and spend laborious days’ came from the imperious need to
find a persuasive answer to a case at hand. And frequently the words
that said it best — and made me feel a little less intellectually lonely
— were to be found in the imperious constitutional narrative of Tribe
or the quieter recommendations of Hogg, or in the brilliant
observations of Jackson or the poignant cadences of Brennan,
Marshall and Blackmun in dissent.
What we required at that stage was prescience rather than
precedent. As judges it was our duty to raise our heads above the
parapet of legal history. Academics had alerted us earlier to
Canadian, German and Indian jurisprudence. What shots would they
fire at our own jurisprudence? I could not wait. And it was my
disappointment in this respect that led me to throw down a polite
gauntlet to Stu Woolman.
Granted, I might have suffered a little bit of pique from what
Freud once referred to as the narcissism of small differences. Yet I am
convinced that something more substantial was involved. My
colleagues and I had laboured mightily to lay some foundations of a
new constitutional jurisprudence. Laurie Ackermann was my neighbour
in Chambers and his research and writing were prodigious. He
scoured judicial reasoning throughout the world to find how courts in
other open and democratic societies were dealing with the issues
before us. Arthur Chaskalson, whose Chambers were nearby, would
meet almost every evening with Laurie and the two would stand for
an hour or more talking earnestly in the passage. Arthur’s judgments
were wide-ranging and magisterial. Ismail Mahomed also did intense
international research, managing to transmute the ideas he alighted
upon into incandescent and unmistakably South African idiom. In a
deeply thoughtful judgement on corporal punishment for juveniles,
Pius Langa extracted telling observations from leading judicial minds
in many jurisdictions.
In the absence of South African precedent, then, our external
points of reference were comparative constitutional jurisprudence.

Reply - Justice Albie Sachs 41
We produced what I thought then, and still believe today, to be a
number of judgments of profound legal significance. And after each
one, academic reaction was virtually ... zero.
Makwanyane, 3 the capital punishment case, the first we heard,
was extensively analysed all over the world, except in one country,
South Africa. I recall only one local law-journal article, by a good legal
scholar, that barely engaged with the deep jurisprudential and moral
issues debated in eleven separate judgments, and came to the banal
conclusion that the decision merely reflected the socio-political
outlooks of the judges. From a purely technical point of view,
Mhlungu 4 was probably the most important case of that whole period.
The Court divided sharply between those who supported a literalist
approach to constitutional interpretation, and those who aligned
themselves with a purposive one. Surely, I thought, there would be a
deluge of academic articles in support of the purposive approach. Yet
the only commentary I came across was a beautifully wrought piece
supporting the literalist approach, followed by a highly amusing but
totally obscure post-modern reply. So much for my hope expressed in
Mhlungu, of ‘principled judicial dialogue, in the first place between
members of this Court, then between our Court and other courts, the
legal profession, law schools, Parliament, and, indirectly, with the
public at large’! 5
Then there was a truly landmark case of immense significance: In
Executive Council of the Western Cape 6 we struck down two
eminently progressive Presidential Proclamations on the basis that
Parliament could not entrust its lawmaking authority to the President.
I have spoken about this case in many parts of the world, putting it on
a par with the election of 27 April 1994 as a moment when, because
of the way in which Nelson Mandela emphasised his fidelity to the
Constitution as interpreted by this Court, constitutional democracy
became deeply rooted in our country. I recall reading a note on the
case some time afterwards, but nowhere did I come across any
attempt to assess its grand reach. I could go on. The First
Certification Judgment 7 was nothing less than a judicial encyclopaedia
of contemporary constitutionalism: It passed virtually
unnoticed by academia. The dis-juncture was so strong it was as if it
was now academia’s moment to be frozen in time.
3
S v Makwanyane & Another 1995 3 SA 391 (CC), 1995 6 BCLR 665 (CC).
4 S v Mhlungu 1995 3 SA 867 (CC), 1995 7 BCLR 793 (CC).
5 n 4 above, para 129.
6
Executive Council of the Western Cape Legislation & Others v President of the
RSA & Others 1995 4 SA 877 (CC), 1995 10 BCLR 1289 (CC).
7 Ex Parte Chairperson of the Constitutional Assembly In Re: Certification of the
Constitution of the Republic of South Africa, 1996 1996 4 SA 744 (CC), 1996 10
BCLR 1253 (CC).

42 Chapter 3
The one spark of academic excitement was over the question of
vertical versus horizontal application of the Constitution. It was an
issue of some interest to me, because I think I was the one who put it
on the South African agenda when I returned from exile in 1990. Yet
from a practical point of view it had been rendered largely moot by
the constitutional requirements that all statutes had to be
interpreted, and the common law developed, in keeping with the
spirit of the Constitution, and the express authorisation of legislation
to deal with the effects of past discrimination. Yet here academics
went to town, picking up on what was a real and live debate between
conservative and progressive commentators positions in the USA, but
of little relevance in South Africa. 8
It was only in the Sodomy case 9 that serious academic questioning
took place on the way the courts were dealing with a central
constitutional theme, namely, equality. I disagreed with the
challenge made by Dennis Davis, and said so in my judgment, but
strongly welcomed the dialogue. At last academia seemed to be
recovering its nerve. The Grootboom case, 10 to which Stu Woolman
refers, triggered a further revival of academic contestational bravura.
Once again, while disagreeing with much of the critique levelled at
our thinking on the applicability of the minimum core approach, I
have strongly appreciated the value of the debate.
For a decade now there has been real and fruitful engagement. In
one important matter academic scholarship undoubtedly proved to be
fundamental. In FNB, 11 Andre van der Walt’s creative articulation of
the new constitutional vision of property law in the context of our
history of dispossession, became central to the Court’s jurisprudence
on property rights. Other areas where academic writing has been
especially influential include the rights of the child, remedies for
spousal abuse, homelessness, customary law as living law and a new
approach to administrative law (if Cora Hoexter received a royalty
every time she was cited, she could take early retirement!). And there
are many, many more areas directly enriched by serious and
persuasive scholarship. Indeed, my law clerks groan at the amount of
academic literature they are expected to read and later to cite.
And it should also be remembered that many ideas in scholarly
books and articles are picked up through submissions by counsel in
8
See S Woolman ‘Application’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2005) Chapter 31.
9 National Coalition for Gay and Lesbian Equality & Another v Minister of Justice &
Others 1999 1 SA 6 (CC), 1998 1 BCLR 1517 (CC).
10 Grootboom & Others v Government of the Republic of South Africa & Others 2001
1 SA 46 (CC), 2000 11 BCLR 1169 (CC).
11
First National Bank of SA Ltd t/a Wesbank v Commissioner for the South African
Revenue Services & Another 2002 4 SA 768 (CC), 2002 7 BCLR 702 (CC).

Reply - Justice Albie Sachs 43
argument. We do not always cite the legal scholarship that influences
us — there is a degree of intellectual seepage and osmosis that doesn’t
always respect copyright — but academic contributions often
irreversibly enter our brains and affect our legal imaginations in
subtle and lasting ways, especially when presented by articulate and
‘passionate’ counsel for amici.
In my view, if the debates involving judges and scholars that led
to this book are anything to go by, dialogue between the judiciary and
the academic world is likely to become increasingly fruitful in the
years to come. US Supreme Court Justice Robert Jackson, whom I love
to quote, sardonically remarked that the ‘Court does not have the last
word because it is infallible. It is infallible because it has the last
word.’ We judges have to acknowledge, however, that the last word
on the infallibility of the judges themselves will lie with the academic
critics.
O dialogo continua! Long may the dialogue continue!

4
CONSTITUTIONAL
SUPREMACY AND
APPELLATE JURISDICTION
IN SOUTH AFRICA
Frank I Michelman
1 Introduction
At the core of Chapter 11 of Constitutional Law of South Africa, on
‘The rule of law, legality, and the supremacy of the Constitution’, 1
lies an outlander’s account (mine) of a process of incorporation, into
post-transition South African constitutional law, of what historically
had been known as a common-law doctrine of legality. I have cast the
tale largely, but not wholly, as one of a technical doctrinal
development, and of course it is one that has arisen out of a wholly
South African set of local historical and institutional circumstances. I
expect there is no other country in the world where the relevant legal
texts, history, and institutional setting could throw up a similar
cluster of interpretive issues and related stakes, more or less
consequential as you may consider the stakes to be.
It would be fair to ask what interest this technical — and locallooking
— material might hold for me or any scholar outside South
Africa. Later on I shall offer a response to that question, coming from
the standpoint of a participant in worldwide academic study of
comparative constitutionalism, and hinging on the fact (as it appears
to me) that the process of migrating the legality doctrine from
1 F Michelman ‘Rule of law, legality and the supremacy of the constitution’ in S
Woolman et al (eds) Constitutional Law of South Africa (2nd Edition, OS, 2005)
Chapter 11, available at www.westlaw.com.
45

46 Chapter 4
common-law to constitutional status in South Africa coincided with a
moment of epiphany within the Constitutional Court — of the crystallisation
there of a conviction that no part of South African law can
be allowed to remain outside the Constitution’s tent or beyond the
Constitution’s gaze. But I must begin by sketching out the main
business of the Chapter as I wrote it. 2
2 History
We start with a few points of history that have a bearing on my
Chapter. First, by the time of the early 1990s, it was settled that
South Africa would have a new political constitution — a new, and
newly democratic, set of arrangements for the basic institutions of
government and of law in this country; and, further, that as a part of
the new constitutional order there would be a justiciable Bill of
Rights. All of those points — a transformed constitutional order,
democracy, a justiciable Bill of Rights — were on the side of the
future.
And what, then, of the past? For, second, there was also an
expectation of — there was careful provision for — substantial continuity
both in bodies of law and in judicial institutions and personnel.
For this expectation and provision, there were compelling pragmatic
reasons so obvious that I won’t go into them here. Enough for now to
say that the country, by design and not by accident, found itself on
the near side of the formal transition from the old order to the new
with a major part of its everyday, working legal system in
uninterrupted operation.
Putting the first two points together, we arrive at the third:
Express provision was made for submitting the inherited law to critical
inspection under the new Constitution and Bill of Rights, and for
modulation of the former as required to conform it to the principles
and values of the latter. And then fourth: Chief and final
responsibility for such inspection was to be lodged in a newly created
judicial tribunal, the Constitutional Court, whose members would be
selected with a view to the work of constitutional scrutiny, both of
the law inherited and of the law to come.
But furthermore, fifth — and this was a choice not so seemingly
obvious and inevitable — it became settled as well that the new court
would not have a plenary, last-resort jurisdiction but rather would be
2 Readers are referred to the book chapter for more extended discussion of claims
summarily put forth in what follows, and also for citations to sections of
Constitutions and paragraphs of opinions with which I have not cluttered this
conversation-piece.

Frank I Michelman 47
confined to ‘constitutional matters’, leaving final judicial authority in
non-constitutional cases where it had previously resided, with the
Appellate Division of the Supreme Court (later to become the
Supreme Court of Appeal). No one reading the pertinent sections of
the Interim Constitution (and later the Final Constitution) could doubt
this was a deliberate choice, one for which those who made it
presumably had reasons, and one which they expected could and
would be followed in ways having visible and mandatory effects on the
conduct of judicial business in South Africa.
3 Justification
What reasons? Some undoubtedly were thoroughly technical and nonideological,
having to do with considerations of an apt and efficient
division of labour between tribunals perceived as having somewhat
differing destinies and trajectories of specialisation and expertise.
But possibly that was not all there was to it. This next observation has
to be speculation on my part, and it touches on what may be a
contentious point, but perhaps a part of the thinking behind the
Interim Constitution’s strict division of appellate authority between
the new Constitutional Court and the old Appellate Division was to
ensure a space for the continued (or revitalised) evolution of a
positively valued, largely common-law inspired South African legal
heritage, perceived at its best and not at its worst. There is matter in
the Constitutional Court’s very first opinion, in Zuma, that points
clearly in that direction, 3 and so — as we shall see — do certain
subsequent stances of the Court. So the suggestion is, for better or for
worse, that the new Constitution’s bifurcation of appellate
jurisdiction may be understood as meant, in part, to preserve an
institutional sphere in which an extant, salvageable, South African
legal tradition could work its way back on track, in partnership with
the new Constitution — sharing the load, so to speak, not only of
developing but of recovering a redemptive jurisprudence for South
Africa.
Whether or not in part for that reason, the Interim Constitution
did plainly divide final appellate authority between the Constitutional
Court and the Appellate Division. It did so along the line of
3 S v Zuma 1995 2 SA 642 (CC), 1995 4 BCLR 401 (CC) (In Zuma’s Case, the
Constitutional Court rejected the idea that ‘all the principles of law which have
hitherto governed our courts are to be ignored.’ ‘Those principles,’ the Court
affirmed, ‘obviously contain much of lasting value.’ Specifically, the common
law’s traditional principles concerning onus placement in criminal trials —
principles that have ‘existed in this country for over 150 years’ — ‘are
fundamental to our concepts of justice and forensic fairness;’ so much so that the
Constitution’s fair-trial guarantee should be construed in a manner continuous
with those principles and reflective of them, and so a statute from 1977 that
deviated from those principles must, accordingly, be nullified.)

48 Chapter 4
‘constitutional matters’, and indeed it did so quite emphatically. Not
only did it confine the Constitutional Court to constitutional matters
(and some accessories that I shall soon mention), it very neatly fenced
the Appellate Division out of the constitutional arena by providing
that the latter’s jurisdiction would not overlap with that of the
Constitutional Court. Plainly, then, the drafters — who could not have
meant to leave the Appellate Division with a docket forever empty —
must have been supposing that ‘constitutional matters’ does not
cover all matters. As we shall see, the events recounted in my book
chapter could have led to the result of leaving no cases for the
Supreme Court of Appeal to adjudicate, had the Final Constitution not
let down the barrier against entry by the latter court onto
constitutional terrain, subject to review by the Constitutional Court
where constitutional matters are concerned. The Final Constitution
does at the same time expressly continue to treat the Supreme Court
of Appeal as final in non-constitutional matters, thus carrying forward
the plain implication that not all matters are constitutional, making
the Constitutional Court’s jurisdiction less than plenary. Or that, at
any rate, is the official story, on what I take to be the most
straightforward reading of the constitutional texts.
Whether actual practice could ever possibly have matched that
story proves, however, to be a great deal less clear in hindsight. When
you consider the scope and the breadth of the norms of the
Constitution and Bill of Rights — extending to the achievement of
equality, the protection of human dignity and of the freedom and
security of the person, guaranteed rights of access to court, to
administrative justice, to subsistence, water, health care services,
housing, and social security; when you consider the constitutional
mandate to construe statutes with a view to promoting the spirit,
purport and objects of the Bill of Rights; when you consider the
mandate to develop the common law in a manner that will promote
the spirit, purport and objects of the Bill of Rights; when you add the
Constitutional Court’s declared (inevitable) authority to decide
questions ancillary to the decision of constitutional matters and
furthermore to decide with finality whether an appeal involves a
constitutional or ancillary matter; when you consider all of that, you
have to doubt whether there is any case in the slightest degree likely
to be brought before the Constitutional Court, that the Court, if so
minded, cannot credibly find to fall within its jurisdiction. I think, as
I say this, of Judge Carole Lewis’s remarks in her recent Oliver
Schreiner Lecture, to the effect that the distinction between
constitutional and other issues, ‘in the context of a body of law that
must necessarily be constitutionally coherent, ... is, and always was,

Frank I Michelman 49
an illusion.’ 4 And yet the Constitutional Court, taking seriously that
the Constitution plainly purports to make its jurisdiction less than
plenary, tried to give effect to that intention. The Court, from time
to time, refused to involve itself further in a case, giving as its reason
a discovery that the case raised no matter of constitutional import.
Two prominent examples are Boesak 5 and Metcash Trading. 6 In both
those decisions, the leading idea is that the constitutional order does
not tremble every time some court in the legal system commits an
error in applying the law to the facts, or perhaps even in construing
the law. No system is or could be proof against garden-variety judicial
mistakes, and correction of such mistakes does not, in itself (when no
other constitutional commitment is at stake), come within the domain
of a court confined to constitutional matters.
But now suppose a day arrives when the Constitutional Court
construes the Constitution to contain (to all intents and purposes) a
clause — virtually a part of the Bill of Rights — reading ‘everyone has
the right to legality.’ Of course such a day did come, in
Pharmaceutical Manufacturers. 7 And what, then, can be left of the
idea that the Constitutional Court’s jurisdiction is less than plenary,
so that some cases fall beyond its power to decide? What conceivable
application for Constitutional Court review does not contain a claim
that some state official — assuming we include judges among state
officials — has acted contrary to law or without legal authorisation?
And where now is the gap between the Constitutional Court’s
authority in constitutional matters and a totally plenary jurisdiction?
My Chapter argues that a gap may still remain. The argument is,
however, a delicate one at best, and the gap it leaves will rarely if
ever be one that the Constitutional Court will be compelled to
recognise as covering the case before it, should it see fit to adjudicate
the case.
A question thus comes naturally to mind about what
considerations might have prompted the Constitutional Court to
enunciate a doctrine — the existence of which amounts to a
subjective constitutional right to legality — that seems to run so hard
against the Constitution’s evident design to make the Constitutional
Court’s judicial competence less than plenary. Direct and explicit
textual compulsion cannot have been one of them, or so my Chapter
contends. The inclusion in Final Constitution section 1(c) of the ‘the
4
See C Lewis ‘Reaching the pinnacle: Principles, policies and people for a single
apex court in South Africa’ (2005) 21 South African Journal on Human Rights 509
512.
5
S v Boesak 2001 1 SA 912 (CC), 2001 1 BCLR 36 (CC).
6 Van der Walt v Metcash Trading Ltd 2002 4 SA 317 (CC), 2002 5 BCLR 454 (CC).
7 Pharmaceutical Manufacturers Association of South Africa & Another: In re Ex
Parte President of the Republic of South Africa & Others 2000 2 SA 674 (CC), 2000
3 BCLR 241 (CC).

50 Chapter 4
rule of law’ as one of the Republic’s founding values does not by itself
seem to give rise to any subjective right or judicially enforceable
norm — and indeed it cannot be read to do so in the light of the
Constitutional Court’s later decision in NICRO. 8 What is more, the
constitutionalisation of the legality doctrine occurred initially in
Fedsure, 9 on the watch of the Interim Constitution, an instrument
containing no express textual reference whatever to legality or the
rule of law.
By the Constitutional Court’s own account in Fedsure (never
revised, so far as I am aware), a textual basis for the constitutionalised
right to legality is not to be sought in any clause of the Bill
of Rights. The legality right is rather an implication from the whole
constitutional scheme, or one might say an implication from the
scheme’s most profound and obvious commitment, that to
constitutionalism itself. The principle of legality had been a main
fixture in pre-transition South African public law, and surely it must
continue now to be one. It would have been incongruous, to say the
least, to conclude otherwise.
Whether legality would continue to be a judicially enforceable
norm in South African law was a no-brainer. That, however, was not
exactly the question decided by the Constitutional Court in Fedsure
and Pharmaceutical Manufacturers. Rather, as my Chapter explains,
the issue precisely in contention in those cases was which tribunal, as
between the Constitutional Court and the Supreme Court of Appeal,
would have the last word in cases of disputable application of the
principle of legality. The Constitutional Court would have it — or so it
evidently has seemed to the jurists engaged in debating and resolving
the question — if and only if the legality doctrine has been completely
sucked up by the Constitution, retaining no separate life as a doctrine
of the common law drawing breath (so to speak) outside the tent of
the Constitution.
Such plainly was the view of Supreme Court of Appeal set forth in
Container Logistics, 10 and in Pharmaceutical Manufacturers the
Constitutional Court responded in kind. It did so, moreover, in
sweeping terms that go well beyond any tussle over which tribunal
would exercise final control over applications of the legality doctrine,
in particular. The Constitutional Court declared, in effect, that no law
in South Africa draws breath outside the tent of the Constitution:
8 Minister of Home Affairs v National Institute for Crime Prevention (NICRO) &
Others 2005 3 SA 280 (CC), 2004 5 BCLR 445 (CC).
9
Fedsure Life Assurance Ltd & Others v Greater Johannesburg Transitional
Metropolitan Council & Others 1999 1 SA 374 (CC), 1998 12 BCLR 1458 (CC).
10 Commissioner of Customs and Excise v Container Logistics (Pty) Ltd;
Commissioner of Customs and Excise v Rennies Group t/a Renfreight 1999 3 SA
771 (SCA), 1999 8 BCLR 833 (SCA).

Frank I Michelman 51
‘There is only one system of law,’ the Court declared. ‘It is shaped by
the Constitution which is the supreme law, and all law, including the
common law, derives its force from the Constitution and is subject to
constitutional control.’ 11 Thus, where the Final Constitution seems to
say quite plainly that there are two piles of cases — one falling under
the final authority of the Constitutional Court, the other under that
of the Supreme Court of Appeal — the Constitutional Court appears,
in Pharmaceutical Manufacturers, to have announced that all legal
matters in South Africa are potentially constitutional matters, which
whenever identified as such would apparently fall within that Court’s
purview.
I have devoted a portion of my book chapter to advancing what I
take to be the reasons and considerations underlying that stance on
the part of the Constitutional Court, or maybe one had better say the
underlying necessity of it. Very briefly, my Chapter envisions the
Court noticing two important points about judicial applications of the
principle of legality to actions of government (and the same points
would hold regarding applications of sundry clauses in the Bill of
Rights). The first is that such applications — or in other words,
questions of whether legality has been breached — can often be
questions over which competent lawyers will disagree in all good
faith. The second is that sometimes a contestable application might
have the effect of blocking or undoing actions by the government in
settings strongly infused with what we may call concerns and
sensibilities of transformation. (I mentioned Kyalami Ridge 12 and Bel
Porto 13 as examples of situations in which both features appear.) In
light of those two considerations, my Chapter suggests, the
Constitutional Court did well to conclude that its clearly assigned,
special role and responsibility in the transformative constitutional
order requires it to insist that judicial applications of the principle of
legality must finally be reviewable by it, hence must be classified as,
without exception, constitutional matters.
Quite arguably, as my Chapter has it, the practical consequence
of this classification of legality as always and ineluctably a
constitutional claim is to turn the Constitutional Court into a court of
plenary jurisdiction in all but name — if it were not that already —
apparently in the teeth of FC sections 167 and 168. If so, my Chapter
suggests, then that is a consequence that must be borne if the
Constitutional Court is to act in a way that carries out the special trust
that the Constitution and the country have reposed in it. Such, my
11
Pharmaceutical Manufacturers (n 7 above) para 44.
12 Minister of Public Works & Others v Kyalami Ridge Environmental Association &
Others (Mukhwevho Intervening) 2001 3 SA 1151 (CC), 2001 7 BCLR 652 (CC).
13
Bel Porto School Governing Body & Others v Premier, Western Cape, & Another
2002 3 SA 265 (CC), 2002 9 BCLR 891 (CC).

52 Chapter 4
Chapter surmises, has been the Court’s judgment, or its instinct, in
deciding as it did in Fedsure and Pharmaceutical Manufacturers — a
judgment and an instinct which I must say strike me as defensible at
the very least.
In saying so, I hope I shall not be understood as suggesting, either
as my own belief or that of the Court, that a firm commitment to the
rule of law must or may ever take second place to the teleology of
social transformation in South Africa. That, most decidedly and
emphatically, is not my view, and I see no sign of its being the Court’s
view. My view on this comes at the place in my Chapter where I
ponder the meaning of the linkage, in FC section 1(c), of two founding
values, one named ‘supremacy of the Constitution’ and the other
named ‘the rule of law’. What that linkage signifies, my Chapter
proposes, after some discussion, is this:
In the Constitution’s sight, legal-systemic unity — every site of law
pulling in the same direction — is a relative or contingent value, not an
absolute one. What that value is contingent on is the direction of the
pull. It is when the sites pull together toward the vindication of human
dignity, human rights, non-racialism, non-sexism, and the rest that the
unity of the country’s law in their service figures as a true value.
Accordingly, the Constitution means by ‘the rule of law’ ... not just the
rule of rules but the rule of justice, as the Constitution envisions justice.
‘Supremacy of the Constitution and the rule of law’ signifies the unity of
the legal system in the service of transformation by, under, and
according to law. 14
4 A single system of law
Now comes a more venturesome part of these remarks, pushing
beyond anything you can find written in my book chapter. I want to
raise a question about the precise sense in which we should
understand the Constitutional Court to be insisting, in Pharmaceutical
Manufacturers, on a comprehension of South Africa’s legal order as
being a single system of law under the Constitution’s control.
To get my question rolling, consider a portion of the
Constitutional Court’s opinion in another case of resounding import in
South Africa’s constitutional jurisprudence and constitutional culture,
that of Carmichele. ‘The proper development of the common law
under section 39(2),’ wrote the Court, ‘requires close and sensitive
interaction between, on the one hand, the High Courts and the
Supreme Court of Appeal which have particular expertise and
experience in this area of the law and, on the other hand, this
14 Michelman (n 1 above).

Frank I Michelman 53
Court.’ 15 (Note the use of the phrase ‘this area’ of the law.) ‘Not
only’, the Court continued, ‘must the common law be developed in a
way which meets the section 39(2) objectives, but it must be done in
a way most appropriate for the development of the common law
within its own paradigm.’ 16 (Note the use of the words ‘own paradigm.’)
The term ‘common law’, it seems, denotes an ‘area’ within
the law that works according to a distinct ‘paradigm’.
In many or most cases, the Court thought, the spirit, purport, and
objects of the Bill of Rights might be aptly served by any of several,
notionally different ways to develop the common-law under section
39(2) of the Constitution. ... Not all would necessarily be equally
beneficial for the common law. ... Our common law of delict spans many
centuries and the debate regarding delictual liability, its elements and
their relationship to one another, remains lively. Without the benefit of a
fully considered judgment from either the SCA or the High Court as to
whether, from the perspective of the common law, one solution would
be better than any other, this Court is at a ‘grave disadvantage’. 17
The picture conveyed by those remarks is this: It will happen
sometimes that the common law is found to require some adjustment
to bring it into the constitutionally required state of harmony with the
spirit, purport, and objects of the Bill of Rights. But common law
doctrines tend to be composed of multiple moving parts, and a
knowledgeable lawyer often will be able to perceive the possibility of
several different doctrinal entry points for making adjustments to the
common law, any one of which might satisfy the Constitution.
Take for example the common law of defamation, as it stood just
prior to the decision of the Supreme Court of Appeal in Bogoshi. 18 It
seems some adjustment was required to bring that law into kilter with
the constitutional commitment to freedom of expression (but without
throwing it out of whack with the commitment to human dignity).
Adjustment might conceivably have taken the form of shifting the
onus on truth or falsity from the defendant to the plaintiff. But as we
learned from Bogoshi and Khumalo, 19 it might also have taken — it did
take — the quite different form of a new defense, for media
defendants, of reasonable publication in the public interest. (I pass by
the interesting point, not a crucial one for this discussion, that the
Supreme Court of Appeal made no suggestion in Bogoshi that it was
engaged there in an application of constitutional law, or that its
15 Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies
Intervening) 2001 4 SA 938 (CC), 2001 10 BCLR 998 (CC) para 55.
16 As above.
17 n 15 above, para 56.
18
National Media Ltd & Others v Bogoshi 1998 4 SA 1196 (SCA), 1999 1 BCLR 1 (SCA).
19 Khumalo & Others v Holomisa 2002 5 SA 401 (CC), 2002 8 BCLR 771 (CC).

54 Chapter 4
detection of a need to revamp the common law of defamation was
impelled by anything other than the long entrenched, deep-lying
principles of the common law itself.)
The Constitutional Court’s view, as expressed in Carmichele and
as confirmed by that Court’s actions in quite a number of other cases,
is that the choice among such possibilities — where any of several
would satisfy the Constitution’s requirements, so the unity (in that
sense) of the entire law of South Africa is not at stake — ought to be
shaped by considerations having to do with preserving, insofar as
possible, the internal integrity (or might one say the unity?) of the
common law viewed as an identifiable, bounded component of South
African law. That would be a main reason why deciding among such
constitutionally acceptable choices is normally and properly business
in which the Supreme Court of Appeal, not the Constitutional Court,
should take the lead. In these cases, the Constitution, as some might
say, runs out before all the available legal-doctrinal options are
resolved. And that would seem to be a main reason why judges whose
decisional writ cannot outrun the Constitution consider themselves
well advised to leave the labouring oar in such cases to others to
whom the Constitution has ostensibly assigned a broader
jurisdictional competence.
It is interesting to ponder how this picture might look to partisans
in the well-known debate between HLA Hart and Ronald Dworkin.
Jurisprudes will recall Hart’s view that the normative fabric of the law
inevitably leaves open spaces, wherein judges necessarily exercise a
discretionary choice as if they were legislators, choosing as they
suppose legislators would or ought to do. And then they also will recall
Dworkin’s counter-insistence that for any case at law brought before
a judge of the law, there can be only a single legally correct answer,
and the judge’s job in every case is to find that answer out as best she
can.
In relation to that debate, the Constitutional Court’s view as
expounded in Carmichele might be described as a straddle. From the
standpoint of the Constitution, there are indeed those bounded
spaces of discretion envisioned by Hart. They are the spaces where
the Constitution runs out before the case is fully solved, in which
some further exercise of judgment (‘discretion’) necessarily is
required to reach a doctrinally complete solution to the case. But
from the standpoint of the common law, choosing within the bounds
imposed by the Constitution, there is no such open space; rather,
there is a unique right answer — that which will best comport with the
general fabric of common-law doctrine and principle while
comporting also with the Constitution’s demands — the ascertainment
of which is properly the business of judges steeped in the knowledge

Frank I Michelman 55
and the wisdom of the common law, who will determine it according
to the paradigm of the common law.
Let us now assume a strong Dworkinian stance and press the
question of whether or how this straddle position can be fit together
with the signature utterance of the Constitutional Court’s opinion in
Pharmaceutical Manufacturers — that ‘there is only one system of
law’, that being a system ‘shaped by the Constitution’ and ‘under
constitutional control’. If that be so — if there is only one system of
law here, reflecting one ‘objective normative value system’ 20 (to
quote again from Carmichele) — then Dworkinians seem bound to say
that in no case can that objective order of values, which the
Constitution represents and for which it speaks, leave an open space
where judges retain freedom to choose among alternative possible
settings of the multiple moving parts of common-law doctrine, on
‘common-law’ grounds that are not themselves, in principle, already
determined by that systemically unifying order of values. Rather, it
seems Dworkinians must say it is always to be the task of whatever
court may be seized of the case — and most unavoidably the task of
whatever court has final appellate authority over it — to decide which
unique answer is the right answer from the standpoint of the one
system of law over which the Constitution presides. It thus may seem
that if the Constitutional Court has got it right in Pharmaceutical
Manufacturers, its stance in Carmichele has conceded significantly to
Hart, against Dworkin.
Viewing matters thus, Dworkinians might be tempted to regard as
a flight from responsibility the Constitutional Court’s declared
practice of qualified deferral, in some cases, to the expert commonlaw
judgment or wisdom of the Supreme Court of Appeal. The
responsibility, they would mean, of a court of last resort in a unified
legal system to decide, in each case coming before it, what the law
requires — meaning the law entire, the ‘one system of law’, of which
the Constitutional Court speaks in Pharmaceutical Manufacturers,
inspired by the one objective normative order of values of which it
speaks in Carmichele. An objective normative value system is not,
after all, a Swiss cheese. Something going under that name ought, in
a Dworkinian view, to contain a uniquely right answer to every
question of law affecting every topic to which law can extend. Take,
for example, the topic of ministerial responsibility for delictual
misconduct by police officers. In Phoebus Apollo, 21 the Constitutional
Court found that topic, as it came before the Court in that case, to
implicate no matter of constitutional concern. Dworkinians might
lodge objection against such a finding. They might accordingly say
20 Carmichele (n 15 above) para 54.
21
Phoebus Apollo Aviation Bpk v Minister of Safety and Security 2003 2 SA 34 (CC),
2003 1 BCLR 14 (CC).

56 Chapter 4
that an amendment to the Constitution removing the nominal
confinement of the Constitutional Court to constitutional matters
would be beneficial, because it would deny to that Court any
semblance of a refuge from the full responsibility flowing to it, as
court of last resort presiding over the entirety of South Africa’s one,
single legal order shaped and controlled by the Constitution. That
would be, I think, in the spirit of Judge Lewis’s Schreiner Lecture. The
current jurisdictional dispensation, she says, ‘threatens to impede
the coherent development of the law.’ 22 The coherent development
of what? Not of ‘common’ law, or ‘constitutional’ law, but, simply, of
‘the law’.
But must we really carry the argument so far? Perhaps not. I can
think of no reason, Dworkinian or other, why the Constitutional Court
may not sometimes find that one or another appeal from a commonlaw
decision of a High Court or the Supreme Court of Appeal presents
no question of sufficient constitutional concern to invoke its
jurisdiction, in the sense that the Constitutional Court cannot just
now see how the deciding court’s setting of the applicable commonlaw
doctrine could be thought to run afoul of the spirit, purport, and
objects of the Bill of Rights. Dismissing such a case on jurisdictional
grounds does not commit the Court to the view that the doctrinal
topic at hand (say, ministerial responsibility for police-officer delicts)
lies beyond constitutional purview in the event that some future
rendition or application of the doctrine should be perceived to raise
constitutional hackles. Thus the jurisdictional dismissal in Phoebus
Apollo did not preclude the Constitutional Court from looking again at
the common-law doctrine of respondeat superior, in the light of the
different circumstances presented by the later case of K. 23
Such an account jibes well, I suggest, with the Court’s
recognition, in Carmichele and elsewhere, of compelling practical
reasons to divide appellate working responsibility between itself and
the Supreme Court of Appeal — combined with its insistence on
repeated occasions, of which Pharmaceutical Manufacturers is the
most dramatic, on there being reasons just as good for reserving to
itself the authority to decide which of the two tribunals has the
labouring oar or the final say in any given case. Which of the two has
the labouring oar or the final say in any given case must depend on
whether one or another common-law resolution propounded by the
Supreme Court of Appeal does or does not remain within the bounds
of the province where reliance on that court’s special focus and
experience rings true, and that means within the province composed
of the set of possible common-law and statutory solutions that match
22
Lewis (n 4 above) 513.
23 K v Minister of Safety and Security 2005 6 SA 419 (CC), 2005 9 BCLR 835 (CC).

Frank I Michelman 57
up appropriately with the spirit, purport, and objects of the
Constitution so far as anyone now is able to see. Of course there can
be not the slightest doubt that final authority for setting those bounds
must remain with the Constitutional Court. That surely is the
ineluctable, irreducible meaning of the supremacy of the
Constitution.
5 Comparative reflections
I conclude with some reflections from the angle of comparative
constitutional design studies. On the map of that academic field as it
currently stands, one fixture is the question — as it sometimes is
framed — of a ‘centralised’ versus ‘decentralised’ form of judicial
organisation for constitutional adjudication. Under that heading, two
questions that are best held distinct sometimes become confused.
One is whether appellate authority to pronounce on points of
constitutional law shall be reserved to a single tribunal. 24 Another is
whether whatever tribunal has authority to pronounce with finality on
constitutional matters shall be confined to such matters, as opposed
to acting as court of last resort on all justiciable matters. South
Africa’s choices to date have been first ‘yes’ but more recently ‘no’
on the first question, and (ostensibly and continuously) ‘yes’ on the
second.
The South African events recounted above shed light on these
questions. One clear lesson is the potential awkwardness (to put it
mildly) of combining a ‘yes’ answer to the first question with a ‘yes’
answer to the second. We see from these events how it may not be
possible (a) to restrict appellate competence on constitutional questions
to a single court without, in effect, (b) making that same court
the country’s sole court of last resort (although not necessarily its sole
appellate court) on all points of law that may arise in the country’s
legal system, whether out of statutes, executive and administrative
orders and regulations, common law, customary law, or whatever.
Whether (a) will be possible without (b) depends, as the South African
events show clearly, on how extensive and inclusive is to be the field
of potential application of constitutional norms. We see that
restriction of constitutional-matter competence to a single appellate
tribunal will be tantamount in practice to making that tribunal
24
Note the focus on appellate jurisdiction. Discussions usually recognise that at
least one court of first instance (and probably more than one in a country with a
regionalised system of first-instance courts) must be granted such authority, along
with at least one appellate court — the reason being that some questions of
constitutional import (the voluntariness of a criminal accused’s alleged
confession, for example) cannot conveniently be decided from scratch at the
appellate level, although of course trial-level determinations of them may be
(and typically are) subject to some degree of appellate scrutiny.

58 Chapter 4
supreme and final over all justiciable matters, unless you are willing
to amputate whole large limbs of law (I mean like private law, or
family law, or commercial law) from the body of law always
potentially subject to scrutiny in light of the norms of the
Constitution.
This amputatory way, I may note, has in fact been the American
way — a branch of what we call the ‘state action’ doctrine — of
preserving a last-resort domain for the supreme courts of the states
that is proof against United States Supreme Court review. 25 But of
course that method — of cordoning off (say) private law from federal
constitutional inspection, as the American ‘state action’ rule is meant
in part to do — may seem too high a price to pay for whatever benefits
(say, of focus, expertise, or administrative efficiency) one might
perceive in preserving multiple courts of last resort, each presiding
over some different branch of the country’s law. If you are resolved
to refuse absolute insulation of any part or particle of the law from
constitutional inspection, as has world-famously been true in South
Africa (your horizontality jurisprudence being continuing front-page
news in comparative constitutionalism circles), then to make your
constitutional court the sole appellate tribunal for matters
implicating the constitution would be, in effect, to make it the sole
appellate tribunal, period, and hence the sole tribunal of last resort
for all points of law arising in cases that enter the judicial system. Or
so the events recounted above suggest to me — and so, evidently, did
the drafters of the Final Constitution wisely conclude.
These events show that the question of restricting to
constitutional matters the tribunal that pronounces with finality on
such matters cannot usefully be addressed without simultaneously
facing the question of what fraction of all legal matters the category
of constitutional matters takes in — which really amounts to the
question of what sorts of norms you wish your constitution to contain.
At one extreme, call it the narrow one, the choice might be to restrict
constitutional-legal norms to those setting the formal rules and
protocols for electing the government and the legislature, for the
enactment of statutes, and the like, and leave everything else to the
free and unrestricted choice of Parliament. Limitation of a court’s
jurisdiction to constitutional matters would then really mean
something. At the other extreme, call it the sweeping one, the choice
might be to write into the Constitution broadly couched substantive
25 A signature decision is Flagg Bros. Inc. v Brooks 436 US 149 (1978)(holding, in
effect, that ordinary private and commercial law are not products of ‘state
action’ coming within the (allegedly strictly vertical) purview of the US
Constitution’s guarantees respecting individual rights, and calling ‘intolerable’
the thought that every case coming to court in the US is potentially a
constitutional case reviewable by the Supreme Court).

Frank I Michelman 59
protections for dignity, freedom, equality, property, privacy,
expression, and for the right to be treated with legality, then make
some or all of those protections unambiguously applicable to all the
conduct and transactions that occur in civil society, ‘private’ as well
as ‘state’, ‘horizontal’ as well as ‘vertical’. And then the nominal
limitation of the court to constitutional matters will not prevent the
constitutional court from seizing control of any matter that it believes
requires its attention.
Let us now return to that other dimension I mentioned of the
‘centralised’/‘decentralised’ review discussion, the question of
reserving to a single appellate tribunal the authority to pronounce at
all on questions of constitutional law, whether or not with finality.
Again, the South African case suggests strongly that the question
cannot be decided intelligently without facing at the same time the
question of how sweeping or how narrow a body of norms are to be
encompassed within the country’s constitutional law. If the choice
approaches South Africa’s in the direction of sweepingness, then
confinement of appellate authority over constitutional matters to a
single tribunal will mean in effect, restriction to one of the number of
appellate tribunals for the entire legal system of the country — a
choice that for many countries will be out of the question. No doubt
most countries will be happy to restrict to one the number of last
resort tribunals for constitutional matters — indeed that comes
naturally to most of us as the option most strongly preferred (else how
will we resolve conflicts and disagreements of legal interpretation
that are bound to arise among multiple courts sitting on the same
level?) — but that is not the same question as the one of restricting to
one the number of competent appellate tribunals for constitutional
matters, which is what the South Africans at first tried to do but later
found impracticable as recounted above. South African constitutional
designers seem now to have settled comfortably on restricting to one
the number of last-resort appellate tribunals for constitutional
matters, but not the number of appellate tribunals having
competence in that field.
The South African experience may further suggest to some
adventurous minds what I am sure would be for most of us a jarring
and unexpected possibility. I have in mind the possibility of
deliberately designing a judicial system so that no single tribunal
figures as the sole available court of last resort for questions of
constitutional law, as those may arise in sundry cases entering the
judicial system at sundry points of entry. Something closely
resembling such a multiple-peaks arrangement was, after all, the
proposal of the Supreme Court of Appeal deciding Container Logistics,

60 Chapter 4
at least for cases engaging the norm of legality. 26 No doubt we all
would say that for any given case there must be a single court of last
resort. That is true by definition (what would it mean to say that there
is more than one court of last resort for any given case?) — and a good
thing, too, in the sight of all who share the commonsense view that
every episode of litigation had best come to an end sometime. Saying
so does not, however, answer the question, prompted by the South
African story, of whether or why, one and the same court must serve
as court of last resort in every single case that turns on a point of
constitutional law. Why not share out the work? Why not have two or
more tribunals (or sets of tribunals) authorised and available to act as
court of last resort in constitutional cases? There would be some
serious detriments in such an arrangement, to be sure, but might
there also be some benefits?
In South Africa, as things stand, the more-than-one tribunals of
last resort in constitutional matters would be the Constitutional Court
and the Supreme Court of Appeal. (The required tweak is simple: Just
revoke the former court’s power of review of decisions of the latter
in constitutional matters.) In the US, the multiple tribunals of last
resort in matters of US constitutional law would presumably be the
federal Supreme Court on the one hand and the set composed of the
highest courts of the states on the other hand. As it happens, that’s
not the way it works in the US. Americans have avoided that result by
our choice to provide for US Supreme Court review of state supreme
court decisions on points of federal constitutional law. But was that a
necessary choice, an inevitable choice? Judge Learned Hand found it
so in his famous Holmes Lectures, 27 and still I must say it appears just
a shade less inevitable to me now than it once did — largely as a result
of my study of South African case law. (That is not to say I would
recommend any change in our practice to Americans just now.)
A multiple-peaks possibility for South Africa was more-or-less
placed on the table by the Supreme Court of Appeal deciding
Container Logistics. It was rejected by the Constitutional Court in
Pharmaceutical Manufacturers, it would seem definitively (the only
question now under live debate being official expansion to plenary of
the last-resort jurisdiction possessed solely by the Constitutional
Court). As matters now stand, the Constitutional Court is vested with
power to review any and every decision on a point of South African
law rendered by any other court in the system, the only pre-
26 ‘Closely resembling’, I say, but not quite the same thing. The proposition of the
Supreme Court of Appeal was that it might invalidate one or another government
action on the ground of deviation from a common-law norm of legality which is
not at the same time a norm of constitutional law and so (this was the clearly
intended implication) does not give rise to a constitutional matter reviewable by
the Constitutional Court.
27 L Hand The Bill of rights: The Oliver Wendell Holmes lectures (1958).

Frank I Michelman 61
conditions being that (a) the Court’s attention is actively invited by
someone with standing to invite it (a rather loose but not negligible
condition under your Constitution’s generous provisions on standing),
and (b) (in many but not all cases) the Court sees fit to undertake
review. Such a resolution, I have maintained, has surely been correct
in South African circumstances. A question that remains is whether
the same is necessarily so for every other country. The disadvantages
of a multiple-peaked arrangement are clear and well-understood.
Study of the South African case law may prompt one to think more
seriously than most of us have done hitherto about what its possible
advantages might be, in a country at a different stage in its
constitutional-legal history.

5 Reply
On the reach of the Constitution and the
nature of constitutional jurisdiction:
A reply to Frank Michelman 1
Justice Kate O’Regan
1 Introduction
Thank you for the invitation to participate in this discussion. I would
like to preface my remarks by complimenting the editors and authors
on the publication of the second edition of Constitutional Law of
South Africa. As somebody engaged daily with research on constitutional
law in South Africa, I can say that this text is always useful
and so I am delighted that a new edition has been published. I am sure
it will enrich the quality of research and debate on constitutional law.
I would particularly like to record my gratitude to the authors and
editors, as I know a text of this sort is very labour intensive; and that
extraordinarily long hours are worked for little material reward. I am
sure I speak on behalf of many of us here in offering our appreciation
of those efforts.
1 This response was offered in response to Professor Michelman’s original Chapter
in CLoSA. See F Michelman ‘The rule of law, legality and the supremacy of the
Constitution’ in S Woolman et al (eds) Constitutional Law of South Africa (2nd
Edition, OS, 2005) Chapter 11, available at www.westlaw.com. This text is based
on a transcript of the remarks I made on the first evening of Constitutional Law
of South Africa Public Lecture Series (March 2006). I have merely edited and
clarified those remarks. I have chosen this course, partly due to time constraints,
and partly in a choice to record the remarks I actually made. That means, of
course, that I have not supplemented that transcript to include comments on
Professor Michelman’s revised speech published in this volume.
63

64 Chapter 5
Thank you too for the opportunity to respond to Professor
Michelman, a constitutional lawyer whom I much admire. I thoroughly
enjoyed reading Chapter 11 of Constitutional Law of South Africa,
‘The rule of law, legality and the supremacy of the Constitution’.
There can be no doubt that discussions of the sort facilitated by
this conference are of great value in contributing to our
understanding of constitutional democracy. Nevertheless, I must also
say, at the outset, that I found preparation for our discussion difficult
for two inter-related reasons. First, as a sitting judge, there are
important concerns of confidentiality and appropriate judicial
reticence which limit the scope of my comments. It is my view that,
as a matter of jurisprudential philosophy, every effort should be made
in a judgment to articulate the premises and assumptions on which it
is founded. At times, the result of this philosophy may have been, and
may still be, to expand the boundaries of the doctrine of judicial
notice beyond the terrain in which it has ordinarily been applied to
enable the description of social, economic and political context in
judicial decision making.
Such a philosophy, while accepting that it has epistemological
limits and recognising that there is always a potential for judicial selfdelusion,
is, in my view, the proper approach to judicial reasoning in
a constitutional democracy that asserts as founding values openness,
responsiveness and accountability. 2 In responding to the text of the
chapter written by Professor Michelman, I rely largely on the
reasoning to be found in the judgments of the Constitutional Court.
The second difficulty lies in the fact that Professor Michelman’s
chapter runs to some 60 pages. I did not have the text of what he was
going to say this evening, which differs somewhat from the chapter
and understandably expands on some of its reasoning. So I thought it
might be easiest if I started by identifying the arguments to which I
was responding. Having heard him speak this evening, it is clear that
my remarks are directed at aspects of the chapter which he has not
repeated in full. In addition, he has raised some other arguments
tonight which I will not have time to address. In the circumstances, it
will be particularly helpful for me to start by explaining to what I am
responding. I also accept that I may have misunderstood his reasoning
in the chapter, and to the extent I have, I apologise in advance.
The propositions to which I would like to respond are twofold. The
first is that the development of the doctrine of legality by the
Constitutional Court was not based on any constitutional text or
principle; 3 and that the effect of the doctrine of legality is to render
2
See FC sec 1.
3 See Michelman (n 1 above) 11-3.

Reply - Justice Kate O’Regan 65
the jurisdiction of the Constitutional Court plenary and
simultaneously to diminish the final appellate jurisdiction of the
Supreme Court of Appeal. 4
The second proposition is that the effect of the Constitution is
threefold: to render the norms of the Constitution supreme over other
legal norms; to render them (the constitutional norms) ‘pervasive’, in
the language that Professor Michelman uses in the chapter, which
means that they influence the development of all other legal norms;
and to render them the legal basis for all other norms. 5
In formulating a response to these two propositions, it seems to
me that there are four issues that I wish to address. First, I want to
start by considering the scope or ambit of our Constitution. Secondly,
I want to look at the issue of the unity and the coherence of our legal
system. Thirdly, I shall talk a little bit about the doctrine of legality.
And finally I shall talk briefly about the jurisdiction of the Supreme
Court of Appeal and the Constitutional Court.
2 A supreme, pervasive and foundational Constitution
Professor Michelman commences his CLoSA chapter by stating that
‘constitutional law [is] the law that structures and arranges political
and legal institutions, their workings, and their interactions.’ 6 Now
this definition of constitutional law is a perfectly competent
definition of the constitutional law in many legal systems. Moreover,
it describes, at least in part, what our Constitution does. Our
Constitution does structure the arrangements of government. Indeed
the definition is probably an entirely adequate definition of the
apartheid constitution. But it is not an adequate definition to capture
the full scope of constitutional law in the new South African legal
order. It is important to start by recognising the full ambit of
constitutional law in South Africa.
Sections 167 and 168 of the Constitution which established the
jurisdiction of the Constitutional Court, on the one hand, and the
Supreme Court of Appeal, on the other, are a primary focus of the
chapter. Professor Michelman reasons, in effect, that because it is
clear that the drafters intended the Supreme Court of Appeal to have
final jurisdiction in matters that are not constitutional, understanding
the Constitution to have a broad ambit cannot be correct. 7 This is a
matter to which I shall briefly return later.
4 n 1 above, 11-11 – 11-12.
5 n 1 above, 11-37.
6
n 1 above, 11-1.
7 n 1 above, 11-4 – 11-12.

66 Chapter 5
It seems to me that the proper starting point is the relationship of
the Constitution to the legal system generally. That relationship
needs to be understood in the light of the text and the context of our
Constitution.
In approaching this question, our Constitution needs to be
understood in its historical context. Our Constitution is emphatically
a constitution that compels social transformation. This is plain from
both its text, in particular, the preamble, 8 and from its context. This
commitment has been recognised by the Constitutional Court and
other courts on many occasions.
Secondly, I would assert that in approaching and understanding
the scope of the Constitution, the Constitution must be understood as
establishing a coherent system of both government and law in South
Africa. In this regard I am persuaded by the writing of Professor
Charles Black, 9 an American professor of constitutional law, who
recognised that constitutions, by their very nature, establish systems
of government that need to be interpreted coherently in the light of
the overall structure established. Text is important, but
understanding the framework and structure of the overall scheme is
as important.
A third proposition of great relevance in the light of the second
is, as Professor Michelman has mentioned, that the provisions of our
Constitution are among the most comprehensive to be found
anywhere. We often talk about the comprehensiveness of the Bill of
Rights — which refers to the fact that our Bill of Rights contains rights
not to be found in other constitutions, such as administrative law, 10
8 The Preamble provides in relevant part:
We therefore, through our freely elected representatives, adopt this
Constitution as the supreme law of the Republic so as to — Heal the
divisions of the past and establish a society based on democratic values,
social justice and fundamental human rights; Lay the foundations for a
democratic and open society in which government is based on the will of
the people and every citizen is equally protected by law; Improve the
quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place
as a sovereign state in the family of nations.
9 C Black Structure and relationship in constitutional law (1969).
10 Sec 33 of the Constitution provides:
(1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights,
and must:
(a) provide for the review of administrative action by a court or,
where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c) promote an efficient administration.

Reply - Justice Kate O’Regan 67
labour law, 11 environmental law 12 and social and economic rights. 13
The sheer range of rights is therefore comprehensive, but the scope
of the Bill of Rights is even more comprehensive because, as section
8 makes plain, many of the rights in the Bill of Rights will bind private
11 Sec 23 of the Constitution provides:
(1) Everyone has the right to fair labour practices.
(2) Every worker has the right:
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union;
and
(c) to strike.
(3) Every employer has the right:
(a) to form and join an employers’ organisation; and
(b) to participate in the activities and programmes of an employers’
organisation.
(4) Every trade union and every employers’ organisation has the right:
(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers’ organisation and employer has the
right to engage in collective bargaining. National legislation may be
11 enacted to regulate collective bargaining. To the extent that the
FC sec
legislation
23 provides:
may limit a right in this Chapter, the limitation must comply
(1) with Everyone section 36(1). has the right to fair labour practices.
(2) (6) Every National worker legislation has the right: may recognise union security arrangements
contained (a) to form in collective and join agreements. a trade union; To the extent that the legislation may
limit (b) a right to participate in this Chapter in the the activities limitation and must programmes comply with of a section trade union; 36(1).
12 Sec 24 provides: and
Everyone (c) to has strike. the right:
(3) Every (a) to employer an environment has the right: that is not harmful to their health or wellbeing;
form and
join an employers’ organisation; and
(b) to participate have the environment in the activities protected, and programmes for the benefit of an of present employers’ and
(a) to
organisation.
future generations, through reasonable legislative and other
(4) Every measures trade union that: and every employers’ organisation has the right:
(a) to (i) determine prevent pollution its own administration, and ecological programmes degradation; and activities;
(b) to (ii) organise; promote and conservation; and
(c) to (iii) form secure and join ecologically a federation. sustainable development and use of
(5) Every trade natural union, resources employers’ while organisation promoting justifiable and employer economic has the and
right to engage social in development.
collective bargaining. National legislation may be
13 See, enacted for example, to regulate secs 26 and collective 27. Sec 26 bargaining. provides: To the extent that the
legislation (1) Everyone may has limit the a right right to in have this access Chapter, to adequate the limitation housing. must comply
with (2) The section state 36(1). must take reasonable legislative and other measures, within
(6) its available National resources, legislation to may achieve recognise the progressive union security realisation arrangements
of this right.
contained (3) No one in may collective be evicted agreements. from To their the home, extent or that have the their legislation home
may demolished, limit a right without in this an Chapter order of the court limitation made must after comply considering with section all the
36(1).
12 relevant circumstances. No legislation may permit arbitrary evictions.
Sec 27 Sec provides: 27 provides:
13 (1) Everyone has the right to have access to:
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, including, if they if are they unable are to unable support to themselves support
themselves and their dependents, and their dependents, appropriate appropriate social assistance. social assistance.
(2) The state must take reasonable legislative and other measures, within
its available resources, to achieve the progressive realisation of each of
these rights.
(3) No one may be refused emergency medical treatment.

68 Chapter 5
individuals and corporations, as well as the state. 14 The Constitution
also requires courts, when developing the common law or interpreting
statutes, to promote the spirit, purport and objects of the Bill of
Rights. 15 In considering the range of the Constitution, it is also
important to note its remedial provisions. They are unusual. A court
that finds law or conduct to be inconsistent with the Constitution
must declare it to be invalid 16 though courts are given powers to issue
further ‘just and equitable’ orders to mediate the effect of a
declaration of invalidity. Finally, it should be noted that the
Constitutional Court has the inherent jurisdiction to develop the
common law, along with the Supreme Court of Appeal and the High
Courts. 17
A further crucial textual pointer lies in the transitional provisions
of both the Interim Constitution and the 1996 Constitution. Both
Constitutions confirmed that old laws continued in force only to the
extent that they were not inconsistent with the new Constitution. 18
Thus, the transitional provisions ensured the continued validity of
14 Sec 8(2) of the Constitution provides: ‘A provision of the Bill of Rights binds a
natural or a juristic person if, and to the extent that, it is applicable, taking into
account the nature of the right and the nature of any duty imposed by the right.’
15 Sec 39(2) provides: ‘When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights.’
16 Sec 172(1) provides:
(1) When deciding a constitutional matter within its power, a court:
(a) must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including:
(i) an order limiting the retrospective effect of the declaration
(ii)
of invalidity; and
an order suspending the declaration of invalidity for any
period and on any conditions, to allow the competent
authority to correct the defect.
17 Sec 173 provides: ‘The Constitutional Court, Supreme Court of Appeal and High
Courts have the inherent power to protect and regulate their own process, and to
develop the common law, taking into account the interests of justice.’
18 Item 2 of schedule 6 of the 1996 Constitution provides:
(1) All law that was in force when the new Constitution took effect,
continues in force, subject to:
(a) any amendment or repeal; and
(b) consistency with the new Constitution.
(2) Old order legislation that continues in force in terms of subitem (1):
(a) does not have a wider application, territorially or otherwise, than
it had before the previous Constitution took effect unless
subsequently amended to have a wider application; and
(b) continues to be administered by the authorities that administered
it when the new Constitution took effect, subject to the new
Constitution.
Sec 229 of the Interim Constitution (Constitution of the Republic of South Africa
Act 200 of 1993) provided:
Subject to this Constitution, all laws which immediately before the
commencement of this Constitution were in force in any area which forms
part of the national territory, shall continue in force in such area, subject
to any repeal or amendment of such laws by a competent authority.

Reply - Justice Kate O’Regan 69
law, but on condition only that the old laws were not inconsistent with
the new text. It is not surprising that the continuance of old laws was
rendered conditional in this way. Under the old apartheid order,
legislation was made by an undemocratic parliament and both the
substance and the legitimacy of the legislation it enacted was
therefore questionable. The new Constitution provides a basis for
legal continuity by asserting that as long as old law is consistent with
the new Constitution it will continue as law. The legal basis for the
continued validity of the old law is therefore the imprimatur
bestowed by the Constitution itself.
Finally, and perhaps most importantly, in looking at this overall
scope of our Constitution, the Constitution starts with a section which
establishes the founding values of our state. 19 These values include
the values of human dignity, the achievement of equality, the
advancement of human rights and freedoms, non-racialism and nonsexism,
the supremacy of the Constitution and the rule of law. In so
doing, our Constitution makes clear that it is introducing a normative
value system upon which our society must be ordered. The scope of
such a constitution goes far beyond the minimalism of the definition
of constitutional law mentioned by Professor Michelman at the start
of his chapter. Not only does the Constitution structure the
relationships of government but it requires a fundamental law reform
project in terms of which all existing laws’ validity must be
determined through the prism of the new Constitution. This is not a
trifling constitution fiddling with the edges of a legal system. It
restates the legal basis for all law in a normative manner and so has
a substantive effect on the legal system including legal reasoning and
the common law. It is indeed a supreme, pervasive and foundational
Constitution.
The radical character of the Constitution is unsurprising in a
country undergoing a political revolution through the means of
constitutional change in order to overcome both an evil and an unjust
past and the consequences of that past. To say those consequences
require urgent redress may seem obvious — but our Constitution
expressly commits us to such an urgent response. Thus, the
Constitution did more than establish a democracy and create a bill of
19
Sec 1 of the 1996 Constitution provides:
The Republic of South Africa is one, sovereign, democratic state founded
on the following values:
(a) Human dignity, the achievement of equality and the advancement
of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular
elections and a multi-party system of democratic government, to
ensure accountability, responsiveness and openness.

70 Chapter 5
rights. It made clear that the continuity of our legal system was
maintained on condition only that it would be consistent with our new
constitutional norms.
In my view the new Constitution’s legal reform goes beyond the
content of law to require a change in the techniques of jurisprudence.
I have not been able to consider sufficiently the remarks about legal
reasoning Professor Michelman has made towards the end of his
presentation, but I think they are not inconsistent with the
proposition that legal reasoning under our new constitutional order
needs to be different from how it was. Legal reasoning must embrace
the normative values of the Constitution. However, I do not want to
suggest that all legal reasoning must be primary order reasoning at
high levels of abstraction. The implications of the Constitution for
legal reasoning do not mean that we ditch secondary-level rules —
rules of the common law, for example — in favour of primary-level
reasoning alone. The main effect of the Constitution is to require
courts to fill normative concepts in our legal system with the values
of the Constitution, not with the open-textured concepts of the past,
such as ‘the legal convictions of the community’. 20 A more nuanced
understanding of the Constitution’s implications for legal reasoning is,
unfortunately, beyond the brief time allocated to me this evening.
Our Constitution thus does far more than provide the structures of
government, (which it also does). It heralds a fundamental change in
the basis of the legal system. It states explicitly the norms which
underlie our constitutional order and binds the judiciary (and other
arms of government) to give effect to these norms.
Perhaps where I disagree with Professor Michelman is that the text
of our Constitution is reasonably capable of a minimalist understanding.
I do accept that there are times that legal principles are
capable of producing different legal answers, all of which may be
reasonable. I do not believe that a minimalist understanding of our
20
See Carmichele v Minister of Safety and Security & Another (Centre for Applied
Legal Studies Intervening) 2001 4 SA 938 (CC), 2001 10 BCLR 995 (CC) para 56
where it is stated that:
Before the advent of the Interim Constitution, the refashioning of the
common law in this area entailed ‘policy decisions and value judgments’
which had to ‘reflect the wishes, often unspoken, and the perceptions,
often but dimly discerned, of the people’. A balance had to be struck
between the interests of the parties and the conflicting interests of the
community according to what ‘the (c)ourt conceives to be society's
notions of what justice demands’. Under s 39(2) of the Constitution
concepts such as ‘policy decisions and value judgments’ reflecting ‘the
wishes ... and the perceptions ... of the people’ and 'society's notions of
what justice demands’ might well have to be replaced, or supplemented
and enriched by the appropriate norms of the objective value system
embodied in the Constitution. (footnotes omitted).

Reply - Justice Kate O’Regan 71
Constitution would have been a reasonable one in the light of both its
text and context as I hope I have described to you this evening.
3 The unity and the coherence of the legal system
The second issue that I want to address is the unity of our legal
system. The question that arises is whether the Constitution envisages
a united and coherent system of law governed by one set of principles
and values, or a bifurcated system or indeed possibly, as Professor
Michelman suggests, three or four or even five different legal systems
governed by different principles and values which would result in the
Constitution leaving unaffected areas of the common law and
customary law. Professor Michelman suggests that the Constitution
could have been interpreted to permit a pluralist legal system based
on different rules and legal values: For example, a constitutional
doctrine of legality could have run concurrently with a common law
doctrine of legality, which might have been different in content, and
would have been adjudicated not by the Constitutional Court but by
the Supreme Court of Appeal. He suggests that such an approach
might have given a greater area of final jurisdiction to the Supreme
Court of Appeal, even if the cost might have been to introduce some
level of incoherence or inconsistency into the overall legal system.
One of the early questions the Constitutional Court had to
consider was what the relationship would be between common-law
remedies in areas of the law covered by the Bill of Rights, and direct
constitutional remedies. There was no doubt that the Constitution
required infringements of the Constitution to be remedied. 21 The
question was whether the Constitution, properly interpreted,
permitted a claim under common law, for example in the area of
administrative law, as well as a simultaneous constitutional claim
directly under the provisions of section 24 of the interim Constitution
which entrenched the right to administrative justice. The question
has also arisen in the area of personal damages for alleged assaults by
the police. 22 Bear in mind that if that were to be so, it might have
been quite possible to have a successful claim under say, the
Constitution, but not under the common law, or vice versa. The two
systems could have co-existed side by side, perhaps based on entirely
different rules.
21 Sec 38 of the Constitution provides in part: ‘Anyone listed in this section. Has the
right to approach a competent court, alleging that a right in the Bill of Rights has
been infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights.’
22 See Fose v Minister of Safety and Security 1997 3 786 (CC), 1997 7 BCLR 851 (CC)
where the question was whether a plaintiff could sue for constitutional damages
in addition to delictual damages.

72 Chapter 5
Were the Constitution to have been so interpreted, assuming for
a moment it was capable of such an interpretation, the scope for
duplication of claims in our legal system would have been extensive,
particularly as the 1996 Constitution makes clear that many of the
rights in the Bill of Rights bind private individuals as well as the state.
Two causes of action could have arisen, for example, where a person
complained of an infringement of dignity, or personal liberty, or
security of the person. The first would have been under the actio legis
aquiliae or actio injuriarum, (depending on the nature of the claim)
and the other a constitutional remedy. Duplication could have arisen
in labour law, administrative law, environmental law, the right to
freedom and security of the person and even criminal procedure.
Again, with the distinction between the jurisdiction of the
Constitutional Court, on the one hand, and the Supreme Court of
Appeal, on the other, these claims could have been resolved in
different courts, with potentially very different outcomes and scant
jurisprudential cross-pollination.
The question whether the Constitution always gives rise to a freestanding
cause of action, even where an appropriate common law or
statutory remedy already exists, has been answered in the negative
by the Constitutional Court. Textual support for this conclusion is to
be found in section 39(2): 23 Section 39(2) requires the common law
and statutes to be developed and interpreted in a manner that is
consistent with the spirit, purport and object of the Bill of Rights.
Section 173 24 makes it clear that the Constitutional Court has the
inherent jurisdiction to develop the common law. The question has
perhaps been most thoroughly considered in the area of
administrative law in the cases analysed by Professor Michelman.
Fedsure, 25 and perhaps more emphatically, Pharmaceutical
Manufacturers, 26 made clear that the Interim Constitution and now
the 1996 Constitution do not contemplate a dualist system of
administrative law with a duplication of remedies, but rather that
existing common-law remedies should give effect to the
constitutional right to administrative justice and be developed and
interpreted in the light of that right.
One of the most important reasons for this conclusion was the
dubious legal and constitutional basis for administrative law prior to
1994. The questions ‘why do the courts have the power to review
administrative decisions?’ and ‘what is the ambit of that power?’ were
23 See n 15 above.
24 See n 17 above.
25
Fedsure Life Assurance Ltd & Others v Greater Johannesburg Transitional
Metropolitan Council & Others 1999 1 SA 374 (CC), 1998 12 BCLR 1458 (CC).
26 Pharmaceutical Manufacturers Association of SA & Another: In re Ex Parte
President of the Republic of South Africa & Others 2000 2 SA 674 (CC), 2000 3
BCLR 241 (CC).

Reply - Justice Kate O’Regan 73
troubling questions for public lawyers in South Africa as they have
been troubling administrative lawyers in the United Kingdom and
other Commonwealth countries. 27 As the Constitutional Court said in
Pharmaceutical Manufacturers:
The control of public power by the courts through judicial reviews is and
has always been a constitutional matter. Prior to the adoption of the
interim Constitution this control was exercised by the courts through the
application of common-law constitutional principles. Since the adoption
of the interim Constitution such control has been regulated by the
Constitution which contains express provisions dealing with these
matters. 28
The precise constitutional basis for the common law principles of
judicial review during the apartheid years was generally undertheorised
and the absence of clear principles often had a harmful
effect on the development of administrative law and its system and
method. In South Africa, of course, the undemocratic and racist
character of the South African parliament further rendered the
understanding of judicial review complex and contested.
But the constitutional revolution changed all this. The text of the
1996 Constitution made explicit as founding values the rule of law and
the supremacy of the Constitution; and the Bill of Rights established
a right to administrative justice. The courts’ role in protecting the
right to administrative justice now springs directly from the
Constitution and not from some implied and inarticulate
understanding of the former constitutional dispensation.
The judgment in Fose makes plain that common law remedies will
often be adequate and appropriate relief for infringement of
constitutional rights 29 and that there are powerful reasons for not
excluding them in favour of creating new forms of constitutional
remedies. The result is that the Constitution does not foster a divided
legal system split between the common law and the Constitution;
between old methods of legal reasoning and a new constitutional,
normative system of reasoning; and between a venerable court with
nearly a century of history behind it and a Johnny-come-lately with
27 See TRS Allan ‘The constitutional foundations of judicial review: Conceptual
conundrum or interpretative inquiry?’ (2002) 61(1) Cambridge Law Journal 87;
TRS Allan ‘Doctrine and theory in administrative law: An elusive quest for the
limits of jurisdiction’ (2003) Public Law 429; NW Barber ‘The academic
mythologians’ (2001) 21 Oxford Journal of Legal Studies 369; P Craig & N
Bamforth ‘Constitutional analysis, constitutional principle and judicial review’
(2001) Public Law 763; P Craig ‘Constitutional foundations, the rule of law and
supremacy’ (2003) Public Law 92; C Forsyth ‘Of fig leaves and fairytales: The
ultra vires doctrine, the sovereignty of parliament and judicial review’ in C
Forsyth (ed) Judicial review and the Constitution (2000).
28
n 26 above, para 33.
29 n 22 above, paras 98-99.

74 Chapter 5
only a decade of decision-making under its belt. No, the Constitution
envisages a unified legal system within an overall objective,
normative framework provided by the explicit text of our
Constitution. That legal system encompasses statute law, common
law and customary law and subjects them all to the discipline of
compliance with constitutional norms and values. All courts are
enjoined to work within this unified system on the foundation of the
constitutional text.
This means, simply, that each area of the law requires careful
consideration to determine whether it complies with the
constitutional framework or not. No area of the law is exempt from
reconsideration but many will require little, if any re-cultivation.
Some areas of law have already seen significant development both by
the Supreme Court of Appeal and the Constitutional Court and also
usefully by the legislature, sometimes under express constitutional
direction: I think for example of legislation regulating access to
freedom of information, the promotion of equality, and the
promotion of administrative justice, to name a few areas.
I would now like to respond very briefly to what Professor
Michelman said at the end of his remarks about legal pluralism. It is
clear, as the Constitutional Court enunciated in Carmichele, 30 that
the law might quite constitutionally regulate an issue in several
different ways. And which way is selected may be left either to the
legislature or to other courts to determine. This possibility, however,
does not mean that there is more than one legal system. There is still
one legal system whose precise content is not entirely or perhaps even
substantially determined by the Constitution. But it is not correct to
say that because you may have different ways of regulating a matter
constitutionally, you no longer have one legal system. Similarly, I am
anxious about describing the possibility of different but
constitutionally competent ways of regulation as ‘legal pluralism’. It
is clear from the text of our Constitution that we do have a legally
pluralist society. 31 The area of family law is the classic example
where we have different communities, different cultures and
different systems of family law. What is clear from the Constitution
is that all those systems of family law may exist as long as they are
30 Carmichele (n 20 above).
31
See, for examples, secs 211 and 212 which provide for customary law and
traditional leadership.

Reply - Justice Kate O’Regan 75
consistent with the Constitution. 32 Within the constitutional
framework, the rules of family law may be developed by the courts or
the legislature. The recognition of pluralism, within an overall
normative constitutional framework, seems to me to be one of the
strengths of our constitutional structure.
4 Legality
I turn now to the doctrine of legality. I am not going to repeat what
Fedsure was about in any great detail. The case was pleaded as an
administrative law ultra vires case, and concerned the passing of
rates by-laws by a municipality. The Constitutional Court said:
The constitutional status of a local government is thus materially
different to what it was when Parliament was supreme, when not only
the powers but the very existence of local government depended
entirely upon superior legislatures. The institution of elected local
government could then have been terminated at any time and its
functions entrusted to administrators appointed by the central or
provincial governments. That is no longer the position. Local
governments have a place in our constitutional order, have to be
established by the competent authority, and are entitled to certain
powers, including the power to make by-laws and impose rates. 33
The question that then arose was whether a local government which
acted outside its empowering legislation was acting lawfully or not,
and whether that was a constitutional question. The Court held
unanimously that it was.
I can think of no more fundamental doctrine in a constitutional
democracy than the notion that all arms of government, particularly
the executive, must act within the terms of their legal authority.
Time does not permit the citation of a range of august authorities to
support this statement. One may look at the German constitutional
principle of the rechtstaat, the French principle of état de droit; or
Jefferson’s assertion that the United States of America should have a
government of law, not men: all assert the principle that in a
constitutional democracy, the executive and legislative arms of
government have no power other than that conferred upon them by
32 Sec 15(2) provides:
Religious observances may be conducted at state or state-aided
institutions, provided that:
(a) those observances follow rules made by the appropriate public
authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.
33 Fedsure (n 25 above) para 38.

76 Chapter 5
law or the constitution. The principle flows from the fundamental
purpose and principles of the Constitution itself.
To suggest that the authority for the doctrine of legality arises in
South Africa from the common law and not from the Constitution
seems to me to misunderstand the purpose and ambit of the
Constitution. This seems to be all the more plain given the troubled
normative status of the common-law remedies in our previous
constitutional dispensation to which I have already referred. The
fundamental constitutional character of the doctrine of legality
becomes apparent when one considers whether it would be
constitutionally legitimate for parliament to enact law that would
suggest that local government could act beyond its powers with
impunity. Could parliament enact a statute which states — simply and
without any meaningful guidance — that a municipality can act
beyond the scope of Municipal Structures Act 34 without anybody
raising a constitutional eyebrow? I think not. And I think that is
because we have a deep-seated principle of legality in constitutional
democracy that requires lawful, rational conduct of the executive and
legislative arms of government.
The last thing I want to say about the doctrine of legality is to
respond to the proposition that the doctrine of legality renders the
jurisdiction of the Constitutional Court plenary. 35 This proposition
appears to be based on an assertion that where a court reaches a
decision on the law or facts which an appellate court may consider to
be wrong, it acts inconsistently with the principle of legality. The
consequence would be that the Constitutional Court would be able to
interfere with that judgment no matter what its subject matter and
regardless of the fact that the Constitutional Court only has
jurisdiction over constitutional matters.
In my view this reasoning is not founded on any existing
constitutional jurisprudence other than a statement in
Pharmaceutical Manufacturers which was dealing with executive
power at the margins of legislative power: That statement is to the
effect that all public power should be exercised lawfully. 36 At least
two other judgments of the Constitutional Court would suggest that
the line of reasoning is flawed. In both Boesak 37 and Metcash, 38 the
Court held that there are decisions of lower courts which, even if
wrong on the facts, do not give rise to constitutional matters unless
some separate constitutional issue arises.
34 Act 117 of 1998.
35
See Michelman (n 1 above) 11-11.
36 Pharmaceutical Manufacturers (n 26 above) para 79.
37 S v Boesak 2001 1 SA 912 (CC), 2001 1 BCLR 36 (CC), 2001 1 SACR 1 (CC).
38
Van der Walt v Metcash Trading Limited 2002 4 SA 317 (CC), 2002 5 BCLR 454
(CC).

Reply - Justice Kate O’Regan 77
5 Jurisdiction of the Constitutional Court and the
Supreme Court of Appeal
The final issue I would like to deal with is the relative jurisdiction of
the Constitutional Court and the Supreme Court of Appeal. Time does
not permit me to spend a lot of time on this matter and indeed some
of my remarks have already adverted to this question. What I would
like to emphasise, is that the Constitutional Court has always
acknowledged the crucial role the Supreme Court of Appeal in
developing the common law in the light of the spirit, purport and
objects of the Bill of Rights. 39 This acknowledgment is based on a
recognition of the particular expertise of the Supreme Court of
Appeal. The Court has also emphasised the need for the Constitution
to live in all courts in South Africa. This assertion is based on the fact
that if the Constitution were to live only in the judgments of the
Constitutional Court it would have little life in our legal system at all.
The Constitutional Court is a specialist court, it sits en banc with 11
judges and its ability to hear cases is limited. Contrast its limited
ability to hear cases with the thousands and thousands of cases heard
by courts throughout our country in any year. The principle of
recognising the importance of the Constitution living in other courts
throughout our legal system is to make sure that the rights and
provisions of the Constitution live in our law in a real way.
The final issue in relation to the jurisdiction of the two courts is
the troubled question ‘what constitutes a constitutional matter’?
Difficulty arises in answering it because of the broad scope of our
Constitution (to which I have referred); and the fact that there are
not other legal systems to look to for guidance. I want to deal,
particularly, however, with the argument which has often been put in
both academic debate and in legal argument to the Court, which can
perhaps most simply be described as the fact-law dichotomy. On this
argument, an issue of law may be a constitutional matter (or an issue
connected with a constitutional matter), but an issue of fact may
never be. The Constitutional Court has rejected this dichotomy as the
basis for determining the scope of its jurisdiction. 40 Too many cases
turn on the application of open-textured laws to facts in ways which
render a distinction between fact and law uncertain and indeterminate
and thus mean that the distinction does not provide a
principled and systematic basis for the determination of the Court’s
jurisdiction. Where an individual’s rights have been infringed because
39
40
See, for example, Amod v Multilateral Motor Vehicle Accidents Fund 1998 4 SA
753 (CC), 1998 10 BCLR 1207 (CC), Carmichele (n 20 above); and Fedsure (n 25
above).
Boesak (n 37 above) para 15; Rail Commuters Action Group & Others v Transnet
t/a Metrorail & Others 2005 2 SA 395 (CC), 2005 4 BCLR 301 (CC) paras 51-53.

78 Chapter 5
a legal norm has been applied to a set of facts in a manner oblivious
or careless of constitutional rights, a constitutional issue is raised.
6 Conclusion
In conclusion, the last ten years have seen a flowering of
constitutional jurisprudence in which the common law has been
developed to protect the rights entrenched in the Final Constitution.
Much of this development, particularly in the last five years, has
taken place in judgments of the Supreme Court of Appeal, and the
High Courts. In my opinion, one of the great strengths of our
Constitution lies in the fact that it requires every court to honour and
protect the rights of the Constitution. In so doing, it ensures that the
Constitution lives in all courts, and not only in the Constitutional
Court.
May I once again thank the organisers of the CLoSA Conference
and Public Lecture Series for this opportunity to respond to an
important chapter in the new edition of Constitutional Law of South
Africa; and I would like to again thank Professor Michelman for his
interesting and erudite analysis of the principle of legality in South
Africa that has given rise to this exchange of views.

6
THE PRINCIPLE OF
DEMOCRACY IN
SOUTH AFRICAN
*
CONSTITUTIONAL LAW*
Theunis Roux
1 Introduction
Given the interpretive function assigned to it by the Constitutional
Court in NICRO, 1 the logical place to start in trying to articulate the
principle of democracy in South African constitutional law is the
provision on founding values. FC section 1 reads:
The Republic of South Africa is one, sovereign democratic state founded
on the following values: ... (d) Universal adult suffrage, a national
common voters roll, regular elections and a multi-party system of
democratic government, to ensure accountability, responsiveness and
openness.
On its face, the principle of democracy that this provision supports is
one that attributes to the institutions of representative government a
particular purpose, namely, ‘to ensure accountability, responsiveness
and openness’. For this reading, though not for the argument of this
* This chapter is an extract from T Roux ‘Democracy’ in S Woolman et al (eds
Constitutional Law of South Africa (2nd Edition, OS, 2006) Chapter 10, available
at www.westlaw.com.
1 Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration
of Offenders (NICRO) & Others 2005 3 SA 280 (CC), 2004 5 BCLR 445
(CC) para 21.
79

80 Chapter 6
essay as a whole, the placement of the comma after ‘government’ in
FC section 1(d) is crucial. Without the comma, the words ‘to ensure
accountability, responsiveness and openness’ would have qualified
the phrase ‘multi-party system of government’ alone, and FC section
1(d) would for the most part have consisted of a list of institutions the
purpose of which was left unstated. But this is not the provision that
the Constitutional Assembly adopted. Nor is it a provision that would
have made very much sense. Listing a range of institutions without
any apparent purpose, except in the case of the last one, would have
been an odd way for the Constitutional Assembly to have gone about
articulating a founding value. Values, after all, provide standards
against which conduct may be measured, whereas institutions are
only valuable to the extent that they serve a valued purpose. The
grammatically correct reading is therefore also the reading that
makes best sense of the purposes underlying FC section 1(d). What the
placement of the comma after ‘government’ does is to make it clear
that the Final Constitution’s commitment to the institutions of
representative government is not a commitment to the value of these
institutions in and of themselves, but a commitment to a particular
kind of relationship between government and the governed, one in
which the people’s representatives are controlled by and responsible
to the people, and in which the reasons behind the exercise of
governmental power are publicly explained.
Put in this way, it is immediately apparent that FC section 1(d)’s
conception of democracy, and the deep principle of democracy it
supports, would be incompatible with a model of democracy in which
political parties vied for the people’s votes, only to ignore the people
once elected. In adopting FC section 1(d), the Constitutional Assembly
also conclusively rejected the somewhat sceptical view in certain
contributions to democratic theory about the quality of democracy in
a representative system. On the contrary, there is something of JS
Mill’s optimism about FC section 1(d) in the way it confidently draws
a causal link between the adoption of the institutions of
representative government and the consequences it assumes will
surely follow. To judge by FC section 1(d) alone, the principle of
democracy in South African constitutional law is something like this:
Government in South Africa must be so arranged that the people,
through the medium of political parties and regular elections, in which
all adult citizens are allowed to participate, exert sufficient control over
their elected representatives to ensure that: (a) representatives are
held to account for their actions; (b) government responds to the needs
of the people; and (c) the reasons for all collective decisions are publicly
explained.
Unfortunately, not all the cases read FC section 1(d) in this way. And
there’s the rub, for the principle of democracy must endeavour to

Theunis Roux 81
reconcile the best interpretation of the constitutional text with the
way the courts have in fact interpreted those same provisions. The
major stumbling block in the way of the interpretation of FC section
1(d) just offered is the decision of the unanimous Constitutional Court
in UDM. 2 In that case, the Court was asked to place a value-laden
construction on the commitment to multi-party democracy in FC
section 1(d) that would have prevented Parliament from changing the
then applicable electoral system so as to allow for floor-crossing. The
possible reasons behind the Court’s refusal to give such a value-laden
reading are discussed in the chapter from which this essay is drawn. 3
They are relevant here only to the extent that it is necessary to
discern whether the Court in UDM, in declining to interpret FC section
1(d) in the value-laden way it was asked to do, at the same time
attributed to FC section 1(d) a different set of values that have
changed the way in which the principle of democracy in South African
constitutional law must be stated. Here, at least, advocates of the
value-laden reading may be thankful for a bit of luck, for the Court in
UDM did not base its refusal to apply that reading on the primacy of a
countervailing set of values located in FC section 1(d), but on a
countervailing principle, extrinsic to FC section 1(d), namely, the
principle that, where the Final Constitution does not clearly prescribe
a particular model, the judiciary should defer to the legislature in
politically sensitive cases concerning the design of the electoral
system. Since that countervailing principle is not a principle located
in FC section 1(d) itself, it is not part of the normative universe that
needs to be taken into account when stating the principle of
democracy derivable from FC section 1(d). Rather, the principle that
the court should defer to the legislature in such cases is a selfstanding
principle, one that was accorded greater weight on the facts
of the UDM case, but one that will not be relevant to all cases in which
the principle of democracy is implicated.
The principle of democracy derived from the plain meaning of FC
section 1(d) accordingly survives UDM. Will it also remain unchanged
as the best interpretation of the legal materials when called upon to
explain the other provisions in the Final Constitution on democracy
and the cases decided under them? This is a complicated question and
it will be easier to answer it in two stages. First, it will be necessary
to consider whether the reading of FC section 1(d) offered at the
beginning of this essay fits with the other express references to
democracy in the Final Constitution and the rights in the Bill of Rights
2 United Democratic Movement & Others v President of the Republic of South
Africa & Others (African Christian Democratic Party & Others Intervening;
Institute for Democracy in South Africa & Another as Amici Curiae) (No 2) 2003 1
SA 495 (CC), 2002 11 BCLR 1179 (CC).
3
See T Roux ‘Democracy’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2006) § 10.3(b).

82 Chapter 6
that are integral to democracy. Once this task is complete, it will be
possible to decide whether the case law necessitates an amendment
to the principle of democracy discernible in the constitutional text.
2 The principle of democracy: The text
The principle of democracy derived from FC section 1(d) is supported
by the preamble. The first part of the preamble characterises
democracy not as a value-neutral set of procedures for achieving
other valued ends, but as a value system in itself. This is in keeping
with FC section 1(d)’s commitment to the institutions of representative
government as a means to ensure a particular kind of
relationship between government and the governed. The second part
of the preamble also affirms the core idea that democracy is a system
of government ‘based on the will of the people’ and in which ‘every
citizen is equally protected by law’. The principle of political equality
to which this part of the preamble refers is reflected in FC section
1(d)’s commitment to universal adult suffrage on a national common
voters’ roll. The two statements of that principle are not incompatible
with each other, and together can be incorporated into the
democratic principle’s understanding of political equality as a
necessary condition for the sort of relationship between government
and the governed that it seeks to establish. Finally, the preamble’s
concern with the connection between the consolidation of democracy
in South Africa and South Africa’s relationship to other sovereign
states is not part of the democratic principle itself, but rather a
statement about the consequences that are expected to follow from
the observance of that principle. It is therefore not necessary to try
to incorporate the third part of the preamble into our understanding
of the principle of democracy in South African constitutional law.
The main feature of the reading of the relationship between rights
and democracy in the chapter on which this essay is based was that
these two concepts should not be seen to be in conflict with each
other, but rather as being in a kind of constructive tension, the
resolution of which should take place on a case-by-case basis in
accordance with the democratic values of ‘human dignity, equality
and freedom’. 4 These values are repeated in FC sections 7(1), 36(1)
and 39(1). They also appear in a slightly extended form in FC section
1(a). The repetition of the same set of values in these provisions is
deliberate, the intention being to make it clear that the rights in the
Bill of Rights do not detract from democracy, but are rather
constitutive of it. This Dworkinian approach to the relationship
between rights and democracy is plainly incompatible with any
4 See Roux (n 3 above) § 10.3(c).

Theunis Roux 83
attempt to equate the principle of democracy in South African
constitutional law with the majority-rule principle. 5 This is just not
what the Final Constitution says, anywhere. Even if there were
isolated references to democracy in the Final Constitution that could
be read in this way, 6 the overwhelming weight of the express and
implied references to democracy in the Constitution comes down in
favour of the opposite view. The principle of democracy in South
African constitutional law is not that collective decisions shall be
taken by majority vote, but something more nuanced than this,
including at the very least the notion that the people’s will may be
trumped by individual rights where this serves the democratic values
of ‘human dignity, equality and freedom’.
All the rights in the Bill of Rights contribute in one way or another
to this more nuanced principle. In most cases, the contribution is
indirect. In some cases, however, the contribution is explicit. Thus,
when FC section 16(1) provides that ‘[e]veryone has the right to
freedom of expression’, or when FC section 19(3)(a) provides that
‘[e]very adult citizen has the right to vote’, the clear intention is to
secure these rights against majority override, not for anti-democratic
reasons, but so as to safeguard the conditions necessary for
democracy. To be sure, these rights may be limited by law of general
application, adopted by majority vote. But such limitation, according
to FC section 36(1), will be in keeping with the principle of democracy
only if the law in question itself serves the democratic values of
‘human dignity, equality and freedom’.
At this point the Final Constitution needs to be read very
carefully. 7 FC sections 7(1), 36(1) and 39(1) consistently tell us that
the democratic values that the rights in the Bill of Rights are intended
5 Note that the argument is not that the majority-rule principle is not a principle of
South African constitutional law. Rather, the argument is that the principle of
democracy cannot be equated with the majority-rule principle.
6 Such as the reference to democracy in FC sec 160(8)(b), which several courts,
including the Constitutional Court, have read as referring to majority rule.
75
It Note might that be the useful argument at this not point that also the to majority-rule contrast the principle reading is of not the a principle of of
democracy South African offered constitutional here with law. the one Rather, proposed the argument in I Currie is & that J de the Waal principle The Bill of
Rights democracy handbook cannot 5 be ed equated (2005) 13-18. with the Currie majority-rule and De Waal principle. begin their treatment of
6 ‘democracy Such as the and reference accountability’ to democracy by asserting FC sec that, 160(8)(b), in addition which to the several rule courts, of law,
‘the including Constitution the Constitutional also requires Court, the have government read as referring to respect to majority the principle rule. of
7 democracy’ serious. In (13). arguing The that principle there in are general, in fact they two remark, self-standing means principles, that ‘government one of
can democracy only be and legitimate one of in accountability, so far as it rests they on divest the consent the principle of the of governed’ democracy (13). of
They its true then content, list all the and provisions set up the in which possibility direct of reference a conflict is made between to democracy, these two
and principles quote in FC which sec 1(d) a more in full shallow (14). One principle can quibble of democracy that, apart may win from out. FC sec If FC 1(d), sec
most 1(d) is of taken the provisions to be the they closest cite thing are not to a references statement to of ‘the the principle principle of of democracy’
but in the to Final the word Constitution, ‘democracy’, then but it is this clear is that not that the principle important. of Currie democracy and De connotes Waal’s
reference a unified conception to FC sec of 1(d) democracy as central and to accountability the principle in of which democracy the institutions is certainly of
correct. representative They then government on to are make not two divorced mistakes, from however the purpose — first, for in which asserting they that are
there established. ‘no definition To extract of the democracy principle of in accountability the Constitution from nor FC an sec exhaustive 1(d) in this list way of
the deprives requirements the institutions that the of principle representative imposes’, government and, secondly, of their in distinguishing
instrumental
from purpose, the and principle the principle of democracy, of democracy whose of its existence deeper meaning. they affirm, a separate,

84 Chapter 6
to serve are ‘human dignity, equality and freedom’. On the other
hand FC section 1(d) provides that the institutions of representative
government are intended to ensure ‘accountability, responsiveness
and openness’. 8 Is there a contradiction here? No, because FC section
1(d) is only one of four values on which the democratic South African
state is founded, the others being ‘[h]uman dignity, the achievement
of equality and the advancement of human rights and freedoms’ (FC
section 1(a)), ‘[n]on-racialism and non-sexism’ (FC section 1(b)) and
‘[s]upremacy of the constitution and the rule of law’ (FC section 1(c)).
It follows that FC section 1(d) does not purport to be an exhaustive
list of the values that the commitment to democracy in South Africa
is intended to serve. Rather, it is a more limited list of the values that
the institutions of representative government are thought to be
capable of ensuring. The remaining values in FC section 1 can and
must be integrated into our understanding of the principle of
democracy in South African constitutional law. This can be done by
rephrasing the principle of democracy derived from FC section 1(d) in
the form of two linked propositions — the proposition already given
about the way in which government ought to be arranged, and then a
complementary proposition:
The rights necessary to maintain such a form of government must be
enshrined in a supreme-law Bill of Rights, enforced by an independent
judiciary, whose task it shall be to ensure that, whenever the will of the
majority, expressed in the form of a law of general application, runs
counter to a right in the Bill of Rights, the resolution of that tension
promotes the values of human dignity, equality and freedom.
connected but normatively distinct ‘principle of accountability’ (17). The first
statement is mistaken because it is not in the nature of a legal principle
exhaustively to list all the requirements it imposes. Rather, as noted above, the
principle of democracy is a function of the constitutional text, the cases decided
to date and the cases yet to be decided. The list of requirements imposed by such
a principle is in theory infinite. Currie and De Waal’s second mistake is more
serious. In arguing that there are in fact two self-standing principles, one of
democracy and one of accountability, they divest the principle of democracy of its
true content, and set up the possibility of a conflict between these two principles
in which a more shallow principle of democracy may win out. If FC sec 1(d) is
taken to be the closest thing to a statement of the principle of democracy in the
Final Constitution, then it is clear that the principle of democracy connotes a
unified conception of democracy and accountability in which the institutions of
representative government are not divorced from the purpose for which they are
established. To extract the principle of accountability from FC sec 1(d) in this way
deprives the institutions of representative government of their instrumental
purpose, and the principle of democracy of its deeper meaning.
8
It is also possible to argue that ‘accountability, responsiveness and openness’ are
really goals (as in, desirable end-states) not values, and in this way to resolve the
apparent contradiction between FC FC sec sec 1(d) 1(d) and and FC FC secs secs 7(1), 7(1), 36(1) 36(1) and and 39(1). 39(1). See
Dworkin’s See Dworkin’s distinction distinction between between goals goals and and values values in in R R Dworkin Taking rights
seriously (1977) 22. However, we are expressly told in the beginning of FC sec 1
that the items to to follow are are founding values not not goals. goals. In In any any case, case, it is it possible is possible to
reconcile to reconcile these in another provisions way, in as another rest way, of as this the section rest of makes this section clear. makes clear.

Theunis Roux 85
The next part of the Final Constitution that needs to be taken into
account are the provisions setting out the powers and functions of the
various legislative bodies. These provisions may be divided into three
basic types: provisions requiring legislative bodies to take account of
representative and participatory democracy in the way they design
their rules and orders; provisions requiring legislative bodies to allow
minority party participation in their proceedings; and provisions
requiring legislative bodies to facilitate public access to and
involvement in their proceedings. All these provisions qualify the
majority-rule principle underlying the provisions on national,
provincial and local government legislative authority as a whole: that
is, the principle that whichever party wins the most votes in an
election is entitled to form the government. The qualification that
the three sets of provisions place on the majority-rule principle is that
the commitment to multi-party democracy in FC section 1(d) is not
one that may be fulfilled at election-time alone, but one that must be
carried through to the day-to-day operation of the various
legislatures, such that the views of citizens who voted for minority
parties are fairly reflected in any discussions that take place. In
addition, the third type of provision requires that the legislatures
should allow citizens on occasion to bypass their elected representatives
in order to participate directly in the proceedings of the
legislature. This qualification may be expressed by restating the first
element of the democratic principle in the following way:
Government in South Africa must be so arranged that the people,
through the medium of political parties and regular elections, in which
all adult citizens are entitled to participate, exert sufficient control over
their elected representatives to ensure that (a) representatives are held
to account for their actions, (b) government listens and responds to the
needs of the people, in appropriate cases directly, [and] (c) collective
decisions are taken by majority vote after due consideration of the views
of minority parties, and (d) the reasons for all collective decisions are
publicly explained. (Words added are underlined; words deleted appear
in square brackets.)
Is it also necessary to amend the statement of the democratic
principle in light of other rights integral to democracy, such as the
right to freedom of expression, political rights and socio-economic
rights? To a large extent, these rights have already been taken into
account in the statement of the second element of the democratic
principle. At the risk of privileging certain rights over others and
making the statement of the second element long and unwieldy, one
might amend it thus:
The rights necessary to maintain such a form of government, including
the right to freedom of expression, the right to form political parties,
the right to vote, and the right to the minimum standard of welfare
necessary to participate in the democratic process, must be enshrined in

86 Chapter 6
a supreme-law Bill of Rights, enforced by an independent judiciary,
whose task it shall be to ensure that, whenever the will of the majority,
expressed in the form of a law of general application, runs counter to a
right in the Bill of Rights, the resolution of that tension promotes the
values of human dignity, equality and freedom.
This way of stating the second element of the principle, though
accurate, is somewhat inelegant. On balance, therefore, it is
probably better to leave the second element as it stood after
consideration of FC sections 7(1), 36(1) and 39(1). This means that the
principle of democracy derivable from the constitutional text, before
consideration of the case law, is something like this:
(1) Government in South Africa must be so arranged that the people,
through the medium of political parties and regular elections, in which
all adult citizens are entitled to participate, exert sufficient control over
their elected representatives to ensure that: (a) representatives are
held to account for their actions, (b) government listens and responds to
the needs of the people, in appropriate cases directly, (c) collective
decisions are taken by majority vote after due consideration of the views
of minority parties, and (d) the reasons for all collective decisions are
publicly explained. (2) The rights necessary to maintain such a form of
government must be enshrined in a supreme-law Bill of Rights, enforced
by an independent judiciary, whose task it shall be to ensure that,
whenever the will of the majority, expressed in the form of a law of
general application, runs counter to a right in the Bill of Rights, the
resolution of that tension promotes the values of human dignity, equality
and freedom.
3 The principle of democracy: The cases
The introduction to this essay considered the extent to which the
Constitutional Court’s decision in UDM may be said to have altered the
principle of democracy supported by FC section 1(d). For the same
reason that UDM cannot be said to have altered that principle, it
cannot be said to have altered the more extended principle
discernible in the constitutional text as a whole. By declining to
engage with the substantive values underpinning multi-party
democracy, UDM does not stand for a countervailing interpretation of
the democratic principle, but for an independent principle of judicial
deference in politically sensitive cases, such as those involving the
design of the electoral system. Whatever one thinks of the
correctness of UDM, therefore, it cannot be said to alter the principle
of democracy. Rather, UDM stands for the meta-principle that where
the principle of democracy and the principle of judicial deference in
politically sensitive cases conflict, the latter principle must prevail.
As it so happens, that part of UDM strikes one as intuitively wrong, but
it is not necessary to make a case for that intuition here. It is
sufficient to conclude that the statement of the principle of

Theunis Roux 87
democracy discernible in the constitutional text need not be altered
in order to accommodate UDM.
UDM was, of course, not the first case to rely on the principle of
judicial deference in a politically sensitive case concerning the design
of the electoral system. In New National Party v Government of the
Republic of South Africa (‘NNP’), Yacoob J held, in a decision from
which only O’Regan J dissented, that the standard of review in
challenges to electoral statutes based on the right to vote was bare
rationality. 9 In her powerful dissent, O’Regan J stressed the centrality
of the right to vote in the consolidation of South African democracy,
remarking that: ‘The right to vote is foundational to a democratic
system. Without it, there can be no democracy at all.’ 10 In according
special importance to the right to vote in this way O’Regan J aligned
herself with the consensus view in democratic theory that, if any right
needs to be safeguarded against majority override, it is the right to
vote. For this reason, O’Regan J’s judgment also supports the second
element of the principle of democracy adumbrated above. It is
integral to the Final Constitution’s conception of democracy that
rights be capable of trumping the will of the majority where such a
result better serves ‘the democratic values of human dignity, equality
and freedom’. By excluding the right to vote from the operation of
this principle, and by subjecting the state’s regulation of it to a
standard of bare rationality, NNP is clearly wrong.
Although the decisions in August 11 and NICRO, 12 by vindicating
prisoners’ right to vote in the face of executive neglect and legislative
override, they do so without calling into question the standard of
review laid down in that case. 13 August and NICRO, counterbalance
the decision in NNP somewhat, therefore, despite endorsing the
centrality of the right to vote in South African democracy, neither
support nor detract from the principle of democracy discernible in the
constitutional text. At best, they are agnostic on the question
whether that principle can be enforced in cases where the state does
not act irrationally. 14
9
1999 3 SA 191 (CC), 1999 5 BCLR 489 (CC) paras 19-24.
10 n 9 above, para 122.
11 August v Electoral Commission 1999 3 SA 1 (CC), 1999 4 BCLR 363 (CC).
12
NICRO (n 1 above).
13 August (n 11 above) was decided twelve days before NNP (n 9 above) and NICRO
(n 1 above) some five years later.
14
It should not be necessary to add that South African constitutional law does not
need a deep principle of democracy to guard against irrational state action. The
principle of the rule of law, including the doctrine of legality, would do this job
just as well. See F Michelman ‘The rule of law, legality and the supremacy of the
Constitution’ in Woolman et al (n 3 above) Chapter 11.

88 Chapter 6
Another case in which the principle of democracy appears at first
blush to have given way to the principle of judicial deference in
politically sensitive cases is Democratic Alliance v ANC & Others. 15 In
that case, the Cape High Court was asked to decide whether FC
section 160(8) meant that the party-political composition of a
municipal council’s committees, including the executive committee,
had to be proportional to the parties’ support in the council. The High
Court decided that it did not, holding that FC section 160(8) primarily
conferred on minority parties a right to participate in the proceedings
of a municipal council and its committees, and that the composition
of the committees need not exactly reflect the composition of the
municipal council itself. This decision appears to have been strongly
influenced by the decision in UDM, which had been handed down
shortly before, and indeed gave rise to the dispute in Democratic
Alliance. As in UDM, the High Court in Democratic Alliance held that,
due to the political sensitivity of the case, a high degree of judicial
deference was in order. 16 To this extent, the decision in Democratic
Alliance may be insulated from the principle of democracy on the
same basis as UDM. However, before this stage of the decision had
been reached, the Court in Democratic Alliance made a finding that
is potentially more damaging to the deep principle of democracy. I am
referring here to the Court’s unquestioning acceptance of a
concession by counsel that, read on its own, the requirement imposed
by FC section 160(8)(b) would be satisfied by a first-past-the-post
system in which all the members of a municipal council’s executive
and other committees came from the majority party. FC section
160(8)(b), it will be recalled, provides that the manner in which
members of a municipal council are entitled to participate in the
proceedings of the municipal council and its committees must be
‘consistent with democracy’. The construction placed by the High
Court in Democratic Alliance on this provision evinces a very shallow
conception of democracy indeed. Read on its own, the High Court
held, the requirement that municipal councillors’ participatory rights
be consistent with democracy imposes an imprecise standard that
would be satisfied by any number of arrangements, including a
winner-takes-all system. The principle of democracy in FC section
160(8)(b), the High Court thereby implied, though not equivalent to
the principle of majority rule, is insufficiently determinate as to be
clearly incompatible with it. 17
15 2003 1 BCLR 25 (C).
16 15 n 2003 15 above, 1 BCLR 41B-F. 25 (C).
17 16 See n 15 also above, MEC 41B-F. for Development Planning and Local Government in the Provincial
17 Government municipal council of Gauteng be approved v Democratic by a Party majority 1998 of 4 SA members, 1157 (CC), whereas 1998 7 the BCLR LGTA 855
(CC). provided This for case approval concerned by a two-thirds challenge to majority, sec 16(5) with of the a Local deadlock-breaking
Government
Transition mechanism Act allowing 209 of the 1993 MEC (LGTA) to approve in terms the of budget. FC sec One 160(3)(b) of the read questions with FC raised sec
160(2)(b). in this case The was constitutional whether the provisions LGTA framework require offended that the budget a range of of a principles, municipal
council including be the approved principle by of a democratic majority of government. members, whereas The Court the LGTA held that, provided even for if
approval there was by such two-thirds a principle, majority, ‘a deadlock-breaking with a deadlock-breaking mechanism mechanism to avoid impasse allowing [in
the approving MEC to a municipal approve the budget] budget. would One not of be the in breach questions of [it]’ raised (para in this 56). case was

Theunis Roux 89
Here, then, we have a statement of the principle of democracy
that appears to be diametrically opposed to the one contained in the
constitutional text. What are we to make of it? The first thing to say
is that the High Court, in accepting the concession offered by the
applicant’s counsel in relation to FC section 160(8)(b), made a
mistake. What the applicant’s counsel and the Court seem to have
missed is that the requirement of democracy in FC section 160(8)(b)
applies both to municipal councillors’ entitlement to participate in
the proceedings of committees of the municipal council and to their
entitlement to participate in the proceedings of the municipal council
itself. FC section 160(8)(b) cannot therefore establish as weak a
standard as the High Court says it does. A first-past-the-post system
in which the majority party participated in the proceedings of the
municipal council to the exclusion of minority parties would plainly be
unconstitutional. In fact, a careful reading of FC section 160(8)(b)
reveals that it has nothing at all to do with party-political
participation in the municipal council or its committees. That issue is
dealt with in FC section 160(8)(a), which provides that the manner in
which municipal councillors are entitled to participate in the
proceedings of the council and its committees must allow ‘parties and
interests reflected within the Council to be fairly represented’. As the
High Court in Democratic Alliance itself decides, this is the provision
that is directly relevant to disputes about the extent of party-political
participation in the proceedings of the municipal council and its
committees. FC section 160(8)(b) has to do with something else,
namely the manner of members’ participation in such proceedings,
which must be ‘consistent with democracy’. To discern what this
requirement means would have required the High Court to undertake
a detailed analysis of this phrase. Given counsel’s concession in
relation to FC section 160(8)(b), it is easy to understand why the High
Court did not do so: the task of deciding what the phrase ‘consistent
with democracy’ means is nothing short of the task undertaken in this
essay. Offered a convenient way out, the High Court took it, and we
are accordingly left no wiser about what the principle of democracy
really means. By the same token, however, Democratic Alliance v ANC
cannot be read as detracting from the principle of democracy
discernible in the constitutional text as a whole. Since it makes no
attempt to interpret the text beyond FC section 160(8), it cannot be
taken as a serious attempt to articulate that principle, and its holding
in this respect may therefore be disregarded.
whether the LGTA framework offended a range of principles, including the
principle of democratic government. The Court held that, even if there was such a
principle, ‘a deadlock-breaking mechanism to avoid impasse [in approving a
municipal budget] would not be in breach of [it]’ (para 56).

90 Chapter 6
The Constitutional Court’s interpretation of FC section 160(8) is
contained in Democratic Alliance & Another v Masondo NO &
Another. 18 Two of the three opinions in this case, Sachs J’s concurring
and O’Regan J’s dissenting opinion, come quite close to the reading
of the constitutional text offered here. These opinions will be
discussed in a moment. First, however, it is necessary to ask whether
the majority opinion in Masondo detracts from the principle of
democracy discernible in the constitutional text. As was the case with
UDM and Democratic Alliance v ANC, the answer must be ‘no’. This
time, fortunately, the reason for this conclusion is quite simple. The
difference between the three opinions handed down in Masondo had
to do with the question whether the principle of democracy was
implicated in that case at all, rather than with differing views about
the content of the principle. Had the majority been asked whether
they agreed with Sachs and O’Regan JJ’s vision for South African
democracy they would probably have said, ‘Yes, of course.’ But that
was not the point of their disagreement. The point of their
disagreement was whether mayoral committees in an executive
mayoral system are best understood as executive bodies or as bodies
in which the functions of the legislature and the executive are
combined. The majority took the former approach, and in effect held
that the principle of democracy in FC section 160(8) did not apply to
the case. 19 Sachs and O’Regan JJ, on the other hand, held that
mayoral committees were mixed executive-legislative bodies
because, in the nature of things, much of the deliberation over
collective decisions in an executive mayoral system will occur in the
mayoral committee. Both Sachs and O’Regan JJ therefore felt that
the principle of democracy was indeed implicated, the difference
between their two opinions being attributable to O’Regan J’s view
that the absence of minority-party participation in the mayoral
committee per se contradicted the ‘fair representation’ part of that
principle, and Sachs J’s view that it all depended on the way that the
system was implemented.
It is impossible to summarise Sachs J’s remarks in Masondo on the
principle of democracy in South African constitutional law without
depriving them of their special flavour:
The requirement of fair representation [in FC section 160(8)(a)]
emphasises that the Constitution does not envisage a mathematical form
of democracy, where the winner takes all until the next vote-counting
exercise occurs. Rather, it contemplates a pluralistic democracy where
continuous respect is given to the rights of all to be heard and have their
18 2003 2 SA 413 (CC), 2003 2 BCLR 128 (CC).
19 n 18 above, para 22 (holding that the governing principle was the need for
effective and efficient service delivery, which is the more appropriate principle
when it comes to the assessment of the conduct of the executive).

Theunis Roux 91
views considered. The dialogic nature of deliberative democracy has its
roots both in international democratic practice and indigenous African
tradition. It was through dialogue and sensible accommodation on an
inclusive and principled basis that the Constitution itself emerged. It
would accordingly be perverse to construe its terms in a way that belied
or minimised the importance of the very inclusive process that led to its
adoption, and sustains its legitimacy.
The open and deliberative nature of the process goes further than
providing a dignified and meaningful role for all participants. It is
calculated to produce better outcomes through subjecting laws and
governmental action to the test of critical debate, rather than basing
them on unilateral decision-making. It should be underlined that the
responsibility for serious and meaningful deliberation and decisionmaking
rests not only on the majority, but on minority groups as well. In
the end, the endeavours of both majority and minority parties should be
directed not towards exercising (or blocking the exercise) of power for
its own sake, but at achieving a just society where, in the words of the
Preamble, ‘South Africa belongs to all who live in it ...’. At the same
time, the Constitution does not envisage endless debate with a view to
satisfying the needs and interests of all. Majority rule, within the
framework of fundamental rights, presupposes that after proper
deliberative procedures have been followed, decisions are taken and
become binding. Accordingly, an appropriate balance has to be
established between deliberation and decision.
These two paragraphs, though somewhat eclectic in their blending of
different democratic theories, powerfully articulate many of the
elements of the principle of democracy discernible in the constitutional
text. The key aspects of the principle in Sachs J’s formulation
are: (a) the rejection of the winner-takes-all conception of
democracy, except in so far as majority rule remains the basic way of
taking decisions once the values of participation and deliberation
have been adequately served; and (b) the notion that democracy is
not an event that takes place only at election time, but rather a
‘continuous’ process in which every reasonable attempt is made to
accommodate, or at least listen to, divergent views. If there is one
theoretical influence in the mix that dominates the rest, it is the
theory of deliberative democracy, and in particular Habermas’s
notion that communicative power is the only legitimate form of power
in the modern nation-state. 20 The principle of majority rule, in Sachs
J’s formulation, is legitimate only to the extent that it is subordinated
to a deeper principle of democracy that stresses the value of
participation and of deliberation before decisions are taken.
20 Cf Sachs J’s later remark in Matatiele Municipality & Others v President of the
Republic of South Africa & Others 2006 5 SA 47 (CC), 2006 5 BCLR 622 (CC) para
110: ‘In our constitutional order, the legitimacy of laws made by Parliament
comes not from awe, but from openness’.

92 Chapter 6
O’Regan J’s statement of the principle contained in FC section
160(8)(a) is very similar, but does contain one difference that may be
crucial for the way the principle of democracy is conceived in other
cases. Although Sachs J, like the Cape High Court in Democratic
Alliance v ANC, interprets the phrase ‘consistent with democracy’ in
FC section 160(8)(b) as meaning consistent with the principle of
majority rule, 21 it is clear from the remarks just quoted that he thinks
the Final Constitution’s overarching vision for South African
democracy is much more nuanced than this, and that the operation of
the majority-rule principle, not just in FC section 160(8), but
generally, is constrained by the need to engage in meaningful
deliberation beforehand. For Sachs J, therefore, the principle of
democracy in South African constitutional law is a deep one, roughly
corresponding to the statement of that principle set out above.
O’Regan J, on the other hand, says in so many words that the principle
of democracy, at least in FC section 160(8)(b), is coterminous with the
principle of majority rule:
[FC] section 160(8)(b) is clear that the principle of fair representation is
always subject to democracy and the will of the majority. The principle
established by section 160(8) is a principle which requires inclusive
deliberation prior to decision-making to enrich the quality of our
democracy. It does not subvert the principle of democracy itself.’ 22
It is clear from this passage that, when O’Regan J uses the phrase,
‘the principle of democracy’, she means the principle of majority
rule. Her reading of FC section 160(8), in other words, is that it
contains two principles — a principle of fair representation and a
principle of democracy — and that these two principles may be
reconciled with each other by reading the former to apply to the
manner in which minority parties should be allowed to participate in
the proceedings of a municipal council and its committees, and the
latter to the way in which decisions are taken. This reading of FC
section 160(8) is questionable. Textually, there is nothing in FC
section 160(8)(b) that says that this provision applies to decisionmaking,
and certainly not to the exclusion of other issues. The
operation of the majority-rule principle with regard to decisionmaking
in a municipal council is set out in FC section 160(3). It
provides that certain decisions of a municipal council must be taken
‘with a supporting vote of a majority of its members’ and others ‘by
a majority of the votes cast’. Given this comprehensive regulation of
the issue, it is unclear why FC section 160(8)(b) should be read as
restating the majority-rule principle in relation to participation in the
21
Masondo (n 18 above) para 38.
22 Masondo (n 18 above) para 78 (my emphasis).

Theunis Roux 93
proceedings of the municipal council and its committees. 23 The most
obvious construction to be placed on FC section 160(8)(b), when read
with the comprehensive regulation of decision-making in FC section
160(3), is that it applies to the manner of participation in a municipal
council and its committees, and not to the way decisions are taken.
What FC section 160(8)(b) says is that, in addition to being fairly
represented, minority parties are entitled to participate in the
meetings of a municipal council and its committees in a manner
‘consistent with democracy’. The principle of democracy to which FC
section 160(8)(b) here refers must mean, not the majority-rule
principle, which is stated in FC section 160(3), but the deeper
principle of democracy discernible in the constitutional text as a
whole.
It would thus seem that O’Regan J’s equation of the FC section
160(8)(b) requirement with the principle of majority-rule in decisionmaking
is open to question. Nevertheless, that is conclusively what
she says, and we are therefore left with a dissenting opinion that fails
to attribute to the principle of democracy the full meaning argued for
in this essay. Even Sachs J’s concurring opinion, though it appears to
support that reading of the principle more fully, might in the end be
said to depend on the textual peg of the phrase ‘fair representation’.
Without that phrase, it is not self-evident that either O’Regan J or
Sachs J would have read FC section 160(8) in the manner that they
did. Masondo therefore leaves us with less than fulsome support for
the reading of the principle of democracy outlined above.
Two more recent decisions, however, come much closer to that
reading, and moreover were delivered by a near unanimous Court. In
African Christian Democratic Party, the first occasion on which
O’Regan J has written for the majority in a case concerning political
rights, the Court held that provisions in electoral statutes should be
interpreted in favour of ‘enfranchisement rather than disenfranchisement
and participation rather than exclusion’. 24 This holding
was expressly tied to FC section 1(d), which is quoted in full in the
preceding paragraphs, along with Sachs J’s commentary on FC section
1(d) in August. 25 O’Regan J’s judgment was concurred in by all the
members of the Court with the exception of Skweyiya J. Here, then,
we have conclusive support for the deep principle of democracy
23 It is possible that the intention of FC sec 160(8)(b) was to extend the majorityrule
principle in FC sec 160(3) to proceedings of the committees of a municipal
council. However, as noted earlier, this reading is strained since FC sec 160(8)
expressly applies both to proceedings of the committees of a municipal council
and to proceedings of the municipal council itself, that is, the council in plenary
session.
24 African Christian Democratic Party v Electoral Commission & Others 2006 3 SA
305 (CC), 2006 5 BCLR 579 (CC) para 23.
25
August (n 11 above) para 17, quoted in African Christian Democratic Party (n 24
above) para 22.

94 Chapter 6
operating as a guide to the interpretation of statutes affecting
political rights. 26
In a decision handed down three days later, Matatiele Municipality
& Others v President of the Republic of South African &
Others, 27 we find even more conclusive evidence that a majority of
the Constitutional Court may yet endorse the deep principle of
democracy. In this case, an amendment to the Final Constitution
altering a provincial boundary was challenged under FC section
155(3)(b) for unconstitutionally limiting the authority of the Municipal
Demarcation Board. Although the Court ultimately decided against
the applicants on this point, it affirmed the importance of the
Demarcation Board ‘to our constitutional democracy’ and the role of
FC section 153(3)(b) read with FC section 1(d) in guarding against
political manipulation of the demarcation process. This dictum,
though not crucial to the outcome of the case and therefore not part
of the ratio, suggests a slightly less deferential approach to the
legislative regulation of the voting system than was evident in UDM.
Of course, the political stakes were not as high in Matatiele, and
therefore it is easy to downplay the importance of this dictum.
Nevertheless, it does suggest that the meta-principle in UDM — that
the principle of democracy must give way to the principle of
deference to legislative determinations of the content of the
electoral system — is not sacrosanct.
A second aspect of Matatiele provides even greater support for
the principle of democracy evident in the constitutional text as a
whole. Faced with a concession by applicants’ counsel that the
procedures for the amendment of the Final Constitution had been
duly followed, a majority of the Court refused to accept it. There was
enough on the papers, the Court held, to suggest that the people of
Matatiele had not been properly consulted about the decision to
transfer the area in which they lived to a different province. 28
Although a court should as a rule be cautious about deciding issues
that were not raised by the parties in their pleadings, this rule had to
‘yield to the interests of justice’. 29 FC section 118(1)(a) was open to
the interpretation that the people directly affected by a decision to
alter a provincial boundary should be consulted by the provincial
legislature concerned, either through public hearings or by giving
them an opportunity to make written submissions. These issues, the
26 African Christian Democratic Party does not, however, overturn the standard of
review applied in New National Party (n 9 above) since FC sec 19 was used in
African Christian Democratic Party as a basis for an enfranchisement-friendly
reading of the statute in question, rather than a direct challenge to it.
27 Matatiele (n 20 above).
28
Matatiele (n 20 above) para 69.
29 Matatiele (n 20 above) para 66.

Theunis Roux 95
Court held, ‘lie at the very heartland of our participatory
democracy’. 30
The order in Ngcobo J’s majority judgment in Matatiele was
supported by all but two of the judges. Three other judges supported
the order but not all of the reasoning in the majority judgment. The
joint dissenting judgment of Skweyiya and Yacoob JJ takes issue, not
with the Court’s remarks on the possible interpretation of FC section
118(1)(a), but with the majority’s decision to refer the case to further
hearing. It therefore leaves the majority’s provisional reading of this
provision untouched. Sachs J, in concurring in both the order and the
reasoning in the majority judgment, restates his conception of
democracy in Masondo in even more explicitly Habermasian terms,
holding that ‘the legitimacy of laws made by Parliament comes not
from awe, but from openness’. 31 For Sachs J, at least, the principle
of democracy derived from FC section 1(d) is a deep one that is
capable of invalidating virtually any law or conduct, provided that
there is a textual peg on which to hang it. O’Regan J, in supporting
the majority’s order but not all of its reasoning, is a little more
cautious. For her, the central question in the case was whether the
people of Matatiele had a legitimate grievance and, if so, the
consequences for government’s relationship with that community if
that grievance were left unaddressed. In her words: ‘Were we to
leave undetermined the legal issues raised by Ngcobo J ... it would
create uncertainty and doubt which might continue to be a source of
disquiet and anger for decades to come’. 32 The fact that the case
involved a constitutional amendment, in other words, only
heightened the need to ensure that government was responsive to the
concerns of the Matatiele community. In this indirect way, O’Regan
J’s judgment, too, though it does not mention it expressly, provides
support for the deep principle of democracy.
4 Conclusion
What then, in conclusion, are we to make of the principle of
democracy at this stage of our jurisprudence? The constitutional text
clearly supports a deep reading of that principle that conforms to
accounts of democracy in political theory which insist that, for
democracy to be meaningful, government must facilitate real public
participation in decision-making and genuine deliberation. That this
is indeed the principle of democracy in South African law has not yet
been confirmed by a majority of the Constitutional Court. Of the
current judges, Sachs J has come closest to endorsing this reading,
30 Matatiele (n 20 above) para 72.
31
Matatiele (n 20 above) para 110.
32 Matatiele (n 20 above) para 90.

96 Chapter 6
and O’Regan J certainly appears very sympathetic to it. The other
judges, however, have remained largely agnostic, with two
exceptions: the decisions in NNP and UDM. UDM is all the more
important given that it was joined by Sachs and O’Regan JJ. UDM
therefore remains the greatest obstacle in the way of the recognition
of the deep principle of democracy in South African constitutional
law. Yet it is possible to distinguish UDM on the basis that, rather than
standing for a different principle of democracy, this decision stands
for a meta-principle, namely, that the deep principle of democracy
must yield to a principle of judicial deference in politically sensitive
cases, such as those involving legislative determinations of the
electoral system. To the extent that this meta-principle still stands in
the way of the deep principle of democracy, there are indications in
African Christian Democratic Party and Matatiele that the metaprinciple
is weakening, and that we will shortly have a decision in
which the majority of the Court endorses the deep principle in a case
in which it really matters. 33
33 Since the writing of this essay, the Constitutional Court has delivered judgment in
two cases dealing with Parliament’s constitutional duty to facilitate public
involvement in its processes. Both decisions provide powerful support for the
deep principle of democracy argued for here. See Doctors for Life International v
Speaker of the National Assembly & Others 2006 6 SA 416 (CC), 2006 12 BCLR
1399 (CC) and Matatiele Municipality & Others v President of South Africa &
Others 2007 6 SA 477 (CC), 2007 1 BCLR 47 (CC). More recently, the Court has
recognised the limits of the right to public participation. See Merafong Demarcation
Forum & Others v President of the RSA & Others [2008] ZACC 10.

7 Reply
Writing the law democratically:
A reply to Theunis Roux
Danie Brand*
1 Introduction
As always, responding to Theunis Roux here is a genuine pleasure.
Theunis’ account of the principle of democracy in South African
constitutional law is as comprehensive, rigorous and detailed as
anything he has written. His analysis of the constitutional text clearly
supports the thick conception of democracy that he proposes as
opposed to a thinner, procedural model. 1 His description of
democracy-related cases obviously demonstrates the growing support
for his concept of democracy that he claims. 2 And his reading of UDM 3
and other cases not conforming to his thick conception of democracy
as showing that the Constitutional Court has not rejected the thick
conception, but has decided these cases on the basis of a ‘metaprinciple’
of judicial deference in politically sensitive matters again
seems right on the button — indeed it is a further illuminating
* My thanks to Theunis Roux and Stu Woolman for asking me to do this response, to
Stu and Michael Bishop for their patience and to Karin van Marle for her
comments.
1 T Roux ‘The principle of democracy in South African constitutional law’ in S
Woolman & M Bishop (eds) Constitutional conversations (2008) 79-96.
2
Roux (n 1 above).
3 United Democratic Movement & Others v President of the Republic of South
Africa & Others (African Christian Democratic Party & Others Intervening;
Institute for Democracy in South Africa & Another as Amici Curiae) (No 2) 2003 1
SA 495 (CC), 2002 11 BCLR 1179 (CC).
97

98 Chapter 7
example of the kind of realist/institutional analysis of the case law
that I have come to appreciate in Theunis’ work. 4
But responding to Theunis has also been difficult: his chapter
presents such a gleaming facade that I struggled to find a meaningful
critical foothold. So I decided to respond by writing about two things
that he does not say about democracy and South African
constitutional law and a third that his not saying them suggests. First,
I touch on what I see as a curiously limited conception of the scope
and the nature of democracy-related constitutional duty that
emerges from the case law Theunis analyses. Second, I write about
the tension between democracy and the work of courts enforcing a
justiciable constitution that haunts any positively stated
constitutional principle of democracy. Third, I end by asking why
Theunis did not write about these two issues and what the fact that
he didn’t says about the democratic credentials of his chapter.
2 What Theunis does not say
2.1 Democracy as an empty vessel
Theunis’ focus in his analysis of the case law is on the background
conception of democracy that emerges from that case law and the
question of whether that conception accords with the ‘thick’ principle
of democracy he claims the Final Constitution envisages. When I read
the same cases Theunis did I am struck by an obviously related, but
different issue — the conception of constitutional duty that emerges
from the cases.
This conception, although it lurks in the background of NICRO, 5 DA
v ANC, 6 Masondo, 7 and ACDP, 8 is stated most explicitly in NNP 9 and
UDM. Quite apart from the thin rationality standard of review that he
fashions in NNP (which Theunis bluntly and correctly describes as
‘clearly wrong’), 10 Yacoob J in that case articulates a two-fold duty
imposed on the state by the right to vote. First, he holds that the right
4
For another such example, see T Roux ‘Legitimating transformation: Political
resource allocation in the South African Constitutional Court’ (2003) 10
Democratisation 92.
5
Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration
of Offenders (NICRO) & Others 2005 3 SA 280 (CC), 2004 5 BCLR 445
(CC).
6
Democratic Alliance v ANC & Others 2003 1 BCLR 25 (C).
7 Democratic Alliance & Another v Masondo & Another 2003 2 SA 413 (CC), 2003 2
BCLR 128 (CC).
8
African Christian Democratic Party v The Electoral Commission & Others 2006 3
SA 305 (CC), 2006 5 BCLR 579 (CC).
9 New National Party v Government of the Republic of South Africa 1999 (3) SA 191
(CC) 1999 (5) BCLR 489 (CC).
10 Roux (n 1 above) 87.

Reply - Danie Brand 99
requires the State indeed to present regular elections. 11 Second, he
holds that these elections must be arranged such that they are free
and fair and that any arrangement with this purpose that prevents
otherwise eligible voters from registering to vote and from voting will
be upheld as long as ‘people who would otherwise be eligible to vote
are [despite the arrangement at issue] able to do so if they want to
vote and if they take reasonable steps in pursuit of the right to
vote’. 12 For Yacoob J then, the state, to give effect to a right central
to the constitutional principle of democracy, can be asked to do no
more than present regular elections, and to arrange those elections
to be free and fair in such a way that it is possible for otherwise
eligible people to vote.
In UDM, the issue was whether representative institutions were
arranged in a manner that meets that element of the constitutional
standard of democracy that requires the existence of a multi-party
democracy. The Court’s definition of multi-party democracy — a
system ‘that contemplates a political order in which it is permissible
for different political groups to organise, promote their views through
public debate and participate in free and fair elections’ 13 — and its
finding that the floor-crossing legislation passes constitutional muster
because, although it probably frustrates the will of the electorate, it
doesn’t actively ‘undermine multi-party democracy’ 14 seem informed
by the same understanding of the nature of the state’s democracyrelated
duties as Yacoob J’s judgment in NNP. Again the idea seems
to be that the state has done enough if it (a) ensures that the required
institutions of democracy exist and (b) ensures that they are arranged
in such a way that it is only possible for democracy to operate within
them. 15
In sum, the NNP/UDM Court’s understanding of what the state
must do to give effect to the Final Constitution’s conception of
democracy requires only that the State build the institutions of
democracy (elections; representative institutions; processes of direct
consultation etc) and then to sit back and wait for democracy to
arrive.
The problem with such an articulation is two-fold. First, it reflects
an entirely institutional understanding of democracy that equates
11 NNP (n 9 above) para 12–17.
12
NNP (n 9 above) para 21.
13 UDM (n 3 above) para 26 (my emphasis).
14 T Roux ‘Democracy’ in S Woolman et al (eds) Constitutional Law of South Africa
(2nd Edition, OS, 2006) 10-27.
15 The duty as described in UDM is lighter than in NNP — it is acceptable for the
Court that representative institutions are operated such that they render
permissible the free political activity that is required by multi-party democracy.
UDM (n 3 above) para 26.

100 Chapter 7
democracy with the institutions of government intended to give
effect to it. Such an institutional understanding is flawed. 16 A
collection of democratic institutions is not democracy itself — it is
simply a structure inside which democracy might take place.
Democracy itself is a value-system, as Theunis points out, 17 a
discursive practice, 18 a way of doing and being, a mode of political
action, a culture. Certainly the Constitutional Court is correct in
assuming that the Final Constitution requires in the first place that
certain democratic institutions be created and maintained. But that
is only part of the picture. Such a democratic system without a
democratic culture and practice amongst those that partake in it is an
empty shell. A statement of the democracy-related constitutional
duties of the State that requires only that a series of democratic
institutions be created, without also engaging the problem of creating
and fostering the democratic culture with which to give those
institutions life, is incomplete.
The second problem with the Constitutional Court’s conception of
the State’s democracy-related constitutional duties is that it is a
decidedly negative description, at odds with the decidedly
affirmative nature of our Constitution. The point no longer needs to
be made that our Constitution is an affirmative document, requiring
not only that the vision of society that it proclaims be respected, but
also ‘protect[ed], promot[ed] and fulfil[led]’. 19 This is true, I would
say, also of the constitutional principle of democracy. In the Preamble
we read that a ‘society’ based on democratic values must be
‘established’ and a democratic South Africa be ‘built’. In FC section
1(d) the elements of democracy must be ‘ensured’. In FC section 7(2),
we read that the right to vote and other democracy-related rights
must be protected, promoted and fulfilled. We cannot, therefore,
accept as sufficient the Court’s assertion that an election arranged in
such a manner that it is possible for those who want to vote and who
take reasonable steps to vote passes constitutional muster; 20 or that
an arrangement of the institutions of representative democracy that
‘frustrates the will of the electorate’ can be left to stand because it
allows multi-party democracy. 21
The duty the Final Constitution imposes on the State is much more
onerous than this. It must make it probable rather than possible that
people will vote in elections; indeed it must encourage them to do so.
16
Roux (n 1 above). See also Roux (n 14 above) 10-23.
17 Roux (n 14 above) 10-23.
18 N Fraser ‘Talking about needs: Interpretive contests as political conflicts in
welfare-state societies’ (1989) 99 Ethics 291 297.
19 FC sec 7(2). See K Klare ‘Legal culture and transformative constitutionalism’
(1998) 14 South African Journal on Human Rights 146 154.
20
NNP (n 9 above) para 21.
21 UDM (n 3 above) para 26.

Reply - Danie Brand 101
It must not only ‘lay the foundations for a democratic ... society’ 22 by
creating the different institutions necessary for that purpose, but
must also build, foster and encourage the culture of democracy — and
by culture I mean the discursive practice and political organisation
required for democracy to operate inside and outside of those vessels.
Now, Theunis explicitly disavows a purely institutional understanding
of democracy in his chapter in Constitutional conversations
and in CLoSA. 23 If asked, I am also sure that he would not disagree
that the Final Constitution’s affirmative nature applies to the
constitutional principle of democracy. Finally, although not explicit
about it, Theunis’ articulation of the constitutional principle of
democracy in its use of active and substantive terms leaves room for
a non-institutional, affirmative reading of the constitutional duties
arising from it. Nevertheless, in his analysis of the cases, Theunis does
not engage the question of the nature and scope of democracyrelated
constitutional duty and the Constitutional Court’s limited
understanding thereof. Why he doesn’t do so I can only guess. He
might respond that he was asked to write only one chapter and not a
whole book on the Constitution and democracy! But I do think that it
is, perhaps, an important opportunity missed.
The absence of recognition of the Final Constitution’s affirmative
nature that we see in the democracy cases that Theunis analyses is
but one example of the Constitutional Court’s failure, outside of its
jurisprudence on socio-economic rights, to come to grips with this
question — to develop, that is, a cogent theory of positive
constitutional duty that applies, as it should, across the board to all
constitutional rights, standards, principles and values. In this light,
the added critical engagement with the cases that an affirmative,
non-institutional gloss to Theunis’ principle of democracy would have
necessitated would have been most welcome. South African legal
academics in general have, along with the Court, so far failed
adequately to engage this issue. 24
2.2 The tension between rights and democracy
The second thing Theunis does not say about democracy in our
constitutional law has to do with the inevitable tension that exists
between democracy on the one hand and the work of courts enforcing
a constitution on the other that haunts any constitutional standard of
democracy.
22
Preamble to the Final Constitution.
23 Roux (n 1 above) and Roux (n 14 above).
24 For one relatively recent exception, see DM Davis ‘Adjudicating the socioeconomic
rights in the South African constitution: Towards “deference lite”’
(2006) 22 South African Journal on Human Rights 301.

102 Chapter 7
Of course, throughout his chapter Theunis refers to this tension.
He discusses the tension as it manifests itself in that old bugbear of
constitutional theorists, the counter-majoritarian dilemma — the
dilemma that democratically unaccountable courts through the
exercise of their power to review conduct of the representative
branches of government get to trump formal expressions of the
collective will. Although Theunis develops a nuanced response to this
aspect of the dilemma 25 he goes no further than that — and therein
lies the gap.
The counter-majoritarian dilemma, as we all well know, is but one
example of the tension between rights and democracy. It is an
institutional rendition of it that focuses on the tension between rights
and democracy only as it is mediated through the democratic
institutions of government. An exclusive focus on the countermajoritarian
dilemma leaves out of account the tension between
rights and the work of courts in enforcing them on the one hand, and
the non-institutional aspects of democracy — the political practice or
culture of democracy that operates inside and outside of the formal
institutions of democracy — on the other.
The different examples of the tension described in this noninstitutional
manner are well known. Critics have for example pointed
out that the work of courts applying a constitution can exercise a
stifling effect on democratic political action by destroying the various
forms of social organisation upon which such action depends. 26 Courts
enforcing constitutional rights can also, so it has been argued, work
to erode democracy by promoting ‘a false expectation in
disadvantaged individuals and groups that the pursuit of legal rights
through the courts can effect lasting social change’ whereas ‘rights ...
operate instead to ... channel potentially radical demands for change
into legal claims which, by definition, will not be disruptive of the
social and economic status quo.’ 27 Constitutional law as enforced
through courts can finally discourage democratic political action
simply by bracketing previously contested social questions as
25 Roux (n 1 above) 81-84.
26
See J Habermas ‘Law as medium and law as institution’ in G Teubner (ed)
Dilemmas of law in the welfare state (1986) 204 211. See also JWG van der Walt
The twilight of legal subjectivity: Towards a deconstructive republican theory of
law (1995) unpublished LLD dissertation, Rand Afrikaans University 324. For a
recent exploration of the different facets of this problem in a South African
context, see L Williams ‘Issues and challenges in addressing poverty and legal
rights: A comparative United States/South African analysis’ (2005) 21 South
African Journal on Human Rights 436.
27 M Jackman ‘Constitutional rhetoric and social justice: Reflections on the
justiciability debate’ in J Bakan & D Schneiderman (eds) Social justice and the
constitution: Perspectives on a social union for Canada (1992) 17 22. For
discussions of this problem in the South African literature, see S Wilson ‘Taming
the constitution: Rights and reform in the South African education system’ (2004)
20 South African Journal on Human Rights 418 423-424.

Reply - Danie Brand 103
somehow not subject to further political contestation — either
because of the finality with which courts usually present their
decisions, 28 or because of the presentation by courts of their
engagement with contested social issues as value-neutral, conducted
on the basis of an objective set of materials, 29 or because courts in
their judgments use language and rhetorical strategies to describe
social issues as incapable of political engagement (as, for example,
too technically complex for political engagement, or of private rather
than public concern, or simply as insoluble, so that political
engagement with it becomes futile). 30
The gap that Theunis’ failure to engage this non-institutional
aspect of the tension between rights and democracy leaves in his
account of the principle of democracy in South African constitutional
law is illustrated in his CLoSA chapter’s discussion of the relationship
between democracy and socio-economic rights. First, as he recounts,
these rights are said to be supportive — indeed, constitutive — of
democracy in that access to the basic resources that they guarantee
enables impoverished people to participate as fully-fledged members
of society in the democratic process. 31 Second, he relates how these
rights in their justiciable form have been said to raise the countermajoritarian
dilemma in particularly acute form and so to stand in
particularly acute tension with democracy. 32
Both these aspects of the relationship between socio-economic
rights and democracy have indeed been the focus of sustained
scholarly and judicial engagement in South Africa and elsewhere. But
there is a third aspect to the relationship between socio-economic
28 See eg H Botha ‘Freedom and constraint in constitutional adjudication’ (2004) 20
South African Journal on Human Rights 249.
29 See eg UDM (n 3 above) para 11: ‘This case is not about the merits or demerits of
the disputed legislation. That is a political question and of no concern to this
Court. What has to be decided is not whether the disputed provisions are
appropriate or inappropriate, but whether they are constitutional or
unconstitutional.’ For a discussion of this problem, see Botha (n 28 above) 249-
250 and K Van Marle ‘Revisiting the politics of post-apartheid constitutional
interpretation’ (2003) Tydskrif vir die Suid-Afrikaanse Reg 549 552-553.
30 See Fraser (n 18 above); T Ross ‘The rhetoric of poverty: Their immorality, our
helplessness’ (1991) 79 Georgetown Law Journal 1499 1499-1500; LA Williams
‘Welfare and legal entitlements: The social roots of poverty’ in D Kairys (ed) The
politics of law. A progressive critique 3 ed (1998) 569 569. For my own
engagement with this issue see D Brand ‘The “politics of need interpretation” and
the adjudication of socio-economic rights claims in South Africa’ in AJ van der
Walt (ed) Theories of social and economic justice (2005) 17.
31
Roux (n 14 above) 10-57 — 10-62.
32 As above.

104 Chapter 7
rights and democracy that Theunis does not mention. Recently Edgar
Pieterse and Mirjam van Donk wrote: 33
The realisation of socio-economic rights is an inherently political
process, which needs to involve rights holders (directly, or through
associations and organisations representing their interests) in determining
the desired outcomes, objectives, strategies and acceptable
trade-offs so that they are enabled to take control of their own
destinies. This inevitably implies a political process of negotiation,
disagreement, conflict, occasionally consensus, and, at a minimum,
forms of mutual accommodation.
It would seem, on their view, that not only is the realisation of socioeconomic
rights a prerequisite for democracy, as Theunis contends.
Democracy is for them also a prerequisite for the realisation of socioeconomic
rights. Sustainable eradication of poverty and deprivation
depends crucially on the extent to which impoverished people have
the capacity and are allowed the space to participate ‘in determining
the desired outcomes, objectives, strategies and acceptable tradeoffs’
involved in shaping their fate and to partake of the ‘political
process of negotiation, disagreement, conflict, occasionally consensus,
and, at a minimum, forms of mutual accommodation’ which
that entails.
Certainly, courts — were they to make themselves accessible to
impoverished people and shape their doctrine and forms of reasoning
and processes to fit the resources that impoverished people appearing
before them can command — can and do act as spaces in or channels
through which the impoverished can engage in the kind of political
action I refer to here and work in other ways to support the political
struggle against poverty. 34 I do not wish to discount that. But often,
in the very act of protecting or advancing the interests of the
impoverished, courts enforcing socio-economic rights work to erode
the capacity for such political action. This can happen in any of the
ways I mention above, but for the moment I will focus on one such
way.
Thomas Ross, writing about US welfare rights jurisprudence, has
pointed out how US courts in their judgments often use and so confirm
certain rhetorical strategies that are used by participants in the
political discourse around poverty and need to depoliticise that
debate and render democratic political contestation around it
impossible. So, for example, he shows how courts have in their
judgments confirmed descriptions of the impoverished as somehow
themselves responsible for their plight; or descriptions of problems of
33 E Pieterse & M van Donk ‘The politics of socio-economic rights in South Africa. Ten
34
years after apartheid’ (2004) 5:5 Economic and Social Rights Review 12 13.
Roux (n 14 above) 10-61.

Reply - Danie Brand 105
poverty as attributable to natural causes outside the control of the
state or society. 35 What these rhetorical tropes have in common for
Ross is that they are used to mask complicity and justify inaction in
the face of poverty. For example: political actors attribute
deprivation to the personality traits of impoverished people so that
the complicity of the legal and political system in creating poverty can
be obscured. Challenges to the status quo can thereby be avoided and
the positions of the relatively affluent can likewise be justified. So it
becomes the fault of impoverished people themselves that they are
poor and they, and no one else, are the ones who can do something
about it. 36
Courts use these rhetorical strategies for the same purposes. They
are invoked most often in the course of assertions of the so-called
‘judicial can’t’ 37 — when courts seek to justify their decision not to
decide a particular matter or issue. An unfortunate by-product of
their invocation, both in the political discourse and by courts, is that
their use de-politicises: The effect of personalising the causes of
poverty or attributing them to other causes outside the control of
society is also to place them outside the realm of political
contestation. Political engagement with them becomes futile. 38
Our Constitutional Court’s engagement with socio-economic
rights has shown invocation by the Court of such depoliticising
rhetorical tropes. The ‘judicial can’t’ most often invoked by the Court
in socio-economic rights cases has been the bogeyman of separation
of powers. 39 A central theme of the Court’s socio-economic rights
jurisprudence has been its efforts to develop a suitable theory of
deference so as to avoid intruding unduly into the spheres of power of
the legislature and the executive (and the state administration). The
Court has, in this respect, struggled with basic questions such as
which kinds of issues it is competent to engage with at all, what its
standard of scrutiny should be where it does engage with the issues,
and what the scope of its power is to provide relief.
What is interesting is the basis upon which the Court has sought to
justify the choices it has made in this regard. It has relied in the first
place on ‘institutional capacity’ arguments — its perceived lack of the
requisite technical expertise and institutional capacity properly to
engage with the issues. The Court has utilised these institutional
capacity arguments to justify its choice not to decide a particular
35
Ross (n 30 above) 1502 - 1509.
36 Ross (n 30 above) 1510.
37 R Cover Justice accused: Anti-slavery and the judiciary process (1975) 119-120.
38
See in this respect, in general, Fraser (n 18 above).
39 Roux (n 14 above) 10-58.

106 Chapter 7
question raised in the course of socio-economic rights litigation; 40 to
reject the ‘minimum core content’ approach to deciding claims for
access to basic resources; 41 and to justify its adoption of what it has
called a ‘restrained role’ in reviewing state conduct in light of socioeconomic
rights (as embodied in its reasonableness review
approach.) 42
The Court, when it employs this rhetoric, enters into an obviously
depoliticising discourse and so erodes capacity for democratic
political action. It describes the relevant issues as ‘technical
problems for managers and planners ... in contradistinction to
political matters.’ 43 However, it cannot be denied that the Court is,
quite often, as institutionally constrained as it claims to be and that
depoliticisation on that basis alone is to some extent inevitable.
What does make the Court’s use of this depoliticising trope
problematic is not so much the fact that it defers, but that to which
it defers. In justifying the self-limitation of its powers of review and
remedy the Court has also relied on another set of arguments:
‘constitutional comity’ arguments. When it declines to decide a
particular issue, or apply a stringent standard of scrutiny, or impose
an intrusive order, it defers not only to the complexity of the issues
at hand. It also, more importantly, defers to the other branches of
government on the understanding that they are, in the context of
institutional spheres of power, the appropriate fora to decide them. 44
Certainly, at the heart of the Court’s concern with constitutional
comity in its engagement with socio-economic rights is a concern for
democracy. The Court defers to the other branches in order to
demonstrate respect for the democratic will of which they are the
repositories. 45 But the conception of democracy that underlies this
concern is, again, a peculiarly limited one: it is the kind of
‘institutional’ understanding of democracy that I referred to above.
Democracy is equated with, and reduced, to the institutions intended
to give effect to it and occurs only within those institutions. This
understanding stands in contrast to an understanding of democracy as
a certain mode of political action or a culture that takes place not
only in the democratic institutions of the official governmental
40
See eg Minister of Health v Treatment Action Campaign 2002 5 SA 721 (CC), 2002
41
10 BCLR 1033 (CC) para 128.
Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC), 2000
42
11 BCLR 1169 (CC) para 33; TAC (n 40 above) para 37.
TAC (n 40 above) para 38. See also the Court’s justification for the lenient
standard of scrutiny adopted in Soobramoney v Minister of Health, KwaZulu-
Natal 1998 1 SA 765 (CC), 1997 12 BCLR 1696 (CC) para 29.
43 Fraser (n 18 above) 299.
44 See eg Soobramoney (n 42 above) para 29; Grootboom (n 41 above) para 41; and
45
TAC (n 40 above) paras 96-114 & 129-133.
Roux (n 14 above) 10-58.

Reply - Danie Brand 107
system, but also outside of it, in a range of different ‘discursive
arenas’ and ‘publics’. 46
In this light it becomes clear that the rhetorical strategies that
the Court employs to justify its choices with respect to self-limitation
of its powers operate to depoliticise issues of poverty, need and social
provisioning of the State in two respects. First, and most obviously,
the Court’s rhetoric depoliticises in that it describes the issues in
question as technical rather than political in nature. As pointed out
above, this move can, to some extent, be viewed as inevitable.
However, second, the Court’s rhetoric depoliticises in that it
relegates the discourse about these issues, even in their technical
sense, wholly to the formally constituted political branches of
government ‘whose responsibility [and right] it is to deal with such
matters’. 47 The message to impoverished people is therefore not only
that the issues that they deal with are difficult ones in a technical
sense, requiring of them sustained, informed engagement 48 which
they, like the Court, might not have the capacity for. It is also that
the issues are, as with the Court, simply not their business. The
Court’s rhetoric casts them not as active participants in the process
of interpretation of their needs, engaged in political action as
Pieterse and Van Donk would want them to be, but as the passive
recipients of services. 49 In this way their capacity for democratic
political action is undermined — principally, I would say because the
Court’s rhetoric determines the way in which the state will in future
interact with them.
Now Theunis, if asked why he did not engage this broader
description of the tension between rights and democracy might
certainly again answer that he was writing only one chapter and not
a whole book. But, as with the first problem I raised in section 2
above, I believe that his failure to do so constitutes another important
opportunity missed. Various commentators have not only identified in
the Court’s jurisprudence these forms of the tension, but have also
suggested ways in which the court, by adapting its forms of reasoning,
ways of working and its doctrine, could better manage these aspects
of the tension than it does: Karl Klare, for example, has advocated
judicial candour about the presence of personal choice in judicial
interpretation to render judges more accountable for the decisions
they make; 50 Henk Botha has pointed to the fashioning and use of
flexible standards rather than bright line rules as a way of avoiding
46
Fraser (n 18 above) 297.
47 Soobramoney (n 42 above) para 29.
48 Wilson (n 27 above) 447.
49
Habermas (n 26 above) 210; see also Fraser (n 18 above) 307.
50 Klare (n 19 above) 164.

108 Chapter 7
the depoliticising finality of judicial decisions. 51 I have myself
identified in the Court’s socio-economic rights jurisprudence ways in
which the Court, for example by rewarding in its judgments political
engagement and punishing undemocratic conduct, can foster the
democratic capacity of the impoverished and so counteract the
depoliticising tendencies in its work. 52
Against this background the Constitutional Court’s fixation with
one aspect of the tension between rights and democracy that I briefly
outlined above in the context of its socio-economic rights
jurisprudence does not only erode democracy because it works to
depoliticise the issues the Court engages with as described. It erodes
democracy also because it means that the Court, despite an extensive
and nuanced body of literature alerting them to the problem, 53 takes
virtually no account of the variety of other ways in which their work
potentially stands in tension to democracy and as a result also takes
no account of the myriad ways in which they can alleviate the
problem. Had Theunis engaged them on this point in his chapter, they
would have been challenged anew to address it in some way.
3 Conclusion
It remains for me to ask one more question — well, perhaps two, the
answer to the first implying the second. Why is it that Theunis fails to
engage in his chapter the two issues I outline above? In the two
preceding sections I already suggested an answer to this question —
Theunis might say simply that he was not writing a book but only one
chapter of a book. But, given the thoroughness and the academic
rigour that I know Theunis for, I don’t think such academic lassitude
is the explanation. What Theunis would probably say — if I could be so
bold as to suggest what his answer would be — is that it was simply
not his brief or his purpose to address these two questions; that his
brief and his purpose in his CLoSA chapter and consequently in this
briefer essay was, against the background of a survey of political
science literature and on the basis of a close reading of the
constitutional text and the case law, to describe — and only to
describe — the principle of democracy in South African constitutional
law. If that were indeed Theunis’ answer, it would raise for me the
second and my final question — is such a project viable, and more
importantly, is it desirable?
Why do I ask this? Three things strike me about the nature of
Theunis’ chapter here and about the corresponding section in his
51 Botha (n 28 above).
52
Brand (n 30 above) 33-36.
53 See eg Klare (n 19 above); Botha (n 28 above).

Reply - Danie Brand 109
CLoSA chapter. 54 The first has to do with his basic approach. Theunis
does not set out to write about democracy and constitutional law —
had he done so, he would have had to write about democracy as
something certainly inside of, but also outside of, apart from the Final
Constitution and the law, and he would have had to address more
thoroughly the non-institutional aspects of the relationship between
democracy and the law. Theunis writes about ‘[t]he principle of
democracy in South African constitutional law’ (my emphasis). As
Theunis explains in a footnote in the section in his CLoSA chapter that
corresponds to his chapter here, his approach in this respect is a
Dworkinian one 55 — he writes about democracy as a ‘legal standard’,
intrinsic to the law and therefore capable of determination from a
close reading of the legal material alone. 56 Elsewhere, he makes this
explicit, writing that ‘the principle of democracy is a function of the
constitutional text, the cases decided to date and the cases yet to be
decided.’ 57
The second is the virtual absence of engagement with anything
other than the constitutional text and the case law in Theunis’
chapter here and in the section corresponding to it in his CLoSA
chapter. Apart from a few references for obvious reasons to his own
chapter in CLoSA, Theunis engages in his chapter here only once with
one South African work that deals with democracy in constitutional
law: Iain Currie and Johan de Waal’s The bill of rights handbook. 58
Apart from that there are only two further references to scholarly
work of any kind. 59 For the rest his references are solely to the
54 Theunis’ chapter here is drawn almost wholesale, with some cosmetic changes,
from § 10.5 in his CLoSA chapter on democracy. See Roux (n 14 above) 10-62 – 10-
77.
55 In saying this I do not mean that Theunis is in general Dworkinian in approach —
judging from the other work of Theunis’ that I have had the privilege of reading I
would describe him as a realist positivist, or a realist/pragmatist positivist in his
own mould, precisely because of his usual practice of combining close analysis of
the legal material with analysis of the institutional political context within which
the law operates. Nevertheless, in this chapter he uses the term ‘principle’ in its
Dworkinian sense.
56
Roux (n 14 above) 10-62, n 2.
57 Roux (n 1 above) n 7.
58 I Currie & J de Waal The bill of rights handbook 5 ed (2005). See Roux (n 1 above)
n 7.
59 One reference to Ronald Dworkin’s Taking rights seriously (1977) (Roux (n 1
above) n 8) and one to Frank Michelman’s chapter on the rule of law in CLoSA - F
Michelman ‘The rule of law, legality and the supremacy of the Constitution’ in
Woolman et al (n 14 above) Chapter 11 (Roux (n 1 above) n 14).

110 Chapter 7
constitutional text and the case law. 60
The third has to do with the absence of Theunis from his chapter.
Reading Theunis’ chapter here reminds me of one of the most
arresting moments of academic discussion I have witnessed. A few
years ago I visited a colleague who was on a fellowship in London and
attended with her a short conference at Birkbeck College, University
of London at which the political philosopher Slavoj Žižek spoke. On
the same panel as Žižek a young Italian scholar, whose name I have
unfortunately forgotten, gave a wonderfully detailed and structured
exposition of aspects of the work of Jacques Lacan. He had 21 points,
if I remember correctly and started simply by saying ‘One ...’
followed by an exposition of the first point, ‘Two ...’ and so on, until
he concluded with ‘Twenty-one’ — a pure and perfect description.
When he finished, Žižek turned his quite penetrating eyes on him and
said: ‘Very good, very good. But where are you?’.
Having read Theunis’ chapter I also want to ask him ‘But where
are you?’. Throughout his chapter Theunis is very careful only to
describe — he assiduously avoids expressing any opinion about the
virtues or otherwise of the principle of constitutional law that he
extracts from the constitutional text and from the various cases. In
two instances Theunis does suggest possible criticism of the case law
— with respect to the judgments in NNP and in UDM. 61 However, in
only one of these instances is the criticism positively asserted — in the
other instance Theunis merely hints at the possible criticism and then
says that he will, if at all, engage with it in another forum. 62 If
anything, these hints strengthen Theunis’ assertion of an objective
empirical description — the suggestion seems to be that he can and
will enter into critique on a normative basis in other fora, but this
forum is reserved for pure description only.
Taken together, these three features of Theunis’ chapter leave his
project here open to a quite specific reading — that it is a project of
pure, neutral description of a legal standard, conducted on the basis
of an empirically determinable and self-evident set of legal materials,
the constitutional text and the cases. Now, any project of description
60 I should be clear here about what I mean — I do not claim that Theunis as a
general rule fails to engage scholarly work relevant to the topics he addresses in
his writing, or even that he fails to engage scholarly work on democracy in his
democracy chapter in CLoSA. In that chapter Theunis engages in an admirably
exhaustive overview of political philosophy literature about democracy (albeit
one with a particular philosophical slant, excluding various critical engagements
with democracy). I do claim that where he turns to a description of the law he
leaves out of account literature outside the constitutional text — that is as true of
the section in his CLoSA chapter devoted to a description of the principle of
democracy in South African constitutional law as it is of his chapter here.
61
See Roux (1 above) 84-85.
62 As above.

Reply - Danie Brand 111
of the legal standard of democracy in South African law is of course
extremely valuable. As Stu Woolman tells us in his first chapter to this
volume, 63 the Constitutional Court has already once, in UDM, been
allowed to escape having to give substantive content to the
Constitution’s idea of democracy, because, on its version, no
academic had as yet done the ‘grunt work’ 64 of providing a systematic
description of that conception. 65 With Theunis having done the ‘grunt
work’ now, it will not be able to use the same excuse again. But
‘simple’ description — especially if it pretends at or unwittingly
creates the impression of a neutral finding of the law — also has its
limits and poses its own problems.
We have it from Karl Klare that neutral and empirical description
or interpretation of the law is impossible, and that attempts at such
a project are fraught. Drawing on two decades of critical scholarship,
Klare illustrated to South African scholars and lawyers already in 1996
that any claim to the neutral, ‘pure’ description of law is, in the first
place, false. Legal material is never self-evident, so that
interpretation/description for him always involves choice — even if
only choice as to what constitutes the relevant legal material, or what
constitutes the field of enquiry — and that choice is always informed
also by extra-legal materials and considerations. 66 Secondly, and
more important here, Klare also illustrated the dangers of the
pretence of objective, ‘purely legal’ interpretation or description of
law: Such pretence masks and so insulates from interrogation the
choice that is always there in interpretation. In this way democratic
engagement with the interpretation or description of the law that
arises is discouraged. 67 To be true, Klare’s warning was directed in
particular at judges, certainly in part because of the peculiar
rhetorical power that their pronouncements and their processes of
reasoning hold. We know that our work as academics is taken nowhere
near as seriously and that we certainly do not, as judges do, ‘model
intellectual and institutional practices appropriate to a culture of
[democracy]’ to any audience but ourselves. 68 Nevertheless, in a book
entitled Constitutional conversations and with respect to a chapter in
it on democracy, can I be forgiven for asking: If indeed Theunis aims
at providing a ‘pure’ description of the principle of democracy in
South African constitutional law in his chapter here, how democratic
is his writing in this respect?
63
S Woolman ‘The South African constitution as the last great modernist project’ in
64
S Woolman & M Bishop (eds) Constitutional conversations (2008) 25.
To use the phrase Stu Woolman often employs when describing in part the task he
sets authors in CLoSA.
65 UDM (n 3 above) para 25.
66 Klare (n 19 above) 162-163.
67
Klare (n 19 above) 164.
68 Klare (n 19 above) 147.

8
TRUE
IN THEORY, TRUE
IN PRACTICE: WHY
DIRECT APPLICATION
STILL MATTERS
Stu Woolman
No man has the right to pretend that he is practically expert in a science
and yet show contempt for theory without revealing that he is an
ignoramus in his field. Apparently such a man believes that he can get
further than he can by using theory, by groping about in experience on
experiments without developing certain principles which constitute
what I call theory and without having thought out an integrated
approach to his work which, when it is developed according to method,
is called a system.
...
Nowhere do people engage in practical pursuits speak with more
pretentiousness derogatively of theory and neglecting all pure rational
principles, than on the question of what is required for a good
constitution. This is because a legal constitution that has existed for a
long time accustoms people to live by its rule by and by and makes them
inclined to evaluate their happiness as well as their rights in light of the
conditions under which everything has been quietly going forward. Men
fail to do the opposite; namely, to evaluate the existing constitution
according to [standards] provided by reason in regard to happiness and
right. As a result, men prefer this passive state to the dangerous task of
seeking a better one. 1
1 I Kant ‘Concerning the common saying: This may be true in theory, but does not
apply in practice’ in I Kant Basic writings of Immanuel Kant trans CJ Freidrich
(1793) 8:276 and 8:305-306.
113

114 Chapter 8
Application
8(1) The Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if,
and to the extent that, it is applicable, taking into account the nature of
the right and the nature of any duty imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or juristic
person in terms of subsection (2), a court (a) in order to give effect to a
right in the Bill, must apply, or if necessary develop, the common law to
the extent that legislation does not give effect to that right; and (b) may
develop rules of the common law to limit the right, provided that the
limitation is in accordance with section 36(1).
(4) A juristic person is entitled to the rights in the Bill of Rights to the
extent required by the nature of the rights and the nature of that
juristic person.
1 Introduction
When jurists, lawyers and academics say they wish to talk about the
application of the Bill of Rights under the Final Constitution, by and
large, they have a single vexed question in mind: Upon whom do the
burdens of the Bill of Rights fall? That is, they want to know (or they
want to tell us), as a general matter, which kinds of persons or parties
may have the substantive provisions of the Bill of Rights enforced
against them, what kinds of laws attract meaningful scrutiny and what
conditions or circumstances must obtain for a substantive provision to
be said to apply to a given dispute.
My answer to this vexed and complicated question takes the
following form. I rehearse briefly the terms and the outcome of the
application debate under the Interim Constitution. I do so because
past is, quite obviously, prologue: The drafters of the Final
Constitution spoke directly to concerns about the text of the Interim
Constitution; the Constitutional Court accepted the invitation of the
drafters of the Final Constitution to revisit — and to recast — the
application doctrine developed under the Interim Constitution. In
addition to an abbreviated analysis of the Court’s application doctrine
under the Interim Constitution, this chapter contains an assessment
of the general jurisprudential concerns that framed the initial debate
and that recur, albeit in transmogrified form, under the Final
Constitution.

Stu Woolman 115
My subsequent approach to application under the Final
Constitution warrants a few prefatory remarks. The treatment of
‘burdens’ begins with the Constitutional Court’s articulation of the
black letter law on application in Khumalo v Holomisa. 2 As we shall
see, the Khumalo Court does not explain in any detail what the
various parts of FC section 8 mean or how they are designed to work.
This lack of transparency requires me to offer a good faith
reconstruction of the application doctrine articulated by the Khumalo
Court. This good faith reconstruction cannot be the last word on the
application doctrine under the Final Constitution. Although the good
faith reconstruction fleshes out the Khumalo Court’s conclusions in a
manner that coheres with the judgment’s various textual and
jurisprudential premises, even a reconstructed Khumalo is
unsatisfactory and, ultimately, unredeemable.
This chapter engages the good faith reconstruction in a number of
different ways. It sets out six primary doctrinal objections to the
Khumalo Court’s statement of the law. These six objections are
grounded, to varying degrees, in conflicting statements by the
Constitutional Court — as well as courts of more general jurisdiction
— about what each of the subsections in FC section 8 and FC section
39 should be understood to mean. This chapter offers a very brief
account of a second body of black letter law: namely, what the courts
have said the discrete subsections — FC sections 8(1), 8(2), 8(3) and
39(2) — denote. (For lawyers, jurists and academics who wish to know
in detail what the all of our courts have said about FC sections 8(1),
8(2), 8(3) and 39(2), the Constitutional Law of South Africa chapter
on ‘Application’ upon which I draw here offers a fairly exhaustive
account.) 3 This black letter law governs subjects as diverse as the
meaning of the term ‘all law’, the binding of the judiciary, the
legislature, the executive and organs of state, how the common law
is to be developed and transformed, the creation of new remedies
under the Bill of Rights, as well as such doctrines as reading down,
shared constitutional interpretation, stare decisis and objective
normative value systems.
In an ideal world, the general framework articulated in Khumalo
would be internally (logically) consistent and would be externally
consistent with (map directly on to) the courts’ express understanding
of what the specific sections in FC section 8 and FC section 39 signify
and the manifold doctrines they generate. In other words, Khumalo
would provide the edifice, and other cases that had a bearing on our
understanding of application would slot neatly into its structure. As
we shall see, the dissonance created by the disjunction between the
2 Khumalo v Holomisa 2002 5 SA 401 (CC), 2002 8 BCLR 771 (CC).
3
S Woolman ‘Application’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2005) Chapter 31, available at www.westlaw.com.

116 Chapter 8
black letter law on the general framework for application analysis and
the black letter law on the meaning of its various textual components
constitutes one of the primary grounds for rejecting the Court’s
current application doctrine. In its stead, I offer a preferred reading
that meets all of the doctrinal objections to Khumalo and,
concomitantly, gives each of the constituent parts of the text, and the
related doctrines they generate, a reading that fits the general
framework for application. 4
2 Application doctrine under the Interim Constitution
The Constitutional Court answered the question of burdens under the
Interim Constitution in Du Plessis & Others v De Klerk & Another. 5 The
facts. The thumbnail sketch of Du Plessis that follows merely
adumbrates the choices that the Constitutional Court had before it
under the Interim Constitution and some of the arguments that the
Constitutional Court once again engaged, at least tacitly, in Khumalo
under the Final Constitution.
According to the prevailing pre-Du Plessis discourse, the
Constitutional Court had two options. It could take a vertical
approach. On such a reading of the text, the Bill of Right’s substantive
provisions engaged directly only legal relationships between the state
and the individual. It could take a horizontal approach. On such a
reading, all legal relationships between the state and the individual
and all legal relationships between private persons would have been
4 For those readers who wish to immerse themselves in some of the finer points of
application doctrine, a detailed appendix in S Woolman ‘Application’ (n 3 above)
at 31-132 — 31-168, takes stock of the most important interventions made by
other commentators on this subject. These academic contributions ought not to
be considered mere arcana. At their best, these arguments develop, in full,
theories of application merely hinted at in judicial opinions and about which the
text is, inevitably, mute. As to other points of entry into this debate, the full
chapter offers the only available comprehensive account of the subject in the
South African literature.
5 1996 3 SA 850 (CC), 1996 5 BCLR 658 (CC). In 1993 the Pretoria News published a
series of articles dealing with the supply of arms by South Africa to UNITA in
Angola. The articles suggested that private air operators and airstrip owners —
the plaintiffs — were aiding the Department of Foreign Affairs in fuelling the
Angolan war. The plaintiffs instituted a defamation action in May 1993. The
defendants filed pleas denying that the articles suggested wrongful conduct by
the plaintiffs or defamed the plaintiffs. The defendants argued, in the
alternative, that even if the articles were defamatory, they were published in the
public interest. In October 1994 — after the Interim Constitution came into effect
— the defendants asked to amend their plea in order to claim that the right of
freedom of expression, IC sec 15, afforded them a new defence. The
Constitutional Court held that the substantive provisions of Bill of Rights of the
Interim Constitution were not, in general, capable of application to any legal
relationship other than that between legislative or executive organs of state at all
levels of government and natural or juristic persons. In particular, IC sec 15,
freedom of expression, was not capable of application to any legal relationship
other than that between persons and legislative or executive organs of the state
at all levels of government and natural or juristic persons.

Stu Woolman 117
subject to direct review for conformity with the specific substantive
rights set out in IC Chapter 3. Despite this basic difference in
orientation, every jurist, practitioner or academic interpreting the
Interim Constitution was committed to the following three
propositions. Statutes, when relied upon by the state, were subject
to constitutional review. Statutes, when relied upon by a private
party in a private dispute, were subject to constitutional review. The
common law, when relied upon by the state, was subject to
constitutional review. Moreover, almost every jurist, practitioner and
academic agreed that the heart of the application debate was
whether the common law, when relied upon by a private party in a
private dispute, was subject to constitutional review.
On this heart of the matter, the majority of the Constitutional
Court in Du Plessis v De Klerk came firmly down on the side of
verticality. The Du Plessis Court held that the substantive provisions
of the Bill of Rights of the Interim Constitution applied only to law
emanating from the legislature or the executive and to the conduct of
these two branches of government. Driven by a ‘traditional’ view of
what constitutions do, and bewitched by a text that ostensibly did not
apply to all law or bind the judiciary, the Du Plessis Court endorsed a
doctrine whose most notable feature was its insulation of commonlaw
disputes between private parties from direct application of the
specific substantive provisions of the Bill of Rights.
The extended version of this chapter offers several demurrals to
the Du Plessis doctrine. As three dissenting justices in Du Plessis
noted, the text did not settle the debate. But it did lead the Du Plessis
Court to the jurisprudentially untenable conclusion that while rules of
common law that govern disputes between private parties are not
subject to direct application of the specific substantive provisions of
the Bill of Rights, (because constitutions traditionally do not apply to
relations between private parties), rules in statutes or regulations
that govern disputes between private parties are subject to direct
application of the specific substantive provisions of the Bill of Rights.
So the ‘fact’ that a legal dispute is between private parties would
appear to be a necessary but not a sufficient condition for the Du
Plessis Court’s conclusion.
Indeed, it is hard to know whether it should be called a ‘condition’
at all. I call the very logic of the Du Plessis Court into question
because whether the law governing a dispute between private parties
was subject to direct application under the Interim Constitution was
entirely and fortuitously contingent upon the form the law took.
Embedded in the Du Plessis Court’s differential treatment of these
two bodies of law is the premise that the common law — unlike
legislation — protects a private ordering of social life that is neutral
between the interests of various social actors. That premise is false.

118 Chapter 8
Moreover, abstention from constitutional review of common-law rules
functions as a defence of deeply entrenched and radically
inegalitarian distributions of wealth and power by immunising from
review those rules of property, contract and delict that sustain those
inegalitarian distributions. The differential treatment of the two
bodies of law also rests on a traditional distinction between the public
realm and the private realm. At a minimum, this distinction fails to
recognise the extent to which the state structures all legal
relationships. With the ineluctable erosion of the public-private
divide, one of the last justifications for treating common law and
legislation differently disintegrates as well. What we are left with is
a doctrine that traditionally produces an incoherent body of decisions
and that cannot explain why courts, perfectly capable of vindicating
autonomy interests when asked to review statutory provisions
governing private relationships for consistency with the Bill of Rights,
prefer not to subject common-law rules governing private
relationships to the same form of scrutiny. 6
3 Application doctrine under the Final Constitution
3.1 Black Letter Law
Du Plessis effectively foreclosed debate on the direct application of
the substantive provisions of the Interim Constitution’s Bill of Rights
to rules of common law governing private disputes. The drafters of
the Final Constitution, however, reconsidered the Interim
Constitution’s provisional position on application. Unlike the Interim
Constitution, the Final Constitution’s Bill of Rights points unequivocally
toward a much broader conception of direct application: FC
6 I have employed the terms verticality and horizontality above and shall continue
to do so in this chapter where necessary. However, it seems fairly clear that these
two terms have outlived their usefulness and that the current debate over
application warrants a change in nomenclature. The post-Khumalo black letter
law on application and the preferred reading of those same application provisions
eschew any mention of verticality or horizontality. The debate over application of
the Bill of Rights is now best characterised solely in terms of direct application
and indirect application. Direct challenges describe instances in which the
prescriptive content of at least one specific substantive provision of the Bill of
Rights applies to the law or to the conduct at issue. Indirect challenges describe
instances in which the prescriptive content of no specific provision of the Bill of
Rights applies to the law or to conduct at issue. Indirect challenges rely, in terms
of FC sec 39(2), upon the spirit, purport and objects of the entire Bill to interpret
or to develop the law in order to settle the dispute before the court. (That is not
to say that a specific right might not be relevant — say as value, but not as a rule
— to an indirect challenge. I only claim that there must be a distinction with a
difference between the direct application of a right and the relevance of a right
to a more amorphous assessment of whether a rule of law remains in step with
the general spirit of our constitutional order. See Minister of Home Affairs v
National Institute for Crime Prevention 2005 3 SA 280 (CC), 2004 5 BCLR 445 (CC)
(On the difference between how constitutional norms operate as values and how
they operate as rules.))

Stu Woolman 119
section 8(1) states that the Bill applies to ‘all law’ and binds ‘the
judiciary’; FC section 8(2) states that the provisions of the Bill will
bind private persons.
In Khumalo, the Constitutional Court accepted the Final
Constitution’s invitation to broaden its conception of the law and the
relationships to which the substantive provisions of the Bill of Rights
apply directly. The signal difference between Du Plessis and Khumalo
is that the Khumalo Court reads FC section 8(2) to mean that some of
the specific provisions of the Bill of Rights will apply directly to some
disputes between private parties some of the time.
The black letter law on application in terms of Khumalo takes the
following form.
FC section 8(1) stands for the following two propositions:
• All law governing disputes between the state and natural persons or
juristic persons is subject to the direct application of the Bill of
Rights.
• All state conduct that gives rise to disputes between the state and
natural persons or juristic persons is likewise subject to the direct
application of the Bill of Rights.
FC section 8(2) stands for the following proposition:
Disputes between natural persons and/or juristic persons may be subject
to the direct application of the Bill of Rights, if the specific right
asserted is deemed to apply.
FC section 8(3) stands for the following proposition:
Where direct application of the right asserted occurs in terms of FC
section 8(2), and the court further finds a non-justifiable abridgment of
that right, then the court must develop the law in a manner that gives
adequate effect to the right infringed. 7
3.2 Good faith reconstruction of Khumalo
For reasons the opinion does not adequately explain, the Khumalo
Court chose to ignore two of FC section 8(1)’s injunctions: that the Bill
7
FC sec 39(2), although not engaged expressly in Khumalo, stands, under a
secondary body of black letter law, for the following propositions: (1) Where an
asserted right is, under FC sec 8(2), deemed not to apply directly to a dispute
between private parties, the court may still develop the common law or interpret
the apposite provision of legislation in light of the more general objects of the Bill
of Rights. (2) Even where a right is asserted directly, the court may still speak as
if a finding of inconsistency or invalidity requires that a new rule of common law
be developed in terms of FC sec 39(2).

120 Chapter 8
of Rights applies to ‘all law’ and that the Bill of Rights binds ‘the
judiciary’. One might have thought that such an explanation was
warranted, given that it was precisely the absence of these phrases —
‘all law’ and ‘binds the judiciary’ — in a comparable section of the
Interim Constitution that led the Du Plessis Court to reach the
conclusion that the Interim Constitution’s Bill of Rights did not apply
directly to disputes between private parties governed by the common
law. The Khumalo Court claims instead that had it given FC section
8(1) a gloss that ensured that the substantive provisions of the Bill of
Rights applied to all law-governed disputes between private parties —
regardless of the provenance of the law — it would have rendered FC
section 8(3) meaningless. That particular assertion is unfounded — or
at the very least radically under-theorised.
While it is quite easy to poke holes in the gossamer thin fabric of
Khumalo, such victories, pyrrhic as they are, do not advance
understanding; thus the need for a good faith reconstruction of
Khumalo. This good faith reconstruction fleshes out the Khumalo
Court’s conclusions in a manner that simultaneously coheres with its
jurisprudential commitments, avoids surplusage in so far as the
Court’s pre-commitments permit, and satisfies basic considerations of
textual plausibility and naturalness. The good faith reconstruction
begins with a perfectly understandable and workable distinction
between a constitutional norm’s range of application and that same
norm’s prescriptive content. The ‘range of application’ speaks to FC
section 8(1)’s commitment to ensuring that each and every genus of
law is at least formally subject to the substantive provisions of the Bill
of Rights. The ‘prescriptive content’ speaks both to FC section 8(2)’s
invitation to apply the substantive provisions of the Bill of Rights to
disputes between private parties and to the interpretative exercise
required to determine whether a given substantive provision of the
Bill is meant to engage the kind of dispute before the court. However,
even this effort to put Khumalo on the most solid footing possible
comes up short in six significant ways.
3.3 The critique of the black letter law & the good faith
reconstruction
The Khumalo Court quite consciously crosses over the public-private
divide. The text of the Final Constitution left it little choice. But
Khumalo’s one step forward is followed by two steps back. Whereas
all disputes between the state and an individual are subject to the
direct application of the Bill of Rights under the Final Constitution,
Khumalo tells us that only some disputes between private parties will
be subject to some of the provisions of the Bill of Rights. This revised
public-private distinction in application jurisprudence creates the
following anomaly.

Stu Woolman 121
In Du Plessis, the traditional view of constitutional review was
used to suppress direct application of the Bill of Rights with respect
to disputes between private parties governed by the common law. In
Khumalo, the new view of constitutional review is used to defer — and
potentially suppress — direct application of the Bill of Rights with
respect to all disputes between private parties. Here’s the rub. Direct
application is deferred — and by that I simply mean turned into a
question of interpretation — with respect to all disputes between
private parties. It matters not whether the law governing disputes
between private parties is grounded in statute, subordinate
legislation, regulation, common law or customary law. Put slightly
differently, whereas the Interim Constitution’s Bill of Rights was
understood to apply directly, and unequivocally, to legislation that
governed private disputes, the Final Constitution’s Bill of Rights does
not. Less law is subject to the direct unqualified application of the Bill
of Rights under the Khumalo Court’s reading of the Final Constitution
than it was under the Du Plessis Court’s reading of the Interim
Constitution.
Doctrinal tension generates a second objection. The
Constitutional Court has constructed a powerful set of doctrines in
which (1) every exercise of state power is subject to constitutional
review and (2) every law is subject to the objective theory of
unconstitutionality. Much is rightly made of the Constitutional Court’s
bold assertion in Fedsure, Pharmaceutical Manufacturers and their
progeny that all law derives its force from the basic law — the Final
Constitution — and that all law, and all conduct sourced in the law,
must, as a logical matter, be consistent with the basic law. 8 Despite
the first requirement — and despite the fact that FC section 8(1)
applies to all law and binds the legislature, the executive and the
judiciary — primary legislation or subordinate legislation that governs
a dispute between private persons will not necessarily be subject to
the direct application of the Bill of Rights. Those same provisions in
legislation or subordinate legislation would, however, automatically
be subject to the direct application of the provisions of Bill of Rights
if they were invoked by an individual in a dispute with the State.
The absurdity of this distinction is brought into even sharper relief
by the Court’s own doctrine of objective unconstitutionality. (The
relative desuetude of this doctrine is offset by the fact that it has, as
8 Fedsure Life Assurance Ltd & Others v Greater Johannesburg Transitional
Metropolitan Council & Others 1999 1 SA 374 (CC), 1998 12 BCLR 1458 (CC);
Pharmaceutical Manufacturers Association of SA: In Re Ex Parte President of The
Republic of South Africa 2000 2 SA 674 (CC), 2000 (3) BCLR 241 (CC).

122 Chapter 8
yet, not been repudiated by the Constitutional Court.) 9 In its most
general form, the doctrine holds that the validity or the invalidity of
any given law is in no way contingent upon the parties before the
Court in a particular matter. If a provision of legislation would be
deemed to be unconstitutional when invoked by an individual in a
dispute between the State and an individual, then it must likewise be
unconstitutional when invoked by an individual in a dispute between
that individual and another individual. (Or to make the reach of the
doctrine even clearer: a challenge to a provision of legislation will be
deemed to be unconstitutional if it is found to violate a specific
substantive constitutional right — even if the plaintiff herself will not
benefit from the finding and even if the factual predicate that
grounds the court’s finding of unconstitutionality is different from the
factual predicate upon which the plaintiff is grounded.) However, the
Court’s differentiation between FC section 8(1) disputes that are
invariably subject to the direct application of the Bill of Rights and FC
section 8(2) disputes that are not invariably subject to the direct
application of the Bill of Rights is logically incompatible with the
doctrine of objective unconstitutionality. The Khumalo application
doctrine relies upon the ability to distinguish constitutional cases —
and thus the constitutionality of laws — upon the basis of the parties
before the court. The doctrine of objective unconstitutionality denies
the ability to distinguish constitutional cases — and thus the
constitutionality of laws — upon the basis of the parties before the
court. This contradiction is a direct consequence of the Khumalo
Court’s refusal to give the term ‘all law’ in FC section 8(1) its most
obvious construction and the Court’s preference for making FC
section 8(2) the engine that drives the analysis of all disputes between
private parties. Not even the good faith reconstruction of Khumalo
can meet this second objection.
The third objection flows from the Khumalo Court’s refusal to say
anything about FC section 8(1)’s binding of the judiciary. Perhaps the
most damning consequence of this structured silence is that it offends
a canon of constitutional interpretation relied upon by Justice
O’Regan in Khumalo itself: ‘We cannot adopt an interpretation which
would render a provision of the Constitution to be without any
apparent purpose.’ 10 Not only does Justice O’Regan refuse to give the
provision ‘any apparent purpose’, we cannot, even on the good faith
reconstruction, give it any apparent purpose. The good faith
reconstruction gains its traction through a distinction between a
9 See Ingledew v Financial Services Board: In re Financial Services Board v Van der
Merwe & Another 2003 4 SA 584 (CC), 2003 8 BCLR 825 (CC) at para 20 (‘This
court has adopted the doctrine of objective constitutional invalidity.’) See also De
Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2004 1 SA
406 (CC), 2003 12 BCLR 1333 (CC) (confirms continued validity of doctrine).
10 Khumalo (n 2 above) para 32.

Stu Woolman 123
constitutional norm’s range of application and that same norm’s
prescriptive content. That creates the interpretational space to argue
that while FC section 8(1) speaks to each specific constitutional
norm’s range of application — and does not distinguish one genus of
law from another — FC section 8(2) speaks to the prescriptive content
of each specific constitutional norm and directs us to consider
whether that prescriptive content ought to be understood to govern
the private conduct of the private parties that constitutes the
gravamen of the complaint. This good faith reconstruction does no
work with respect to the phrase ‘binds the judiciary’ because the
distinction between ‘range’ and ‘prescriptive content’ engages the
relationship between constitutional norms and ordinary law. It does
not speak to the provenance of a given law. The reason it cannot be
recast in a manner that speaks to the differing concerns of FC section
8(1) and FC section 8(2) is that FC section 8(2) does not concern itself
with our different lawmaking institutions — legislative, executive or
judicial. What is left? A weak reading in which the judiciary is bound
— not in terms of the ‘law’ it makes — but purely in terms of its
‘conduct’ (or ‘non-law-making conduct’). It seems to me to defy both
logic and common sense to argue that when FC section 8(1) binds the
legislature and the judiciary, it means to bind the actions of
legislators or judges solely in their personal capacity. When we bind
the legislature, we must bind both the law it makes and the non-lawmaking
actions it takes. The text offers no reason to treat the
judiciary any differently. We certainly want state actors — legislators
and judges alike — to care about the manner in which they comport
themselves. But we care primarily about the laws that they make that
govern our society as whole. But that is not what Khumalo says, nor
can it be reconstructed in such a manner as to say so.
The fourth objection to Khumalo’s construction of FC section 8
turns on the style of the argument. In short, before Justice O’Regan
decides whether to engage the applicant’s exception to the action in
defamation in terms of freedom of expression, she has already
concluded: (a) that the law of defamation is in pretty good shape
post-Bogoshi; 11 (b) that freedom of expression is important but not
central to an open and democratic society; and (c) that dignity —
especially as viewed through the lens of reputation — is of paramount
concern. Only after having reached these conclusions does Justice
O’Regan decide that this matter warrants direct application of
freedom of expression to the common law of defamation in a dispute
between private parties.
Based upon the Court’s own jurisprudence and our good faith
reconstruction of Khumalo, a court should first decide whether the
11 National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA), 1999 1 BCLR 1 (SCA).

124 Chapter 8
specific substantive provisions of the Bill of Rights apply to the dispute
before the court. If, as in Khumalo, the court determines that
freedom of expression applies directly, then the generally accepted
approach to rights analysis has us begin with a determination of the
scope of freedom of expression and follows with an assessment of
whether the law of defamation constitutes a prima facie infringement
of that right. In Khumalo, it would most certainly have been found to
be such. The second question is whether the law of defamation — as
currently constructed — is a justifiable limitation of the right to
freedom of expression. Instead, the judgment looks, in manner of
delivery, much like the kind of judgment in which, under FC section
39(2), the common law is developed via indirect application of the Bill
of Rights. The style of the judgment suggests that the Khumalo Court
considers it relatively unimportant to engage this dispute as if, in
fact, direct application takes place. Or more accurately, by packaging
Khumalo as if it were simply a common law judgment, the Khumalo
Court intimates that the difference between direct application and
indirect application of the Bill of Rights is minimal, if not nonexistent.
I might be inclined to accept this elision of the analytical
processes required by FC section 8 and FC section 39(2) were it not
for the fact that the Supreme Court of Appeal and the Constitutional
Court have handed down judgments regarding constitutional
jurisdiction, stare decisis and indirect application under FC section
39(2) that manifest a clear desire not to disturb settled bodies of
common law precedent and that cannot help but immunise a
substantial body of apartheid-era decisions from reconsideration by
lower courts. 12 This claim requires some amplification.
Leaving aside the problem of surplusage raised by our courts’
occasional interchangeable use of FC section 8 and FC section 39(2),
the Supreme Court of Appeal in Afrox, extending the reasoning of the
Constitutional Court in Walters, has held that at least one critical
difference exists between direct application under FC section 8 and
12 The cosmology of common law jurisdictions is such that some lawyers express
discomfort with the notion that a common law rule found inconsistent with the
Final Constitution could occasion a finding of invalidity. But that locution is, in
fact, endorsed by the Constitutional Court. See National Coalition for Gay and
Lesbian Equality & Another v Minister of Justice & Others 1999 1 SA 6 (CC), 1998
12 BCLR 1517 (CC), 1998 2 SACR 556 (CC) para 73 (Court declares ‘common-law
offence of sodomy ... inconsistent with the 1996 Constitution and invalid.’) See
also Shabalala v Attorney General, Transvaal 1996 1 SA 725 (CC), 1995 12 BCLR
1593 (CC), 1995 2 SACR 761 (CC); S v Thebus 2003 (6) SA 505 (CC), 2003 10 BCLR
1100 (CC), 2003 2 SACR 319 (CC) (Court notes that a finding of inconsistency with
respect to common law may occasion an order that goes beyond invalidity to
develop a new rule of law.)

Stu Woolman 125
indirect application under FC section 39(2). 13 A High Court may revisit
pre-constitutional Appellate Division precedent only where a party
has a colourable claim grounded in the direct application of a
substantive provision of the Bill of Rights. High Courts may not alter
existing common law precedent (whether pre-constitutional or postconstitutional)
through indirect application of FC section 39(2). (The
rest of our appellate courts’ novel doctrine of constitutional stare
decisis further constrains the High Courts’ constitutional jurisdiction.)
What happens when our appellate courts’ marry this restrictive
doctrine of stare decisis to an incrementalist gloss on indirect
application in terms of FC section 39(2)? It spawns an application
doctrine that effectively disables the High Court from undertaking
meaningful constitutional review of existing common law precedent
(as well as all other constructions of law) and thereby protects
‘traditional’ conceptions of law and existing legal hierarchies. This
observation about the manner in which our existing array of
application, stare decisis and constitutional jurisdiction doctrines
conspire to blunt the transformative potential of the basic law is one
of the strongest rejoinders to those jurists and commentators who
have suggested that whether one relies upon FC section 8 (1), or FC
section 8(2) or FC section 39(2), the song remains the same: How
should the law governing a dispute be developed, re-formulated or reinterpreted?
A series of related objections flows from a conflation of the
purpose and mechanism of direct application and the purpose and
mechanism of indirect application. (These errors appear in both the
case law and the academic commentary.) This conflation takes
several forms. First, there is no meaningful difference between direct
application of the Bill of Rights to the common law under FC section
8 and indirect application of the Bill of Rights under FC section 39(2).
Second, those who believe a meaningful difference exists between
analysis under FC section 8 and FC section 39(2) rely on a clear
cleavage between rules and values. Third, since no clear cleavage
exists between the rule-governed analysis and the value-governed
analysis under the Final Constitution, then any distinction between
the two sections, grounded in the belief that they require different
kinds of analysis, collapses.
With respect to the first claim — that no meaningful difference
exists between direct application of the Bill of Rights under FC section
8 and indirect application under FC section 39 — one might expect an
13
Afrox Healthcare Bpk v Strydom 2002 6 SA 21 (SCA); Ex parte Minister of Safety
and Security & Others: In re S v Walters & Another 2002 4 SA 613 (CC), 2002 7
BCLR 663 (CC), 2002 (2) SACR 105 (CC). See also S Woolman & D Brand ‘Is there a
constitution in this courtroom?: Constitutional jurisdiction after Afrox and
Walters’ (2003) 18 South African Public Law 38.

126 Chapter 8
explanation as to why FC section 8 is entitled ‘Application’ and FC
section 39 is entitled ‘Interpretation’. The refusal to take the text
seriously and to claim that no meaningful distinction exists between
FC section 8 and FC section 39(2) flies directly in the face of Justice
O’Regan’s injunction — in Khumalo v Holomisa — that we should not
attribute meaning to one section of the Final Constitution that
renders another section, quite literally, senseless. 14 If FC section 8(2)
and FC section 39(2) both mean the same thing, then one of those
sections is entirely superfluous. In Khumalo, Justice O’Regan quite
rightly held that the attribution of distinct purposes to the two
sections is an absolutely essential exercise. Under FC section 8, the
specific substantive provisions of the Bill of Rights apply to each and
every kind of law, and each and every form of conduct (whether
public or private, where appropriate). FC section 8 does not mean
that the prescriptive content of the substantive provisions in the Bill
of Rights cover each and every legal dispute. Put another way, while
the specific provisions in the Bill of Rights cover a large domain of law
and conduct activity, they do not engage all law and conduct. The
independent purpose of FC section 39(2) is to engage law and conduct
that are not engaged by any of the specific provisions set out in
Chapter 2.
A counterfactual makes this last distinction clear. Assume that FC
section 39(2) and FC section 8 do require the same mode of analysis.
Assume, as Chris Roederer 15 and the Masiya, Barkhuizen and NM
Courts 16 would have us do, that this mode of analysis is purely a
14 Khumalo (n 2 above) para 32 (‘We cannot adopt an interpretation which would
render a provision of the Constitution without any apparent purpose.’)
15 C Roederer ‘Post-matrix legal reasoning: Horizontality and the role of values in
South African law’ (2003) 18 South African Journal on Human Rights 57.
16 Masiya v Director of Public Prosecutions & Others 2007 5 SA 30 (CC), 2007 8 BCLR
(CC). The facts and the outcome of Masiya are clear enough. Mr Masiya had been
convicted in a regional magistrate’s court of the anal rape of a nine-year-old girl.
However, as the law stood prior to conviction, the anal rape satisfied only the
desiderata for a conviction of indecent assault. The magistrate developed the
common-law definition of rape to include non-consensual penetration of the penis
into the vagina or anus of a person and made the common-law definition of rape
gender-neutral. On appeal, the High Court both agreed with the magistrate’s
reasons for developing the definition and confirmed Masiya’s conviction on the
charge of rape. The Constitutional Court was asked to confirm the High Court’s
judgments — and, in particular, its development of the common-law definition of
rape and the attendant alterations of the Criminal Procedure Act 51 of 1977 and
the Criminal Law Amendment Act 105 of 1997. Nkabinde J, writing for the
majority, held that the current definition of rape remained consistent with the
Bill of Rights. (That is, the common law had ‘correctly’ characterised coerced
anal penetration as mere indecent assault.) However, the Masiya court then found
14 that Khumalo the pre-Masiya (n 2 above) definition para 32 (‘We still fell cannot short adopt of the an spirit, interpretation purport and which objects would of
the render Bill a of provision Rights. The of the majority Constitution held that without the definition any apparent of rape purpose.’) must be extended
15 to C Roederer include non-consensual ‘Post-matrix legal anal reasoning: penetration Horizontality of the anus and of the females. Role of The Values same in
majority South African refused Law’ to (2003) extend 18 SAJHR the definition 57. of rape to non-consensual anal

Stu Woolman 127
value-driven exercise. Why even have a Bill of Rights? Why not just
have a short list of a general goods that embraces all of the values
made manifest in the substantive provisions in Chapter 2? The
correct reply is that the drafters intended for there to be two
different processes. The first process — direct application — takes
the rights and freedoms — and the general rules derived from them —
as our departure point for determining whether law or conduct is
invalid. The second process — indirect application — allows for a
mode of analysis that neither specifies whether a particular right
demands vindication nor permits a finding of invalidity. Instead, as
Carmichele and Thebus tell us, the courts operate under a general
injunction to bring all law into line with the ‘spirit, purport and
objects’ of the Bill of Rights and the ‘objective, normative value
system’ made manifest in the text of the Final Constitution as a
whole. 17
penetration of the anus of females. The same majority refused to extend the
definition of rape to non-consensual anal penetration of males on the grounds
that the court’s remedial powers were limited to the parties before the court and
the facts of the instant matter. On this point, Langa CJ, joined by Sachs J,
dissented. Both justices contended that the definition of rape should embrace
non-consensual anal penetration of men. The Chief Justice reasoned that once
the court accepted that rape was predominantly about the impairment of dignity,
it made no sense for the law to distinguish between men and women. As a matter
of logic and experience, the Chief Justice draws the unassailable conclusion that
when it comes to anal rape it makes no sense to distinguish between men and
women: it is an unconstitutional affront to the dignity of both. As a matter of
institutional comity, the Chief Justice is correct in noting that the recognition of
anal rape of men as rape does not require any legislative intervention. Coerced
anal intercourse is anal rape: whether the victim happens to possess a penis or a
vagina. In these circumstances, the Chief Justice recognises that it is ludicrous to
suggest, as the majority does, that the court should not make new constitutional
16
common penetration law of ‘on the the anus basis of of females. what the The facts same might majority be’. Masiya refused (n to 14 extend above) the at
para definition 29. Men, of rape absent to non-consensual vaginas, are raped anal penetration all the time. of The males common on the law, grounds the
province that the court’s of the courts, remedial is more powers than were adequate limited to the task parties of righting/rewriting before the court and the
law the as facts it stands. of the For instant further matter. analysis On of this Masiya point, — and Langa two CJ, other joined recent by judgments Sachs J,
that dissented. bear out Both the justices thesis contended that a failure that the to definition undertake of direct rape should application embrace has
genuinely non-consensual deleterious anal penetration consequences of men. — Barkhuizen The Chief v Napier Justice 2007 reasoned 5 SA that 323 (CC), once
2007 the court (7) BCLR accepted 691 (CC); that NM rape v was Smith predominantly 2007 (5) SA 250 about (CC), the 2007 impairment (7) BCLR of 751 dignity, (CC)
— it made see S Woolman no sense for ‘The the amazing, law to distinguish vanishing Bill between of Rights’ men (2007) and women. 124 South As a African matter
Law of logic Journal and experience, 762. the Chief Justice draws the unassailable conclusion that
17 Carmichele when it comes v Minister to anal of rape Safety it makes and Security no sense 2001 to distinguish 4 SA 938 (CC), between 2001 men 10 BCLR and
995 women: (CC) it para is an 54. unconstitutional See also Thebus affront (n 12 above). to the dignity If FC sec of both. 39(2) objectives As a matter map of
directly institutional to comity, this ‘normative the Chief Justice value system’, is correct then in noting the Constitutional that the recognition Court may of
assert anal rape constitutional of men as jurisdiction rape does not through require FC any sec 39(2) legislative whenever intervention. it believes Coerced that a
rule anal of intercourse common law is anal (or rape: conduct whether in light the of victim such rules) happens or the to possess interpretation a penis or of a
statute vagina. In (or these conduct circumstances, in light of the a Chief given Justice set of recognises statutory that provisions) it ludicrous does not to
conform suggest, with as the its majority understanding does, that of our the basic court constitutional should not make norms. new The constitutional
Court relies
upon common this law characterisation ‘on the basis of FC what sec the 39(2) facts in Carmichele might be’. Masiya in order (n to 14 compel above) the at
High para Court 29. Men, and absent the Supreme vaginas, Court are raped of Appeal all the to develop time. The the common law, law the of
delict. province Thus, of the despite courts, the is Thebus more than Court’s adequate admission to the that task FC of sec righting/rewriting
39(2) ‘does not
specify the law what as it triggers stands. For the further need to analysis develop of Masiya the common – and two law other or in recent which
circumstances judgments that the bear development out the thesis of the that common a failure law is to justified’, do direct the application failure of any has
court deleterious to adhere consequences to the FC sec — Barkhuizen 39(2) obligation v Napier to develop 2007 5 the SA 323 common (CC), law 2007 or (7) to
interpret BCLR 691 a (CC); statute NM in v Smith light of 2007 the (5) demands SA 250 of (CC), the 2007 Final (7) Constitution’s BCLR 751 (CC). ‘objective For a
normative similar analysis value S system’ Woolman risks ‘The reversal amazing, by vanishing our highest Bill constitutional of Rights’ (2007) tribunal. 124
Thebus South African (n 12 above) Law Journal para 762. 27. This sword of Damocles is particularly dangerous

128 Chapter 8
Both Professor Roederer and the Masiya, Barkhuizen and NM
Courts further presuppose that those who believe a meaningful
difference exists between analysis under FC section 8 and FC section
39 rely incorrectly on a cleavage between rules and values. They
claim, expressly and implicitly, that since FC section 39 requires that
we analyse specific substantive rights, rules of common law or
provisions of statutes in light of the same five core values — openness,
democracy, human dignity, equality, freedom — or the same general
‘spirit, purport and objects’, then we must necessarily be engaged in
the same kind of ‘global’ assessment of rights, rules and statutory
provisions whether we undertake direct application or indirect
application. This is false. First, when we ask whether a statutory
provision or a rule of common law – say the definition of rape or
indecent assault — violates the right to dignity or the right to equality,
we do not engage in some global assessment of competing Bill of
Rights considerations. We know that FC section 9 — the right to
equality — requires us to ask very specific kinds of questions about
‘differentiation’, ‘discrimination’, ‘unfairness’, ‘systemic disadvan-
17 because the Court cannot ‘specify ... the circumstances’ under which the sword
may drop: its authority is unconstrained by determinate standards. This then is
the linguistic trick that causes the specific substantive provisions of the Bill of
Rights — FC sec 9 through FC sec 35 — to disappear, and then to reappear in the
rather amorphous form of ‘an objective normative value system’. This rhetorical
flourish of a phrase plays an equally important role in instances of FC sec 39(2) —
informed ‘statutory interpretation’. See Rail Commuters Action Group & Others v
Transnet Ltd t/a Metrorail & Others. 2005 2 SA 359 (CC), 2005 4 BCLR 301 (CC). In
Rail Commuter Action Group v Transnet Ltd T/A Metrorail 2003 (5) SA 518 (C)
573, 2003 3 BCLR 288 (C), the High Court, per Davis J and Van Heerden J,
entertained a direct challenge to secs 15(1) and 23(1) of the South African
Transport Services Act 9 of 1989 in terms of FC sec 11 and FC sec 12(1)(c). They
held that these substantive provisions of the Final Constitution imposed a legal
duty on Transnet to ensure that all railway commuters — regardless of race or
class — enjoyed a certain level of physical safety. In Transnet Ltd T/A Metrorail v
Rail Commuters Action Group 2003 6 SA 349 (SCA), 2003 12 BCLR 1363 (SCA), the
Supreme Court of Appeal differed with the Cape High Court over the content of
the civic morality enshrined in the Final Constitution. The Supreme Court of
Appeal rejected the proposition that our constitutionally-mandated morality
demanded that a legal duty of care be imposed on Transnet in order to remedy
the endemic violence visited upon commuters from historically disadvantaged
communities. The Constitutional Court then reversed the Supreme Court of
Appeal. However, the Constitutional Court chose not to follow the High Court’s
route and view the constitutional infirmity as a direct infringement of
fundamental rights. Instead, the Constitutional Court construed the enabling
legislation in terms of FC sec 39(2) and found that it imposed prospectively, a
duty of care on Metrorail. Three decisions – three different modes of analysis. The
problem with the Constitutional Court’s Rail Commuter Action Group judgment is
that by employing FC sec 39(2), it once again obviates the need to give
meaningful content to the substantive provisions — FC secs10, 11 and 12 — upon
which it expressly relies. The same sort of vanishing act occurs in Laugh It Off
Promotions CC v SAB International (Finance) BV t/a Sabmark International &
Another 2006 1 SA 144 (CC), 2005 8 BCLR 743 (CC). The Laugh It Off Court’s
preference for FC sec 39(2) — informed statutory interpretation over direct
constitutional interpretation in terms of FC sec 16 raises the question of how the
Court can meaningfully assert constitutional jurisdiction — in order to overturn
the Supreme Court of Appeal’s judgment — while employing a form of
adjudication that largely eschews actual fundamental rights analysis.

Stu Woolman 129
tage’ and ‘the impairment of dignity’. We know that FC section 10
demands that we ask whether a given rule of law treats individuals as
mere means, whether it recognises that individuals are always endsin-themselves,
or whether it allows for inhumane punishment or
treatment. Second, it could hardly be the case that when we interpret
‘the right to access to housing’ in light of those five core values, we
end up with the same content as when we interpret ‘the right to
access to court’ in light of those five core values. However general
their wording might be, these specific substantive rights generate
rules with real purchase. And they appear in distinct provisions in the
Bill of Rights because they seek to achieve manifestly different ends.
Does the putative collapse of the rule/value distinction better
justify the result in Masiya or the arguments offered by Professor
Roederer? Well, once we make this move, there is only one question
we could ask when faced with any allegation of a rights violation:
‘Stepping back from it all, is the law or conduct under review the kind
of law or conduct that the entire scheme of the Bill of Rights is meant
to achieve?’ Such a broad inquiry inevitably makes questions about
the distinct kinds of application required by FC sections 8 and 39
superfluous. But this interpretative strategy floats so free of the text
that it makes any analysis of the specific rights in FC sections 9
through 35 superfluous. That would seem to violate with a vengeance
the non-redundancy or non-surplusage requirement articulated by
Justice O’Regan in Khumalo.
In considering the dangers of the Court’s collapse of the rule/
value distinction in Masiya, Barkhuizen, NM and other case, it may be
worth reflecting upon the Constitutional Court’s own distinction
between rules and values and the different uses to which the Final
Constitution puts them. In Minister of Home Affairs v National
Institute for Crime Prevention and the Reintegration of Crime
Offenders & Others, Chaskalson CJ writes:
The values enunciated in section 1 of the Constitution are of
fundamental importance. They inform and give substance to all the
provisions of the Constitution. They do not, however, give rise to
discrete and enforceable rights in themselves. This is clear not only from
the language of section 1 itself, but also from the way the Constitution is
structured and in particular the provisions of Chapter 2 which contains
the Bill of Rights. 18
Values are one thing, the NICRO Court holds, rules another. While it
is certainly true that the fundamental values articulated in the Final
Constitution will shape the rules expressed therein, and that the rules
will have a reciprocal effect with respect to our understanding of
18 2005 3 SA 280 (CC), 2004 5 BCLR 445 (CC) para 21.

130 Chapter 8
those fundamental values, there remains a distinction with a
difference. Rights give rise to rules and enforceable claims. Values do
not. The Masiya, Barkhuizen and NM Courts and Professor Roederer
ignore this distinction at our peril.
The sixth objection expands upon an issue raised above: Unless
the two processes of application — direct and indirect — are identical,
then the various sections of the Bill of Rights that deal with
application (or interpretation) must contemplate at least two distinct
modes of analysis and must employ language that reflects such a
distinction. Here then is my contention. As a matter of logic, one must
know when direct application is or is not required in order to know
when indirect application is or is not required. Direct application
means that the prescriptive content of the substantive rights found in
FC sections 9 through 35 engages the law or conduct at issue. Where
the prescriptive content of the substantive rights found in FC sections
9 through 35 does not engage the law or the conduct at issue, then FC
section 39(2) tells us that the more general spirit, purport and objects
of the chapter may inform our efforts to bring all law into line with
the Final Constitution. If we reverse the spin, and we first use FC
section 39(2) to bring the law into line with the general spirit, purport
and objects of the Bill of Rights, there is simply nothing left to be
done in terms of the direct application of the specific substantive
provisions of the Bill of Rights. The reason is obvious. If the general
spirit, purport and objects of Chapter 2 — which embraces (at a
minimum) the entire value domain reflected by the specific
substantive provisions of the Bill of Rights — does not require a change
in the law (or a change in conduct brought about by a change in the
law), then no narrower set of purposes reflected in a single
substantive provision of the Bill of Rights could be expected to do so.
Contrary to Professor Currie’s take on application, indirect
application was not meant to ‘avoid’ actual constitutional analysis in
terms of the specific substantive provisions of the Bill of Rights. 19
Indeed FC section 39(2) enables a court to go beyond the limited
substantive provisions of the Bill of Rights. FC section 39(2) promises
an expansive understanding of judicial review under the Bill of Rights,
not a cramped understanding. However, before one can engage in
indirect application and the development of new rules of law in terms
of FC section 39(2), one must first delineate the ambits of the specific
constitutional provisions relied upon in the applicant’s challenge to
existing law. Only when one has determined those ambits, and found
19
I Currie & J de Waal The Bill of Rights handbook 5 ed (2005). There is, in the
academic literature an ongoing confusion between ‘reading down’ (which still
requires Bill of Rights interpretation in terms of a specific provision) and indirect
application which requires no such engagement with a specific substantive
provision.

Stu Woolman 131
that they do not speak to the issues raised by an ordinary rule of law,
can one turn to the more open-ended invitation of FC section 39(2).
Analysis of the specific provisions of the Bill of Rights — and the
consistency of law or conduct with those provisions — must be
logically prior to the analysis of the common law or the interpretation
of statutes in terms of the general spirit, purpose and objects of the
Bill of Rights. When FC section 39(2) — indirect application — is given
priority over FC section 8 — it does too much work and turns all of FC
section 8 — the entire section on Application — into surplusage. Again
FC section 39(2), on such a reading, does exactly what Justice
O’Regan, in Khumalo, says we must not do: it makes FC section 8(1),
FC section 8(2) and FC section 8(3) entirely redundant. 20
4 The preferred reading
There is a better way. My preferred reading satisfies the demands of
naturalness, textual plausibility, coherence, surplusage and ideology,
and, just as importantly, meets the objections lodged against both
Khumalo and the good faith reconstruction of Khumalo. That
preferred reading takes the following form.
FC section 8(1) covers ‘all law’ — regardless of provenance, form,
and or the parties before the court. FC section 8(1) also covers all
state conduct — by all branches of government and all organs of the
state — whether that conduct takes the form of law or reflects some
other manifestation or exercise of state power. In sum, FC section
8(1) should be understood to stand for the following proposition:
All rules of law and every exercise of state power are subject to the
direct application of the Bill of Rights.
FC section 8(2) covers dispute-generating conduct between private
actors not ‘adequately’ governed by an express rule of law. There are
two basic ways to read ‘not governed adequately by an express rule
of law.’ First, it could contemplate the possibility of a dispute over an
aspect of social life that is not currently governed by any rule of law
at all. Such instances are rare. Indeed there is good reason to believe
that such instances do not exist at all. The second and better reading
views non-rule governed conduct in a much narrower sense. In many
instances a body of extant rules — or even background norms — may
be said to govern a particular set of private relationships. FC section
8(2) calls our attention to the fact that these rules of law may not give
adequate effect to the specific substantive provisions of the Bill of
Rights and may require the courts to develop a new rule of law that
does give adequate effect to a particular provision in the Bill of Rights
20 Khumalo (n 2 above) para 32.

132 Chapter 8
in so far as a dispute between private persons requires it to do so. In
sum, FC section 8(2) should be understood to stand for the following
proposition:
While, on the Hohfeldian view, a body of extant legal rules — or
background norms — will always govern a social relationship, those same
rules will not always give adequate effect to a provision in the Bill of
Rights. FC section 8(2) calls attention to the potential gap between
extant rules of law and the prescriptive content of the Bill of Rights,
and, where necessary, requires the courts to bridge that gap by bringing
the law into line with the demands of particular constitutional norms.
If we decide that the right invoked engages the conduct in question
and that the right has been unjustifiably infringed, then we move on
to FC section 8(3). FC sections 8(3)(a) and (b) enjoin the court to
develop new rules of law and remedies designed to give effect to the
right infringed. Thus, where FC section 8(2) acknowledges gaps in
existing legal doctrine, FC section 8(3) aims to fill those gaps. In sum,
FC section 8(3) should be understood to stand for the following
proposition:
If the court finds that the right relied upon warrants direct application
to the conduct that has given rise to the dispute, and further finds a
non-justifiable abridgment of the right, then the mechanisms in FC
sections 8(3)(a) and (b) must be used to develop the law in a manner
that gives adequate effect to the right infringed.
It may be, however, that the prescriptive content of the substantive
provisions of the Bill of Rights does not engage the rule of law or
conduct at issue. Two things can happen. A court can decide that the
Bill of Rights has nothing at all to say about the dispute in question. A
court can decide that although no specific provision of the Bill of
Rights is offended by the law or the conduct in question, the Bill of
Rights warrants the development of the law in a manner that coheres
with its general spirit, purport and objects. In sum, FC section 39(2)
should be understood to stand for the following proposition:
Where no specific right can be relied upon by a party challenging a given
rule of law or the extant construction of a rule of law, the courts are
obliged to interpret legislation or to develop the law in light of the
general objects of the Bill of Rights.
The preferred reading, unlike the good faith reconstruction of
Khumalo, is untroubled by fortuitous differences between forms of
law. It does not suppress or defer application of the Bill of Rights to
disputes between private persons governed by either legislation or
common law. The preferred reading, unlike the good faith
reconstruction of Khumalo, generates no tension between the legality
principle and the doctrine of objective unconstitutionality. It
recognises all forms of law as exercises in state power and makes each

Stu Woolman 133
and every exercise of state power subject to constitutional review. It
does not rest on a distinction between the parties before the court
and thus does not offend the doctrine of objective unconstitutionality.
The preferred reading, unlike the good faith reconstruction
of Khumalo, does not offend the surplusage canon of
constitutional interpretation. It alone gives the phrase ‘binds the
judiciary’ meaningful content by recognising that the phrase engages
all emanations of law from the courts. The preferred reading, unlike
the good faith reconstruction of Khumalo, is not plagued by a host of
conflicting doctrinal commitments that blunt the transformative
potential of the Bill of Rights. Proper apportionment of analytical
responsibilities between FC section 8(1), FC section 8(2), FC section
8(3) and FC section 39(2) finesses the many difficulties created by a
hide-bound doctrine of stare decisis that permits little, if any,
development of the common law in light of FC section 39(2). 21
5 Conclusion
Defenders of the Court’s approach to application suggest — in
straightforward realist fashion — that the mechanism for the
21
A caveat and a codicil are in order. The caveat is that there is no unassailable
answer to the question of burdens raised by FC sec 8. Shoddy drafting left us with
a text — FC sec 8 — that generates multiple possible readings and that resists a
simple mechanical explanation because its component parts are difficult to
reconcile. That does not mean that no grounds exist for preferring one reading
over another. Indeed, the appropriate response to that standard academic trope
— ‘so what’ — is to construct an analytical framework for direct application under
FC sec 8 that coheres with the manifold doctrinal demands of indirect
application, stare decisis, the rule of law, constitutional jurisdiction, objective
unconstitutionality, textual plausibility and naturalness. This chapter constitutes
one such answer. The codicil reflects the recognition that questions of application
in terms of FC sec 8 are, at bottom, questions of interpretation. This proposition
has two dimensions: one logical, one historical. As a logical matter, we could
function perfectly well without a provision on application. Whether the
provenance of the law at issue or nature of the parties before the court have
some bearing on the disposition of a matter could well be accommodated as part
of the interpretation of a right. The presence of FC sec 8 reflects the judgment of
the drafters that our Final Constitution must speak to the application of the Bill
to the exercise of both public and private power, and that constitutional texts
have always done so (even where those texts have operated to protect existing
hierarchies of private power.) Because the drafters of the Final Constitution set
their face against the traditional immunisation of certain kinds of private dispute
from constitutional review, all legal disputes are now notionally subject to the
strictures of the Bill of Rights. As a result, the line drawing exercise that
animated the debate around the Interim Constitution’s application provisions
ought to have proved of diminished import by now. That the application debate
has not withered away cannot be explained by the logic of the text alone. The
text points towards such a withering away. The continued debate over application
reflects the extent to which the meaning of our basic law is determined by extant
historical conditions: The echo of the Interim Constitution, the limited
jurisdiction of the Constitutional Court versus the plenary jurisdiction of the
Supreme Court of Appeal and, perhaps most importantly, the felt need to chart a
careful course between the Scylla of transformation and the Charybdis of
tradition.

134 Chapter 8
application of the Bill of Rights — direct application or indirect
application — matters little in terms of either the outcomes we get or
the depth and coherence of the decisions that justify those outcomes.
Professor Frank Michelman and Professor Iain Currie claim — not
without merit — that a muscular approach to FC section 39(2) could
deliver exactly the same reasoning and exactly the same outcomes as
direct application of the substantive provisions of the Bill of Rights.
Of course, their optimism assumes that the courts employ a
muscular approach to FC section 39(2) analysis. However, in three
recent decisions — Barkhuizen, 22 Masiya, 23 and NM 24 — the Court
reaches troubling conclusions through murky, if not tendentious, lines
of reasoning. All three decisions abjure the direct application of the
substantive provisions of Bill of Rights and rely instead on the openended
provisions of FC section 39(2).
The result, as I have argued elsewhere, is that a penchant for
outcome-based decision-making, and a concomitant lack of analytical
rigour, has finally caught up with the Constitutional Court. 25 Of
particular import in these three cases is the Court’s persistent refusal
to engage in the direct application of the Bill of Rights. Rather flaccid
analysis in terms of three vaguely defined values — dignity, equality
and freedom — almost invariably substitutes for more rigorous
interrogation of constitutional challenges in terms of the specific
substantive rights found in Chapter 2. If the drafters of the
Constitution had intended such a substitution, then the structure and
the language of the Bill of Rights would reflect that intention. It
doesn’t. Moreover, this strategy — of speaking in values — has freed
the Court almost entirely from the text; the strategy thereby grants
the Court the license to decide each case as it pleases, virtually
unmoored from its own precedent. That, again, cannot be what the
drafters of the Constitution intended.
Another consequence of this strategy is that the Court has
unwittingly undermined the Bill of Rights. By continually relying on FC
section 39(2) to decide challenges both to rules of common law and
to provisions of statutes, the Court obviates the need to give the
specific substantive rights in Chapter 2 the content necessary to
determine the actual validity of the rule being challenged in the
instant matter and of similar rules challenged in subsequent matters.
This strategy also enables the Court to skirt the nuanced process of
22 Barkhuizen v Napier 2007 5 SA 323 (CC), 2007 7 BCLR 691 (CC).
23 n 16 above.
24
NM v Smith & Others 2007 5 SA 250 (CC), 2007 7 BCLR 751.
25 S Woolman ‘The amazing, vanishing Bill of Rights’ (2007) 124 South African Law
Journal 762. For a dissenting view, see F Michelman ‘On the uses of interpretive
charity: Some notes from abroad on application, avoidance, equality and
objective unconstitutionality’ (2008) Constitutional Court Review 1.

Stu Woolman 135
justification that FC section 36 or some other express limitations
clause in a specific substantive right might require. The persistent
refusal to give rights identifiable content — by avoiding direct
application — results in a Bill of Rights increasingly denuded of
meaning.
The over-reliance on FC section 39(2) also has the unintended
consequence of undermining the rule of law. The two-step interpretative
process engineered by the drafters of the Bill of Rights ought
to produce black letter constitutional law. Clear delineation of the
ambit of a right articulates one type of rule; similarly crisp limitations
analysis articulates another type of rule. The articulation of such
express black letter rules of law enables the citizenry and the
government to conform their behaviour to our Constitution. In a
domain for which rules are even more germane, the judicial system,
rules of black letter constitutional law ensure that lower courts and
lawyers can identify the law and thereby settle, litigate and
adjudicate, with some confidence, fundamental rights cases. The use
of FC section 39(2) may be a handy way to secure agreement amongst
11 judges regarding the appropriate outcome of a case at the same
time as they finesse (or suppress) the logic behind the outcome.
However, this strategy — while useful in cobbling together majorities
on the Constitutional Court — often leaves readers of a judgment at
an absolute loss as to how the Bill of Rights might operate in some
future matter. An approach to constitutional adjudication that makes
it difficult for lower court judges, lawyers, government officials and
citizens to discern, with some degree of certainty, how the basic law
is going to be applied, and to know, with some degree of certainty,
that the basic law is going to be applied equally, constitutes a
paradigmatic violation of the rule of law. 26
26
Judge Dennis Davis has laid this very same complaint: the absence of rule-based
content in the Constitutional Court’s Bill of Rights jurisprudence makes it difficult
for High Courts to discharge effectively their function. See D Davis ‘Democracy,
dignity and deliberation’ Conference on dignity and the jurisprudence of Laurie
Ackermann (27 July 2007, University of Cape Town). Moreover, there are signs
that the Court itself — or members of the Court — are aware of the dangers that
attach to this failure. In an interview on SA-FM, Justice O’Regan noted that the
Constitutional Court could, in its first decade of existence, have provided a
stronger, theoretically more secure foundation for its Bill of Rights jurisprudence
— a choice that would have put the current Court’s jurisprudence on more solid
footing. Interview with Justice O’Regan on SA-FM (27 July 2007).

136 Chapter 8
We have gone beyond the point where we could explain
(descriptively) the Court’s jurisprudence in terms of (the often
misunderstood notion of) ‘incompletely theorised agreements’. 27
27
C Sunstein One case at a time (1996). The incompletely theorised agreements
that are the mainstay of judicial minimalism are explained by Sunstein as follows:
A minimalist court settles the case before it, but leaves many things
undecided. It is alert to the existence of reasonable agreement in a
heterogenous society. It knows that there is much that it does not know;
it is intensely aware of its own limitations. It seeks to decide cases on
narrow grounds. ... Alert to the problem of unanticipated consequences,
it sees itself as part of a system of democratic deliberation; it attempts to
promote the democratic ideals of participation, deliberation and
responsiveness. It allows for continued space for democratic reflection
from Congress and the states. It wants to accommodate new judgments
about facts and values.
As above, ix – x. However, Sunstein’s minimalism only secures traction because it
is parasitic upon a deep, and widely shared, set of constitutional doctrines (and
tacit) assumptions amongst judges, lawyers and citizens. Sunstein recognises the
necessity of a solid core:
Anyone who seeks to leave things undecided is likely to accept a wide shared, set
of constitutional doctrines (and tacit) assumptions amongst judges, lawyers and
citizens. Sunstein recognises the necessity of a solid core:
Anyone who seeks to leave things undecided is likely to accept a wide
range of things, and these constitute a ‘core’ of agreement about
constitutional essentials. In American constitutional law at the turn of the
century, a distinctive set of substantive ideals now form that core.
As above, x. See also C Sunstein ‘Leaving things undecided’ (1996) 110 Harvard
Law Review 4; C Sunstein ‘Incompletely theorised agreements in constitutional
law’ John M Olin Law & Economics Working Paper No 322 (2007), available at
27 www.law.uchicago.edu/laweconwkngPprs_301-350/322.pdf
C Sunstein One case at a time (1996). The incompletely theorised
(accessed
agreements
14 July
2008).
that are
More
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recently,
mainstay
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has
minimalism
turned his
are
attention
explained
to social
by Sunstein
phenomena
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that
produce more accurate assessments and better solutions to problems on
substantially A minimalist larger court scales settles than courts the case of law. before See C it, Sunstein but leaves Infotopia: many How things many
minds undecided. produce knowledge It is alert (2006). to the Markets, existence though of reasonable often imperfect, agreement rely in upon a
limited heterogenous ‘shared’ information society. It knows (sometimes that there no is more much than that price) it does and not know; generate
optimal, it is or intensely at least aware substantially of its own more limitations. efficient, It and seeks thicker to decide outcomes. cases on Some
open-source narrow grounds. software, . . like . Alert Linux, to the produces problem incredibly of unanticipated rich results consequences, without any
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optimal to promote and suboptimal the democratic outcomes, depending ideals of participation, how information deliberation is solicited and and
how responsiveness. further cooperative It allows endeavors for continued are organised. space Thinness for democratic is, therefore, reflection not a
virtue from in itself Congress (even and for the Sunstein). states. It wants It may to be accommodate a virtue within new judgments systems with
information about facts deficits and values. or significant distortions in the manner in which decisionmakers
As above
use
ix –
the
x. However,
information
Sunstein’s
they possess.
minimalism
A growing
only secures
contingent
traction
of constitutional
because it is
law
parasitic
scholars
upon
have
a deep,
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and widely
that problems
shared,
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can be
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of
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existing constitutional doctrines and judicial remedies that
extract better information and thereby achieve more mindful results. See eg M
Dorf Anyone & C Sabel who seeks ‘A constitution to leave things of democratic undecided is experimentalism’ likely to accept (1998) a wide 98
Columbia range Law of things, Review and 267; these M Dorf constitute & B a Friedman ‘core’ of ‘Shared agreement constitutional about
interpretation’ constitutional (2000) essentials. Supreme In American Court constitutional Review 61; law C Sabel at the turn & W of the Simon
‘Destabilisation century, a distinctive rights: How set public of substantive law litigation ideals succeeds’ now form that (2004) core. 117 Harvard
Law
As above
Review
x.
1015.
See also
For
C
the
Sunstein
application
‘Leaving
of experimental
things undecided’
constitutionalism
(1996) 110
to
Harvard
South
African
Law Review
jurisprudence,
4; C Sunstein
see
‘Incompletely
Woolman (n
theorised
3 above);
agreements
S Woolman
in constitutional
& H Botha
‘Limitations’
law’ John M
in
Olin
Woolman
Law &
et
Economics
al (eds) Constitutional
Working Paper
Law
No
of
322
South
(January
Africa
2007),
(n 3
above)
available
Chapter
at http://www.law.uchicago.edu/lawecon.
34; S Woolman The selfless Constitution:
More recently,
Experimentation
Sunstein has
&
flourishing
turned his attention
as the foundations
to social phenomena
of South Africa’s
that produce
basic law
more
(forthcoming
accurate
2008).

Stu Woolman 137
Incompletely theorised agreements presuppose that current
information deficits and normative differences about both the just
and the good will at least be partially ameliorated as time and
experience throw up new opportunities to expand our understanding
of how given rights ought to function in given environments. 28 The
28
28
Professor Currie is, thus far, the only South African constitutional law scholar to
have articulated a full-blown theory of judicial review, and it tracks, at a very
high degree of abstraction, Sunstein’s views on incompletely theorised
agreements and judicial minimalism. See I Currie ‘Judicious avoidance’ (1999) 15
South African Journal on Human Rights 138. Two problems with Professor Currie’s
account warrant mention here. Professor Currie may have been correct, as a
descriptive matter, to ascribe (some notion of) judicial minimalism to the
Constitutional Court in its first few years of existence. The shallowness of the
Chaskalson Court’s judgments and the unanimity the Chaskalson Court imposed on
its potentially fractious bench are noteworthy features of its first four years.
However, Professor Currie has, over time, elevated an accurate description of a
small cohort of cases to a highly questionable normative account. His more recent
work shows no signs of backing away. See Currie & de Waal (n 17 above). Currie’s
difficulty is that South Africa, circa 1995 to 1999, possessed no core of fully or
reasonably theorised agreements about constitutional norms that would allow for
meaningful incompletely theorised agreements. As of 2007, the Constitutional
Court continues to offer incompletely theorised judgments in the (general)
absence of theorised cores. Minimalism of the kind espoused by Professor Currie
only works against a background of shared understandings. It is the absence of
shared understandings — on the Court and in the society at large — that make it
impossible to accept judicial minimalism as either an accurate description of or a
desirable prescription for our Bill of Rights’ jurisprudence. (In liberal societies,
this distinction between the shared assumptions necessary for society to work
(and to work fairly) and more general assumptions about the correct way to live
tracks the standard philosophical distinction between the right (justice) and the
good (morality). A liberal democratic society requires a significant amount of
shared assumptions about the right in order to operate: It consciously leaves upon
space for disagreement about comprehensive visions of the good.) See J Rawls
Political liberalism (1993). These comments about the dangers of an unreflective
understanding of judicial minimalism are not the abstract musings of an armchair
sociologist. At least one sitting Justice on the Constitutional Court has stated — in
a public forum — that ‘judicial minimalism’ was and remains attractive for
members of the Constitutional Court exactly because it does not require the
eleven justices to possess a core of shared understandings. A Sachs ‘Democracy,
Dignity and Deliberation’ Conference on Dignity and the Jurisprudence of Laurie
Ackermann (27 July 2007, University of Cape Town).
Robert Post and Reva Siegal have just recently offered a far more nuanced set of
objections to Cass Sunstein’s minimalist project. See R Post & R Reva Siegal ‘Roe
rage: Democratic constitutionalism and backlash’ (2007) 42 Harvard Civil Rights-
Civil Liberties Law Review. 373, 377, 391-406 (footnotes omitted). In response to
Sunstein’s minimalism — which assiduously eschews judicial pronouncements on
contentious value choices — Post and Siegal advance a theory of constitutional
interpretation they call ‘democratic constitutionalism’. ‘Democratic constitutionalism’,
they argue, ’suggests that some degree of conflict may be an
inevitable consequence of vindicating constitutional rights, whether rights are
secured by legislation or by adjudication. ... Democratic constitutionalism
suggests ... that controversy provoked by judicial decision-making might even
have positive benefits for the American constitutional order. Citizens who oppose
court decisions are politically active. They enact their commitment to the
importance of constitutional meaning. They seek to persuade other Americans to
embrace their constitutional understandings. These forms of engagement lead
citizens to identify with the Constitution and with one another. Popular debate
about the Constitution infuses the memories and principles of our constitutional
tradition with meanings that command popular allegiance and that would never

138 Chapter 8
Court’s ongoing failure to develop coherent doctrines in many areas
of fundamental rights jurisprudence does not only undermine the Bill
of Rights and the rule of law. It places the Court’s very authority at
risk. 29
Professor Currie’s reply concedes that, theoretically, the Court’s
application jurisprudence is incoherent. The three aforementioned
cases, and the Court’s general over-reliance on FC section 39(2), give
credence to the claim that the Court’s ongoing failure to apply
directly the Bill of Rights is having an untoward effect on the
jurisprudence that our highest Court generates. So what is true in
theory would appear to be true in practice. 30
develop if a normatively estranged citizenry were passively to submit to judicial
judgments.’
29
See T Roux ‘Principle and pragmatism on the Constitutional Court of South Africa
2009 — International Journal of Constitutional Law — (forthcoming). Professor
Roux explains the thinness of the Court’s jurisprudence primarily in terms of the
need to secure institutional legitimacy. That institutional legitimacy was deemed
necessary not just so the Court could survive, but so that it could survive in order
to pursue such intrinsic goods as the entrenchment of the rule of law and the Bill
of Rights.
30 In his very generous reply, Professor Currie claims that this issue of ‘burdens’ is no
longer vexed. He may be correct — to the extent the Court no longer cares.
However, my article — ‘The amazing vanishing Bill of Rights’ (n 25 above) — has
elicited two very lengthy responses from Frank Michelman and Andre van der Walt
on the subject. See F Michelman ‘On the uses of interpretive Charity’ (2008)
Constitutional Court Review (forthcoming) and A van der Walt ‘Normative
anarchy and pluralism’ (2008) Constitutional Court Review (forthcoming).

9 Reply
Summarising Proust: A reply to Stu Woolman
Iain Currie
1 Introduction
I feel a little like I’m about to take part in the All-England Summarise
Proust competition. Fans of Monty Python’s Flying Circus will
remember that contestants had to give a fifteen-second summary of
Proust's À La Recherch e du Temps Perdu, once in a swimsuit and once
in evening dress. No one could do it of course, 1 and they had to give
the first prize to the girl with the biggest ... but I’m digressing. Proust
comes to mind because the immediately striking thing about Stu
Woolman’s monumental ‘Application’ in Constitutional Law of South
Africa is its striking monumentality, which easily defeats any attempt
at summary. Stu begins his Chapter with this warning: ‘There is more,
much more, to “application” than the text [of section 8] might
suggest’. 2 This turns out to be putting things a little mildly. You get
the feeling that it was only the anguished cavilling of the Juta
accountants that contained Stu’s inexhaustible will to expatiate and
that finally brought the Chapter in at only its current thousand or so
pages.
1 Mr Rutherford from Leicester’s attempt: ‘Er, well, Swann, Swann, there's this
house, there’s this house, and er, it’s in the morning, it’s in the morning — no, it’s
the evening, in the evening and er, there's a garden and er, this bloke comes in —
bloke comes in — what’s his name — what's his name, er just said it — big bloke —
Swann, Swann ...’.
2
S Woolman ‘Application’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2005) Chapter 31, available at www.westlaw.com.
139

140 Chapter 9
But it is precisely this unruly expatiation, breaking out all over the
place, that makes the chapter such a pleasure to read. It is a pleasure
of a particularly academic kind, and I mean to use that word with as
positive a charge as possible. The chapter is rich, dense, theoretically
ambitious, comprehensive in its scope and surely exhaustive in its
engagement with the literature. (I say ‘surely’ because I can’t help
thinking there might just be something in the older issues of the
Zeitschrift für Auspuffskonstruktion that has been overlooked.
Something to check up on for the third edition perhaps.) It even has
an Appendix. Yes, an Appendix for those greedy constitutional-law
wonks whose appetite for the South African application literature has
not been utterly satiated by the main text. There must surely be one
or two of them, and it is good to know that they have been catered
for. Everyone who has ever written anything on the issue is thoroughly
read, engaged with and has their innumerable errors patiently and
unflinchingly exposed and corrected. No resort to lazy footnotes (‘But
see contra ...’), this is scholarly engagement of an old-fashioned kind
that respects the views of those it contests (not least by taking the
time to read them) and that is little practiced these days. This sort of
capacious scholarship sits a little uneasily in a book at least notionally
aimed at the practitioner’s market. But if you saw the author sitting
so uneasily at a party you would think him to be the most interesting
person in the room. You might also, it has to be said, place yourself
behind the fishtank to avoid that slightly manic eye and the five-hour
argument that would surely ensue from meeting it.
2 Burdens
When we discussed what to talk about at this event Stu and I agreed
that we would focus on just one aspect of the chapter — burdens.
Burdens is of course the application issue. ‘When jurists, lawyers and
academics say they wish to talk about the application of the Bill of
Rights under the Final Constitution’, Stu contends, ‘by and large, they
have a single vexed question in mind: Upon whom do the burdens of
the Bill of Rights fall?’ 3 He is right that burdens (‘duties’, or, more
precisely still, the burdening of private actors with duties to respect
rights) is the issue over which most ink has been spilled and,
continuing the practice, over which this chapter spills most of its ink.
But is that adjective quite correct — is it really a ‘vexed’ question? —
and is he right that ‘jurists’ (meaning, I think, judges) and ‘lawyers’
are quite as vexed about it as academics have been?
The fact is that the case law on application (in the ‘burdens’
sense) under the Final Constitution really does not make much of a
3
S Woolman ‘True in theory, true in practice: Why direct application still matters’
in S Woolman & M Bishop (eds) Constitutional conversations (2008) 112.

Reply - Iain Currie 141
fuss about it. In Khumalo the Constitutional Court disposed of section
8 in five Delphic paragraphs 4 that fall apart if you try to read them too
closely (‘gossamer thin fabric’ is Stu’s nice description of those
paragraphs). 5 Nevertheless, it is hard to read Khumalo as saying
anything other than that section 8(2) direct application is the correct
mode of application in most horizontal disputes. However in Thebus
the Court, without reference to Khumalo and without reference to
any of the academic literature on the issue, said nothing about the
difficult relationship between section 8 and section 39, but hinted in
yet another couple of puzzling paragraphs that section 39 (indirect
application) was the default mode for considering challenges to the
common law. 6 K v Minister of Safety and Security seems to say much
the same thing, but also gives a more active role to the previously
neglected section 8(1). 7 Read these three decisions (and Carmichele) 8
and you have pretty much exhausted the Constitutional Court’s
output on the horizontality issue. 9
None of it reads like the work of a court that finds the issue
particularly vexing (contrast it, for example, with the evident
vexation brought on by the issue of the application of PAJA in the
New-Clicks decision). 10 All of this output is, Stu’s apt description
again, ‘under-theorised’ (in places, it is not theorised at all). 11 Nor
will you find a great deal more in the output of the High Courts or the
SCA. Is this because application (at least the vexed issue of the form
of application applicable in horizontal cases) is an academic issue of
little concern to actual legal practice?
3 Drafting history
What is the burdens issue? A brief drafting history of the application
provisions of the Final Constitution is necessary to answer this
question. In Du Plessis v De Klerk 12 the Constitutional Court held that
4 Khumalo & Others v Holomisa 2002 5 SA 401 (CC), 2002 8 BCLR 771 (CC) paras 29-
33.
5 Woolman (n 3 above) 118.
6 S v Thebus & Another 2003 6 SA 505 (CC), 2003 10 BCLR 1100 (CC) paras 24-32.
7
K v Minister of Safety and Security 2005 6 SA 419 (CC), 2005 9 BCLR 835 (CC)
paras 13-19.
8 Carmichele v Minister of Safety & Security 2001 4 SA 938 (CC), 2001 10 BCLR 995
(CC).
9 Subsequent to delivering this paper, the Court handed down Barkhuizen v Napier
2007 5 SA 323 (CC), 2007 7 BCLR 691 (CC). Barkhuizen addressed horizontal
application of the Bill of Rights to contracts.
10 Minister of Health & Another NO v New Clicks South Africa (Pty) Ltd & Others
(Treatment Action Campaign & Another as Amici Curiae) 2006 2 SA 311 (CC), 2006
1 BCLR 1 (CC).
11 Contrast the Final Constitution case law — Khumalo in particular — with the level
of close textual attention and theoretical and comparative reflection in Du Plessis
v De Klerk 1996 3 SA 850 (CC), 1996 5 BCLR 658 (CC).
12 n 11 above.

142 Chapter 9
the interim Bill of Rights did not have direct application in so-called
‘horizontal’ disputes; that is to disputes between private litigants
governed by the common law. This was principally because of the
absence of the word ‘judiciary’ in IC section 7: ‘[The Bill of Rights]
shall bind all legislative and executive organs of state at all levels of
government’. The omission meant that the Bill of Rights placed duties
to uphold constitutional rights only on the legislative and executive
organs of state. Individuals were not directly bound by the Bill of
Rights. The interim Bill of Rights did however have indirect
application. Even if individuals were not directly bound by the Bill of
Rights, the courts had to interpret legislation and to develop the
common law so that the ordinary law recognised and protected the
rights in the Bill of Rights. Note that this approach requires a strong
distinction to be maintained between two forms of application of the
Bill of Rights: direct and indirect.
With the Du Plessis decision in mind, and concerned that confining
the Bill of Rights to direct vertical application would result in the
toleration of private violations of rights, the Constitutional Assembly
created a different application and jurisdictional scheme in the Final
Constitution with the intention of providing for direct horizontal
application. The textual changes were:
(a) the addition of the words ‘judiciary’ and ‘all law’ in section 8(1),
missing from the corresponding application provision of the Interim
Constitution;
(b) the direct imposition of duties to uphold rights on individuals in
section 8(2) ‘to the extent that [the right] is applicable, taking into
account the nature of the right and the nature of any duty imposed by
the right’;
(c) while envisaging direct horizontal application in ‘applicable’ cases,
the 1996 Bill of Rights also required the courts to apply the Bill of Rights
indirectly, in similar terms to section 35(3) of the Interim Constitution.
FC section 39(2) states: ‘When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or
forum must promote the spirit, purport and objects of the Bill of Rights’.
There is no doubt that these changes were intended to introduce
direct horizontal application. However, they also created a number of
interpretative puzzles that make up what we are calling the ‘burdens
issue’: (a) what is the impact of including the judiciary in section 8(1),
the direct application provision of the Final Constitution? (b) what on
earth does section 8(2) mean and how does it interact with section
8(1)? (c) when, in horizontal cases, will it be appropriate to use
section 39(2) (ie indirect rather than direct application)?
The judiciary dealt with these puzzles using an ancient judicial
strategem: It ignored them. The presence of the indirect application
provisions of section 35(3) of the Interim Constitution (and now in

Reply - Iain Currie 143
section 39(2) of the Final Constitution), Kentridge AJ prophetically
stated in Du Plessis, ‘makes much of the vertical/horizontal debate
irrelevant’. 13 Since Du Plessis, under both the Interim and Final
Constitutions, the courts have routinely approached the issue of the
effect of the Bill of Rights on the common law indirectly. The
invitation of section 8(2) — to apply rights directly in horizontal
situations — was snubbed. Khumalo seemed, in its fuzzy way, to signal
a change — giving direct horizontality something of the role that the
drafters of the Final Constitution had envisaged for it. But since then
(Thebus, 14 K 15 and most of the output of the High Courts 16 and the
SCA) 17 , Khumalo has been quietly forgotten and horizontal
application has returned to its well-worn, indirect groove.
4 The Woolmanian Reading
But the reassuring comforts of old, bad habits are not available to the
theorist. Theory demands a solution to the interpretative puzzles
above, moreover it must be a solution that coheres with all other
aspects of constitutional doctrine: ‘the manifold doctrinal demands of
indirect application, stare decisis, the rule of law, constitutional
jurisdiction, objective unconstitutionality, textual plausibility and
naturalness’. 18 Here then is my long deferred summary of the
Woolmanian ‘preferred reading’ of the Final provisions (distinguished
from the ‘black-letter law’ laid down in Khumalo’s enigmatic five
paragraphs):
13 Du Plessis (n 11 above) para 60.
14 n 6 above.
15
n 7 above.
16 See, eg, Seema v Lid van die Uitvoerende Raad vir Gesondheid, Gauteng 2002 1
SA 771 (T); Geldenhuys v Minister of Safety and Security 2002 4 SA 719 (C).
17
See, eg, Minister of Safety and Security & Another v Hamilton 2004 2 SA 416
(SCA); Van Eeden v Minister of Safety and Security (Women’s Legal Centre as
Amicus Curiae) 2003 1 SA 389 (SCA); Minister of Safety and Security v Van
Duivenboden 2003 1 SA 389 (SCA)
18 Woolman (n 2 above) 31-13, n1 and Woolman (n 3 above) n 19.

144 Chapter 9
Provisions of the
Constitution
8(1): The Bill of Rights
applies to all law, and
binds the legislature,
the executive, the judiciary
and all organs of
state
8(2): A provision of the
Bill of Rights binds a
natural or a juristic person
if, and to the extent
that, it is applicable,
taking into account the
nature of the right and
the nature of any duty
imposed by the right.
8(3): When applying a
provision of the Bill of
Rights to a natural or juristic
person in terms of
subsection (2), a court:
(a) in order to give effect
to a right in the
Bill, must apply, or if
necessary develop, the
common law to the extent
that legislation
does not give effect to
that right; and
(b) may develop rules of
the common law to limit
the right, provided that
the limitation is in accordance
with section
36(1).
The ‘black letter’
reading
The Bill of Rights applies
directly to (a) all law
governing disputes between
the state and individuals
(b) state
conduct giving rise to a
dispute between the
state and an individual.
In the case of disputes
between individuals
(horizontal disputes)
see s 8(2).
Disputes between individuals
may be subject
to the direct application
of the Bill of Rights. This
depends on the ‘the intensity
of the constitutional
right in question’.
In disputes governed by
s 8(2), a court must
remedy infringements
of constitutional rights
by developing the law.
The Woolmanian
‘preferred reading’
The Bill of Rights applies
directly to all
law. It also applies
directly to all state
conduct.
This applies to horizontal
disputes over
conduct ‘not “adequately”
governed’
by a rule of law. ‘FC s
8(2) calls attention to
the potential gap between
extant rules of
law and the prescriptive
content of the
Bill of Rights, and,
where necessary, requires
the courts to
bridge that gap by
bringing the law into
line with the demands
of the particular
constitutional
right or rights
deemed to apply’.
The same.

Reply - Iain Currie 145
39(2): When interpreting
any legislation, and
when developing the
common law or customary
law, every court,
tribunal or forum must
promote the spirit, purport
and objects of the
Bill of Rights.
In horizontal disputes This applies where s 8
where sec 8(2) does not does not: in cases
apply the Bill of Rights where ‘the prescriptive
content of the
must be indirectly applied.
substantive provision
of the Bill of Rights
does not engage the
and
rule of law or conduct
at issue’. b Even
though no specific
‘Even where a right is right can be relied on
asserted directly, the by a party challenging
a rule or the ex-
court may still speak as
if a finding of inconsistency
or invalidity re-
if a rule of law, the
isting interpretation
quires that a new rule of courts must interpret
common law be developed
in terms of FC op the law in light of
legislation and devel-
section 39(2)’. a the general objects
of the Bill of Rights.
a. See Woolman (n 2 above) 31-45 n 1. I think the ‘black-letter’ authority for this is
Thebus (n 6 above) and K (n 7 above).
b. Woolman (n 2 above) 31-46 and Woolman (n 3 above) 13.
So the reconstructive aspects of the Woolmanian reading are:
giving section 8(1) a far greater role to play in horizontal disputes —
indeed it, and not section 8(2) is the default basis for application;
confining section 8(2) to (rare) cases of a ‘gap’ in the law not
adequately governing private conduct; similarly demoting section
39(2) to apply only in instances where section 8 does not apply. The
attractions of this reading are numerous: It coheres with the doctrine
of objective constitutionality (which makes the form of a dispute (ie,
who the parties happen to be) irrelevant to the objective
constitutional issues it raises); it provides a nice solution to the
problems raised by the SCA’s doctrine of stare decisis in Afrox; 19 it
gives the central role to direct application that the drafters of section
8 probably had in mind, while reducing section 8(2) and all its opaque
qualifiers to a minor role. But it remains, as Stu admits, a theoretical
reading that faces two practical difficulties: It is not what the
Constitutional Court said in Khumalo; it is not what the courts post-
Khumalo seem to be making of the application issue.
19 Afrox Healthcare Bpk v Strydom 2002 6 SA 21 (SCA), [2002] 4 All SA 125 (SCA).

146 Chapter 9
5 Theory v practice
Why is there this gap between theory and practice? Why are the
theoreticians so vexed about this aspect of application while the
courts go about the business of indirect horizontal application with no
trace of vexation and as though Du Plessis was still the law? I think
much is explained by the widespread conviction that the form of
application makes no difference: That indirect and direct application
of the Bill of Rights to the common law are just different ways, as Stu
puts it, of singing the same song. In addition, whereas under the
Interim Constitution there were important jurisdictional consequences
that followed the form of application, those consequences
are of greatly diminished importance under the unitary jurisdictional
scheme of the Final Constitution. 20 If that is so then there really is not
much worth fussing about in the application issue. The Final
Constitution applies to the law and, in the case of the common law
(‘the courts’ own law’ as Moseneke J puts it in Thebus), 21 the correct
approach is to assess its constitutionality and to change it where
necessary. The only reason these days to go to all the trouble of
deploying direct horizontal application (which requires grappling with
Khumalo and with section 8(2)) would be to take advantage of the
holding of the SCA in Afrox that courts in direct application cases are
not bound by pre-1994 decisions. 22
So, despite its theoretical attractions, why bother with the
Woolmanian approach at all? Much turns on the correctness of the
conviction that, when it comes to the common law, the form of
application — whether direct or indirect — makes no practical
difference since the outcome of the use of either form of application
is the same. Robert Alexy, writing about the theories used to explain
the horizontal effect of the German Constitution, calls this outcomeneutrality.
23 Are direct and indirect horizontal application under the
South African Constitution outcome-neutral? If they are not, then the
courts’ indirect-application-by-default approach will have to be
20 Under the Interim Constitution only direct application was within the
Constitutional Court’s jurisdiction. Indirect application was not.
21
Thebus (n 6 above) para 31.
22 This is why Khumalo (n 4 above) was pitched as a direct application case — to
bypass the SCA’s negative holding on the issue of the plaintiff’s onus in National
Media Ltd & Others v Bogoshi 1998 4 SA 1196 (SCA), 1999 1 BCLR 1 (SCA), [1998] 4
All SA 347 (SCA) (which was, sort of, an indirect application case).
23 R Alexy A theory of constitutional rights trans J Rivers (2002) 357: ‘Two juridical
constructions are outcome-neutral if every outcome which could be achieved in
the context of one could also achieved in the context of the other’. There are,
according to Alexy, theoretical reasons for arriving at the correct account of the
effect of constitutional norms on private relations but no practical implications:
‘Each theory [indirect effect, direct effect, mediation by rights against the state]
expresses an aspect of the same matter. Which is chosen in the process of legal
justification is a question of utility. None of them can claim primacy over the
others’.

Reply - Iain Currie 147
revisited and replaced with something more theoretically sound. Stu
clearly thinks the two forms are different and that the direct/indirect
distinction makes a difference. But I could not immediately find in the
text a convincing explanation of why (but it is, as I may have
mentioned, a lengthy text and I have to confess that I have postponed
reading that famous Appendix until my next sabbatical). So this is my
opportunity to ask him in person and is the point of these remarks. Is
direct horizontality necessary? Is there any reason other than the
beauty of our theories to bother with it?

10
LIMITATIONS:
SHARED CONSTITUTIONAL
INTERPRETATION, AN
APPROPRIATE NORMATIVE
FRAMEWORK & HARD CHOICES
Stu Woolman & Henk Botha
1 Introduction
Let us begin with three rather unassailable assumptions. First, the
general limitation clause articulates standards for the justification of
restrictions placed by law upon the exercise of fundamental rights.
Second, these standards are expressed in rather rarefied rules that
courts make concrete through their application to discrete cases.
Third, limitations analysis allows for open and candid consideration of
competing interests. Taken together, these three statements give
expression to what the Constitutional Court has taken to be one of the
most basic principles in the Final Constitution: That every exercise of
public power derives its force from basic law, needs to be justified by
reference to the basic law, 1 and that only open and public processes
of rational deliberation produce acceptable forms of justification. 2
Despite the fact that these standards are produced openly and
publicly, or perhaps because of it, they are often hotly contested.
Courts cannot, and do not, simply apply the requirements of the text
of the limitation clause mechanically. Courts need to explain how
they understand the demands of the text and why those demands
have certain consequences for the disposition of a case. As a result,
1 See Pharmaceutical Manufacturers Association of SA: In Re Ex Parte President of
the Republic of South Africa 2000 2 SA 674 (CC), 2000 3 BCLR 241 (CC).
2 See K v Minister of Safety and Security 2005 6 SA 419 (CC), 2005 9 BCLR 835 (CC).
149

150 Chapter 10
judges themselves are subject to the demand for justification. They
must be able to explain why they have given the standards the
content that they have, and why they have applied them in a given
fashion. By doing so, they signal their respect for the parties before
them, provide guidance to legislators, fellow judges and prospective
litigants, and, perhaps most importantly of all, model rational
political discourse through participation in an ongoing debate about
the meaning of constitutional norms. 3
These initial observations suggest that Bill of Rights litigation,
rightly conceived, reflects an ongoing dialogue about the meaning of
fundamental rights and the cogency of the justifications offered for
their limitation. 4 From this perspective, the courts’ exercise of
powers of judicial review is best understood as part of a shared
project of constitutional interpretation. This project requires that the
courts, through thoroughly reasoned engagement with the
constitutional text, produce a normative framework of sufficient
density to guide other political actors, organs of state and social
agents. At the same time, a doctrine of shared constitutional
interpretation encourages other actors to place their own gloss on
constitutional norms and to experiment with different policy options
consistent with the basic law.
Put slightly differently, powers of judicial review are best
understood not as part of a battle for ascendancy between courts and
legislatures (though they may turn into that) nor a means of
frustrating the will of the political majority, but rather as a
commitment of our basic law to shared constitutional interpretation.
This commitment to shared constitutional interpretation supplants
the traditional notion of judicial supremacy with respect to
constitutional interpretation — all branches of government have a
relatively equal stake in giving our basic law content. While courts
retain the power to determine the content of any given provision, a
commitment to shared constitutional interpretation means that a
court ought to limit consciously the reach of its holding regarding the
meaning of a given provision and to invite the political branches of
government, organs of state, civil society associations and individual
citizens to come up with their own alternative, but ultimately
3
See S v Steyn 2001 1 SA 1146 (CC), 2001 1 BCLR 52 (CC) (Previous findings of the
Constitutional Court do not absolve legislatures from the duty to deliberate about
the constitutionality of bills before them, or to justify limitations of fundamental
rights.)
4 See S v Mhlungu 1995 3 SA 867 (CC), 1995 7 BCLR 793 (CC) para 129
(Constitutional interpretation takes the form of ‘a principled judicial dialogue, in
the first place between members of this Court, then between our Court and other
courts, the legal profession, law schools, Parliament, and, indirectly, with the
public at large’.) See also H Botha ‘Rights, limitations, and the (im)possibility of
self-government’ in H Botha, A van der Walt & J van der Walt (eds) Rights and
democracy in a transformative constitution (2003) 13 24-25.

Stu Woolman & Henk Botha 151
consistent, gloss on the text. Shared constitutional interpretation
married to a rather open-ended or provisional understanding of the
content of the basic law means that the Constitutional Court’s
limitations analysis might be best understood in terms of norm-setting
behaviour that provides guidance to other state actors and interested
parties without foreclosing the possibility of other effective
safeguards for rights or other useful methods for their realisation.
Shared constitutional interpretation within experimentalist framework
ought to reveal ‘best practices’ with respect to the realisation
of constitutional objectives and should offer us regular opportunities
to rethink the meaning — and the constraints — of our basic law. 5
In the pages that follow, we assess the ability of the Constitutional
Court to delineate clearly rights analysis and limitations analysis, to
‘balance’ rights, to distinguish the core of a right from its penumbra,
and to construct a framework for limitations analysis that both (a)
enables the parties before the court to make arguments that fully
ventilate the issues raised and (b) reinforces our democratic lawmaking
processes so that they take adequate account of the
constitutional imperative to create ‘an open and democratic society’
based upon the democratic values of ‘human dignity, equality and
freedom’. After a critical appraisal of the Court’s efforts in this
regard, we offer our own thick(er) conception of what limitations
analysis ought to look like. We offer this thicker conception not
because we think that it is, in the abstract, to be preferred. We
proffer the thicker conception because we think that the Court’s
current approach to rights interpretation and limitations analysis
lacks analytical rigour.
That thicker conception begins with an appropriate standard of
review for limitations analysis. This standard of review takes the form
of, what we called above, a doctrine of shared constitutional
interpretation. This doctrine mediates between the doctrine of
constitutional supremacy (a doctrine that does not shy away from the
necessity of judicial law-making) and the doctrine of separation of
powers (a doctrine that often justifies the ‘need’ for judicial
deference). That said, the courts must still articulate a general
normative framework that gives the standard of review real purchase
5
See S Woolman The selfless constitution: Experimentation and flourishing as the
foundations of South Africa’s basic law (forthcoming 2008); M Dorf & B Friedman
‘Shared constitutional interpretation’ (2000) Supreme Court Review 61; National
Education Health and Allied Workers Union v University of Cape Town & Others
2003 3 SA 1 (CC), 2003 2 BCLR 154 (CC) para 14 (‘Where the Legislature enacts
legislation in the effort to meet its constitutional obligations, and does so within
constitutional limits, courts must give full effect to the legislative purpose.
Moreover, the proper interpretation of such legislation will ensure the protection,
promotion and fulfilment of constitutional rights and as such will be a
constitutional matter. In this way, the courts and the Legislature act in
partnership to give life to constitutional rights.’)

152 Chapter 10
and which thereby guides the behaviour of political actors and
citizens alike. In the Final Constitution, and in FC section 36 in
particular, the creation of a normative framework adequate to the
task of limitations analysis turns on giving adequate content to the
phrase ‘open and democratic society based on human dignity,
equality and freedom’. This task requires that we do something which
the courts themselves have only gotten half-right: We offer a
description of how the value of dignity and the principle of democracy
work — in tandem — to produce, in Theunis Roux’s words, a political
system in which ‘rights ... lie at the very heart of South African
democracy’. 6 Thus, whereas the Court has privileged the value of
dignity over the other four values found in the Final Constitution’s
favourite catchphrase, we reassert the priority of democracy. That
reassertion does not, of course, provide an easy algorithm for
resolving conflicts between various rights, values and other pressing,
constitutionally-mandated, imperatives. Even if, as we have argued
previously, and Professor Roux himself notes, fundamental rights
analysis and limitations analysis are both driven by a commitment to
rights and democracy, courts are still left with the decidedly difficult
task of harmonising constitutionally-permissible, but conflicting,
ends. As we suggest in our critique of balancing, the goods reflected
in rights and in laws are often incommensurable. Conflict resolution
in the face of value incommensurability requires substantially more
than the invocation of such pat metaphors as the ‘scales of justice’.
In our final, highly speculative section, we defend the use of a
particular form of judicial narrative-making — storytelling. The
difference between story-telling as the preferred form of judicial
narrative-making in hard cases and the reliance on cryptic
justifications for hard choices is the difference between a good
explanation and a bad explanation for the decisions that courts take
in terms of FC section 36. The better the explanation, the more
persuasive it will be. For those who need persuading, the more
persuasive the decision, the more legitimate it will be deemed to be.
Storytelling, properly understood, is a rhetorical form that enables
judges, in Sachs J’s words, to challenge the ‘hydraulic insistence on
conformity to majoritarian standards’ and to consider a range of
possible outcomes that might not otherwise have occurred to judges
or their public. 7
6 T Roux ‘Democracy’ in S Woolman et al (eds) Constitutional Law of South Africa
(2nd Edition, OS, 2006) §10.3, available at www.westlaw.com.
7
Prince v President of the Law Society of the Cape of Good Hope 2001 2 SA 388
(CC), 2001 2 BCLR 133 (CC) para 156.

Stu Woolman & Henk Botha 153
2 Delineating rights analysis and limitations analysis
This section attempts to answer a basic question in Bill of Rights
analysis: How does fundamental rights analysis relate to limitation
clause analysis? That is, what happens in the first stage of analysis,
what remains to be done in the second stage, why do we allocate
certain analytical tasks to one stage and not the other, and how do
we justify our overall approach to constitutional interpretation?
FC section 39 tells us that the content and the scope of the rights
enshrined in Chapter 2 should be determined in the light of the five
fundamental values which animate the entire constitutional enterprise:
openness, democracy, human dignity, freedom, and equality.
FC section 39 thereby confirms that the determination of a right’s
scope is a value-based exercise. However, the scope-determinative
values are not limited to the five identified in FC section 39. For each
right there are specific values that can be said to have led to its
constitutionalisation. The specific values that animate each right,
along with FC section 39’s more general concerns, determine the
right’s sphere of protected activity. On this account, if an applicant
can show that the exercise of constitutionally protected activity has
been impaired, then she has made a prima facie showing of a
constitutional infringement. If the infringement was authorised by
law, then the state or the party relying upon this law will have an
opportunity to justify its prima facie infringement of the right under
the limitation clause.
There is of course another way to go. That approach, quite often
adopted by the Constitutional Court, suggests that any activity which
could notionally fall within the ambit of a right is protected. It
remains then to show that the law — as opposed to mere conduct —
actually limits the exercise of the right before moving on to the heart
of FC section 36 analysis. 8
8
8
See Coetzee v Government of the Republic of South Africa; Matiso & Others v
Commanding Officer, Port Elizabeth Prison 1995 4 SA 631 (CC), 1995 10 BCLR 1382
(CC) paras 46-47 (Sachs J concludes that, in his view, ‘faithfulness to the
Constitution is best achieved by locating the two-stage balancing process within a
holistic, value-based and case-oriented framework’. There are several potential
problems with Sachs J’s intervention on this subject. First, a two-stage approach
is not necessarily ‘formal’ or ‘academic’. The quality of the inquiry depends on
the nature of the questions asked, not on their number or their order. Secondly, it
is impossible to know what Sachs J means by a ‘synergetic relationship’ between
the two stages of analysis or by the ‘exercise ... of a structured and disciplined
value judgment’ when he gives neither examples nor further description of these
processes. Thirdly, and most disturbing, is Sachs J’s vision of a ‘two-stage
balancing process within a holistic, value-based and case-oriented framework’.
Sachs J’s apparent vision of balancing at both stages ignores the clear intention
and the structure of a Bill of Rights which possesses both fundamental rights and a
general limitations clause: That different forms of analysis will take place at

154 Chapter 10
There are several reasons to prefer the first approach to the
Court’s approach. First, it is consistent with the text’s admonition
that provisions of the Bill of Rights be interpreted in light of the
‘values which underlie an open and democratic society based on
human dignity, equality and freedom’. The Final Constitution was not
meant to protect certain forms of behaviour and a value-based
approach permits us to screen out those forms of behaviour which do
not merit constitutional protection. 9 Secondly, high value-based
barriers for the first stage of analysis mean that only genuine and
serious violations of a constitutional right make it through to FC
section 36. If only serious infringements make it through, then the
court can take a fairly rigorous approach with respect to the
justification for the impairment. It could then be fairly confident that
when it nullified law or conduct there would be something worth
protecting. Thirdly, the valued-based approach is consistent with the
notion that a ‘unity of values’ underlies both the rights-infringement
determination and the limitation-justification analysis. The language
of the interpretation clause and the limitation clause strongly
suggests that both inquiries are driven by a desire to serve the five
values underlying our entire constitutional enterprise: openness,
democracy, human dignity, freedom and equality.
The desirability of the value-based approach is perhaps clearer
when compared with the consequences of the notional or the
expansive approach to rights interpretation. First, the notional
approach suggests that certain forms of behaviour which we believe
do not merit constitutional protection will in fact receive prima facie
protection. Secondly, the notional approach expands the number of
claims that make it to the second stage of analysis. The result is that
different stages of analysis. The first stage of analysis is generally understood to
require the judge to determine the ambit of the right. The determination is made
by asking what values underlie the right and then, in turn, what practices serve
those values. The judge is not required to compare the importance of the values
underlying the right allegedly being infringed with the values said to underlie the
policy or right or interest said to support the alleged infringement. This
comparison is left for the second stage of analysis under the limitations clause. It
is under the limitations clause that we ask whether a party’s interest in having a
challenged law upheld is of sufficient import to justify the infringement of a
right.) For good examples of the Court’s notional approach to rights analysis, see
Beinash v Ernst & Young 1999 2 SA 116 (CC), 1999 2 BCLR 125 (CC); Christian
Education South Africa v Minister of Education 2000 4 SA 757 (CC), 2000 4 BCLR
1051 (CC) (Constitutional Court simply assumed that the exercise of FC secs 15
and 31 had been impaired by the South African Schools Acts. The rights
interpretation was not even notional. It was non-existent.) See also Prince (n 7
above) (Court assumes that criminal proscription of dagga use violates FC s 15’s
right to freedom of religion.)
9 See Justice O’Regan ‘On the reach of the Constitution and the nature of
constitutional jurisdiction: A reply to F Michelman’ in S Woolman & M Bishop (eds)
Constitutional conversations (2008) Chapter 5.

Stu Woolman & Henk Botha 155
if the courts wish to curtail their findings of unconstitutionality, their
criteria for the justification of government limitations on rights have
to become more flexible. The further possibility exists that in order
to make their justificatory criteria more flexible, the courts will
expand the kinds of objectives which justify limitations on
constitutional rights. This result would seem to stand in direct conflict
with the textual demand that both rights interpretation and
limitations analysis be undertaken in the light of the needs of an open
and democratic society based on human dignity, equality and
freedom. Finally, by pushing all of the Chapter 2 analysis into the
limitation clause, and forcing themselves to be more flexible with
respect to the grounds for justification of a limitation, the courts
undercut their ability to articulate analytically rigorous conceptions
of rights at the first stage of analysis and useful standards of
justification for limitations at the second stage of analysis.
3 Balancing as a bad metaphor
One of the most noteworthy features of the Constitutional Court’s
limitations jurisprudence is the way it conceives of the relationship
between the different factors that FC section 36 suggests that one
consider. The Court understands these factors — FC section 36(1)(a)-
FC section 36(1)(e) — to be closely interrelated. Far from representing
a ‘sequential check-list’ that can be adhered to ‘mechanically’, the
factors are to be considered within the broader context of a
‘balancing exercise’ and a ‘global judgment on proportionality’.
This approach has taken many commentators by surprise. Prior to
the judgment in Makwanyane, 10 it was widely expected that the Court
would model its analysis of the reasonableness and justifiability of
fundamental-rights limitations on the approach adopted by the
Canadian Supreme Court in R v Oakes. 11 However, the approach of the
Makwanyane Court represents a significant departure from the Oakes
test. The Oakes test proceeds in distinct stages: first, it is asked
whether the limitation serves a sufficiently important objective;
second, whether the limitation is rationally connected to the said
objective; third, whether the limitation impairs the right as little as
possible; and fourth, whether the actual benefits of the limitation are
proportionate to its deleterious consequences for the rights-holder.
The need to consider the second question arises only once the first leg
of the test has been satisfied; the third question is addressed only
once the first and second questions have been answered in the
10 S v Makwanyane 1995 3 SA 391 (CC), 1995 6 BCLR 665 (CC), 1995 2 SACR 1 (CC).
11 See S Woolman ‘Riding-the push-me-pull-you: Constructing a test that reconciles
the conflicting interests which animate the limitation clause’ (1994) 10 South
African Journal on Human Rights 60 84–90.

156 Chapter 10
affirmative, and so on. This sequential exercise is substantially
different from an approach grounded in balancing and proportionality.
12 Not only is it more structured, but a ‘balancing
exercise’ is undertaken only at the very end of the inquiry, once it has
been established that the limitation does serve an important
objective, that it is rationally connected to such an objective, and
that it impairs the right as little as possible. If the limitation fails any
of the first three legs, the court need not engage in cost-benefit
analysis.
That the Oakes test should be seen as worthy of emulation in
South Africa after 1994 is hardly surprising. The test represents a bold
attempt to come to terms with the sometimes conflicting doctrines of
constitutional supremacy and separation of powers. The Oakes test
subjects fundamental-rights limitations to rigorous scrutiny, refuses
to lend legitimacy to the limitation of rights in the name of a crass
utilitarian calculus, links conceptually the grounds for finding a rights
infringement to the grounds for finding that such a limitation is
justified, and offers a sophisticated understanding of the proper
degree of deference the courts owe the legislature. Finally, the Oakes
test promotes analytically rigorous and politically candid judicial
reasoning.
But that is not the direction that we have chosen to go. In the end,
the Constitutional Court has opted for balancing. The metaphor of
balancing is so deeply embedded in our constitutional discourse that
we often use it without giving the actual meaning of the metaphor a
second thought. Our purpose in this section is to offer (a) several
definitions of balancing and (b) a number of trenchant critiques of the
practice. 13 This exercise is meant to clear the space for our preferred
reading of FC section 36.
3.1 Definitions of balancing
Balancing means the ‘head-to-head’ comparison of competing rights,
values or interests. It takes two basic forms.
Sometimes balancing means that one right (or interest or value)
will simply ‘outweigh’ another right (or interest or value). For
example, in Makwanyane, the Court held that the applicant’s right
not to be subject to cruel, inhuman and degrading punishment
(informed by the right to life and the right to human dignity)
12
Cf P Hogg ‘Canadian law in the Constitutional Court of South Africa’ (1998) 13
South African Public Law 1 7.
13 For a good faith reconstruction and critique of the Court’s doctrines of balancing
and proportionality, see S Woolman & H Botha ‘Limitations’ in S Woolman et al (n
6 above) Chapter 34.

Stu Woolman & Henk Botha 157
outweighed the state’s interest in the death penalty for the sake of
retribution and communal catharsis. In purely clinical terms, the
death penalty impaired the right not to be subject to cruel, inhuman
and degrading punishment and could not be justified in terms of IC
section 33.
Sometimes balancing means ‘the striking of a balance’ between
competing rights or interests. No right is asked to pay the ultimate
price. In Minister of Home Affairs v Fourie, same-sex life partners
contended that their rights to equality and to human dignity were
impaired by laws that prevented them from entering into civillysanctioned
marriages. 14 Leaders of religious and traditional
communities contended that the state and the Court had no business
demanding that they alter their beliefs or practices to accommodate
gay and lesbian unions. The Court split the baby and engaged in this
second form of balancing. While acknowledging that the rights of
same-sex life partners to equality and to dignity were unjustifiably
limited by rules of common law and statutory provisions that
prevented them from entering civilly-sanctioned marriages, the
Fourie Court went out of its way to note that religious prohibitions on
gay and lesbian marriage did not constitute an unjustifiable
infringement and that religious officials could legitimately refuse to
consecrate a marriage between members of a same-sex life
partnership.
3.2 Critiques of balancing
3.2.1 Pluralism, incommensurability and complexity
Some critiques suggest that the discourse of balancing of
constitutional rights, values or interests involves terminological
confusion. Other critiques contend that ‘balancing’, in either of the
two forms identified above, is an impossible undertaking. Our critique
targets both the terminological and the theoretical confusion
associated with balancing talk. 15
We do not solely value things in quantitative terms: intensity or
utility. We value things in qualitatively different ways. Furthermore,
human beings generally do not value just one thing in life. Human
14
15
Minister of Home Affairs & Another v Fourie & Another (Doctors for Life
International & Others, Amici Curiae); Lesbian and Gay Equality Project & Others
v Minister of Home Affairs & Others 2006 1 SA 524 (CC), 2006 3 BCLR 355 (CC).
See, eg, M Tushnet ‘An essay on rights’ (1984) 62 Texas Law Review 1363 1372–73;
T Aleinikoff ‘Constitutional law in the age of balancing’ (1987) 96 Yale Law
Journal 943 972-76; S Woolman ‘Out of order? Out of balance? The limitation
clause of the Final Constitution’ (1997) 13 South African Journal on Human Rights
102 114–119.

158 Chapter 10
beings value a vast array of goods. And we value each good in our own
and its own particular way. This first claim about pluralism and the
qualitatively different ways in which we value goods suggests a second
claim. Human goods are often incommensurable. It is fair to say that
the things we value most in life — friends, lovers, work, beauty,
nature, and yes, money — cannot be compared with one another. Put
differently, while we may be able to compare the virtues of friends
with friends, the virtues of lovers with lovers, the virtues of work with
work, the virtues of certain objects of beauty with other objects of
beauty, and certainly the virtues of more money with less money,
there is no single template against which we can measure claims of
friendship, love, work, beauty, nature and money. They may compete
with one another. But they compete in a way not easily assessed.
Indeed, justice may require us to refrain, in so far as it is possible,
from attempts to measure these competing goods by a single
yardstick. Michael Walzer puts our second complex claim thus:
There has never been a universal medium of exchange. ... [T]here has
never been a single criterion, or a single set of interconnected criteria
for all distributions. Desert, qualification, birth and blood, friendship,
need, free exchange, political loyalty, democratic decision: each has
had its place, along with many others, uneasily coexisting, invoked by
competing groups, confused with one another. 16
From these observations, Walzer draws the following conclusions.
First, goods, like people, have shared meanings in a society, because
goods, like people, are a product of social, political, economic,
educational, religious and linguistic practices which generate
meaning. Second, it is the shared meaning of a good which
determines, or should determine, its distribution. Third, and perhaps
most importantly for Walzer, when the meanings of social goods are
distinct, their distributions must be autonomous. That is, for each
good there exists a set of criteria and procedures deemed to be
appropriate for its distribution.
Walzer’s view may need to be qualified. The demands of justice
— even in a world of plural and incommensurable goods — are, in fact,
far more complex than Walzer’s account allows. First, spheres of
human activity do overlap and thereby complicate the criteria for the
distribution of any particular social good. Second, to the extent that
some spheres of activity are inextricably linked, it is inevitable that
the distribution of one good will influence the distribution of another.
Third, given the spontaneous, evolutionary manner in which most
spheres of activity have come into being — meaning they are never the
product of a single agent — the criteria for the distribution of a social
good are rarely going to be clear or conflict-free. The criteria for
16 Spheres of Justice (1985) 4.

Stu Woolman & Henk Botha 159
distribution are also rarely going to conform to a simple lexical
ordering. Fourth, not only will criteria within spheres conflict, the
individual criteria within the same sphere may be so indeterminate as
not to yield a clear result in a given instance. Fifth, different goods
can sometimes be measured along the same metric. We discover on
closer analysis, for example, that friendship and military honour share
a common value — loyalty — or we find that two different
constitutional norms — equality and expression — undergird a third
constitutional commitment — democratic participation. Sixth,
spheres will not only overlap with one another, and through the
domination of a party or group in one sphere effect the unjust
distribution of some good in another sphere, but the criteria for
distribution of a good in two different spheres may conflict directly
with one another. The internal criteria of two spheres of activity may
be such that it is impossible in a given situation to do justice to both.
For instance, a commitment to a pristine environment may be
completely at odds with a commitment to life, equality and economic
development.
Although this account of the relationship between spheres of
activity and various goods is somewhat more complex than a pure
pluralist account, the fact remains that, in innumerable instances,
goods are incommensurable. Hard choices as to which good — and
which goods — we pursue have to be made. 17 How should the Court
handle hard choices?
First, the Court must be candid and recognise that there will be
situations in which constitutional goods will urge independent and
irreconcilable claims upon us: In such situations, we will have to
choose between incommensurable goods. 18 Second, the Court must
acknowledge that it lacks a set of second-order rules which might tell
us how to reconcile competing goods with one another. Most
importantly, the Court must not view the choice of one good over
another good in hard cases as arbitrary. Instead, it must be candid
about the reasons for its choices and hope that its candour about the
reasons for its choices ultimately reflects the exercise of good
judgment: for only such candour will allow the litigants to become full
citizens through their participation in the process of giving the basic
law meaning. This recognition, in turn, holds out the promise that the
17 See J Finnis ‘On reason and authority in Law’s Empire’ (1987) 6 Law & Philosophy
357, 375 (‘A case is hard, in the sense which interests lawyers, when there is
more than one right, ie not wrong, answer.’)
18 See C Larmore Patterns of Moral Complexity (1986).

160 Chapter 10
basic law will come to possess the normative legitimacy associated
with a just legal order. 19
3.3 Subjectivity and arbitrariness
Some critics of balancing point out that the Final Constitution — like
most constitutional texts — provides little or no guidance as to how a
court should determine the relative weight to be attached to
conflicting rights and interests. One possible result is that the
weighting and the ranking of interests are not grounded in
constitutional interpretation — and extended and reflected engagement
with the meaning of the constitutional text — but based,
instead, on the subjective preferences of individual judges.
The charge that balancing reinforces non-interpretative
tendencies in a bench already loath to make the normative
pronouncements that every constitution requires, and creates a
mechanism that enables judges to substitute their personal political
preferences for the preferences of the democratically-elected
branches, inevitably raises important questions about the separation
of powers between the legislature and the judiciary. If the mediation
of conflicting social interests is understood to be an essentially
legislative function, judges ought not to be placed in a position that
short-circuits the hurly-burly of the political process. Realists about
the legal process may counter that this argument rests upon a
formalist distinction between law and politics (and thus between the
legislative function and the judicial function) that never was and
never will be an accurate account of what happens in all modern
constitutional democracies. What happens, on the realist account, is
that politics becomes law, law becomes politics, and politics becomes
law in a never-ending cycle of conflict and resolution. 20 But even
realists, among whom we count ourselves, must contend with the
spectre of judicial arbitrariness raised by balancing. And, it must be
said, we are concerned that this approach to limitations analysis
enables judges to skirt the demands that attach to difficult and
controversial value-choices by employing the ostensibly neutral,
objective or scientific language of balancing.
19 On various notions of legitimacy and the response to those notions by the
Constitutional Court, see T Roux ‘Principle and pragmatism on the South African
Constitutional Court’ (2008) International Journal of Constitutional Law
(forthcoming).
20
The current Chief Justice has said extra-curially that the Constitution ‘requires an
acceptance of the politics of law. There is no longer place for assertions that the
law can be kept isolated from politics. While they are not the same, they are
inherently and necessarily linked.’ P Langa ‘Transformative constitutionalism’
(2007) 17 Stellenbosch Law Review 351 353.

Stu Woolman & Henk Botha 161
3.4 Incrementalism and conservatism
Balancing is also sometimes associated with a conservative bench. In
the United States, balancing got a bad reputation during the McCarthy
era, when courts used the language of balancing to validate serious
infringements of freedom of expression. Such an account seems to
oversimplify the historical record. Balancing has, at various times in
history, also been associated with liberal and progressive causes and
the extension of constitutional rights and freedoms. But even if
balancing does not necessarily translate into a readiness to sacrifice
individual rights and freedoms in the name of collective interests,
there may still be something conservative about it. Balancing is, we
think, legitimately associated with a cautious, incrementalist
approach to constitutionality inspired judicial law-making. The
balancer is inclined to restrict her finding to the case at hand, as the
next case may, ostensibly, require that a different balance be struck.
While there may be advantages to such a judicious approach, which
was indeed a hallmark of the Chaskalson Court, there is a growing
concern within the academy that the case-by-case approach to
constitutional analysis, in general, and limitations analysis, in
particular, blunts the transformative potential of the Final
Constitution. 21
3.5 Science and silence
Balancing, some critics suggest, encourages judges to resort to
‘scientific’ language — ie, cost-benefit analysis. The fear here is that
such talk invites a new type of formalism which, like all formalist
doctrines, tends to eschew dialogue about important moral and
political issues. As Aleinikoff puts it:
Scientifically styled opinions, written to answer charges of subjectivity,
make us spectators as the Court places the various interests on the
scales. The weighing mechanism remains a mystery, and the result is
simply read off the machine. Scientific balancing decisions are neither
opinions nor arguments that can engage us; they are demonstrations. 22
A related critique is that balancing rests upon the assumption that the
primary aim of constitutional law is to mediate pre-existing interests.
21 For a critique of the incrementalist approach to the development of the common
law, see generally R Nagel ‘Liberals and balancing’ (1992) 63 University of
Colorado Law Review 319. See also A van der Walt ‘Tradition on trial: A critical
analysis of the civil-law tradition in South African property law’ (1995) 11 South
African Journal on Human Rights 169; A van der Walt ‘Dancing with codes —
Protecting, developing and deconstructing property rights in a constitutional
state’ (2000) 18 South African Law Journal 258; S Woolman ‘The amazing,
vanishing Bill of Rights’ (2007) 124 South African Law Journal 762.
22 Aleinikoff (n 15 above) 993.

162 Chapter 10
These interests are thought to be exogenous to the legal process. Such
an approach to constitutional conflicts presupposes an underlying
coherence in the law and in society that in heterogeneous polities —
such as our own — simply does not exist. Moreover, an underlying
assumption of value homogeneity tends to work against the belief of
many an honest citizen — and quite a few academics — that political
truths are more likely to arise out of dialogic modulation and not the
reinforcement of their own subjective preferences. 23 The judge’s role
in this account of balancing is akin to that of a grocer when, in fact,
it should be that of a facilitator of and a participant in a normative
dialogue with other political actors and the citizens of a constitutional
order. 24
4 A thick(er) conception of limitations analysis
In this section, we offer a preferred reading of FC section 36 — one
which we believe will help courts to think more clearly about the
demands that limitations analysis places on various actors in our
constitutional democracy. This preferred reading does not proffer a
‘grand unified theory’. Our account begins, instead, by addressing
serious concerns about institutional comity in a constitutional
democracy and by articulating what we, and others, have described
as the Final Constitution’s call for ‘shared constitutional
interpretation’. After suggesting the contours of a doctrine that
would enable the courts to share ‘constitutional competence’ with
other political actors — and thus mediate the competing doctrinal
claims of constitutional supremacy and of separation of powers — we
ask whether the Constitutional Court’s extant jurisprudence provides
sufficient normative content to guide lower courts and other actors
interested in participating in this shared interpretive endeavour.
What we currently see is, on the one hand, a rather cursory
attempt to reconcile the primary values that underlie fundamental
rights analysis and limitations analysis — openness, democracy,
human dignity, equality and freedom — and a more deeply entrenched
privileging of the value of human dignity, on the other. We do not
deny the centrality of dignity to our constitutional project — our
dignity jurisprudence may even be, with the principle of legality, one
of our two most important contributions to the larger world of
international or comparative constitutional law. We do, however,
take issue with the Court’s tendency to reduce the other four values
to manifestations of dignity, and its record of having little to say
23 See K Sullivan ‘Post-liberal judging: The roles of categorisation and balancing’
24
(1992) 63 University Colorado of Law Review 293.
Nagel (n 21 above); Van der Walt ‘Tradition on trial’ (n 21 above); Van der Walt
‘Dancing with codes (n 21 above).

Stu Woolman & Henk Botha 163
about the meaning of ‘democracy’ or ‘openness’ or ‘freedom’ in our
basic law — something of a surprise given the success of South Africa’s
transition from fascism to democracy. Having established that our five
basic values may well be incommensurable in some sets of
circumstances and that balancing does little to address such
incommensurability, we end our discussion by suggesting a
methodology for constructing judicial narratives that may be of some
use to courts faced with cases that challenge our ability to
accommodate marginal groups or that require hard choices.
4.1 Shared constitutional interpretation
Our approach to limitations analysis, in particular, and to
constitutional interpretation, generally, suggests that Bill of Rights
litigation, rightly conceived, ought to reflect a dialogue about the
meaning of fundamental rights and the cogency of justifications
offered for their limitation. 25 From this perspective, powers of
judicial review are best understood, not as part of a battle for
ascendancy between courts and legislatures (though they may turn
into that) or a means of frustrating the will of the political majority
but, rather, as a shared project of constitutional interpretation. What
is ‘shared constitutional interpretation’ exactly? In short, shared
constitutional interpretation stands for five basic propositions.
First. It supplants the notion of judicial supremacy with respect to
constitutional interpretation. All branches of government have a
relatively equal stake in giving our basic law content. Second. It draws
attention to a shift in the status of court-driven constitutional
doctrine. While courts retain the power to determine the content of
any given provision, a commitment to shared constitutional
interpretation means that a court’s reading of the constitutional text
is not meant to exhaust all possible readings. To the extent that a
court consciously limits the reach of its holding regarding the meaning
of a given provision, the rest of the judgment should read as an
invitation to the co-ordinate branches or other organs of state to
come up with their own alternative, but ultimately consistent, gloss
on the text. Third. Shared constitutional competence married to a
rather open-ended or provisional understanding of the content of the
basic law is meant to increase the opportunities to see how different
doctrines operate in practice and maintain the space necessary to
make revision of constitutional doctrines possible in light of new
experience and novel demands. In this regard, the Constitutional
25 See Mhlungu (n 4 above) para 129 (Constitutional interpretation takes the form of
‘a principled judicial dialogue, in the first place between members of this Court,
then between our Court and other courts, the legal profession, law schools,
Parliament, and, indirectly, with the public at large.’)

164 Chapter 10
Court might be understood to engage in norm-setting behaviour that
provides guidance to other state actors without foreclosing the
possibility of other effective safeguards for rights or other useful
methods for their realisation. Fourth. A commitment to shared
interpretation ratchets down the conflict between co-ordinate
branches and levels of government. Instead of an arid commitment to
separation of powers — and empty rhetorical flourishes about courts
engaging in legal interpretation not politics — courts are freed of the
burden of having to provide a theory of everything and can set about
articulating a general framework within 26 which different understandings
of the basic text can co-exist. The courts and all other
actors have more to gain from seeing how variations on a given
constitutional norm work in practice. Fifth. This experimentalist
framework ought to reveal ‘best practices’ with respect to the
realisation of constitutional objectives. These ‘best practices’ should,
in turn, offer the courts, the political branches and the citizenry
regular opportunities to re-think the meaning — and the constraints —
of our basic law. 27
Justice Ackermann, in National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs, gives expression to just the sort
of institutional comity we have in mind when he writes that:
It should also be borne in mind that whether the remedy a Court grants
is one striking down, wholly or in part; or reading into or extending the
text, its choice is not final. Legislatures are able, within constitutional
limits, to amend the remedy, whether by re-enacting equal benefits,
further extending benefits, reducing them, amending them, ‘finetuning’
them or abolishing them. 28
Shared responsibility for interpreting the Final Constitution does have
its limits. The legislature must make a good faith attempt to revisit
an issue in a new and constitutionally permissible way. Where, as in
Satchwell I and II, Parliament refuses to take seriously a previous
finding of constitutional invalidity, the courts are well within their
rights to rebuff subsequent attempts to re-enact, in modified form,
the offending statutory and regulatory framework. 29
How then does shared constitutional interpretation inform our
general approach to limitations analysis? The two-part structure of
Bill of Rights analysis contains an invitation to non-judicial actors to
26
See F Michelman ‘Constitutional supremacy and appellate jurisdiction in South
Africa’ S Woolman & M Bishop (eds) Constitutional conversations (2008) Chapter
4.
27
See Woolman (n 5 above). See also Dorf & Friedman (n 5 above).
28 2000 2 SA 1 (CC), 2000 1 BCLR 39 (CC) para 76.
29 Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC), 2002 9
BCLR 986 (CC)(‘Satchwell I’); Satchwell v President of the Republic of South
Africa 2003 4 SA 266 (CC), 2004 1 BCLR 1 (CC).

Stu Woolman & Henk Botha 165
alter the Constitutional Court’s take on the basic law. By explicitly
separating out the process of defining the ambit of a right and the
process of determining the appropriateness of any limitation, the Bill
of Rights avoids creating a binary world where the outcome of the
dispute is tied entirely to rights definition. For example, in American
constitutional law, once a particular type of conduct is deemed to fall
within the protected ambit of a fundamental right, any law limiting
the exercise of the conduct concerned is highly likely to be
invalidated under a strict scrutiny standard. 30 The two-part structure
of Bill of Rights analysis has enabled the Constitutional Court to avoid
rigid categories and expressly acknowledge the role of other state
institutions in interpreting the provisions of the Final Constitution.
The two-part structure of Bill of Rights analysis has two further
benefits when viewed through the lens of shared constitutional
interpretation. First, a relatively precise, if nuanced, approach to
limitations analysis creates the space for a fairly fastidious treatment
of rights interpretation. Second, the Court is at its best, and its most
comfortable, when it speaks to the parameters of the ‘constitutional’
and is not asked to become an oracle of the ‘optimal’. 31
However, the promise of shared constitutional interpretation will
not be fulfilled if the courts continue to rely exclusively on the
metaphor of balancing. Balancing blocks meaningful analysis of the
facts in difficult cases because it substitutes an empty image for the
more difficult task of information-gathering, norm-setting and
remedy creation. Balancing thereby carries the potential for
increased judicial deference to existing practices and, consequently,
the systematic under-enforcement of important rights. Actions
challenging public or private institutional practices typically pose the
following problems for traditional adjudication: (1) epistemic hurdles
in adapting the legal language to render faithfully important facts and
ideas from particular communities and contexts; 32 (2) evaluative
obstacles when courts need to weigh conflicting values against a
background of norms grounded in particular contexts; and (3) the
complexity of structuring suitable institutional remedies. 33
30 For a compelling account of the dilemmas posed by one-stage fundamental rights
analysis, see L Tribe & M Dorf ‘Levels of generality in the definition of rights’
(1990) 57 University of Chicago Law Review 1057.
31 See, especially, Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa, 1996 1996 4 SA
744 (CC), 1996 10 BCLR 1253 (CC) para 27.
32 See R Cover ‘1982 term foreword: Nomos and narrative’ (1983) 97 Harvard Law
Review 4 28 citing Bob Jones University v United States (1983) 461 US 574.
33
See M Dorf ‘The domain of reflexive law’ (2003) 103 Columbia Law Review 384
399 (Noting the dynamic nature of deliberation and implementation may create
novel solutions to seemingly intractable conflicts because ‘reflexivity goes both
up and down, local participation always has ingredient in it the prospect of
changing the principal norm.’)

166 Chapter 10
To overcome the poverty of the existing approach to limitations
analysis, South African courts might be well-served by embracing a
more ‘experimentalist’ approach. Indeed, the open-ended, factdriven
framework of limitations analysis invites litigants — and other
stakeholders — to participate more directly in the vetting of possible
solutions to the legal problem confronting the court. Such an
invitation to the parties to get their hands dirty enables the courts to
overcome both their own limited administrative capacity and their
often enervating reliance on the good faith of the various parties.
More importantly, the invitation to the parties to expand their legal
strategies from competing claims with zero-sum outcomes to more
optimal solutions grounded in compromises from which all parties
believe they may benefit enables the courts to reap the problemsolving
potential inherent in collective deliberation.
An experimentalist perspective on limitations analysis proceeds
from the recognition that the determination of the ‘reasonableness’
of a limitation and the identification of the best of all possible
remedies are interdependent processes. This experimentalist perspective
also recognises how exceedingly difficult it is to discover the
‘right’ answer — or remedy — from an outsider’s perspective. 34
Indeed, the notion of a single ‘right’ answer in such a complex context
— in advance of any attempt to mediate the competing positions — is
itself suspect. As Susan Sturm has observed in connection with
workplace discrimination, changes in legal doctrines reshape people’s
expectations. 35 The new legal doctrine thereby reconstructs their
identities, beliefs and behaviour. Such an evolutionary process — a
function of the law as an experimental feedback mechanism — can
gradually transform the nature of the problem as originally
perceived. 36
Confronted with such complexity, the task for the courts is not to
undertake Herculean quests for perfect theoretical answers or to
retreat into the quietism of deference to administrative decisions and
private ordering. Our preferred experimentalist perspective possesses
two important advantages. First, by acknowledging the difficulty of
finding the ‘right’ answer, ex ante, courts with a problem-solving
perspective must create mechanisms (including legal doctrines) that
gather relevant information, generate proposed reforms and relay
feedback quickly. Second, given the potential for unintended
consequences that flows from adaptive processes triggered by shifting
34 See M Dorf ‘1997 Supreme Court term foreword: The limits of socratic
35
deliberation’ (1998) 112 Harvard Law Review 4 (1998).
See S Sturm ‘The promise of participation’ (1993) 78 Iowa Law Review 981
(Argues that participation of stakeholders in the negotiation process initiated by a
36
structural injunction offers important benefits.)
See Dorf (n 33 above) 399-400.

Stu Woolman & Henk Botha 167
legal principles, a problem-solving perspective implements each set
of solutions tentatively and is ready to modify these rolling normative
guidelines on the basis of empirical evidence. 37 The experimentalist
approach calls for mechanisms that compare the information
generated by different proposals and that allow for the adoption of
successful solutions.
Of course, courts called upon to perform limitations analysis
cannot avoid conflicts that are not susceptible to deliberative
solutions. Here again experimental constitutionalism offers the
additional idea of provisional adjudication. Provisional adjudication
puts alternative possible remedies to the test of experience without
necessarily elevating such remedies to the level of established
doctrine. Provisional adjudication promises two additional benefits.
First. It may facilitate compromise. 38 Affected parties may learn from
practical experience and adjust their beliefs and conduct accordingly.
Second. It gives parties that may have been aggrieved with a final
non-provisional outcome the opportunity to experiment with a
remedy of their own making.
But suppose that such provisional space fails to yield a desirable
— let us say, from the view of the state — outcome. A finding of
unconstitutionality generally still leaves the legislature free to pursue
the same objectives, but requires it to use means that better fit — are
more narrowly tailored to — constitutional imperatives. It is,
therefore, clear that the courts do not have the final word on the
meaning of the constitutional text in two very important respects.
First, just as the legislature must pay heed to the Court’s reasons for
a finding of unconstitutionality when offering a new formulation of a
law, so too must the Court demonstrate discernible deference to the
legislature’s reformulation. The very fact of a limitations clause in our
Bill of Rights demands that the courts give the coordinate branches of
37 See M Dorf ‘Legal indeterminism and institutional design’ (2004) 78 New York
University Law Review 875 920-935 and 960-70.
38
See eg Occupiers of 51 Olivia Road Berea Township and 197 Main Street
Johannesburg v City of Johannesburg 2008 3 SA 208 (CC). Prior to handing down
its decision, the Constitutional Court issued an order requiring the parties to the
dispute to engage meaningfully with each other with a view to addressing the
possibilities of short-term steps to improve current living conditions and of
alternative accommodation for those who would be rendered homeless. As a
result of this interim order, the parties reached a consensus that the City of
Johannesburg would not eject the occupiers, that it would upgrade the buildings
and that it would provide temporary accommodation. In addition, the parties
agreed to meet and discuss permanent housing solutions. This agreement was
then ratified by an order of the Constitutional Court. That consensus decision
about the optimal remedy left the Court free to articulate general norms about
the right to access to adequate housing: (1) evictions cannot occur in the absence
of meaningful engagement; (2) the potential for homelessness must be considered
prior to any decision by a state actor to eliminate unsafe buildings. While
an experimental constitutionalist could generally ask for little more, one problem
with the judgment is its failure to provide ‘new’ rolling norms with teeth.

168 Chapter 10
government ample opportunity to demonstrate that a new and
improved law can achieve the desired objectives within the
framework established by the Final Constitution. Second, the ability
of our elected representatives to amend the basic law itself — so long
as they follow the appropriate procedures and do not violate its basic
structure — means that the people always have the final word.
5 Norms: ‘an open and democratic society based upon
human dignity, equality and freedom’
5.1 Intersection, convergence, and conflict amongst
constitutional values
We have described in the preceding pages an approach to limitations
analysis that simultaneously answers ‘deep’ questions about
institutional comity in a constitutional democracy and adumbrates an
analytical framework that responds to concerns about judicial
usurpation of legislative prerogatives and the alleged inability of
courts to resolve polycentric social problems. What we have not
described, in even the most superficial way, is how the courts go
about determining the ‘normative’ content of limitations analysis.
That normative content for limitations analysis turns on the
phrase ‘an open and democratic society based on human dignity,
equality and freedom’. Determining the meaning of this phrase is
fraught with interpretive difficulties as old as political theory itself.
There are, for starters, the tensions between democracy and rights,
between equality and freedom, and the deeply contested nature of
each of these terms.
Before turning to the ways in which our courts have attempted to
make sense of this complex phrase, a few observations are in order.
First of all, FC section 36 — unlike limitations clauses in many
international human rights instruments and national constitutions —
avoids references to national security, the public interest, public
order, decency or morality as criteria for the limitation of
fundamental rights. Such silence is not surprising given the myriad
ways in which notions of national security, the public interest and
public morals were used to suppress opposition to the apartheid state.
FC section 36 redefines ‘the public interest’ (from the constellation
of interests that served white, male, straight, and Christian South
Africans under apartheid) in terms of the values underlying an open
and democratic society based on human dignity, equality and
freedom. No longer can sectarian notions of the public interest be
allowed to ride roughshod over fundamental rights. A limitation of a
fundamental right that negates plurality or difference in the name of
the common good is, generally, unlikely to be deemed reasonable and

Stu Woolman & Henk Botha 169
justifiable in an open and democratic society based on human dignity,
equality and freedom.
Second, FC section 36 requires us to reconsider traditional
understandings of the relationship between constitutional rights and
the public interest. If the public interest in terms of which
fundamental rights may be limited is underpinned by the same values
that inform our interpretation of those rights, it makes no sense to
view rights and the public interest as being diametrically opposed, the
first representing private entitlements and the second state interests.
Rather than fitting our two-stage analysis into the traditional, but
ultimately facile, public/private dichotomy, the Final Constitution
requires us to develop a substantive vision of the norms and values
enshrined in the Bill of Rights that, as we argued above, must guide
both rights interpretation and limitations analysis. The result is likely
to be both a more realistic understanding of the ‘private sphere’,
which recognises the legitimate role of the state in ordering ‘private’
relations, and a richer conception of the public interest, which
neither equates it with the interests of the governing elite nor
reduces it to the sum of private interests.
Third, the Final Constitution does not envisage a neat division of
interpretive tasks, in terms of which certain values (say, human
dignity, equality and freedom) are considered only or primarily during
the first stage of the fundamental rights inquiry, whereas others (say,
democracy) feature only during the second stage. Instead,
constitutional interpreters must engage with all five values — to the
extent that they are relevant — during both fundamental rights
interpretation and limitations analysis. Indeed, FC section 39(1), like
FC section 36(1), recognises that a particular right may be
underpinned by more than one value. For instance, while freedom of
expression certainly serves democracy and freedom, the
Constitutional Court jurisprudence also demonstrates how it serves
the interests of human dignity and equality. 39 Both FC section 36 and
FC section 39 invite us to consider the complex ways in which the
values of democracy, openness, human dignity, equality and freedom
overlap, converge, intersect, mutually support each other, and clash.
Lastly, the Final Constitution does not view these values as
invariably incommensurable. It requires us to first attempt to
39
See eg South African National Defence Union v Minister of Defence & Another
1999 4 SA 469 (CC), 1999 6 BCLR 615 (CC) para 7 (‘Freedom of expression lies at
the heart of a democracy. It is valuable for many reasons, including its
instrumental function as a guarantor of democracy, its implicit recognition and
protection of the moral agency of individuals in our society and its facilitation of
the search for truth by individuals and society generally’.) See also S Woolman
‘Dignity’ in Woolman et al (n 6 above) Chapter 36 (On dignity interests served by
freedom of expression.)

170 Chapter 10
harmonise them. 40 If this were not the case, then the quintet of
values enshrined in FC section 36 and FC section 39 would generate a
cacophony of judgments, rather than a recurring set of themes that
hold our Court’s jurisprudence together. As Sachs J wrote in his
dissenting judgment in Prince:
[L]imitations analysis under section 36 is antithetical to extreme
positions which end up setting the irresistible force of democracy and
general law enforcement, against the immovable object of
constitutionalism and protection of fundamental rights. What it requires
is the maximum harmonisation of all the competing interests, on a
principled yet nuanced and flexible case-by-case basis, located in South
African reality yet guided by international experience, articulated with
appropriate candour and accomplished without losing sight of the
ultimate values highlighted by our Constitution. 41
The attempt to harmonise conflicting interests also coheres with our
commitment to shared constitutional interpretation. It creates room
for an inter-institutional dialogue about the best way of resolving the
tension, if not out-right conflict, between various constitutional
goods. 42
Again. The Final Constitution does not require us to resolve these
conflicts, once and for all, or to measure the Court’s fidelity to all five
values along a single metric. The tensions inherent in the formulation
of FC section 36 and FC section 39 are constitutive of the South
African constitutional order. 43 They reflect the complexity and
plurality of South African society, the fault-lines and frayed edges of
the political traditions embraced by the Final Constitution and the
fragility of the political compromise that it represents. Any attempt
to eradicate these conflicts and to deny the distinctive meaning of
each of these values would do real violence to the constitutional text
and deny the commitment to openness and to plurality upon which it
is premised.
40
See K Hesse Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland 20
ed (1999) 28 142-143 and 146.
41 n 7 above, para 155.
42
n 7 above, para 156 (Sachs J) (‘The search for an appropriate accommodation ...
imposes a particularly heavy responsibility on the courts to be sensitive to
considerations of institutional competence and the separation of powers. Undue
judicial adventurism can be as damaging as excessive judicial timidity.’)
43 See J van der Walt & H Botha ‘Democracy and rights in South Africa: Beyond a
constitutional culture of justification’ (2000) Constellations 341; H Botha
‘Democracy and rights: Constitutional interpretation in a post-realist world’
(2000) 63 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 561 581.

Stu Woolman & Henk Botha 171
5.2 Dignity and democracy
5.2.1 Primacy of dignity
As we have seen above, the Constitutional Court regards human
dignity as the most important human right and constitutional value.
In the view of the Court,
Human ... dignity informs constitutional adjudication and interpretation
at a range of levels. It is a value that informs the interpretation of many,
possibly all, other rights. ... Human dignity is also a constitutional value
that is of central significance in the limitations analysis. Section 10,
however, makes it plain that dignity is not only a value fundamental to
our Constitution, it is a justiciable and enforceable right that must be
respected and protected. In many cases however, where the value of
human dignity is offended, the primary constitutional breach occasioned
may be of a more specific right such as the right to bodily integrity, the
right to equality or the right not to be subjected to slavery, servitude or
forced labour. 44
Given that both the text and the Court tell us that dignity plays a
‘central’ role in limitations analysis, two questions arise. What role
does dignity play? How central is it to our constitutional project?
The basis for the Court’s recognition of dignity as, perhaps, the
master concept in the Bill of Rights range from the direct manner in
which dignity answers the ‘problem’ of apartheid, 45 to the centrality
of dignity to the post-war constitutional tradition, 46 to the ability of
dignity to answer, in a coherent manner, the Court’s call for a transformative
jurisprudence; 47 to the place dignity occupies in Roman-
44 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v
Minister of Home Affairs 2000 3 SA 936 (CC), 2000 8 BCLR 837 (CC) para 35. For a
detailed discussion of how each of the rights in the Bill of Rights has been
refracted through the prism of human dignity, see Woolman (n 39 above).
45 See S Liebenberg ‘The value of human dignity in interpreting socio-economic
rights’ (2005) 21 South African Journal on Human Rights 1 (Respect for human
dignity requires society to respect the equal worth of the poor by marshalling its
resources to redress the conditions that perpetuate their marginalisation).
46
See L Weinrib ‘Constitutional conceptions and constitutional comparativism’ in V
Jackson & M Tushnet (eds) Defining the field of comparative constitutional law
(2002) 3. See also A Chaskalson ‘Human dignity as a foundational value of our
constitutional order’ (2000) 16 South African Journal on Human Rights 193 196
(‘The affirmation of human dignity as a foundational value of the constitutional
order places our legal order firmly in line with the development of
constitutionalism in the aftermath of the Second World War.’)
47 See Woolman (n 39 above) 36-6 — 36-19.

172 Chapter 10
Dutch law, 48 in traditional understandings of ubuntu 49 and in
contemporary discourse on the politics of capability; 50 and, finally, to
the manner in which dignity assists courts faced with the practical
difficulties of reconciling such ‘complementary’ values as freedom
and equality.
The reason of most immediate import for making sense of
limitations analysis is, perhaps, the last. Writing in his personal
capacity, Justice Laurie Ackermann claims that the Court’s dignitybased
equality jurisprudence enables it to adjudicate conflicts
between equality and freedom in a neutrally-principled manner. 51
Ackermann offers a number of clashes between equality and freedom
that, he believes, can be resolved by reference to a neutral
conception of dignity. For example, a restrictive condition attached
to a property that prevents future sale of the property to a black
person constitutes a deep affront to the dignity of prospective black
buyers. At the same time, a finding that the provision is
constitutionally infirm ‘would constitute a mere abstract limitation’ 52
of the contractual freedom of the contracting parties and of the right
of the original owner to dispose of his property as she pleases.
Ackermann contrasts this first scenario with another: The owner of a
residential property, for racist reasons, wishes to have someone
trespassing on his property ejected. In this case, Ackermann argues,
the owner can rely on constitutional rights such as privacy and
freedom of association, while the trespasser only ‘suffers a minor
limitation and a limited and unpublic indignity.’ 53
Ackermann’s analysis of the mediating role of dignity in conflicts
between equality and freedom sheds new light on the perceived role
of dignity in proportionality analysis. In his view, a dignity-based
approach enables judges to make a principled distinction between
instances of private discrimination that constitute a violation of
somebody’s equal worth and legitimate exercises of personal and
associational freedom. Dignity, he seems to suggest, is ideally suited
to playing such a mediating role because it provides a measure of
48 See LWH Ackermann ‘The significance of human dignity for constitutional
jurisprudence’ Lecture, Stellenbosch Law Faculty, 15 August 2005 (Manuscript on
file with authors) § 6. See also LWH Ackermann ‘Equality and non-discrimination:
Some analytical thoughts’ (2006) 22 South African Journal on Human Rights 597
602.
49 See Y Mokgoro ‘Ubuntu and the law in South Africa’ (1998) 4 Buffalo Human
Rights Law Review 15; M Pieterse ‘“Traditional” African jurisprudence’ in C
Roederer & D Moellendorf (eds) Jurisprudence (2004) 441. See also Makwanyane
(n 9 above) paras 224-225.
50 See A Sen Development as Freedom (1999).
51
See L Ackermann ‘Equality and the South African constitution: The role of dignity’
(2000) 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 537.
52 n 51 above, 552.
53
n 51 above, 553 quoting L Henkin ‘Shelley v Kraemer: Notes for a revised opinion’
(1962) 110 University of Pennsylvania Law Review 473 498.

Stu Woolman & Henk Botha 173
value that is common to the frequently conflicting imperatives of
equality and freedom.
The purpose of Ackermann’s two intuition pumps is to convince us
that the stronger the dignity interest is on one side of the equality/
freedom divide, the weaker it is likely to be on the other. In the
example of the restrictive condition, the discrimination strikes at the
heart of the dignity interests of a prospective black buyer, while only
marginally disturbing the dignity interests of the property owner. But
these — on Ackermann’s account — are easy cases. One could well
imagine cases in which there are strong dignity/equality interests and
dignity/freedom interests on both sides. Consider, for example, a
clash between the rights of women who wish to participate equally in
traditional or religious communities and the ‘autonomy’ rights of such
religious or cultural communities. 54 In such cases, the discrimination
constitutes a serious impairment of the fundamental human dignity of
women while, at the same time, the religious or cultural practice in
question is so fundamental to the worldview and customs of its
adherents that a ruling of unconstitutionality would strike at the heart
of that community’s sense of dignity. Dignity does not, in such cases,
offer a neutral or a principled way of striking a balance between
equality and freedom.
The second problem with dignity as a neutral, mediating principle
is that it assumes that a dignity-based reading of the limitations
clause adequately captures the various interests served by rights as
varied as equality, privacy and association. A number of
commentators have argued that something is likely to get lost in the
process of translating the right to equality into the language of human
dignity. 55 One of their concerns has been that a dignity-based
approach to equality focuses primarily on individual moral harm,
rather than material disadvantage and structural power. While some
forms of disadvantage can be expressed quite easily in moral terms,
others may not be so readily recognised. This difference may explain
why the transformative vision of the Constitutional Court’s
jurisprudence in the field of sexual orientation has easily outpaced its
jurisprudence on discrimination on the grounds of sex and gender.
While discrimination against gays and lesbians is usually rooted in
moral disapproval and results directly in an affront to their dignity
54 See eg Bhe & Others v Magistrate, Khayelitsha & Others 2005 1 SA 580 (CC), 2005
1 BCLR 449 (CC).
55 C Albertyn & B Goldblatt ‘Facing the challenge of transformation: difficulties in
the development of an indigenous jurisprudence of equality’ (1998) 14 South
African Journal on Human Rights 248; DM Davis ‘Equality: The majesty of
legoland jurisprudence’ (1999) 116 South African Law Journal 398; H Botha
‘Equality, dignity, and the politics of interpretation’ (2004) 19 South African
Public Law 724. But see S Cowen ‘Can “dignity” guide South Africa’s equality
jurisprudence?’ (2001) 17 South African Journal on Human Rights 34.

174 Chapter 10
and identity, discrimination on the grounds of sex and gender is often
more closely bound up with material disadvantage and systemic
discrimination, and is, therefore, more difficult to capture in the
language of dignity. 56
The Court has, in recent years taken some of the sting out of this
critique by embracing an understanding of dignity that recognises our
collective responsibility for creating the material conditions for the
actual exercise of agency by all South Africans. Cases such as Bhe, 57
Daniels, 58 Grootboom 59 and Khosa 60 demonstrate that dignity can be
used to defend the rights of women, the poor and other vulnerable
groups that suffer from material disadvantage and systemic
discrimination.
These cases buttress our contention that a dignity-based approach
to limitations is capable of addressing at least some of the structural
problems associated with poverty and gender. At the same time,
however, we must express doubt about the ability of dignity to rescue
marginal groups — Rastafarians, 61 prostitutes, 62 and unmarried
cohabitants 63 — whose ways of being in the world challenge the
Court’s own assumptions about what is normal and socially
acceptable. Indeed, the Court often relies on dignity to justify legal
limitations that appear to flow from very traditional, conservative
and sectarian concerns.
For example, in De Reuck, the Court found that a total ban on
child pornography was justified because child pornography impairs
the dignity of all children and, thus, of all members of any society that
condones it. 64 By appealing to the dignity of society as a whole, rather
than focusing solely on the dignity of those real children who were
harmed in the making of pornography, the De Reuck Court was able to
fend off the argument that the limitation — which also extended to
depictions of imaginary persons — was overbroad and that less
restrictive means were available. 65 Invoking the ‘dignity’ of an entire
society can be dangerous when used to justify the restriction of
unpopular views or forms of expression. The ‘dignity’ of the
community can easily become shorthand for the institutionalisation of
56 See Botha (n 55 above) 748.
57
n 54 above.
58 Daniels v Campbell 2004 5 SA 331 (CC), 2004 7 BCLR 35 (CC).
59 Government of the Republic of South Africa & Others v Grootboom & Others 2001
1 SA 46 (CC), 2000 11 BCLR 1169 (CC).
60 Khosa v Minister of Social Development 2004 6 SA 505 (CC), 2004 5 BCLR 569 (CC).
61 Prince (n 7 above).
62
S v Jordan & Others 2002 6 SA 642 (CC), 2002 11 BCLR 1117 (CC).
63 Volks NO v Robinson 2005 5 BCLR 446 (CC).
64 De Reuck v Director of Public Prosecutions (Witwatersrand. Local Division) &
Others 2004 1 SA 406 (CC), 2003 12 BCLR 1333 (CC) para 63.
65 n 64 above paras 68-70.

Stu Woolman & Henk Botha 175
the moral views of the majority and the negation of plurality and
difference.
On other occasions, judges underestimate the extent to which a
limitation of a fundamental right impairs the dignity of members of
out-groups. Consider, for example, the insistence in Jordan that the
stigma associated with prostitution is the result of personal choice
and is unrelated to the role of law in apportioning blame and
sustaining structural inequality. 66 Or ponder the majority’s finding in
Volks that the exclusion of the surviving partner of a permanent life
partnership from the right of surviving spouses to claim maintenance
from the estates of their deceased spouses does not constitute unfair
discrimination because the law never prevented them from getting
married. 67 These findings — grounded both in traditional mores and
rather outré metaphysical views about ‘individual freedom’ — cast
something of a pall over the place of dignity in our limitations
jurisprudence.
Do these cases really indicate fundamental problems inherent in
a dignity-based approach? Do they suggest that values other than
dignity might assist the Courts in making better sense of the Final
Constitution’s commitment to pluralism and the eradication of
structural disadvantage?
On the one hand, we are not convinced that a dignity-based
approach must of necessity result in the reinforcement of traditional
moral views, the continued marginalisation of certain out-groups, or
the suppression of unpopular views. On the contrary, as Denise
Meyerson has persuasively argued, and as the case law largely
confirms, dignity can be used to invalidate limitations which seek to
impose a particular conception of the good upon autonomous human
beings. 68
On the other hand, we need to ask why, despite its adherence to
definitions of dignity that take our capacity for self-actualisation and
self-governance seriously, the Constitutional Court failed to give
adequate effect to dignity in the cases canvassed above. One reason
could be that the private-law conception of dignity as dignitas still
exerts a powerful hold on the legal imagination. This ‘conservative’
pre-disposition may explain why dignity qua self-governance is not
always given sufficient weight, and why the discourse of dignity
sometimes slips into sermons about dignified behaviour. 69
66 See Jordan (n 62 above) para 16.
67 Volks (n 63 above) para 91.
68
See D Meyerson Rights Limited (1997).
69 See Woolman (n 39 above) 36-14 — 36-17.

176 Chapter 10
5.3 Democracy and openness
5.3.1 Principle of democracy
Cases such as Khosa 70 — which stressed the political community’s
responsibility to provide non-citizens who find themselves on the
margins of that community with the material conditions for agency —
and Fourie 71 — which recognised that gays and lesbians have an
entitlement to public recognition of their intimate relationships —
evince the Court’s transformation of its dignity-based approach to
fundamental rights interpretation and limitations analysis from
dignitas and a narrow conception of the public interest to something
far more expansive, if not all-embracing. This far more substantive
vision of dignity allows us to make sense of a variety of other
constitutional values precisely because this conception of dignity
embraces such notions as equal concern and equal respect, selfactualisation,
self-governance, and collective responsibility for the
material means required for agency.
But what the Court has still not done is give distinctive content to
each of the five values enshrined in FC section 36. For the most part,
the Court has viewed the four other values through the lens of human
dignity. According to the Court, dignity provides a common measure
of value which can help bridge the division between equality and
freedom, or between negative and positive rights, or between the
individual and collective aspects of our autonomy. However, we have
also seen that dignity does not adequately address all conflicts nor
does a reliance on dignity appear to do adequate justice to those outgroups
whose participation in our social and political life remains
marginal at best.
It is particularly surprising that the Constitutional Court has not
done more to develop the meaning of ‘openness’ and ‘democracy’ —
two features of our society that clearly demarcate the boundary
between apartheid South Africa and post-apartheid South Africa. In
our view, a greater elaboration of the meaning of ‘an open and
democratic society’, and a closer connection of these values to
dignity (especially dignity qua self-governance), might result in a
jurisprudence more inclined to accommodate plurality and
difference. Similarly, an engagement with ‘democracy’ might
strengthen our commitment to securing spaces in which ‘counterpublics’
can challenge dominant ideas and engage in alternative
discourses. In this section, we consider the possibility of a
complementary understanding of the values underlying the Bill of
70
Khosa (n 60 above).
71 Fourie (n 14 above).

Stu Woolman & Henk Botha 177
Rights that flows from a greater appreciation for the kind of
‘democratic’ society to which the Final Constitution commits us.
In United Democratic Movement v President of the Republic of
South Africa, the Constitutional Court issued a challenge of sorts to
the academic community: Tell us what ‘democracy’ means, and more
importantly, tell us how it ought to inform, in a principled manner,
our understanding of various provisions in the text of the Final
Constitution. 72 Some South African academics, and in particular,
Theunis Roux, have begun to do just that. 73 Roux pulls together the
political theory out of which our particular South African conception
of democracy arises, the textual provisions of the Final Constitution
that shape that conception, and the extant case law of our own courts
to generate a ‘principle of democracy’. 74 We will not rehearse Roux’s
arguments in support of that principle here. We will, however, draw
down on several of his arguments, especially those that serve part (2)
of his ‘principle of democracy’.
The argument that lends the greatest force to our general theory
of limitations analysis is Roux’s contention that, read together, FC
72 United Democratic Movement v President of the Republic of South Africa &
Others (African Christian Democratic Party & Others Intervening; Institute for
Democracy in South Africa & Another as Amici Curiae) (No 2) 2003 1 SA 495 (CC),
2002 11 BCLR 1179 (CC) para 25.
73
Roux (n 6 above).
74 This principle stated in its clearest form holds:
Government in South Africa must be so arranged that the people, through
the medium of political parties and regular elections, in which all adult
citizens are entitled to participate, exert sufficient control over their
elected representatives to ensure that: (a) representatives are held to
account for their actions, (b) government listens and responds to the
needs of the people, in appropriate cases directly, (c) collective decisions
are taken by majority vote after due consideration of the views of
minority parties, and (d) the reasons for all collective decisions are
publicly explained. (2) The rights necessary to maintain such a form of
government must be enshrined in a supreme-law Bill of Rights, enforced
by an independent judiciary, whose task it shall be to ensure that,
whenever the will of the majority, expressed in the form of a law of
general application, runs counter to a right in the Bill of Rights, the
resolution of that tension promotes the values of human dignity, equality
and freedom.
Roux (n 6 above) § 10.5(b) (emphasis removed). Roux offers an additional gloss on
the second part of his principle that may be worth bearing in mind:
The rights necessary to maintain such a form of government, including
the right to freedom of expression, the right to form political parties, the
right to vote, and the right to the minimum standard of welfare necessary
to participate in the democratic process, must be enshrined in a supremelaw
Bill of Rights, enforced by an independent judiciary, whose task it
shall be to ensure that, whenever the will of the majority, expressed in
the form of a law of general application, runs counter to a right in the Bill
of Rights, the resolution of that tension promotes the values of human
dignity, equality and freedom.
As above (emphasis removed).

178 Chapter 10
sections 7(1), 36(1), and 39(1) ‘structure the way in which the tension
between rights and democracy is to be managed in South African
constitutional law.’ 75 We have argued, over the course of this
chapter, that FC section 36(1) and FC section 39(1) require a valuebased
approach to fundamental rights analysis and limitations analysis
in part because they invoke the same set of values, the same linguistic
trope, ‘an open and democratic society based upon human dignity,
equality and freedom’. However, Roux’s connection of the oftignored
FC section 7(1) to both fundamental rights interpretation (FC
section 39) and limitations analysis (FC section 36) enables us to make
four new critical points in this chapter.
First, FC section 7(1) reads: ‘The Bill of Rights is a cornerstone of
democracy in South Africa. It enshrines the rights of all people in our
country and affirms the democratic values of human dignity, equality
and freedom.’ Notice that democracy is treated as an independent
value. Notice that the values of human dignity, equality and freedom
are ‘democratic’ values. At a minimum, the language of FC section
7(1) should give pause to those interpreters of the basic law who
privilege, reflexively, the value of human dignity. One can press this
point further and argue that FC section 7(1), in fact, reverses the spin
placed by the Constitutional Court on the phrase ‘an open and
democratic society based upon human dignity, equality and freedom’.
It makes a democratic society, and not dignity, foundational.
Second, it is, we think, unnecessary to read the language of FC
section 7(1) in a manner that privileges democracy over dignity.
Indeed, FC section 7(1) and Professor Roux suggest that we should be
just as wary of such overly simplistic reductions (rights service
democracy) as we are chary of claims that rights and democracy stand
in irreconcilable tension with one another (the counter-majoritarian
dilemma). We think that it is enough to suggest, as Professor Roux
does, that FC section 7(1) delinks the phrase ‘an open and democratic
society’ from ‘human dignity, equality and freedom’. That is, whereas
the phrase ‘open and democratic society based upon human dignity,
equality and freedom’ suggests a miasma of ‘big’ ideas that, if read
jointly and severally, could exhaust the entire universe of modern
political theory, delinking the two phrases forces the reader of FC
section 36(1) and FC section 39(1) to stop and to attend — for a
moment — to the meaning, as well as the desiderata, of an ‘open and
democratic society’. Even if it does nothing else, by reading FC
section 7(1) together with FC section 36(1), we are forced to concede
that the principle of democracy is, at least, of equal weight as the
value of dignity when it comes to the justification of a limitation of a
fundamental right.
75 Roux (n 6 above) § 10.3(c).

Stu Woolman & Henk Botha 179
Third, Roux’s arguments support our contention that scales and
balancing are inapt metaphors for limitations analysis. Such
metaphors block one from drawing the conclusion to which FC section
7(1) has already alerted us: Namely, that rights stand not in
opposition to democracy, but that they are, instead, constitutive of
it. That is to say, without the rights to equality, dignity, life, belief,
expression, assembly, association, vote, political party membership,
citizenship, access to information, access to courts, and just
administrative action, we would not have a meaningful democracy.
These rights are themselves the preconditions for an ‘open and
democratic society’.
Fourth, the principle of democracy, when taken seriously, gets
read back into these rights. And by that we mean that the virtues of
belonging, deliberating and participating, identified first and
foremost with democracy, attach not just to the political realm, but
to an array of associational forms — religious, traditional, linguistic,
commercial, labour, intimate, cultural — that are part of, but not
identical to the political. So although Professor Roux does not make
this claim, we do. Indeed, it is an appreciation for these ‘democratic’
values of membership, deliberation and participation that underwrites
our defense of pluralism, marginal social groups and
‘oppositional counterpublics’. 76 And we value pluralism, and thus
marginal social groups and ‘oppositional counterpublics’, not simply
because they serve as reminders of the emancipatory potential of
robust democratic discourse, but because these groups, and others
like them, are where democracy takes place everyday for the vast
majority of us.
Finally, we agree with Professor Roux that ‘no South African
political system claiming to be democratic would be worthy of that
name unless it respected the democratic values which the Bill of
Rights affirms.’ 77 This view firmly reinforces our own views about the
relationship between courts and legislatures in a regime of ‘shared
constitutional interpretation’. In such a regime, as in the political
system contemplated by FC sections 7(1), 36(1) and 39(1), neither the
courts nor the political branches of government have a privileged
position with regard to the making and re-making of our basic law.
5.3.2 Principle of openness
The dissenting judgment of Sachs J in Prince resonates with Roux’s
understanding of democracy, and sounds themes similar to our own
76 K Thomas ‘Racial justice’ in A Sarat, G Bryant & R Kagan (eds) Looking back at
77
law’s century (2002) 78 87.
Roux (n 6 above) § 10.3(c).

180 Chapter 10
thoughts about the relationship between democracy and the other
values that ought to inform limitations analysis. In his dissent in
Prince, Sachs J stressed the need in an ‘open and democratic society’
faced with seemingly intractable conflicts — between the state and
religious communities — for a ‘reasonable accommodation’ of
interests. 78 This accommodation requires mutual recognition and ‘a
reasonable measure of give-and-take from all sides’. 79 Sachs J, not
surprisingly, finds that the majority’s refusal to carve out an
exemption for bona fide religious use of cannabis offends this very
principle. The majority judgment, he writes, ‘puts a thumb on the
scales in favour of ease of law-enforcement, and gives insufficient
weight to the impact the measure will have, not only on the
fundamental rights of the appellant and his religious community, but
on the basic notion of tolerance and respect for diversity that our
Constitution demands for and from all in our society’. 80 The
majority’s suppression of cultural and religious differences harms not
only the individuals and the communities concerned, but society as a
whole. He continues:
[F]aith and public interest overlap and intertwine in the need to protect
tolerance as a constitutional virtue and respect for diversity and
openness as a constitutional principle. Religious tolerance is accordingly
not only important to those individuals who are saved from having to
make excruciating choices between their beliefs and the law. It is deeply
meaningful to all of us because religion and belief matter, and because
living in an open society matters. 81
For Sachs J, freedom of belief and the freedom to express such belief
are fundamental not only to the freedom and dignity of the believers
concerned, but also to the diversity and openness that are the
lifeblood of a democracy. Democracy, Sachs J seems to be saying,
presupposes the ability of marginalised and vulnerable minorities to
challenge the normative closure into which political communities
tend to lapse. A political community can only remain free if it values
plurality and difference, and allows out-groups to disturb and to
challenge deeply held majoritarian beliefs and practices. 82 For this
reason, the critical challenge for our constitutional ‘democracy’
consists ‘not in accepting what is familiar and easily accommodated,
78 See Prince (n 7 above) paras 146 155-156 and 170.
79 n 7 above, para 161.
80
n 7 above, para 147.
81 n 7 above, para 170.
82 n 7 above, para 147 (‘[P]ractical inconvenience and disturbance of established
majoritarian mind-sets are the price that constitutionalism exacts from
government.’)

Stu Woolman & Henk Botha 181
but in giving reasonable space to what is “unusual, bizarre or even
threatening”’. 83
Nowhere in his judgment does Sachs J renounce the language of
dignity, or question its centrality to the Final Constitution. In fact, his
judgment can be read as an endorsement of the constitutional
commitment to dignity, and a celebration of dignity’s con-comitant
commitment to self-worth, self-actualisation and self-governance. 84
What is significant about his judgment, however, is the manner in
which the language of dignity is supplemented by a more nuanced
account of democracy — a Whitmanian vision of democracy that ties
the ability of individuals to re-imagine their own identities to the
capacity of the political community for transformation. 85
Underlying Sachs’ radically democratic vision is an equally
egalitarian concern — the demand for equal recognition, as Charles
Taylor puts it 86 — for marginal cultures, worldviews and lifestyles.
Sachs emphasises the political powerlessness of the Rastafari in a
manner that recalls the concerns of representation-reinforcing
process theory. 87 The continuing disempowerment of the Rastafari
unmasks the power relations lurking beneath a veneer of formally
equal treatment, and shows how facially neutral laws are conditioned
by background assumptions that define ‘normality’ in terms of
conformity to the tenets of mainstream religions. At the same time,
it presents the political community with an opportunity to reconsider
the ways in which the boundaries of citizenship are being drawn. Of
the relationship between the ‘romantic-liberal’ view of
constitutionalism and the struggle of out-groups for recognition,
Frank Michelman writes:
A chief aim of the romantic-liberal constitution must be to free ‘the lifechances
of the individual ... from the tyranny of social categories’ of
‘classes, sexes, and nations’. The benefit accrues not only to the
emancipated: it is structural and systemic, and accrues to everyone.
Everyone, in the romantic view, has reason to welcome confrontation
and challenge of his or her accustomed or habitual ways and values,
from all quarters known and unknown. Democracy accordingly becomes
83 n 7 above, para 172. The remaining judges of the Constitutional Court have
recently explicitly endorsed a similar conception of reasonable accommodation of
marginalised individuals and groups. KwaZulu-Natal MEC for Education & Others v
Pillay 2008 2 BCLR 99 (CC).
84 n 7 above, paras 148, 151. Moreover, the dissenting judgment of Ngcobo J, in
which Sachs J concurred, made much of the way the general prohibition
stigmatises Rastafari, and thus ‘strikes at the very core of their human dignity.’ n
7 above, paras 48-51.
85
For a fuller elaboration of this understanding of democracy, see F Michelman
‘Law’s republic’ (1988) 97 Yale Law Journal 1493; F Michelman Brennan and
democracy (1999) 68-89.
86
C Taylor The ethics of authenticity (1992).
87 JH Ely Democracy and distrust (1981).

182 Chapter 10
not just a procedural but a substantive ideal — a commitment to
empower the disempowered and reconnect the alienated. Likewise,
freedom of expression figures for the romantic constitutionalist as both
an individual right of self-presentation — of efficacious participation or
citizenship — and a social-structural provision for imbuing social life with
the enrichment, and politics with the knowledge, sparked by frictional
contact with human outlooks and sensibilities other than those to which
one has grown accustomed. 88
This constitutional vision is attractive for our account of limitations
analysis for a number of reasons. First, it calls for a form of limitations
analysis under FC section 36 which does not privilege a single value —
say dignity. Our non-reductionist account of the values at play in
limitations analysis — and our emphasis on democracy and openness
— may counter the tendency to overlook forms of group-based
disadvantage not easily captured by the language of dignity. 89 Put
slightly differently, FC section 36’s commitment to openness ought to
underwrite an approach to limitations analysis that challenges any
unitary conception of the good. Second, a commitment to openness
recognises that some conflicts may be intractable — just as some
values are, in given contexts, incommensurable. This commitment, to
plurality and to difference, should serve to counter naïve attempts to
‘balance’ conflicting interests in terms of FC section 36. Third, a
commitment to openness helps us to make further sense of FC section
7(1)’s statement that the Bill of Rights ‘is a cornerstone of democracy
in South Africa’. FC section 7(1)’s vision of democracy presupposes
public processes of deliberation and participation that enhance
openness, plurality and difference. 90 Although this vision does not
resolve the tension between democracy and rights, it enables us to
explore the potential of rights litigation to strengthen democracy.
Finally, the commitment to a principle of openness in FC section 36
alerts us to the ways in which the lack of access of certain groups to
the levers of political power is re-inforced by apparently neutral laws
that privilege certain worldviews over others. It reminds us of the
emancipatory potential of robust democratic discourse, and the
capacity of marginal social groups or ‘oppositional counterpublics’ 91
to contest dominant notions of normality 92 and to challenge the
tendency of the political community to assume its own moral
completion. 93
88 Michelman Brennan and democracy (n 85 above) 70-71.
89
See Botha (n 55 above) 746-751.
90 See Prince (n 7 above) paras 170-171.
91 Thomas (n 76 above) 87.
92
See Botha (n 55 above) 745-746 (Argues that the majority judgment in Jordan
rested upon a highly conventional understanding of what constitutes normal
sexual relations, and prevented oppositional discourses of sexuality from entering
mainstream public discourse.)
93 Michelman Brennan and democracy (n 85 above) 71.

Stu Woolman & Henk Botha 183
5.4 Judicial Narratives
In the previous two sections, we tried to develop limitations analysis
in a manner that makes greater sense both from an institutional
perspective and from a normative perspective. However, just as
shared constitutional interpretation does not provide a simple answer
to the inevitable political conflicts that arise out of the dual
commitment to the doctrines of constitutional supremacy and
separation of powers, even a normative framework that takes
adequate account of both democracy and dignity is not going to
resolve — in an unproblematic fashion — the kinds of conflicts
between incommensurable goods that arise in constitutional disputes.
How then are judges engaged in limitations analysis to arrive at an
optimal decision when neither considerations of institutional comity
nor normative coherence yield a univocal conclusion? A number of
authors have, of late, suggested that storytelling may yield significant
benefits for hard cases, in general, and hard cases in terms of
limitations analysis, in particular.
That said, the following account of judicial narrative-making is
not meant to supplant conventional limitations analysis undertaken by
the Court in terms of conventional morality. However, the virtues of
this approach are visible in a number of hard cases. The requirements
of storytelling may force decision-makers to consider a range of
possibilities that would not have otherwise occurred to them and thus
to alter the conclusions they ultimately reach. In addition, the
difference between storytelling in hard cases and cryptic
justifications for hard choices — in terms of FC section 36 — is the
difference between a good explanation and a bad explanation for the
decisions that we take: The better the explanation, the more
persuasive it will be — for those who need persuading; the more
persuasive the decision, the more legitimate it will be deemed to
be. 94 Denser judicial narratives thus serve a good that we have argued
is essential in fundamental rights interpretation and limitations
analysis: analytical rigour.
The following two case studies do not prove that storytelling
invariably works for limitations analysis in hard cases. No approach to
limitations analysis could carry such a burden. They serve a rather
more mundane purpose: To show that judges doing constitutional law,
94 See P Gewirtz ‘On I know it when I see it’ (1996) 105 Yale Law Journal 1023 1042-
1043. See also P Gewirtz ‘Narrative and rhetoric in the law’ in P Brooks & P
Gewirtz (eds) Law’s stories: Narrative and rhetoric in the Law (1996) 2 11 (‘[An]
opinion usually ends with the words “It is so ordered”, emphasising the coercive
force that judges wield. But the written justification in the body of the judicial
opinion is what gives the order its authority.’)

184 Chapter 10
who might otherwise be sceptical of storytelling, not only have the
capacity to tell stories, but to do so to brilliant effect.
5.4.1 Prince
Consider the dissenting judgment of Justice Sachs in Prince. In Sachs
J’s view, the idea that the religious freedom of Rastafari must simply
give way to the state’s interest in law enforcement rests on what he
calls the ‘hydraulic insistence on conformity to majoritarian
standards’. 95 Justice Sachs challenges the supposed neutrality of this
dominant mindset by choosing a narrative perspective that differs
fundamentally from that of the majority. Instead of emphasising lawenforcement,
Sachs J tells us a bit about the history of the Rastafari,
the centrality of cannabis in their religion, the marginality of the
Rastafari in South African life, and their inability to exercise any
meaningful influence on the political process. By relocating the
limitations inquiry in the ‘lived and experienced’ reality of the
Rastafari, Sachs J’s story challenges dominant assumptions about the
alleged dangers that certain ‘controlled’ substances pose for the
common good of the commonweal. 96
The minority’s stated preference for crafting an exemption for
Rastafari ritual use of cannabis also dovetails rather neatly with our
description of shared constitutional interpretation. For while the
Court would, quite naturally, retain the power to set out very
generally normative guidelines for the religious use of cannabis by
Rastafari, it would remain up to the legislature, law enforcement
officials and representatives of the Rastafari community to work out
the details of an exemption that met the needs of all parties
concerned.
5.4.2 Jordan & Khosa
As one of the authors has noted elsewhere, 97 the Constitutional Court
in S v Jordan & Others falls into an ‘autonomy trap’ and that leads to
a failure in legal imagination that actually drives the South African
market in sexual slavery. In Jordan, the Constitutional Court rejected
equality, dignity, privacy and freedom of profession challenges to
those sections of the Sexual Offences Act that criminalise
95 Prince (n 7 above) para 156.
96 n 7 above, para 151.
97
See S Woolman & M Bishop ‘State as pimp: Sexual slavery in South Africa’ (2006)
Development Southern Africa 385. See also S Woolman ‘Freedom of association’
in S Woolman et al (n 6 above) Chapter 44; S Woolman & M Bishop ‘Slavery
servitude and forced labour’ in S Woolman et al (n 6 above) Chapter 64; Woolman
(n 35 above).

Stu Woolman & Henk Botha 185
prostitution. 98 The majority reasoned as follows:
If the public sees the recipient of reward as being ‘more to blame’ than
the ‘client’, and a conviction carries a greater stigma on the ‘prostitute’
for that reason, that is a social attitude and not the result of the law.
The stigma that attaches to prostitutes attaches to them, not by virtue
of their gender, but by virtue of the conduct they engage in. That stigma
attaches to female and male prostitutes alike. I am not persuaded by the
argument that gender discrimination exists simply because there are
more female prostitutes than male prostitutes, just as I would not be
persuaded if the same argument were to be advanced by males accused
of certain crimes, the great majority of which are committed by men. 99
The Court’s commitment to a very strong form of metaphysical
autonomy — a form of autonomy that makes all individuals morally
and legally culpable for actions that issue ineluctably from their
circumstances — fails dramatically the large number of prostitutes
who are victims of sexual trafficking. The Jordan Court continues:
It was accepted that they have a choice, but it was contended that the
choice is limited or ‘constrained’. Once it is accepted that [the
criminalisation of prostitution] is gender-neutral and that by engaging in
commercial sex work prostitutes knowingly attract the stigma associated
with prostitution, it can hardly be contended that female prostitutes are
discriminated against. 100
First, sexual trafficking is about the sale and exploitation of women
for prostitution. It is about women who have little chance, and no
choice, in life’s wheel of fortune. Second, how ‘knowing’ that stigma
attaches to an event that takes place under conditions of compulsion
makes a prostitute culpable remains unclear. The Jordan Court’s
approach may hold in the context of some ‘voluntary’ forms of
prostitution. But the Jordan Court’s views regarding ‘autonomy’
makes the manumission of most sexual slaves inconceivable.
A more recent judgment, written by Justice Mokgoro, hints at a
way out of this kind of ‘autonomy trap’. In Khosa v Minister of Social
Development; Mahlaule v Minister of Social Development, the
Constitutional Court found unconstitutional, as a violation of both FC
section 9 and FC section 27(1), the exclusion of permanent residents
from the class of persons entitled to a variety of social security grants:
old age, disability, veterans, child-support and foster care. Mokgoro J
writes:
The exclusion of permanent residents in need of social-security
programmes forces them into relationships of dependency upon families,
98 See s 20(1)(aA) of the Sexual Offences Act 23 of 1957.
99
Jordan (n 62 above) paras 16-17.
100 n 62 above, para 16.

186 Chapter 10
friends and the community in which they live, none of whom may have
agreed to sponsor the immigration of such persons to South Africa. ...
Apart from the undue burden that this places on those who take on this
responsibility, it is likely to have a serious impact on the dignity of the
permanent residents concerned who are cast in the role of
supplicants. 101
Mokgoro J could well have added that permanent residents are, as
supplicants, not merely dependent on family members, but quite
literally at their mercy.
The same story could well be told of the sexual slaves that Jordan
necessarily, though never directly, addresses. Many sex slaves would
consider themselves fortunate to be supplicants. They are not just
excluded from the protection of the law. Many sex slaves do not speak
the language, do not know the law of the land, do not have the
resources to engage corrupt immigration officials or to escape
criminal syndicates. Many are enslaved by their own families.
By depicting the permanent residents in Khosa as supplicants,
Justice Mokgoro is able to get us to see that FC section 7(2), read with
FC section 9 and FC section 27, places the state under an obligation
to protect and to fulfil the rights of all persons in South Africa. By
hammering home the point about turning our neighbours into beggars,
Justice Mokgoro shows us that legal regimes that offer incentives to
become members of the political community but then punish persons
who cannot act on such incentives — by withholding benefits or by
threatening incarceration — are perverse. Justice Mokgoro then
demonstrates that the state’s denial of various social security grants
to permanent residents extinguishes the material conditions for
genuine agency. And, in the end, it is this depiction of Khosa’s
permanent residents as supplicants — as beggars — that convinces a
majority of the Court that the children, the aged and the disabled
permanently resident in South Africa are entitled to their claim for
state support. Had a similar story been told in Jordan about the lives
of sex slaves, the outcome might well have been different.
101 Khosa (n 60 above) para 76.

11 Reply
Sharing interpretation: A reply to
Stu Woolman & Henk Botha
Johan van der Walt
1 Introduction
In this response I have taken my cue from a crucial line in Woolman
and Botha’s text. ‘Powers of judicial review’, they write, ‘are best
understood ... as a shared project of constitutional interpretation.’ 1
And then they ask: ‘What is shared constitutional interpretation?’ It is
not an over-simplification or an exaggeration to say that their
detailed analyses of the Constitutional Court’s jurisprudence with
regard to section 36 of the Constitution are in all respects aimed at
answering just this question. Nor is it an over-simplification or
exaggeration to say that these analyses ultimately lead them to
rephrase the question in terms of the need to ‘harmonis[e] [the]
conflicting ends’ of the legislature, executive and judiciary. 2 Some
kind of harmonisation of conflicting interests is certainly what is at
issue from the very beginning of their text, as becomes abundantly
clear when we look at the whole passage regarding ‘shared
constitutional interpretation’ that I have begun to quote above.
From this perspective, powers of judicial review are best understood,
not as a part of a battle for ascendancy between courts and legislatures
1 S Woolman & H Botha ‘Limitations: Shared constitutional interpretation, an
appropriate normative framework & hard choices’ in S Woolman & M Bishop (eds)
Constitutional conversations (2008) 150.
2 Woolman & Botha (n 1 above) 152.
187

188 Chapter 11
... or a means of frustrating the will of the political majority but, rather,
as a shared project of constitutional interpretation. 3
Woolman and Botha then commence to explain this shared project of
constitutional interpretation with reference to four points that show
that the relation of sharing involved here is one of more or less mutual
deference: The legislature must allow the judiciary to declare a
specific aspect of legislation unconstitutional, but the judiciary must
from their side leave as much scope as possible to the legislature to
select one of the many ways in which a legislative goal can be pursued
without falling foul of the Constitution.
One must nevertheless push this sophisticated understanding of
shared constitutional interpretation to its limits in order to begin to
explore that which lurks at and beyond these limits. What are the
limits at issue here? Having invoked Sachs J’s notion of the maximum
harmonisation of conflicting interests of the legislature and judiciary,
Woolman and Botha also pay passing attention to Sachs J’s
acknowledgment of the possibility of intractable conflicts between
the judiciary and legislature in which the project of shared
interpretation would sadly come to falter. This is however not the
first invocation of the limits of interpretation in their text. In the
rather optimistic passage on the notion of shared interpretation that
I have quoted twice now, they also slip in between parentheses, as if
it is a self-evident matter that only warrants a brief reminder, a
reference to the possibility of the impossibility of this sharing. Let me
quote this passage again, this time, fully in full:
From this perspective, powers of judicial review are best understood,
not as a part of a battle for ascendancy between courts and legislatures
(though they may turn into that) or a means of frustrating the will of the
political majority but, rather, as a shared project of constitutional
interpretation. 4
I would like to suggest that their whole text turns on an endeavour to
indeed keep this ‘though they may turn into that’ in the
unthreatening zone between these parentheses. The unproblematic
and almost in passing fashion in which they later pay a little more
attention to Sachs J’s reference to intractable conflicts between
legislature and judiciary, 5 gives the whole invocation of
‘intractability’ the quality of an aside. Here again, the almost in
passing reference to intractability has the effect of diminishing its
purport. This later invocation of Sachs J’s acknowledgement of
intractability does not appear between parentheses as it does in the
3 Woolman & Botha (n 1 above) 150.
4
As above.
5 Woolman & Botha (n 1 above) 180.

Reply - Johan van der Walt 189
passage above. However, one feels tempted to insert or read into this
part of their text another set of parentheses to mark this in-passing
nature of their invocation of potential intractability. A set of
parentheses appears to have been omitted here ‘inadvertently’.
However, I wish to suggest, to the contrary, that a realistic regard
for the potential of intractable conflicts between judiciary and
executive actually beckons one to remove the first set of parentheses
in the passage quoted above, and to decline the invitation to
interpretively add another set in the later discussion of intractability.
The first set of parentheses should be removed so that that which
figures between them can spill more constructively and destructively,
‘deconstructively’ one can say, into the rest of their text. For ‘here is
the rose’. ‘It is here that we must dance’, to use Hegel’s immortal
words regarding mortality in the Grundlinien der Philosophie des
Rechts. 6
It is here that we must pause to reflect deeply, because it is here
that the notion of shared constitutional interpretation runs headlong
into the question of the possibility or impossibility of sharing that has
involved two great philosophers of our time in what may well become
an epoch making debate. Existence is as such a matter of sharing,
argues Jean-Luc Nancy in his scintillating work L’Expérience de la
liberté. 7 Existence is a function of the impossibility of sharing,
responds Derrida in Voyous. 8 I think our responsibility lies not in trying
to determine which of these two philosophers are conclusively
correct, but in drawing from their debate the insight that we, mortal,
finite and fallible beings that we are, have hitherto always seemed to
be entangled and caught up in the irreducible tensions between
possibilities and impossibilities of sharing. We should draw from their
debate the insight that human beings are always caught up in what
Botha elsewhere, in the context of the question of the possibility or
impossibility of constitutional democracy, calls an ‘(im)possibility’,
that is, the irreducible and irreducibly enigmatic concomitance of the
possible and impossible in all things human. 9 It is in this regard that I
wish to question Woolman and Botha’s optimistic understanding of
shared interpretation as a crucial element of the life of a living law in
which the harmony or harmoniously shared roles between common
and constitutional law will allow the Constitution to grow creatively.
I would like to ask whether one should not spare the precariousness
and fragility of the life of this living law a little more thought.
6
G Hegel Werke in Zwanzig Bänden, Band 7 (1971) 26-27.
7 Nancy L’Expérience de la liberté (1988) 91-107.
8 Derrida Voyous (2003) 74.
9
H Botha ‘Rights, limitations and the (im)possibility of self-government’ in H Botha
et al (eds) Rights and democracy in a transformative constitution (2004).

190 Chapter 11
This inseparable concomitance between the possible and the
impossible (nothing is possible unless it is, at least at first, impossible)
derives from the structure of language and linguistic statements that
determines all shared interpretations and the sharing of all
interpretations, a structure that one can describe by the neologistic
conjunction immimanence, that is, the neologistic conjunction of the
words immanence and imminence. Language is not only immanent to
itself as Wittgenstein taught us. Language is always also imminent.
Language does not only allow one to say what has hitherto been
sayable, it also allows one and indeed requires one to say also what
has hitherto remained unsayable. 10 It requires us to say the unsayable
for the sake of the existential significance of the linguistic utterance,
an existential significance that often goes by the name of justice.
The tension between the already sayable and the as yet unsayable
that always waits to be said for the sake of justice, the tension
between immanence and imminence, is the mark or scar of all
language and all linguistic utterances. This mark or scar informs all
levels of ‘shared’ interpretation. Shared interpretation is scarred
interpretation. There is no sharing without slicing or cutting. Indeed,
shared interpretation is scarred interpretation to the extent that it
heals somewhat and does not remain a gaping wound. The latter, one
should add without the consoling assistance of parentheses, always
remains a scary possibility.
The relation between the legislature and the judiciary is the locus
of the encounter between existing law and new law, of law that has
been said and law that has hitherto remained unsaid and unsayable.
As such, the relation between the legislature and the judiciary is one
of immanence and imminence. An old formalist understanding of the
liberal distinction between law and politics would have us simplify
this relation as one of absolute constitutional immanence and relative
legislative imminence. According to this formalist understanding,
parliament can make (relatively) new law, provided it essentially
remains subject or reconcilable with the unchanging essence of
constitutional norms. The post-formalist understanding of the
distinction between law and politics and of the relation between
legislatures and judiciaries that is current today requires a more
complex understanding of the relation between the immanence and
imminence that is at issue here.
No realist or realistic lawyer or legal scholar would deny today the
irreducible imminence of constitutional interpretation and
constitutional review. Constitutional review often brings new law into
10
For a further discussion of this point, see J van der Walt ‘Immimanence: Law’s
language lesson’ (2006) Law Culture and the Humanities 2.

Reply - Johan van der Walt 191
existence. Only old-style formalists will insist on always describing
this advent of new law in the course of constitutional review in terms
of ‘judicial activism’. They will only be correct in cases where the
judiciary fails to access and articulate the intrinsic and truly
existential imminence of language that calls for new law. Only in
these cases do judges resort to the degenerate or secondary and
blatantly transparent language of ‘making law’ and of ‘judicial
activism’.
Constitutional law, however, is not as such the abode of
imminence. In the relation between constitutional rights and
legislation, constitutional law and legislation take turns in saying the
unsaid or saying what urgently waits to be said. They take turns in the
always imminent disruption of immanence, the always imminent
disruption of the other’s immanence. They take turns in unsaying one
another. This relation between constitutional law and legislation is
hardly ever a happy or easy one. In fact, to the extent that something
significant comes to pass in this relation, the relation is invariably
deeply destructive and deeply sacrificial. As the ancients knew well,
it is through sacrifices that we create and maintain the worlds we live
in, often all too cruelly so. 11 The critical and destructive moment of
traversing the abyssal divide between the immanence and imminence
of law and language, that is, between the already sayable and the as
yet unsayable that beckons to be said in law and language, is the
moment of sacrifice.
It is this sacrificial moment that affords the notions of shared
interpretation its grave significance for the daily praxis of
constitutional interpretation. It is this sacrificial moment that renders
all instances of shared interpretation fundamentally scarred and scary
— scarred by the time they are indeed shared, if there ever is such a
time; scary during all times that they are not.
11 J van der Walt Law and sacrifice (2005) 190-233.

12
THE WIDENING
GYRE OF
DIGNITY
Stu Woolman
Turning and turning in the widening gyre,
The falcon cannot hear the falconer.
WB Yeats The second coming
As essentially a court lawyer, with no formal training in philosophy, I
dare to take my stand on Kant because his imperatives encapsulate for
me, by way of contrast and in the rationally most compelling manner
that I have been able to discover, what was so obscene about apartheid.
It serves as a constant reminder of our very ugly recent past. As a
reforming Constitution, it is right that human dignity should be so highly
valued.
LWH Ackermann ‘The nature of the South African legal revolution’ 1
Nobody crowds you, and nobody goes it alone.
B Springsteen Long walk home
1
LWH Ackermann ‘The legal nature of the South African constitutional revolution’
(2004) 4 New Zealand Law Review 650.
193

194 Chapter 12
1 Introduction
Late one Saturday night, as I rode the rails underground Manhattan up
its west side, I had a very un-New York-like experience. I ran into
people I knew. I was then a first year graduate student in philosophy
at Columbia, and my pleasant bubble of anonymity was burst by two
of my betters — more senior graduate students already at work on
their PhDs. The One (the subway line, not Neo from The Matrix) was
hardly the place for chit-chat, crowded as it was, at midnight. So my
betters carried on their conversation, the subject of which was The
Second Coming.
One of the lovely things about graduate school is that one has all
the time in the world to read. And one of the lovely things about
graduate school at Columbia in the 1980s was the university’s
proximity to innumerable bookstores. During one of my forays into
those long extinct independent shops, I picked up a collection of
Yeats’ poems. Never having read Yeats before, I stumbled across The
Second Coming as I might any other poem. I dog-eared page 116, and
kept turning back to it because the poem had struck me with all the
force of a revelation. Well-schooled in literature, but unschooled in
the more recondite vocabulary of modern poetry, I couldn’t claim to
understand more than it offered at a both a literal and visceral level.
But that seemed more than enough reason for me to commit it to
memory.
So when my betters just happened to take up The Second Coming
as a topic of conversation, I couldn’t have been more eager, more
open to the wisdom that they might dispense. It came then as
something of a shock to hear that they considered The Second Coming
to be something of a cliché. Over-anthologised. Over-quoted. Overcited.
Ubiquitous. As overplayed in middle-brow literary fora as
Vivalidi’s The Four Seasons is on classical music stations. (Their
churlish dismissal still manages to take a wee bit of pleasure out of
this great poem — much like the doctors in Clockwork Orange were
able to eliminate most (but not all) of the immense pleasure that
Beethoven’s Ninth gave the book’s protagonist.) But the poem
remains beautiful and powerful. Yeats had something profound to say
about modernity; and no one can gainsay the prescience of the poem
with regard to the violence and the anarchy of the century that
followed.
It seems to me that some of my betters have offered a similar
conclusion about dignity. Over-used. Over-cited. Over-indulged.
Ubiquitous. A cliché. What I will suggest in the pages that follow is
that although dignity has been deployed again and again by
philosophers ever since Kant placed dignity at the centre of modern

Stu Woolman 195
moral philosophy, and has been employed again and again by
Constitutional Courts in Germany, in Canada and in South Africa from
the very inception of their respective constitutional projects, that
constant return does not turn the right to dignity into a right that
means anything and everything, and therefore nothing. As we shall
see, the right to dignity, like The Second Coming, speaks powerfully
to the violence and the anarchy of the 20th and 21st Centuries. More
importantly, however, dignity, as a rule-generating right (and value)
in South African constitutional law, moves in an ever widening gyre
that speaks not just to our past but to our future, and denotes an ever
widening gyre of constitutional obligations to our fellow citizens.
2 History
South Africa boasts one of the world’s most developed bodies of
dignity jurisprudence. Only the Federal Constitutional Court’s gloss on
the meaning of dignity in Germany’s Basic Law can match the richness
of our Constitutional Court’s account.
As the epigram from Justice Ackermann suggests, the richness of
this jurisprudence flows, in part, from South African history. The
Truth and Reconciliation Commission (‘TRC’), for example,
recognised that dignity has its roots in the simple idea that justice
consists of the refusal to turn away from suffering. The TRC’s
unflinching commitment to the provisional provision of a historical
record of such suffering under apartheid was the first step in our
moral re-awakening. However, dignity traces an arc that extends
beyond the narrow duty to refuse to turn away from suffering to a
broader duty to recognise our fellow citizens as agents capable of
governing themselves. The granting of a truly universal franchise, and
its exercise in the election of Nelson Mandela in 1994 (and in every
other subsequent election), constitutes formal recognition of the
capacity of each person to legislate for him or her self. The history of
dignity in South Africa does not end there. The formal recognition of
our compatriots as autonomous moral agents underwrites an even
wider obligation to convert their innate talents into capabilities that
will, in turn, enable them to realise their preferred way of being in
the world. When refracted through the prism of dignity, the Final
Constitution extends our obligations, beyond the franchise and those
civil liberties that permit us to legislate for ourselves, to socioeconomic
rights that guarantee the material transformation of the
lives of each and every South African. 2 This brief history of our new-
2 See S Liebenberg ‘The value of human dignity in interpreting socio-economic
rights’ (2005) 21 South African Journal on Human Rights 1. See S Woolman
‘Dignity’ in S Woolman et al (eds) Constitutional Law of South Africa (2nd
Edition, OS, 2006) Chapter 36, available at www.westlaw.com.

196 Chapter 12
found ability to recognise the inherent dignity of our fellow South
Africans is meant to suggest how the extension of this right progresses
from mere duties of justice to duties of virtue that have as their aim
the qualitative perfection of humanity. 3
Despite its deep and profound resonance with South African
history, dignity is manifestly not like Auden’s valley cheese — ‘local,
but prized everywhere’. The Constitutional Court quite consciously
draws upon two exogenous sources, both a part of modern western
thought.
First, the Court traces dignity’s place in the pantheon of political
thought back to Immanuel Kant. The existing corpus of South Africa’s
dignity jurisprudence tracks, in a surprisingly direct manner, the
trajectory of Kant’s ethical thought, and, in particular, his various
formulations of the categorical imperative. The Court’s jurisprudence
turns, as we shall see, in an ever widening gyre of obligation: moving
outward from ‘the refusal to turn away’ as manifest in the death
penalty and corporal punishment judgments, to ‘the equal respect’
accorded non-traditional forms of intimate association in the gay and
lesbian rights cases, to ‘the collective responsibility for the material
conditions required for agency’ contemplated in recent socioeconomic
rights decisions.
Second, the Court recognises that the history of dignity is a history
3
Any meaningful historical account of dignity’s South African roots must take note
of other endogenous sources: first, the Roman-Dutch law of personality. See LWH
Ackermann ‘The significance of human dignity for constitutional jurisprudence’
(Lecture, Stellenbosch Law Faculty, 15 August 2005)(Manuscript on file with
author) § 6 (Personality rights include the rights to dignity.) See also J Neethling,
JM Potgieter & PJ Visser Neethling’s Law of personality (2005) 24-38; Universiteit
van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 381 (T); National
Media Ltd v Jooste 1996 3 SA 262 272 (A). Other authors have suggested that the
African concept of ‘ubuntu’ and dignity draw on quite similar moral intuitions.
See Y Mokgoro ‘Ubuntu and the law in South Africa’ (1998) 4 Buffalo Human
Rights Law Review 15; D Cornell ‘A call for a nuanced jurisprudence’ (2004) 19
South African Public Law 661; M Pieterse ‘“Traditional” African jurisprudence’ in
C Roederer & D Moellendorf (eds) Jurisprudence (2004) 441. See also S v
Makwanyane 1995 3 SA 391 (CC), 1995 6 BCLR 665 (CC), 1995 2 SACR 1 (CC) at
paras 224-225 (Langa J) (Ubuntu captures, conceptually, ‘a culture which places
some emphasis on communality and on the interdependence of the members of a
community. It recognises a person’s status as a human being, entitled to
unconditional respect, dignity, value and acceptance from the members of the
community such a person happens to be part of. It also entails the converse,
however. The person has a corresponding duty to give the same respect, dignity,
value and acceptance to each member of that community. More importantly, it
regulates the exercise of rights by the emphasis it lays on sharing and coresponsibility
and the mutual enjoyment of rights by all.’ (Emphasis added).)

Stu Woolman 197
of the world after World War II. 4 It is no accident that dignity occupies
a central place in German constitutional jurisprudence: for ‘dignity’
is the flip-side of ‘never again’. And just as the Germans have
promised not to shovel people into stoves, so too have South Africans
promised never again to treat people like cattle to be packed off to
bantustans or to be slaughtered in the middle of the night. Dignity,
like the words ‘never again’, may now have a new and deeper
meaning post-Third Reich and post-apartheid. But ‘dignity’, like
‘never again’, writes Alan Ryan, has, in fact, ‘been the watchword all
along.’ 5 Ultimately, that watchword always returns us to first
principles: the refusal to turn away.
3 Definitions of dignity
One can identify five primary definitions of dignity in the Court’s
jurisprudence. One aim of the following taxonomy is to demonstrate
how these five definitions draw down on the same basic insight: That
we recognise all individuals as ends-in-themselves capable of selfgovernance.
(Put pithily, each definition of dignity emphasises a
different dimension of our status as relatively autonomous moral
agents.) I suggest how these definitions build upon this common
insight and interpenetrate one another to yield a theory of ‘dignity’. 6
4
See A Chaskalson ‘Human dignity as a foundational value of our constitutional
order’ (2000) 16 South African Journal on Human Rights 193 196 (‘The affirmation
of human dignity as a foundational value of the constitutional order places our
legal order firmly in line with the development of constitutionalism in the
aftermath of the second world war.’)
5
A Ryan ‘After the fall: Judt’s Postwar: A history of Europe since 1945’ New York
Review of Books 3 November 2005 16 19.
6
I stand accused — well, mildly criticised — by Justice Ackermann and others of
engaging in a rather benighted Hartian attempt to reduce ‘dignity’ to a series of
definitions or rules. I remain somewhat perplexed by this charge — since I and
most other lawyers take law to be a rule-governed exercise, and that to
understand a phenomenon as rule-governed does not entail a commitment to a
Hartian view of law or language. That said, a word or two of explanation about
this chapter’s method appears to be in order before I set out my taxonomy of
dignity and some of the black letter law FC section 10 has generated below. First,
neither the emphasis on the actual manner in which the courts have used and
defined dignity, nor the effort to distinguish first order rules from second order
rules should lead the reader to conclude that I aim to offer a purely positivist
account of this body of law. See HLA Hart The concept of law (1961) (Not even
HLA Hart, with whom the nomenclature of primary rules and secondary rules is
most often associated, assumes that such rules exhaust the universe of
obligations.) Second, if the point of a positivist account (shorn of more
controversial jurisprudential baggage) is to construct a taxonomy of all the rules
that constitute the law of dignity — made up of the primary rules that impose
4 See
legal
A
obligations
Chaskalson
and
‘Human
the secondary
dignity as
rules
a foundational
that govern
value
the
of
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our constitutional
and the
order’
interpretation
(2000) 16
of
South
primary
African
rules
Journal
— then
on
my
Human
account
Rights
does
193
do
196
something
(‘The affirmation
like that.
of
But
human
it does
dignity
so only
as
because
a foundational
all lawyers
value
and
of
academics
the constitutional
attempting
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places our
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require
firmly
a Baedeker
in line
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with
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the
sort to
development
make their way
of constitutionalism
through a complex
in
body
the
aftermath
of jurisprudence.
of the second
Third,
world
such
war.’)
a Baedeker alone is insufficient to the task of
5
A
explanation.
Ryan ‘After
In
the
the
fall:
first
Judt’s
place,
Postwar:
legal
A
rules
history
often
of
perform
Europe since
more
1945’
than
New
a single
York
Review
function.
of
See
Books
JW
3 November
Harris Legal
2005
Philosophies
16 19.
(1980) 105-109 (In the accepted

198 Chapter 12
3.1 Dignity 1: Individual as an end-in-herself
Justice Ackermann, the Court’s original exponent of dignity, grounds
the first definition of dignity in two sources that we have already
identified: apartheid and the work of Immanuel Kant:
[I]t is permissible and indeed necessary to look at the ills of the past
which [the Constitution] seeks to rectify and in this way try to establish
what equality and dignity mean. ... What lay at the heart of the
apartheid pathology was the extensive and sustained attempt to deny to
the majority of the South African population the right of selfidentification
and self-determination. ... Who you were, where you
could live, what schools and universities you could attend, what you
could do and aspire to, and with whom you could form intimate personal
relationship was determined for you by the state. ... That state did its
best to deny to blacks that which is definitional to being human, namely
the ability to understand or at least define oneself through ones own
powers and to act freely as a moral agent pursuant to such
understanding of self-definition. Blacks were treated as means to an end
and hardly ever as an end in themselves; an almost complete reversal of
the Kantian imperative and concept of priceless inner worth and
dignity. 7
For Kant, as for Ackermann, the recognition of every human being’s
inherent dignity takes the form of a variation on the golden rule, the
categorical imperative: ‘Act in such a way that you always treat
6 explanation. In the first place, legal rules often perform more than a single
function. See JW Harris Legal Philosophies (1980) 105 - 109 (In the accepted
parlance of legal positivism, primary rules are generally understood to impose
duties and obligations, while secondary rules, which are parasitic on the
existence of primary rules, determine how primary rules are to be applied or to
be altered). See also Hart (supra) at 77–96. However, I use ‘first order rule’ and
‘second order rule’ in a technical sense not meant to evoke passionate debate
about the virtues and vices of legal positivism. First order rules resolve disputes;
second order rules assist in the interpretation of—though they do not necessarily
determine— the content of first order rules in a manner that permits resolution of
disputes. See S Woolman ‘Review of Corder and Du Plessis Understanding South
Africa’s Transitional Bill of Rights’ (1996) 112 South African Law Journal 711, 715.
See also T Morawetz ‘Understanding Disagreement, the Root Issue of
Jurisprudence: Applying Wittgenstein to Positivism, Critical Theory and Judging’
(1992) 141 University of Pennsylvania LR 371. Not only do different denotations of
dignity operate as different kinds of rules, the very same definition of ‘dignity’
may operate as both a primary rule and a secondary rule. In the second place,
while the word ‘dignity’ may not be so open-textured as to be the basic unit in a
jurisprudential ‘Lego-land’, its multiple uses confound all attempts to reduce the
courts’ jurisprudence to a finite number of rules. Fourth, two distinct dangers
attach to a purely positivist account of dignity: (a) formally fair rules may mask
substantially unjust arrangements; (b) once a constitutional norm such as dignity
is reduced to rules, obedience to the law tends to supplant considerations of
justice as the primary end of our political community. We need to be regularly
reminded that the legal rules that the right to dignity produces are only as good
as the everyday ethical practices that inform, and regularly transform, those
rules.
7 Ackermann ‘Legal Nature’ (n 1 above) 650.

Stu Woolman 199
humanity, whether in your own person or in the person of another,
never simply as a means, but always at the same time as an end.’ 8
Stated in Kant’s uncompromising terms, such an ethical algorithm
might seem impossible to enact. 9 We all know that, even with the
best of intentions, many of the myriad interactions we have with our
fellow human beings will be almost entirely instrumental. We know
that whether we are taking decisions for a family, a classroom of
students, a neighbourhood, a town, a province or a nation, some form
of a utilitarian calculus — the greatest good for the greatest number
— will enter into our considerations. And we know that the relational
or communitarian quality of ethics is such that we will often privilege
the claims of family, kin, neighbourhood or nation over more general
or universal claims. 10
8
I Kant Groundwork of the metaphysics of morals trans AW Wood (ed) (2002) 45-
46. See also D Meyerson Rights limited (1997) 12. That Kant should be identified
as a source for constitutional doctrine in South Africa is not as outlandish a
proposition as it may initially sound. In his commentary on German constitutional
law and its dignity jurisprudence, Donald Kommers identifies three ‘politically
significant sources of ethical theory’: Christian natural law, Kantian thought and
social democratic thought. D Kommers The constitutional jurisprudence of the
Federal Republic of Germany 2 ed (1997) 304. The above variation of the
categorical imperative is, in fact, Kant’s second formulation. See Rawls Lectures
on the history of moral philosophy (2000) 181. The second formulation turns our
attention to the nature of other moral agents as rational beings, who, like our
own selves, are entitled to treatment as ends in themselves. The second
formulation also makes what is, for Kant and for us moderns, a crucial distinction
between things which have a price — and are therefore fungible — and things
which have no price — and thus have no replacement. Most of us think of our
selves and those we care about as priceless. Kant asks us to extend that
recognition to all human beings: for they, like us, view themselves and their
significant others as irreplaceable. See AW Wood ‘Humanity as an end in itself’ in
P Guyer (ed) Critical essays on Kant’s groundwork of the metaphysics of morals
(1998) 165 170 (Wood defines the term ‘individual as an end-in-itself’ as ‘an end
with absolute worth or (as Kant also says) dignity, something whose value cannot
be compared to, traded off against, or compensated for or replaced by any other
value.’) Pace L Ackermann, it is important here to note that Rawls speaks about
multiple variations of the categorical imperative — and not just one. L Ackermann
‘The soul of dignity: A reply to Stu Woolman’ in S Woolman & M Bishop (eds)
Constitutional conversations (2008).
9
Kant did not view this principle as impossible to enact. Indeed, as Rawls notes,
Kant found moral pietism offensive and conceived of the categorical imperative
as a ‘mode of reflection that could order and moderate the scrutiny of our
motives in a reasonable way.’ Rawls (n 8 above) 149. Perhaps the best way to
characterise Kant’s categorical imperative is as a reflective check — albeit a
demanding one — on our moral intuitions. A contemporary example of such a
reflective check — and one that continues to do a great deal of heavy lifting — is
Rawls’ own ‘veil of ignorance’. See J Rawls A theory of justice (1972). See also
TW Pogge ‘The categorical imperative’ in Guyer (n 8 above) 189 206 (‘The
categorical imperative is ... a general procedure for constructing morally
relevant thought experiments ... [T]he categorical imperative amplifies my
conscience by transforming the decision from one of marginal significance into
one concerning the world at large, and also isolates my conscience by screening
out personal considerations that might affect my choice of maxims but are
irrelevant to my decisions about how through legislation to specify a realm of
ends.’)
10 See C Lamore Patterns of moral complexity (1986).

200 Chapter 12
How then to understand Kant in a way that is neither sentimental
nor woolly? Consider Oscar Schachter’s gloss on the categorical
imperative: ‘Respect for the intrinsic worth of every person should
mean that individuals are not to be perceived or treated merely as
instruments or objects of the will of others.’ 11 Dignity, on this
account, sets a floor below which ethical — and legal — behaviour may
not fall. Although some relationships will be purely instrumental, no
individual person can be treated as a mere instrument over the entire
domain of her social interactions. This floor supports — as the Dawood
Court suggests — Chapter 2’s express prohibitions on slavery,
servitude and forced labour. 12 This definition of dignity also bars punishments
that either extinguish the humanity of another entirely —
say, the death penalty 13 — or through their disproportionality reduce
a human being to a mere signal — a warning, a disincentive — within
a large and impersonal system of social control. 14
3.2 Dignity 2: Equal concern and equal respect
Another version of Kant’s moral law — more accurately described as a
principle of justice — yields another dimension of dignity: ‘Any action
is right if it can coexist with everyone’s freedom in accordance with
a universal law, or if on its maxim the freedom of choice of each can
coexist with everyone’s freedom in accordance with a universal
law.’ 15 This primarily negative obligation not to treat another merely
as a means and to recognise in that Other the freedom to act as an
end in itself — the ability to act as an autonomous moral agent —
underwrites a conception of dignity as a formal entitlement to equal
concern and to equal respect. 16 From this conception, the Constitutional
Court has constructed two different, though not entirely
distinct, tests in terms of FC section 9 (the right to equality): (1) a
right to equal treatment which ensures (a) that the law does not
irrationally differentiate between classes of person and (b) that the
11 O Schachter ‘Human dignity as a normative concept’ (1983) 77 American Journal
of International Law 848 849.
12 Dawood & Another v Minister of Home Affairs & Others 2000 3 SA 936 (CC), 2000
8 BCLR 837 (CC) para 35.
13
See Makwanyane (n 3 above).
14 See S v Dodo 2001 3 SA 382 (CC), 2001 5 BCLR 423 (CC).
15 See I Kant Metaphysics of morals trans M Gregor (1991) 56 231 395.
16
Kant offers a more accessible, and less rarefied, account of dignity qua equal
concern and equal respect in the Metaphysics of morals, when he writes:
[A] human being regarded as a person ... is exalted above any price; for
as a person ... he is not merely to be valued merely as a means to the
ends of others or even to his own ends, but as an end in itself, that is, he
possesses a dignity (an absolute inner worth) by which he exacts respect
for himself from all other rational beings in the world. He can measure
himself with every other being of this kind and value himself on a footing
of equality with them.
Kant (n 15 above) 557 (my emphasis).

Stu Woolman 201
law does not reflect the ‘naked preferences’ of government; and (2)
a right to equal treatment that guarantees that individuals are not
subject to unfair discrimination on the basis of largely ascriptive
characteristics. 17 Of this demand for equal concern and equal
respect, Justice Ackermann writes:
[A]t the heart of the prohibition of unfair discrimination lies the
recognition that the purpose of our new constitutional and democratic
order is the establishment of a society in which all human beings will be
accorded equal dignity and respect regardless of their membership in
particular groups. The achievement of such a society in the context of
our deeply inegalitarian past will not be easy, but that that is the goal of
the Constitution should not be forgotten or overlooked. 18
3.3 Dignity 3: Self-actualisation
Another formulation of the categorical imperative shapes a third
strand of the Court’s dignity jurisprudence. Kant writes: ‘Act only on
the maxim through which you can at the same time will that it should
become a universal law.’ 19 Here, the term that warrants the closest
scrutiny is ‘will’. For Kant, the hallmark of humanity is its ability to
‘will’ or to shape its ends through ‘reason’. But when Kant writes that
our humanity consists, at least in part, in our power to rationally set
and will an end, he is not speaking solely of an individual’s capacity
to adopt an end for purely moral reasons. While Kant certainly
contends that the defining feature of humanity is our capacity to
overcome our instincts and that we are only truly free when we are
moral, he maintains that we define ourselves — and our humanity —
through the rational choice of all of our ends and not just those that
are explicitly moral. This broader capacity to create meaning — to
‘will’ value into the world — gives rise to the modern political and
ethical pre-occupation with ‘self-actualisation’. An individual’s
capacity to create meaning generates an entitlement to respect for
the unique set of ends that the individual pursues. In Ferreira v Levin,
Justice Ackermann writes:
Human dignity cannot be fully valued or respected unless individuals are
able to develop their humanity, their ‘humanness’ to the full extent of
its potential. Each human being is uniquely talented. Part of the dignity
of every human being is the fact and awareness of this uniqueness. An
17 See President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC), 1997 6
BCLR 708 (CC) para 41 (‘[T]he purpose of our new constitutional and democratic
order is the establishment of a society in which all human beings will be accorded
equal respect regardless of their membership in particular groups.’ (My
emphasis.))
18 LWH Ackermann ‘Equality under the 1996 South African Constitution’ in Wolfrem
(ed) Gleichheit und Nichtdiskriminierung im Nationalen und Internationalen
Mesenchenrechtssschutz (2003) 547.
19 Kant (n 8 above) 37-38.

202 Chapter 12
individual’s human dignity cannot be fully respected or valued unless the
individual is permitted to develop his or her unique talents optimally.
Human dignity has little value without freedom; for without freedom
personal development and fulfilment are not possible. Without freedom,
human dignity is little more than an abstraction. Freedom and dignity
are inseparably linked. To deny people their freedom is to deny them
their dignity. 20
Dignity, properly understood, secures the space for selfactualisation.
21 That said, dignity qua self-actualisation describes
only a political, and not a metaphysical, state. 22
3.4 Dignity 4: Self-governance
A third formulation of the categorical imperative helps us to identify
a fourth dimension of dignity. 23 An essential feature of the constitutional
politics that issues from the categorical imperative is the
recognition of the ability of (almost) all human beings — through their
capacity to reason — to legislate for themselves. Indeed, as we have
just noted, it is our capacity for self-governance, and the fact that we
are not simply slaves to our passions, that distinguishes man from
beast. (Whether Kant is correct to make reason the sine qua non of
humanity is another matter.) 24 Our capacity for self-governance — the
capacity of (almost) all human beings to reason their way to the ends
that give their lives meaning — is largely what makes democracy the
only acceptable secular form of political organisation in modernity.
For if we are capable of shaping our own ends as individuals, equal
treatment demands that we be able to shape them as citizens. At a
minimum, it means we must be able to participate in the collective-
20 Ferreira v Levin NO & Others 1996 1 SA 984 (CC), 1996 4 BCLR 1 (CC) para 49.
21
See eg Hugo (n 17 above) para 41 (‘[D]ignity is at the heart of individual rights in
a free and democratic society’ (my emphasis)); Prinsloo v Van der Linde 1997 3 SA
1012 (CC), 1997 6 BCLR 759 (CC); National Coalition for Gay and Lesbian Equality
v Minister of Justice 1999 1 SA 6 (CC), 1998 12 BCLR 1517 (CC).
22 See S Woolman The selfless constitution: Experimentation and flourishing as the
foundations of the South Africa’s basic law (forthcoming 2008)(Self-actualisation
is not contingent upon the ability to will freely or to choose freely one’s ends.
Such a conception of freedom is a form of folk psychology. Rather, freedom
consists primarily of having the capacity to participate in ways of being in the
world that already give one’s life the better part of its meaning.) See also AW
Wood ‘What is Kantian ethics?’ in Kant (n 8 above) 176 (‘I doubt that Kant’s
extravagant metaphysics is the best we can do with this problem. The basic point,
however, is that Kantian ethics is no more hostage to the free will problem than
any other ethical theory would be that regards us as reasonable and selfgoverning
beings.’)
23
See Rawls (n 8 above) 183 (‘In the third formulation (that of autonomy) we come
back again to the agent’s point of view, but this time not as someone subject to
moral requirements, but as someone who is, as it were, legislating universal law:
here the [categorical imperative] procedure is seen as that procedure the
adherence to which with a full grasp of its meaning enables us to regard ourselves
as making law for a possible realm of ends.’)
24
See B Williams ‘The idea of equality’ in P Laslett & WG Runciman (eds)
Philosophy, politics and society (1962) 111.

Stu Woolman 203
decision making processes that determine the ends of our community.
As Justice Sachs notes in August v Electoral Commission:
The universality of the franchise is important not only for nationhood
and democracy. The vote of each and every citizen is a badge of dignity
and of personhood. Quite literally, it says that everybody counts. 25
3.5 Dignity 5: Collective responsibility for the material
conditions for agency
The fifth and final strand of the Court’s dignity jurisprudence widens
our constitutional frame beyond individual ends and asks that we
consider what it means for South Africa to be, as Kant would put it, a
‘realm of ends’. 26 In a series of unfair discrimination and socioeconomic
rights cases, the Constitutional Court has made it clear that
our commitment to dignity does not flow entirely from, or is not
limited to, the inalienable rights of individuals. Whether it has
engaged the stigma associated with HIV/AIDS, 27 the urgent need for
shelter, 28 or the desperation associated with summary evictions, 29
the Constitutional Court has, over the past several years, repeatedly
emphasised the fact that
[i]t is not only the dignity of the poor that is assailed when homeless
people are driven from pillar to post in a desperate quest for a place
where they and their families can rest their heads. Our society as a
25 See August v Electoral Commission 1999 3 SA 1 (CC), 1999 4 BCLR 363 (CC) para
17. See also Minister of Home Affairs v National Institute for Crime Prevention
2005 3 SA 280 (CC), 2004 5 BCLR 445 (CC); New National Party of South Africa v
Government of the Republic of South Africa 1999 3 SA 191 (CC), 1999 4 BCLR 457
(CC). This commitment to dignity qua self-governance is rather straightforward in
the franchise cases. However, dignity qua self-governance is, in fact, where the
Constitutional Court falters most conspicuously. Dignity qua self-governance
ought to promote the Court’s commitment to representation reinforcing
processes — most notably where our democratic processes cannot be profitably
exploited by vulnerable minorities and out-groups. But Prince, Jordan, Robinson
and De Reuck sound cautionary notes about the extent to which the Court will
extend itself on behalf of non-traditional associations, vocations or professions. In
these cases, the Court reinforces a traditional morality supported by a majority of
South Africans and effectively undermines the efforts of these out-groups to
determine the ends of their own lives. See Prince v President, Cape Law Society &
Others 2002 2 SA 794 (CC), 2002 3 BCLR 231 (CC); S v Jordan & Others (Sex
Workers Education and Advocacy Task Force & Others as Amici Curiae) 2002 6 SA
642 (CC), 2002 11 BCLR 1117 (CC); De Reuck v Director of Public Prosecutions,
Witwatersrand Local Division 2004 1 SA 406 (CC), 2003 12 BCLR 1333 (CC); Volks
NO v Robinson 2005 5 BCLR 466 (CC).
26 See Kant (n 8 above) 51.
27
See Hoffman v South African Airways 2001 1 SA 1 (CC), 2000 11 BCLR 1211 (CC).
28 See Government of the Republic of South Africa & Others v Grootboom & Others
2001 1 SA 46 (CC), 2000 11 BCLR 1164 (CC).
29
See Occupiers of 51 Olivia Rd & Others v City of Johannesburg & Others 2008 3 SA
208 (CC).

204 Chapter 12
whole is demeaned when state action intensifies rather than mitigates
their marginalisation. 30
Dignity, on this account, is not simply a constellation of negative
duties owed by the state to each human subject, or a set of positive
entitlements that can be claimed by each member of the polity.
Dignity is that which binds us together as a community, and it occurs
only under conditions of mutual recognition. Moreover, such mutual
recognition is not merely formal. The Court in Khosa notes that the
Final Constitution commits us to an understanding of dignity in which
wealthier members of the community view the minimal well-being of
the poor as connected with their personal well-being and the well-being
of the community as a whole. 31
The Court’s account of dignity, which has, heretofore, offered various
desiderata for individual moral agency, now appears to describe
dignity as a collective good. The case law even features a small
number of disputes in which the dignity interests of the collective are
said to trump the dignity interests of an individual.
But with the exception of a few apercu in socio-economic rights
cases, and an aside or two in a handful of other disputes, the Court
rarely refers to our collective dignity. The Court’s circumspection, in
this regard, suggests that it does not have in mind some romantic
conception of the political community.
How then to comprehend dignity as a collective concern? What the
Court wishes us to understand is that for dignity to be meaningful in
South Africa, the political community as a whole must provide that
basket of goods — including such primary goods as civil and political
rights — which each member of the community requires in order to
exercise some basic level of agency. This conception of dignity
possesses striking similarities to Amartya Sen’s politics of capability.
For Sen, as for our Constitutional Court, the primary concern of
the polity is not with wealth maximisation. ‘Wealth’ as Aristotle
wrote, ‘is evidently not the good we are seeking; for it is merely
useful and for the sake of something else.’ 32 That something else, as
Sen writes, is
[t]he expansion of the ‘capabilities’ of persons to lead the kinds of lives
they value — and have reason to value. ... Having freedom to do the
30
See Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC), 2004 12
31
BCLR 1268 (CC) para 18 (my emphasis).
Khosa v Minister of Social Development 2004 6 SA 505 (CC), 2004 6 BCLR 569 (CC)
32
para 74.
See Aristotle Nichomachean ethics D Ross trans (1980) Bk I, §§ 5 7.

Stu Woolman 205
things one has reason to value is (1) significant in itself for the person’s
overall freedom, and (2) important in fostering the person’s opportunity
to have valuable outcomes. 33
However, Sen’s aims are not limited to fostering the agency of the
individual. Individual agents should be understood both as ends-inthemselves
and as the ‘basic building blocks’ of aggregate social
development. The ‘greater freedom’ of individuals not only ‘enhances
the ability of people to help themselves and ... to influence the
world,’ it is essential for the development of society as a whole. 34 For
Sen, the link between individual capabilities and development is part
of a virtuous circle. Enhancement of individual freedom — by both
political and material means — leads to greater social development,
which, in turn, further enhances the possibilities for individual
capabilities and the freedom to lead the kinds of lives we have reason
to value.
This virtuous circle would appear to be what the Constitutional
Court in Khosa has in mind when it ties the well-being of the worst off
to the well-being of the wealthy. The enhancement of individual
capabilities of the poorest members of our political community
enhances the development of South Africa as a whole. Or put slightly
differently, the greater the ‘agency’ of the least well-off members of
our society, the greater the ‘agency’ of ‘all’ the members of our
society. This gloss on Khosa emphasises not the subjective sense of
well-being that the well-off might experience by tying their wellbeing
to that of the poor. Rather it emphasises an increase in the
objective sense of well-being that flows from the enhancement of the
agency of each individual member of our society.
3.6 The creation of a realm of ends
We may be able to see, now, how dignity builds upon a simple
premise, the refusal to turn away from suffering, and yields,
ultimately, a realm of ends. The refusal to turn away marks the very
beginning of our moral awareness — the first time we come to
understand that others are not mere instruments for the realisation
of our desires, but beings who are ends in themselves. This moral
awakening leads, almost ineluctably, to two further insights: (a) that
others are entitled to the same degree of concern and respect that we
would demand for ourselves; and (b) that others are entitled to that
equal respect and equal concern because they, like us, are possessed
of faculties and talents that enable them to pursue ends which give
their lives meaning.
33
A Sen Development as freedom (1999) 18.
34 As above.

206 Chapter 12
The ability to give our lives meaning and to determine the course
by which we give our lives meaning, leads to the recognition that we
are able to govern our selves. At a minimum, this recognition of our
ability to govern our selves supports the more formal political
recognition that just as each one of us is capable of and entitled to
govern our individual self, so too each one of us is equally capable of
legislating on behalf of the broader community of which we are a
part. This mutual recognition of one another as rational beings
capable of ordering the ends both of our own lives and of the larger
community underwrites the final insight: That we not only live in a
realm of ends, but that if such a realm is to have real meaning, we
must be willing to order our community in a manner that enables each
individual to realise their status as an end. It is simply not enough to
(a) not turn away from suffering, (b) end discrimination and (c) grant
all citizens the franchise. Once we recognise others as ends we must
be committed — at some level — to the provision of those material
means necessary to live as ends. To refuse them such means might
render meaningless the more formal guarantees found in the Final
Constitution. As the Court itself notes in Grootboom:
The Constitution will be worth infinitely less than its paper if the
reasonableness of state action concerned with housing is determined
without regard to the fundamental constitutional value of human
dignity. Section 26, read in the context of the Bill of Rights as a whole,
must mean that the respondents have a right to reasonable action by the
state in all circumstances and with particular regard to human dignity. In
short, I emphasise that human beings are required to be treated as
human beings. 35
4 Uses of dignity
The word ‘dignity’ is sprinkled about the text of the Final
Constitution. It is a founding value: FC section 1(a). It acts as a
cornerstone of both democracy and the Bill of Rights: FC section 7(1).
It informs both our interpretation of the ambit of the specific
substantive provisions of the Bill of Rights — FC section 39(1) — and
our analysis of the justification of any limitation of a right or freedom
— FC section 36. It governs the behaviour of our courts, other tribunals
and state institutions supporting constitutional democracy: FC
sections 165, 181, 196. It is, perhaps most importantly, the second
substantive right identified in the Bill of Rights: FC section 10. That
dignity operates as a first order rule, a second order rule, a
correlative right, a value and a grundnorm — and sometimes all in a
single case — is confirmed by Justice O’ Regan’s oft quoted dictum in
Dawood:
35 Grootboom (n 28 above) para 83 (my emphasis).

Stu Woolman 207
Human ... dignity informs constitutional adjudication and interpretation
at a range of levels. It is a value that informs the interpretation of many,
possibly all, other rights ... Human dignity is also a constitutional value
that is of central significance in the limitations analysis. Section 10,
however, makes it plain that dignity is not only a value fundamental to
our Constitution, it is a justiciable and enforceable right that must be
respected and protected. In many cases however, where the value of
human dignity is offended, the primary constitutional breach occasioned
may be of a more specific right such as the right to bodily integrity, the
right to equality or the right not to be subjected to slavery, servitude or
forced labour. 36
So, just as dignity denotes at least five different kinds of obligation,
so too does dignity operate within our legal system in four sundry
ways.
4.1 Dignity as a first order rule
The right to dignity rarely operates a first order rule. That is, the right
to dignity alone is rarely dispositive of a constitutional matter. The
first rule of South African dignity jurisprudence is that where a court
can identify the infringement of a more specific right, FC section 10
will (ostensibly) not add to the enquiry. That said, dignity has
operated as a first order rule in a number of important corporal
punishment and intimate association matters.
In corporal punishment or capital punishment cases such as
Williams 37 and Makwanyane, 38 the Constitutional Court has found
that the punishment reduces the individual to a mere cipher and fails
to recognise the individual as an end-in-herself. In Dawood and
Booysen, the Constitutional Court found that no other specific
substantive right would protect the co-habitation interests of the
married couples or life partners in question and that the failure to
protect such intimate associations failed to recognise both the
individual as an end-in herself and the individual as capable of selfactualisation.
39
36 Dawood (n 12 above) para 35.
37 S v Williams & Others 1995 3 SA 632 (CC), 1995 7 BCLR 861 (CC).
38
S v Makwanyane (n 3 above).
39 See Dawood (n 12 above); Booysen v Minister of Home Affairs & Another 2001 4
SA 485 (CC), 2001 7 BCLR 645 (CC). See also Daniels v Campbell 2004 5 SA 331
(CC), 2004 6 BCLR 735 (CC) (Moseneke J dissenting). High Courts have extended
the protection that FC section 10 affords intimate association beyond the
confines of marriage or life partnerships to relationships between grandparents
and grandchildren. See Petersen v Maintenance Officer, Simon’s Town 2004 2 SA
56 (C), 2004 2 BCLR 205 (C). High Courts have also deployed dignity as an
operational rule when no other right would protect the linguistic interests of a
party before the court. See S v Pienaar 2000 7 BCLR 800 (NC) para 10; Advance
Mining Hydraulics v Botes NO 2000 1 SA 815 (T), 2000 2 BCLR 119 (T) 127.

208 Chapter 12
4.2 Dignity as a second order rule
Dignity often operates as a second order rule. That is, dignity either
informs or determines how a first order rule disposes of a given
matter. Dignity, as a second order rule, features most prominently in
equality (FC section 9) cases. It does so in two ways. First, an
impairment of human dignity may determine whether mere
differentiation amounts to actual discrimination. Second, when
attempting to determine whether discrimination amounts to unfair
discrimination, the Constitutional Court will ask to what extent the
law or the conduct in question impairs the dignity of the complainant
and whether the law or the conduct in question re-inscribes systemic
patterns of disadvantage for — and thus impairs the dignity of — a
specific class of persons. Similarly, dignity, as a second order rule,
determines: (a) whether punishments are disproportionate (FC
section 12); (b) whether the state has a duty of care with respect to
the physical security of its citizens (FC sections 11 and 12); (c) the
extent of the state’s interest in foetal life (FC section 11); (d) the
parameters of contractual autonomy (FC section 22); (e) the
circumstances under which an individual may legitimately claim that
his or her home is an impregnable castle (FC section 14); (f) when the
conditions of existence amount to slavery (FC section 13); and (g)
when expressive conduct constitutes hate speech (FC section 16).
4.3 Dignity as a correlative 40 right
The Constitutional Court often deploys rights simultaneously in the
service of its arguments. It likes to describe rights as interdependent
and symbiotic. This talk of ‘interdependence’ is especially evident in
challenges to law or to conduct grounded in the right to dignity.
However, for my immediate purpose — to distinguish dignity as a
correlative right from dignity as a first order rule, dignity as a second
order rule or dignity as a value — I must show that dignity functions,
in some respects, independently of other rights in constitutional
challenges that rely upon multiple rights.
S v Jordan provides a paradigmatic instance of dignity deployed
as a correlative right. Justices O’Regan and Sachs note that although
the rights to dignity, privacy, and freedom of the person intersect and
overlap, the challenges brought in terms of each of these rights
cannot be consolidated into a single challenge grounded in some
‘unenumerated’ right to autonomy. Each challenge based upon a
40 Pace L Ackermann ‘correlative’ does indeed mean a ‘complementary, parallel or
reciprocal relationship, especially a structural, functional or qualitative
correspondence.’ See www.answers.com (accessed 13 July 2008).

Stu Woolman 209
specific right must, they say, be considered individually. 41
The Court has adopted this multiple challenge approach in a wide
variety of cases. In Bhe, customary law rules of primogeniture were
found to violate both the right to equality and the right to dignity. 42
In National Coalition for Gay and Lesbian Equality v Minister of
Justice, the Court, in finding that the common law criminalisation of
consensual sodomy constituted a violation of the right to dignity, as
well as a violation of the rights to equality and to privacy, wrote ‘[i]t
is clear that the constitutional protection of dignity requires us to
acknowledge the value and the worth of all individuals as members of
society’ 43 and that ‘the rights of equality and dignity are closely
related, as are the rights of dignity and privacy.’ 44
4.4 Dignity as a value or a grundnorm
Dignity is invoked most often as a value. Part of the reason for this
preference for deploying dignity as a value flows from the Court’s
stated preference for ‘developing’ the law rather than making it. The
result of this preference, however, is a certain lack of precision. For
example, in Williams, the Court writes that:
The Constitution has allocated to the State and its organs a role as the
protectors and guarantors of those rights to ensure that they are
available to all. In the process, it sets the State up as a model for society
as it endeavours to move away from a violent past. It is therefore
reasonable to expect that the State must be foremost in upholding those
values which are the guiding light of civilised societies. Respect for
human dignity is one such value; acknowledging it includes an
acceptance by society that ‘... even the vilest criminal remains a human
being possessed of common human dignity.’ 45
Dignity, in this paragraph, appears to operate as a value. However,
the Williams Court held that juvenile whipping constitutes a violation
of the right to dignity and the right to be free from cruel, inhuman
and degrading treatment.
Whatever the reason for this particular instance of analytical
confusion, as a matter of doctrine, the Constitutional Court is on
record as having little time for the putative collapse of the rule/value
distinction. In Minister of Home Affairs v National Institute for Crime
Prevention, Chaskalson CJ writes:
41
2002 6 SA 642 (CC), 2002 6 BCLR 759 (CC) paras 52-53.
42 Bhe v Magistrate, Khayelitsha 2005 1 SA 580 (CC), 2005 1 BCLR 1 (CC).
43 1999 1 SA 6 (CC), 1998 12 BCLR 1517 (CC) para 28.
44
n 42 above, para 30.
45 Williams (n 37 above) para 77.

210 Chapter 12
The values enunciated in section 1 of the Constitution are of
fundamental importance. They inform and give substance to all the
provisions of the Constitution. They do not, however, give rise to
discrete and enforceable rights in themselves. This is clear not only from
the language of section 1 itself, but also from the way the Constitution is
structured and in particular the provisions of Chapter 2 which contains
the Bill of Rights. 46
Values are one thing, the NICRO Court appears to be saying, rules
another. While it is certainly true that the fundamental values
articulated in the Final Constitution will shape the rules expressed
therein, and that the rules will have a reciprocal effect with respect
to our understanding of those fundamental values, there remains a
distinction with a difference. Rights give rise to rules and to
enforceable claims. Values do not.
And so it is with dignity. The right to dignity — as a first order rule
and as a correlative right — gives rise to enforceable claims. Dignity,
as a value, does not.
The first reason that dignity is invoked more often as a value than
as a rule is that FC section 39 states that the various substantive
provisions in the Bill of Rights, and the Bill of Rights as a whole, must
be interpreted so as to ‘promote the values that underlie an open and
democratic society based on human dignity, equality and freedom.’
The second reason is that when a law is found to have infringed a
fundamental right, the question raised, FC section 36 tells us, is
whether the limitation in question ‘is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom.’ The third reason is that the ubiquity of dignity has led the
Court to adhere to a relatively restrictive rule regarding the use of
dignity as a first order rule: Where a court can identify the
infringement of a more specific right, FC section 10 should not be
added to the enquiry. Because some rights are understood,
immediately, to be expressions of the commitment to dignity — say,
the prohibitions on torture (FC section 12) and slavery, servitude or
forced labour (FC section 13) — and many other rights, once refracted
through the value of dignity, become expressions of the more basic
(non–justiciable) commitment to dignity — say the right to equality
and the right not to be subject to cruel, inhuman or degrading
punishment — the need for dignity to function as a rule that disposes
of cases directly is less pronounced than it might otherwise be.
In the first class of ‘dignity as value’ cases, dignity guides our
interpretation of the right and, in so doing, shapes our understanding
of the ambit of a right. In Coetzee v Comitis, the Cape High Court
46 NICRO (n 25 above).

Stu Woolman 211
finds that the restraint of trade provision at issue ‘strips the player of
his human dignity’ and therefore constitutes an unjustifiable
limitation of his freedom, under FC section 22, of trade, occupation
and profession. 47 In Khosa, the Constitutional Court’s conclusion that
‘the exclusion of permanent residents in need ... [from] socialsecurity
programmes’ has ‘a serious impact on [their] dignity’
supports a finding that the Social Assistance Act violates both the right
to equality and the right to social security of permanent residents. 48
In the second class of cases, dignity may be used to justify a
limitation on a right. In Khumalo v Holomisa, the Constitutional Court
twins the privacy and the dignity rights that ground the interest in a
good reputation to turn back a freedom of expression challenge to the
constitutionality of the law of defamation. 49 In De Reuck, the
Constitutional Court finds that the state’s interest in protecting the
dignity of all children justifies the limitation of the freedom of
expression that the Films and Publications Act imposes upon the
producers and the possessors of child pornography. 50 In Christian
Education, the mutually reinforcing rights of religion and culture said
to sanction corporal punishment in private schools were deemed to be
in conflict with, and ultimately subordinate to, a constellation of
rights that included dignity, equality, and freedom and security of the
person. 51
In the third class of cases, those cases in which the Bill of Rights
does not apply directly, the Court will often speak of dignity as a value
that informs the development of the common law or the
interpretation of a statute. In Carmichele v Minister of Safety and
Security, the Constitutional Court found that the value of dignity, as
well as the values that animate freedom and security of the person,
required that the duty of care imposed on the state in delictual
actions be expanded so as to ensure that the state did not permit
known and dangerous felons to imperil the lives of its citizens. 52
Similarly, in K v Minister of Safety and Security, the Constitutional
Court found that that these same values required a significant
alteration in the common law understanding of vicarious liability and
ensured that the state remained responsible for police officers, acting
under the colour of law, who abused their authority and violated the
physical integrity of the very people they are duty bound to protect. 53
In Rail Commuters, the Constitutional Court interpreted the Legal
47
2001 1 SA 1254 (C), 2001 4 BCLR 323 (C) para 34.
48 n 31 above, para 76 (my emphasis).
49 2002 5 SA 401 (CC), 2002 8 BCLR 771 (CC).
50
n 25 above, paras 62-63.
51 Christian Education South Africa v Minister of Education 1999 2 SA 83 (CC); 1998
12 BCLR 1449 (CC) para 51.
52
2001 4 SA 938 (CC), 2001 10 BCLR 995 (CC).
53 2005 6 SA 419 (CC), 2005 (9) BCLR 835 (CC).

212 Chapter 12
Succession of the South African Transport Act in light of the values
that inspire the rights to dignity, life and freedom and security of the
person and found that the Act, properly construed, required that the
state actors responsible for rail travel take affirmative steps to ensure
the safety of their commuters. 54
5 Dignity and the politics of capability
5.1 First restitution
Various members of the Constitutional Court, over its first ten years,
have explained the presence of dignity in our Final Constitution by
reference to the denial of dignity under apartheid. As Justice O’Regan
writes:
The Constitution asserts dignity to contradict our past in which human
dignity for black South Africans was routinely and cruelly denied. It
asserts it to inform the future, to invest in our democracy respect for
the intrinsic worth of all human beings. 55
The Constitutional Court reacts to the particular ways in which dignity
was denied under apartheid (the imposition of the death penalty to
blunt political opposition, the implementation of pass laws to control
both the intimate and economic lives of black South Africans, the use
of corporal punishment as a form of social control) by finding
unconstitutional those laws that continue to re-inscribe these affronts
to dignity. But as Justice O’Regan observes above, and Justice
Ackermann has written here and elsewhere, the Final Constitution
does not simply ask us to react to, and to reverse, past indignities. It
demands that we transform our society into one that will ultimately
recognise the intrinsic worth of each individual.
5.2 Dignity and transformation
We can trace that process of transformation in the equality
jurisprudence on sexual orientation. Our courts begin slowly,
dispatching laws proscribing sodomy as a violation of intimate or
private space. 56 The courts go on to reject laws that impair the ability
of same-sex partners to live private lives within South Africa. 57 They
then abolish laws that refuse to extend ‘public’ benefits to the
54 Rail Commuters Action Group & Others v Transnet LTD t/a Metrorail & Others
2005 2 SA 359 (CC), 2005 4 BCLR 301 (CC).
55 Dawood (n 12 above) para 35.
56 National Coalition for Gay and Lesbian Equality v Minister of Justice & Others (n
21 above).
57 Dawood (n 12 above) and Booysen (n 39 above).

Stu Woolman 213
surviving same-sex life partner of a judicial officer. 58 Until finally, the
dignity of same-sex partners is understood to be as important a public
matter as it is private, and the public institution of marriage sanctions
heterosexual and homosexual unions alike. 59
The public recognition of same-sex life partnerships as marriages
takes dignity beyond the merely restitutional, and articulates an
understanding of dignity that is fundamentally transformative of our
politics. That this holding is transformative, and not merely reactive,
can be understood through the prism of the state’s response to the
various challenges mounted against anti-gay and anti-lesbian
enactments. The early challenges to sodomy laws and immigration
laws met with little resistance. However, as the challenges to the law
required public recognition of the equality of gays and lesbians — as
opposed to mere sufferance of the homosexuals in our midst — the
state’s resistance stiffened. In Satchwell II, the Constitutional Court
had to take the unusual and uncomfortable step of invalidating a
piece of legislation virtually identical to the legislation that it had
found unconstitutional in Satchwell I. 60 It is hard to read Parliament’s
response to Satchwell I as anything but a refusal to recognise that
same-sex partnerships are entitled to equal concern and equal
respect. In Fourie, the state actively sought to block the recognition
of same-sex unions as marriages. Again, it is hard to read the state’s
response as anything other than a refusal to accord same-sex life
partnerships the same public recognition as opposite-sex life
partnerships. The Constitutional Court and the Supreme Court of
Appeal have reached beyond mere restitutionary forms of justice to a
vision of dignity that forces all South Africans to reconsider their
previous understandings of marriage. The transformative power of
dignity thus forces all South Africans to acknowledge publicly the
variety of legitimate and valuable life partnerships within our society.
5.3 Beyond negative liberty to means and capability
It seems reasonable to ask, at this juncture, whether the Court’s
jurisprudence on equality and sexual orientation reflects genuine
transformation or the mere logical extension of the Court’s liberal
commitment to state non-intervention and the actual pressures of the
text. The question arises because some critics of the Court’s early
dignity jurisprudence, such as Dennis Davis, suggested correctly that
58
59
60
Satchwell v President of the Republic of South Africa 2003 4 SA 266 (CC), 2004 1
BCLR 1 (CC)(‘Satchwell II’); Satchwell v President of the Republic of South Africa
2002 6 SA 1 (CC), 2002 9 BCLR 986 (CC)(‘Satchwell I’).
See Minister of Home Affairs & Another v Fourie & Another; Lesbian and Gay
Equality Project & Others v Minister of Home Affairs & Others 2006 1 SA 524
(CC), 2006 3 BCLR 355 (CC).
See Satchwell I (n 58 above) and Satchwell II (n 58 above). The legislation
concerned the benefits to be paid to judges’ spouses.

214 Chapter 12
the Constitutional Court permitted a Berlian understanding of
negative liberty to slip into the Court’s equality jurisprudence
through the backdoor of dignity. 61 The Ferreira Court rejected
Justice Ackermann’s view that IC section 11(1) and FC section 12(1)
required that ‘freedom’ and ‘security of the person’ should be read
disjunctively and that IC section 11(1) and FC section 12(1) contained
a robust freedom right. 62 However, in a number of cases decided
shortly after Ferreira, the Court appeared to accept Justice
Ackermann’s contention that there exists an inextricable link
between dignity and the need for individual freedom from state
intervention. In Hugo, the Court places ‘dignity ... at the heart of
individual rights in a free and democratic society.’ 63 In National
Coalition for Gay and Lesbian Equality v Minister of Justice, the Court
states that ‘it is clear that the constitutional protection of dignity
requires us to acknowledge the value and the worth of all individuals
as members of society.’ 64 Thus, over the course of several cases and
the space of a couple of years, individual freedom qua negative
liberty becomes the foundation for dignity, and dignity, in turn,
becomes the basis for equality.
One can accept the truth of the proposition that the
Constitutional Court accepted the link between dignity and the need
for individual freedom from state intervention without accepting the
proposition that dignity is only about the need for individual freedom
from state intervention. For example, Amartya Sen ties his notion of
‘development as freedom’ to the provision of a basic basket of goods
— both real and figurative — that enable human beings to develop
those ‘capabilities’ necessary for each individual to achieve those
ends that each has reason to value. 65 Sen contends that dignity and
freedom and equality, rightly understood, are meant neither to
achieve definitive outcomes nor to prescribe a univocal understanding
of the good. 66 What these covalent values do require is a level of
61 D Davis ‘Equality: The majesty of legoland jurisprudence’ (1999) 116 South
African Law Journal 398.
62 Ferreira (n 20 above).
63 Hugo (n 17 above) para 41.
64 n 21 above, para 28.
65 61
See D Davis Sen (n‘Equality: 33 above); The A Sen majesty Inequality of legoland re-examined jurisprudence’ (1992). (1999) 116 South
66 Sen African asks Law us Journal to take 398. account, in any theory of distributive justice, of how the
62
heterogeneity Ferreira (n 20 above). amongst individuals (both within societies and across societies)
63
shapes Hugo (n the 16 meaning above) para of primary 41. goods and incomes. For example, the meaning of a
64
primary n 21 above, political para good 28. like freedom of assembly will have demonstrably different
65
meanings See Sen (n for 33 a above); prson who A Sen is Inequality ambulatory re-examined and for a person (1992). who is not ambulatory,
66
but such housebound. primary goods Similarly, as income the or civil utility liberties of an into income the capability of R200 ‘to 000 choose will a have life
demonstrably one has reason different to value’ value — or for in a simpler person who terms, is ambulatory the ability and to pursue for a person one’s own who
is ends. not ambulatory, Sen (n 27 above) but housebound. 75. The virtue At a of minimum, Sen’s approach says Sen, is that quoting it recognises Adam Smith, (a)
our the heterogeneity primary concern of capacity ought to that be providing people possess individuals by virtue with of those biology, necessities custom, or of
life class; that (b) will, the in heterogeneity fact, give them of ‘“the critical ability functions to appear — from in public nourishment without shame”.’ to civic
Sen participation (n 27 above) — that 73 quoting may be required A Smith The to live wealth a life of one nations has reason (1776) to RH value; Campbell and (c) &
AS the Skinner heterogeneity (ed) (1976) of 469-471. capabilities That, that in just people a few will well-chosen possess words, — different sounds
very combinations much like of South more African basic functions discourse — on which dignity. will, Sen in contends turn, enable that them best to
measure pursue different of equality visions or freedom of the good. or dignity is the ability of individuals to convert

Stu Woolman 215
material support (eg, food) and immaterial support (eg, civil liberties)
that enables individuals to pursue a meaningful and comprehensive
vision of the good — as they understand it. 67
As recent case law suggests, the Court has moved beyond a
minimalist understanding of dignity, and a negative conception of
freedom, to something richer and more substantial. In Grootboom the
Constitutional Court announced: ‘A society must seek to ensure that
the basic necessities of life are provided to all if it is to be a society
based on dignity, equality, and freedom.’ 68 In Khosa v Minister of
Social Development, the Court commits the state to the provision of
actual resources, social assistance, to an identifiable class of persons
— permanent residents. In so doing, the Court moves well beyond
dignity as negative liberty to a vision of dignity in which ‘wealthier
members of the community view the minimal well-being of the poor
as connected with their personal well-being and the well-being of the
community as a whole.’ 69
Dignity qua collective responsibility for material agency moves us
towards a Sen-like capabilities model. Moreover, it does so without
being susceptible to the critique of dignity qua negative liberty
levelled by exponents of substantive equality. The capabilities model
defines equal treatment in terms of the provision of differently
situated persons with the material and immaterial means that they,
in particular, require to pursue some specific vision of the good. So,
for example, Sen argues that pregnant women need more nutrition
than men and that any basic food program is obliged to recognise this
difference in a basic nutritional package. 70
Dignity modelled on a Sen-like capabilities model also appears to
answer the charge that a commitment to substantive autonomy reinscribes
the disadvantage of those persons who find themselves in a
state of injury. A capabilities model does not underscore the lack of
such primary goods as income or civil liberties into the capability ‘to choose a life
one has reason to value’ — or in simpler terms, the ability to pursue one’s own
ends. Sen (n 33 above) 75. The virtue of Sen’s approach is that it recognises (a)
the heterogeneity of capacity that people possess by virtue of biology, custom, or
class; (b) the heterogeneity of critical functions — from nourishment to civic
participation — that may be required to live a life one has reason to value; and (c)
the heterogeneity of capabilities that people will possess — different combinations
of more basic functions — which will, in turn, enable them to pursue
different visions of the good.
67 Sen (n 33 above) 75. See also K van Marle ‘No last word: Reflections on the
imaginary domain, dignity and intrinsic worth’ (2002) 13 Stellenbosch Law Review
299 306
68 n 29 above, para 83.
69
n 25 above, para 74.
70 Sen (n 33 above) 189–203.

216 Chapter 12
freedom of our fellow citizens, nor call undue attention to their
injury. Rather it demands that we recognise that all of us require a
certain basket of goods in order to pursue our preferred way of being
in the world. 71
6 Conclusion
I hope that I have, over the previous pages, shown that the right to
dignity is neither, over-used, over-cited, over-indulged, ubiquitous or
a cliché. It possesses at least five discrete denotations — but all five
denotations turn around and around a basic conception of the
individual as an end in herself, as of priceless worth, and as a being
that may not be used merely as a means for another’s or society’s
ends. It serves four distinct functions: first-order rule, second orderrule,
correlative right and value. It is by taking great care to keep
these definitions and uses relatively discrete and distinct, however,
that the Constitutional Court has been able to build a solid body of
dignity jurisprudence. Indeed, so solid, so clear is this new
contribution to global constitutional law, that at least in South African
courts of law, the falcon can still hear the falconer, and the centre
still holds.
71 See D Cornell Just cause: Freedom, identity and rights (2000); D Cornell ‘A call
for a nuanced constitutional jurisprudence: Ubuntu, dignity and reconciliation’
(2004) 19 South African Public Law 666; D Cornell Defending ideals (2004). See
also D Cornell ‘On Dignity’ (Unpublished memorandum on file with author) (2005)
(I am deeply indebted to both Professor Cornell and Justice Ackermann for the
framing of dignity in Kantian terms with idealist twist.)

13 Reply
The soul of dignity: A reply to Stu Woolman
Justice Laurie Ackermann
‘In the kingdom of ends everything has either a price or a dignity [fn
Würde]. What has a price can be replaced by something else as its
equivalent; what on the other hand is raised above all price and
therefore admits of no equivalent has a dignity ... that which constitutes
the condition under which alone something can be an end in itself has
not merely a relative worth, that is, a price, but an inner worth, that is,
dignity.’
Immanuel Kant Groundwork of the metaphysics of morals 1
1 Introduction
If one believes in the idea of truth, or in approximations to the truth,
the process of ‘conversation’ — which the title of this collection
invites — is more likely to lead to such a desired end; but only if one
upholds an essential component of conversation, namely the true
‘exchange of ideas’. Moreover, if one is disposed to think that
knowledge only advances through the elimination of error, then bold
hypotheses are called for, which in turn invite challenge and
refutation.
1
[AK 4:434-435] as translated in MJ Gregor (ed) Immanuel Kant: Practical
philosophy (1996) 84.
217

218 Chapter 13
For someone, like myself, who agrees with Prof Allen Wood 2 that
in our age too many ‘choose ... to apologise for the rationally
indefensible’ and others ‘are caught up in the fashionable mood of
irony, absurdity, and self-destruction’ because ‘they have lost
confidence in the mind’s authority over human life and its power to
find better ways for people to live’, and that the age therefore needs
‘Kant’s sober, principled hope for a more rational, cosmopolitan
future,’ I heartily endorse any attempt to explain human dignity
(worth) 3 and its central position in our Constitution in terms of
Kantian concepts. Kant, to my mind, musters the most powerful and
convincing secular arguments in support of human dignity being a
worth beyond price, and hence equal in and for all persons. I am
consequently in broad and fundamental agreement with Stu
Woolman’s Kantian approach to dignity under our Constitution. It is
within the context of such hearty agreement that I offer some ideas
in exchange, exposing these ideas themselves to critical refutation.
2 Whence dignity?
My first joust, offered as a playful opening to discussion, relates to
Woolman’s title ‘The widening gyre of dignity.’ I would suggest that
the falcon’s widening gyrations evoked by the title relates more
properly to the broadening of our understanding of human worth,
rather than to the nature and content of human worth itself.
Whatever lofty aspirations the falcon’s soaring may invoke, and such
aspirations are very important, I think we should also look downwards
and inwards, in an attempt to fathom what this uniqueness of human
personhood is. What is it about humans that raises them ‘above all
price and therefore admits of no equivalent,’ that projects them
beyond ‘merely a relative worth’ and sees them as having ‘inner
worth’?
I have previously offered the following tentative definition of
human worth (dignity):
[T]he human dignity (worth) of each and every person is the capacity for
and the right to respect as a human being that arise from all those
aspects of the human personality that flow from human intellectual and
moral capacity; which in turn separate humans from the impersonality of
nature, enables them to exercise their own judgment, to have self-
2
AW Wood Kant’s ethical thought (1999) xv.
3 It is clear that word ‘dignity’ is used in the Constitution as meaning ‘human
worth’. The Afrikaans text uses the word ‘menswaardigheid’ which means,
literally, ‘human worthiness’ and is also the exact equivalent of ‘Menschenwürde’
the word used in the German Basic Law. I say that it means ‘human worth’
because it is obviously something quite different from ‘dignity’ in the context of
social standing, rank, position or privilege. ‘Human worth’ clearly accords with
the Constitutional Court’s exposition of dignity.

Reply - Justice Laurie Ackermann 219
awareness and a sense of self-worth, to exercise self-determination, to
shape themselves and nature, to develop their personalities and to strive
for self-fulfillment in their lives. 4
Looking downwards and inwards, I point to the powerful teachings in
the so-called Abrahamic religions that found the dignity (and equality)
of all humans on the imago dei (image of God) concept, namely, that
all humans are created in the image of God, based on the creation
narrative in Genesis 1: 26-27. 5 Verse 27 reads: ‘So God created
humankind in his image, in the image of God he created them; male
and female he created them.’ Every human being therefore has
priceless worth (dignity) and for this reason is in essence equal to
every other human being. These and similar theological concepts have
influenced the development of closely related secular ideas
concerning human dignity, and the latter’s role in giving context and
meaning to the development of equality and other fundamental
rights. The Dutch jurist (and theologian) Hugo de Groot (Grotius), who
was himself a Christian believer, contended that fundamental
principles of law and morality would have binding force etsi Deus non
daretur — as if (even if) God did not exist. In his challenging work, On
human worth: A Christian vindication of equality, Professor Duncan
Forrester points out, with regard to these views, that:
4
5
See LWH Ackermann ‘Equality and non-discrimination: Some analytical thoughts’
(2006) 22 South African Journal on Human Rights 597 602. I have, with some
additions of my own, modeled this definition closely on the widely accepted
German formulation by the distinguished scholar Professor Günther Dürig in the
1950’s in ‘Der Grundrechtssatz von der Menschenwürde’ (1956) 81 Archiv des
öffentlichen Rechts 117125:
Jeder Mensch ist Mensch kraft seines Geistes, der ihn abhet von der
unpersönlichen Natur und ihn aus eigner Entscheidung dazu befähigt,
seiner selbst bewußt zu werden, sich selbst zu bestimmen und sich und
die Umwelt zu gestalten.
(Each and every human being is a human being by virtue of his or her
intellect [‘kraft seine Geistes’] which serves to separate them from the
impersonality of nature and enables them to exercise their own
judgment, to have self-awareness, to exercise self-determination and to
shape themselves and nature. (my translation))
According to JD Douglas et al (eds) The new Bible dictionary (1962) 7 Judaism,
Christianity and Islam all perceive Abraham as playing a unique roll as a great
prophet and recipient of the divine covenant. BM Metzger & MD Coogan (eds) The
Oxford companion to the Bible (1993) 5, express the view that ‘Abraham is to be
looked to as a source of unity and harmony rather than dissent among Jews,
Christians and Muslims.’ For Judaism see, eg, D Polish ‘Judaism and human rights’
in L Swidler (ed) Human rights in religious traditions (1982) 40; E Rackman
‘Judaism and Equality’ in JR Pennock & JW Chapman (eds) Equality (being Nomos
IX: Yearbook of the American Society for Political and Legal Philosophy) (1967)
154; and Y Arieli ‘On the necessary and sufficient conditions for the emergence of
the doctrine of the dignity of man and his rights’ in D Kretzmer & E Klein (eds)
The concept of human dignity in human rights discourse (2002) 1. For Christian
theology see, eg, J Moltmann On Human Dignity Douglass Meeks trans (1984) and
D Forrester On human worth: A Christian vindication of equality (2001). Finally,
for Islam see, eg, AE Mayer Islam and human rights: Traditions and politics
(1991); AS Moussalli The Islamic quest for democracy, pluralism, and human
rights (2001); and MH Kamali The dignity of man: An Islamic perspective (2002).

220 Chapter 13
[t]his is not atheism, or even what has more recently been called
‘methodological atheism’. It is rather the simple recognition that a
common morality is necessary for people to flourish together in
community, and this cannot rest any longer on the foundation of
Christian theology because of the bitter religious fragmentation in
Europe ... But natural law continued, according to Grotius, to rest on
the existence of an objective cosmic moral order. 6
Theology cannot simply be ignored in our inward search, and in
tracing the history of secular ideas. At the same time, and to avoid
any misunderstanding, I must explain clearly for what purposes I refer
to theological concepts, in the context of a secular Constitution. I do
not, in a secular argument, use them because of any higher authority
I claim for them (expressly or impliedly) by reasons of their
theological origin. I refer to them as sociological and historical
phenomena in the course of the human race’s intellectual and ethical
development. I cite them as ethical values that have featured in
human self-reflection for many ages and are open to rational enquiry.
In this regard I think the following passage from the last pages of
John Locke’s The reasonableness of Christianity, as quoted by Roger
Ruston is particularly apt:
He that travels the roads now, applauds his own strength and legs that
have carried him so far in such a scantling of time, and ascribes all to his
own vigour, little considering how much he owes to their pains, who
cleared the woods, drained the bogs, built the bridges, and made the
ways passable; without which he might have toiled much with little
progress. A great many things which we have been bred up in the belief
of, from our cradles ... we take for unquestionable truths obvious truths,
and easily demonstrable; without considering how long we might have
been in doubt or ignorance of them, had revelation been silent. And
many are beholden to revelation, who do not acknowledge it. It is no
diminishing to revelation, that reason gives its suffrage too to the
truths revelation has discovered. But it is our mistake to think that
because reason confirms them to us, we had the first certain knowledge
of them from thence; and in that clear evidence we now possess them. 7
The Islamic scholar An-Na’im, who is concerned with the fact that
large-scale human rights violations continue to occur throughout the
world, considers it imperative to ‘investigate ways of resolving the
present crisis and revitalise the international human rights
movement,’ and is of the view that ‘culturally rooted norms stand the
best chance of compliance.’ 8 He considers that the implementation
of the international human right standards will improve ‘if they can
6 n 5 above, 51.
7 Human rights and the image of God (2004) 287 (my emphasis).
8
‘Religious minorities under Islamic law and the limits of cultural relativism’
(1987) 9 Human Rights Quarterly 1 2-3.

Reply - Justice Laurie Ackermann 221
be shown to be the natural and legitimate evolution of the cultural
tradition of the particular community.’ Although cultural norms have
complex origins, An-Na’im argues that ‘the religious factor seems to
be a major formative force.’ 9
John Rawls, in A theory of justice, develops a concept of
‘overlapping consensus’ which, although expressed in the context of
civil disobedience, is of general import and relevant to the use of
theological ethics:
In [certain previous] remarks I have assumed that in a nearly just society
there is a public acceptance of the same principles of justice.
Fortunately this assumption is stronger than is necessary. There can, in
fact, be considerable difference in citizens’ conception of justice
provided that these conceptions lead to similar political judgments. All
this is possible, since different premises can yield the same conclusion.
In this case there exists what we may refer to as overlapping rather then
strict consensus. 10
This idea is discussed more fully by Rawls in Political liberalism, 11
where he places the following gloss on the notion of an ‘overlapping
consensus’:
All those who affirm the political conception start from within their own
comprehensive view and draw on the religious, philosophical, and moral
grounds it provides. The fact that people affirm the same political
conception on these grounds does not make their affirming it less
religious, philosophical, or moral, as the case may be, since the grounds
sincerely held determine the nature of their affirmation. 12
9
n 8 above, 9. Lest I unwittingly do an injustice to An-Na’im, I must point out that
the whole thrust of his article, see eg pp. 17-18, is to the effect that:
(1) The status of non-Muslim religious minorities under Shari’ah is not
consistent with current universal human rights. (2) The current state of
affairs cannot be justified under claims of Islamic cultural relativism.
(3) It is not only possible, but also imperative, that the status of non-
Muslims under Shari’ah be reformed from within the fundamental sources
of Islam, namely the Qu’rn and Sunnah. Such reform would be at once
both Islamic and fully consistent with universal human rights standards.
Very broadly stated his argument (9-11) is that the Shari’ah is ‘not the totality of
the word of God.’ According to Muslim belief, ‘the Qu’rn is the literal and final
word of God while Sunnah is the record of what the Prophet is believed to have
said.’ While conceding (17) that not all aspects of Shari’ah are open to
restatement and reinterpretation, he does contend (10) that Shari’ah is no more
than the ‘understanding of the early Muslims of the sources of Islam’ influenced
by their historical context and ‘experience and perception of the world’. It
developed under the conditions and influenced by the problems of an Islamic
state in seventh century Arabia. Since these problems have altered and the
historical answers are no longer valid, An-Na’im argues (11) that ‘new answers
must be developed out of the Qu’rn and Sunnah ... [For] the Islamic Shari’ah for
today.’
10 (1973) 387.
11
(1993) 133-172.
12 n 11 above, 147.

222 Chapter 13
It is generally uncontested that one of the pressing goals in our
young democracy is to strengthen the commitment by all South
Africans to constitutionalism generally, but also to the rights and
values guaranteed by the Constitution. I sense, however, that there
are, for example, mono-theists who feel uncomfortable with
committing themselves personally to a secular Constitution whose
rights and values are expressed in secular form. Such discomfort is not
limited to conservatives or fundamentalist mono-theists, but is shared
by those who understand and accept the reasons why a Constitution
must be secular. It is for such persons important to realise that the
secular form of the Constitution and its values, are not in conflict with
theological ethics, at least not the most fundamental values of the
Constitution such as, for example, priceless and equal human worth.
For them, the concept and the legitimacy of an overlapping
consensus, — which honours a personal ‘correct conclusion’, despite
the fact that such a conclusion is reached by a different line of
argument — may be helpful. By referring specifically to mono-theists
I do not mean to exclude other deists or those confessing non-deistic
faiths. My omission is due entirely to ignorance on my part. I certainly
do not exclude the possibility that such other faiths have their own
justification for the constitutional values of human worth and
equality.
In its preamble, the American Declaration of Independence of
1776 unselfconsciously proclaims that:
We hold these truths to be self-evident, that all men are created equal,
and that they are endowed by their Creator with certain inalienable
rights, that among these are Life, Liberty and the Pursuit of Happiness.
As Duncan Forrester points out, the Declaration at this point is
‘saturated with theological language’ and suggests that the ‘ultimate
and only ground for equality ... lies in the will of the creator God.’ 13
Jeremy Waldron argues that in a number of ways the Christian
conception out of which modern liberalism originated remains richer
and deeper than their secular offspring’ and that ‘[w]e might
reasonably expect to find further clues to a rich and adequate
conception of persons, equality, justice, and rights in what is
currently made of the Christian-centred tradition by those who
remain centred in Christ.’ 14
It is in the context of Rawls’ concept of the ‘overlapping
consensus’ that Kant’s ethical thought again plays an important role.
13
n 5 above, 56.
14 ‘Religious Contributions in Public deliberation’ (1993) 30 San Diego Law Review 817
846-7. See also J Waldron God, Locke and equality: Christian foundations in
Locke’s political thought (2002) (an in-depth treatment of the Christian
foundations in John Locke’s political thought.)

Reply - Justice Laurie Ackermann 223
As Bernard Williams has pointed out: ‘[t]he ground of respect owed to
each man thus emerges in the Kantian theory as a kind of secular
analogue of the Christian conception of the respect owed to all men
as equally children of God.’ 15
Some might say that this philosophical and theological digging
down into the meaning of constitutional human dignity (worth) is an
intellectual irrelevance, that has nothing to contribute to the
‘practical’ ‘realities’ of daily life and the running of a modern state.
I would argue that such a view is gravely misconceived. After the
tragedies of World War II, the 1948 Universal Declaration of Human
Rights placed inherent human dignity (worth), together with equality
and freedom at the heart of practical measures to prevent a
repetition of the barbaric acts of the recent past that ‘have outraged
the conscience of mankind’. To prevent rebellion against tyranny and
oppression, the Preamble to the Universal Declaration regards it as
essential that human rights ‘be protected by the rule of law.’ The
Declaration also proclaims that ‘every individual and every organ of
society ... shall strive by teaching and education to promote respect
for [human rights and freedoms] and by progressive measures ... to
secure their universal and effective recognition and observance.’ At
the heart of Article 1 is the categorical statement that all human
beings are ‘born free and equal in dignity and rights’ and are
‘endowed with reason and conscience.’ Yet, in the nearly 60 years
since the Declaration, barbaric acts, which continue to outrage the
conscience of humankind, have continued to occur with painful
regularity. The continued exploration, at the deepest level, of the
meaning and implications of human dignity (worth) continues to be an
imperative and not a luxury. I am not certain that material progress
will be made until we realise that in the act of infringing the dignity
of others, we are rejecting and harming our own human worth.
Having paraded above my own definition of human dignity
(worth), let me readily concede that it is probably not possible to
capture the full meaning of human worth in so simple a definition. We
still have much to learn about it, and its delineations will no doubt be
developed (prudently) on a case by case basis by our courts. Even the
German Federal Constitutional Court (‘BVerfG’) has not attempted to
give a comprehensive definition of the personality rights, which form
an integral part of the German concept of human dignity
(‘Menschenwürde’) as it does in South Africa. Instead it has followed
15
B Williams ‘The idea of equality’ in P Laslett & WG Runciman (eds) Philosophy,
politics and society (1967) 116.

224 Chapter 13
a case-by-case approach, reminiscent of the empirical Anglo-Saxon
tradition, in the light of current or developing social conditions. 16
I feel some disquiet with Woolman’s taxonomic approach to
human worth and his reference to five primary ‘definitions’ of dignity
allegedly given by the Constitutional Court; and I would prefer to
refer to ‘aspects’ of dignity, or ‘dimensions’ of dignity as Woolman
himself seems later to suggest. These aspects of human worth should
also not be regarded as a closed list, but open to future expansion. It
is likely, in my view, that considerable time will still pass before we
have ‘captured’ a complete view of what human worth means. I
believe that Woolman is mistaken when he relays all these five
aspects back to ‘our status as rational moral agents capable of selfactualisation
and self-governance’. While freedom is indispensable
for dignity, it does not encapsulate it, if we are talking about freedom
and moral autonomy in a constitutional context, as I believe we are.
There are other components such as self-awareness and a sense of
self-worth that are important aspects of human worth itself. I do not
pretend to be a Kantian scholar myself, but I am not sure that
contemporary Kantian scholars would agree that there is only one
categorical imperative, as opposed to three formulas. 17
3 Dignity as ‘attribute’ in equality
I also find myself constrained to disagree with Woolman’s suggestion
that one of the ‘definitions’ or even ‘attributes’ of dignity is that of
‘equal concern and equal respect.’ The latter lies at the heart of the
equality clause. It is true that dignity (human worth) is the attribute
in respect whereof all humans are equal. 18 But it is the unequal
treatment of persons with respect to their human dignity that
infringes equality, according to the system of our Constitution. One
should also remind oneself that mere equal treatment does not
guarantee constitutional conformity; because treatment that is equal
may infringe the dignity of all concerned, and this too would be
inconsistent with the Constitution. I also believe Woolman to be
mistaken when he suggests that the Constitutional Court has
constructed two ‘different’ tests in terms of the right to equality.
There is only one test, but it deals with different parts of FC section
9. The first part of the same test deals with subsection (1), and might
be termed the prohibition against arbitrariness. The other test deals
16 See the Eppler case 54 BVerfGE 148 153 (1980), and also DP Kommers The
constitutional jurisprudence of the Federal Republic of Germany 2 ed (1997) 320-
323 and EJ Eberle Dignity and liberty: Constitutional visions in Germany and the
United States (2002) 62f.
17 See, eg, Wood (n 2 above) 17-18.
18
For a full discussion of what is meant by attribute in this context see Ackermann
(n 4 above) particularly 597 and 608-612.

Reply - Justice Laurie Ackermann 225
with unfair discrimination under section 9(3). The fact that there is
only one test emerges clearly, I suggest, from the Constitutional
Court’s first two judgments on equality, 19 and from the subsequent
tabulation of this test in Harksen v Lane. 20 Although the formulation
was in regard to section 8 of the Interim Constitution, it is equally
applicable to section 9 of the Final Constitution:
At the costs of repetition, it may be as well to tabulate the stages of
enquiry which become necessary where an attack is made on a provision
in reliance on section 8 of the Interim Constitution. They are:
(a) Does the provision differentiate between people or categories of
people? If so, does the differentiation bear a rational connection to a
legitimate government purpose? If it does not then there is violation of
section 8(1). Even if it does bear a rational connection, it might
nevertheless amount to discrimination.
(b) Does the differentiation amount to unfair discrimination? This
requires a two stage analysis:
(i) Firstly, does the differentiation amount to ‘discrimination’? If it is
on a specified ground, then discrimination will have been
established. If it is not on a specified ground, then whether or not
there is discrimination will depend upon whether, objectively, the
ground is based on attributes and characteristics which have the
potential to impair the fundamental human dignity of persons as
human beings or to affect them adversely in a comparably serious
manner.
(ii) If the differentiation amounts to ‘discrimination’, does it amount
to ‘unfair discrimination’? If it has been found to have been on a
specified ground, then unfairness will be presumed. If on an
unspecified ground, unfairness will have to be established by the
complainant. The test of unfairness focuses primarily on the impact
of the discrimination on the complainant and others in his or her
situation.
If, at the end of this stage of the enquiry, the differentiation is found not
to be unfair, then there will be no violation of section 8(2).
(c) If the discrimination is found to be unfair then a determination will
have to be made as to whether the provision can be justified under the
limitations clause (section 33 of the Interim Constitution). 21
I also find myself in disagreement with Woolman’s proposition that
dignity, properly understood, ‘secures the space for selfactualisation.’
It is freedom, and not dignity, that secures this space,
19
Prinsloo v Van Der Linde & Another 1997 3 SA 1012 (CC), 1997 6 BCLR 759 (CC);
and President of the Republic of South Africa & Another v Hugo 1997 4 SA 1 (CC),
1997 6 BCLR 708 (CC). Prinsloo was argued some time prior to Hugo. The two
judgments were delivered on the same day. The two judgments should therefore
be viewed as a simultaneous precedent and be read as one, in the same way as
one would read a single judgment disposing of two cases.
20
Harksen v Lane NO & Others 1998 1 SA 300 (CC), 1997 11 BCLR 1489 (CC).
21 n 20 above, para 53.

226 Chapter 13
but freedom to enable self-actualisation is of course essential for
human dignity. Art 2 of the German Basic Law, deals with personal
freedoms and Art 2(1) specifically with the free development of
everyone’s personality (‘die freie Entfaltung seiner Persönlichkeit’).
Article 2(1) is universally regarded as relating back also to Art 1 and
as establishing, with Art 1, a general personality right. 22 However,
Woolman’s statement in footnote 22 that ‘dignity qua self-governance
is, in fact, where the Constitutional Court falters most conspicuously’
seems to me a broad criticism with shaky support. One would have
thought that the Court’s judgments on the human worth (dignity)
rights of gays and lesbians — which he later correctly identifies as one
of the most transformative areas of the Court’s jurisprudence — point
firmly in the opposite direction. Woolman’s criticism, for example, of
Prince in this regard simply ignores the crucial fact that the
constitutional validity of South Africa’s drug legislation (which inter
alia proscribes the possession and use of dagga, the substance whose
use was in issue in the case) was not generally challenged by the
complainant. 23 The Court was accordingly obliged to have regard to
the disastrous effect that permitting the religious use of dagga (which
religious use was, on the complainant’s own case, virtually unlimited
as to time and place) would have on the enforcement of the
legislation in question.
4 Collective dignity?
The way that Woolman presents the idea of ‘collective responsibility
for the material conditions for agency’ is a welcome addition to our
local debate on dignity and equality, as is his reference to Amartya
Sen’s idea of capability equality. 24 I would also readily agree that
when the state harms the dignity of one person this, in a certain
manner of speaking, diminishes the dignity of us all. But the ‘us’ in
this proposition refers to the totality of our individual dignities. It is,
however, a far cry from this understanding to extrapolate from the
Court’s jurisprudence postulate a ‘collective notion of dignity.’
(Woolman does, it must be noted, acknowledge that that ‘notion’
allegedly implicit in the Court’s judgments refers not to some
romantic idea of the ‘volk’, but to a commitment to providing all
individuals with the material means necessary to create a Kantian
‘kingdom of ends’.) There are serious potential objections and
dangers to attributing dignity to a group which does not otherwise
enjoy legal personality, as there are fundamental objections and
22 See, eg, I von Münch P Kunig (eds) Grundgesetz-Kommentar 4 ed (1992) vol 1, Art 2
23
Rn 30.
Prince v President, Cape Law Society & Others 2002 2 SA 794 (CC), 2002 3 BCLR
24
231 (CC).
In this regard, see also S Cowen ‘Can “dignity” guide South Africa’s Equality
Jurisprudence’ (2001) 17 South African Journal on Human Rights 34.

Reply - Justice Laurie Ackermann 227
dangers to attributing rights to such a group. Apart from the
conceptual legal problem of attributing rights generally, and dignity
in particular, to an unincorporated group, it can have serious political
consequences. Just as the identity and individual responsibility of the
individual can be sucked up into the identity of the nation or some
other collective, and thereby destroyed, as was the case with German
fascism and Russian communism, so too the idea of the dignity of the
collective could become destructive of individual dignity. I am not
suggesting that this is Woolman’s aim or strategy; in fact I am sure
that his purpose is quite the opposite. I merely point to the
conceptual and con-sequential difficulties and dangers. Nor do I, for
one moment, see individuals and their dignity as existing in isolation
from society. It is vitally important that the associational individual
rights of individuals be recognised and protected as, inter alia, FC
sections 17-19 and 29-31 do, because without such recognition and
protection it is not possible for humans to develop their individual
personalities fully. Nor do I deny the obligation of society generally,
whether this be a legal, ethical or moral one, to facilitate the
capabilities of the poor and the weak. But this is all a far cry from
attributing dignity (human worth) to an unincorporated group or
collective, or to a nation.
5 Kelsen rather than Hart
I must furthermore join issue with Woolman’s presentation of dignity
as something that ‘operates as a first order rule, a second order rule,
a correlative right, a value and a Grundnorm.’ Woolman is using, in
my view mistakenly, the language and concepts of HLA Hart where our
Constitution cries out for a Kelsenian approach. In this regard I would
invoke the support of Ronald Dworkin who rejects such an approach
as:
a taxonomic concept of law: it supposes that any political community
that has law in the sociological sense also has a collection of discrete
rules and other kinds of standards that are legal standards as opposed to
moral or customary or some other kinds of standards. Legal philosophers
use this taxonomic concept when they ask whether certain moral
principles are also principles of law. The idea of law as a set of discrete
standards, which we might in principle individuate and count, seems to
me a scholastic fiction. 25
What occurred in 1994, and was continued in 1996, was a revolution
in the fully substantive sense that Kelsen uses, but it was not a
revolution in the procedural sense, because there was ‘no discon-
25 Justice in robes (2006) 4.

228 Chapter 13
tinuous legal fracture with the old legal order.’ 26 The Final
Constitution established itself as a grundnorm in the very fullest
continental sense of the word. All law, whether it be common law or
statute law, depends on the Constitution and is derived from the
Constitution; it has no life apart from the Constitution. This was
expressly articulated by a unanimous Constitutional Court in the
Pharmaceutical case:
I cannot accept this contention which treats the common law as a body
of law separate and distinct from the Constitution. ... There is only one
system of law. It is shaped by the Constitution which is the supreme law,
and all law, including the common law, derives its force from the
Constitution and is subject to constitutional control. 27
It was later confirmed, also by a unanimous Court, per O’Regan J in
Bato Star:
There are not two systems of law regulating administrative action — the
common law and the Constitution — but only one system of law grounded
in the Constitution. ... The grundnorm of administrative law is now to be
found in the first place not in the doctrine of ultra vires, nor in the
doctrine of parliamentary sovereignty, nor in the common law itself, but
in the principles of our Constitution. The common law informs the
provisions of PAJA and the Constitution, and derives its force from the
latter. 28
Conflicts or tensions between positive law and non-positive law no
longer exist in South Africa and debates about them have become
arcane. It is in my view sufficient to refer to ‘dignity’ as a
constitutional categorical imperative, 29 as a right, and as a value
which, inter alia, informs other rights (such as equality and nondiscrimination)
and helps resolve tensions between rights. 30 I do not
believe that anything more was intended by O’Regan J in the passage
from Dawood quoted by Woolman. 31 I would emphasise that my
challenge to Woolman’s use of positivist language and concepts is not
simply a semantic one. The language employed by Hart has acquired
a well-settled meaning in a particular context. The danger of using
26
Ackermann ‘The legal nature of the South African constitutional revolution’
(2004) 4 New Zealand Law Review 633 645-6; H Kelsen General theory of law and
state trans A Wedberg (1945) 117; Makanete v Lekhanya [1993] LRC 13 (Les CA)
38g-39h, and the authorities cited therein.
27 Pharmaceutical Manufacturers Association of SA in re: the Ex Parte Application
of the President of the RSA & Others 2000 2 SA 674 (CC), 2000 3 BCLR 241 (CC)
para 44 (my emphasis).
28 Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism &
Others 2004 4 SA 490 (CC), 2004 7 BCLR 687 (CC) para 22.
29
Because sec 10 postulates that ‘[e]veryone has inherent dignity’ (my emphasis).
30 Such as will occur with the horizontal operation of the Bill of Rights under secs
8(2), 8(3) and 9(4) of the Constitution.
31
Dawood & Another v Minister of Home Affairs & Others 2000 3 SA 436 (CC), 2000
8 BCLR 837 (CC) para 35.

Reply - Justice Laurie Ackermann 229
positivist language and concepts in our context lies in the fact that the
assumptions and context underlying such expressions willy-nilly follow
their grammatical use, and are inconsistent with the fundamental
grundnorm nature of our Constitution.
Tony Honoré correctly points out that the law, even in the time of
Ulpian, was — in a broad sense — a philosophical discipline. 32 The
purpose, nature, and structure of our Constitution — quite apart from
the broad formulation of rights (and values) such as, for example,
dignity, equality, and freedom — has greatly strengthened this view.
Nevertheless we must all, I believe, heed Honoré’s accompanying
warning 33 that ‘[i]t is a mistake to attribute to a lawyer a system of
philosophy rather than a set of values.’ I make this comment with full
awareness of the following holding in Carmichele:
Our Constitution is not merely a formal document regulating public
power. It also embodies, like the German Constitution, an objective,
normative value system. As was stated by the German Federal
Constitutional Court:
‘The jurisprudence of the Federal Constitutional Court is
consistently to the effect that the basic right norms contain not only
defensive subjective rights for the individual but embody at the
same time an objective value system which, as a fundamental
constitutional value for all areas of the law, acts as a guiding
principle and stimulus for the legislature, executive and judiciary.’
The same is true of our Constitution. The influence of the fundamental
constitutional values on the common law is mandated by section 39(2) of
the Constitution. It is within the matrix of this objective normative value
system that the common law must be developed. 34
What has to be appreciated is that the purpose and scope of the
values within this ‘normative value system’ has in the first place to be
found within the Constitution itself. Of course one cannot understand
these values properly without the help of appropriate philosophical
ideas or values, but this must take place from within the Constitution
outwards, and not the other way around. 35 In passing, may I say that
on occasion one gets the impression that some lawyers — seemingly
taken by surprise by what they see as the unacceptably radical nature
of the development of the common law as enunciated in the
paragraph from Carmichele quoted above — fail to read the next
32 Ulpian: Pioneer of human rights 2 ed (2002) 78-80.
33 As above.
34
Carmichele v Minister of Safety and Security & Another 2001 4 SA 938 (CC), 2001
10 BCLR 995 (CC) para 54.
35 See the cautionary remarks in Dodo v The State 2001 3 SA 382 (CC), 2001 5 BCLR
423 (CC) para 17, against the importation of ‘abstract theories of separation of
powers’ into our Constitution.

230 Chapter 13
paragraph. 36 This stresses the importance of expert knowledge of the
common law, and respect for the common law’s own paradigm, when
applying section 39(2).
6 Conclusion
Despite my disagreements with certain aspects of Woolman’s
approach, I can only applaud the depth and the breadth of his
endeavours and confirm from my perspective that he has clearly
demonstrated what he asserts in his conclusion: namely, that ‘the
right to dignity is neither over-used, over-cited, over-indulged,
ubiquitous or a cliché.’ It is distressing that even so distinguished an
Anglo-Saxon constitutional scholar as Prof Peter Hogg is sceptical
about the concept and the use of dignity. 37 One may well pose the
rhetorical question whether dignity is any more ‘vague and
unpredictable in its application’ than the concept of the ‘reasonable
person’ (whether in its continental guise of the ‘bonus paterfamilias’
or in its Anglo-Saxon garb of ‘the man on the Clapham omnibus.’) The
concept of ‘Menschenwürde’ (human worth) stands at the very core
of the German Basic Law and over the past nearly sixty years the
German Federal Constitutional Court has developed a body of
jurisprudence on human dignity that can, I believe, stand up to the
most rigorous critical appraisal. South Africa ignores this
jurisprudence at its peril.
36
n 34 above, para 55 reads:
This requires not only a proper appreciation of the Constitution and its
objective, normative value system, but also a proper understanding of
the common law. We have previously cautioned against overzealous
judicial reform. The proper development of the common law under
section 39(2) requires close and sensitive interaction between, on the one
hand, the High Courts and the Supreme Court of Appeal which have
particular expertise and experience in this area of the law and, on the
other hand, this Court. Not only must the common law be developed in a
way which meets the needs of section 39(2) objectives, but it must be
done in a way most appropriate for the development of the common law
within its own paradigm.
37 See Constitutional Law of Canada 3 ed, Loose-leaf (1992) § 52.7(b). Hogg
criticises the judgment of the Canadian Supreme Court in Law v Minister of
Human Resources Development [1999] 170 DLR (4th) 1, for its use of dignity as
comparator in establishing discrimination, in the following terms:
The element of human dignity that has now been injected into the s 15
jurisprudence is, in my view, vague, confusing and burdensome to
equality claimants. Although various ‘contextual factors’ were listed in
Law to assist in the task of determining whether a distinction impairs
human dignity, the factors are not very helpful and the concept of human
dignity is inherently vague and unpredictable in its application.

14
TOWARDS A
SUBSTANTIVE RIGHT
TO EQUALITY
Cathi Albertyn & Beth Goldblatt
1 Introduction
This paper examines the development of the Constitutional Court’s
equality jurisprudence over the last decade — a fascinating journey
that has established South Africa as a leading jurisdiction in this
domain. The first cases adumbrated a detailed equality test that
reflects a mature approach to this complex right. A large number of
cases have reached the Court: most rationality review challenges
under FC section 9(1) have failed; and most unfair discrimination
challenges under FC section 9(3) have succeeded.
As more and more disadvantaged claimants and groups are
reaching court, FC section 9(3)’s value-based fairness analysis is
becoming more historically and contextually sophisticated. There are,
of course, some notable exceptions. This chapter will focus on the
following key areas of equality jurisprudence: the role of
constitutional values in interpreting the equality right; an evaluation
of the unfair discrimination jurisprudence; and the nature and
relationship of the different components of the equality right, as well
as the limitations clause.
231

232 Chapter 14
2 Values and the equality right
2.1 Equality as substantive equality
Race, gender, class and many other forms of inequality structure
access to basic needs and material resources in South Africa and result
in: limited opportunities and economic marginalisation; social
exclusion, stigmatisation and stereotyping; vulnerability to physical
and psychological violence; and political vulnerability. The causes of
inequality are manifold and usually deeply entrenched in social and
economic structures, systems and institutions. Inequalities often arise
out of group-based disparities and relationships of privilege and
subordination.
Addressing these inequalities is an important part of the
constitutional project of transformation. 1 To do so using law requires
both a strong concept of equality and an idea of law that does not
preserve the status quo. For many in academia and the Constitutional
Court, this conception is captured in the idea of substantive equality.
In a 2006 address at Stellenbosch University, Chief Justice Langa
identified substantive equality as one of the key measures of
transformation in our society. Here he was referring to the
aspirational value of substantive equality: ‘a social and economic
revolution in which all enjoy equal access to the resources and
amenities of life, and are able to develop to their full human
potential’. 2 This vision requires the dismantling of systemic
inequalities, the eradication of poverty and disadvantage (economic
equality) and the affirmation of human identity and capabilities
1 See K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South
African Journal on Human Rights 146. The idea of transformative
constitutionalism has characterised many writings on equality. See, eg, C Albertyn
& B Goldblatt ‘Facing the challenge of transformation: Difficulties in the
development of an indigenous jurisprudence of equality’ (1998) 14 South African
Journal on Human Rights 248; S Liebenberg & M O’Sullivan ‘South Africa’s new
equality legislation: A tool for advancing women’s socio-economic equality?’ in S
Jagwanth & E Kalula (eds) Equality Law: Reflections from South Africa and
elsewhere (2001) 70; P de Vos ‘Grootboom, The right of access to housing and
substantive equality as contextual fairness’ (2001) 17 South African Journal on
Human Rights 258; A van der Walt ‘A South African reading of Frank Michelman’s
theory of justice’ in H Botha et al (eds) Rights and democracy in a transformative
constitution (2003); S Jagwanth ‘Expanding equality’ in C Murray & M O’Sullivan
(eds) Advancing women’s rights (2005) 131; S Jagwanth & C Murray ‘No nation can
be free when one half of it is enslaved: Constitutional equality for women in
South Africa’ in B Baines & R Rubio-Marin (eds) The gender of constitutional
jurisprudence (2005) 230. See also P Langa ‘Transformative constitutionalism’
(2006) 17 Stellenbosch Law Review 351.
2 Langa (n 1 above) 352-353, citing Albertyn & Goldblatt (n 1 above).

Cathi Albertyn & Beth Goldblatt 233
(social equality). It confirms a strong relationship between
substantive equality and the achievement of socio-economic rights. 3
The value of substantive equality does not provide a definitive
answer to the question, ‘equality of what?’ However, it does suggest
that the constitutional answer is, at least, a social democratic vision
that entails equality of opportunities and outcomes, including the
idea of redistribution (of power and resources) and the remedying of
material disadvantage. Here the aspirational value of achieving
equality is capable of an expansive meaning: It is largely unencumbered
by more practical considerations of the separation of
powers and institutional competence. However, constitutional rights,
as legal entitlements, are enforced through the courts and it is in FC
section 9, discussed below, that the idea of substantive equality is
captured in law.
2.2 The values underlying the equality right
As with any other right, the equality right should be interpreted in the
light of underlying constitutional values, as well as the interests —
that that right is meant to protect. This interrogation of purpose and
values provides the equality right with its substantive content, and
provides an answer to the question: ‘equality of what?’ The judicial
determination of values and purpose thus involves choices about
whom or what the right can and should protect. In the equality right,
this determination mostly takes place in terms of an assessment of
fairness. In this assessment, dignity has been the dominant and
determinative value.
2.2.1 Dignity
The Constitutional Court emphasised the relationship between
equality and the value of dignity early in its jurisprudential
development of the right. In President of the Republic of South Africa
v Hugo Goldstone J said:
At the heart of the prohibition of unfair discrimination lies a recognition
that the purpose of our new constitutional and democratic order is the
establishment of a society in which all human beings will be accorded
equal dignity and respect regardless of their membership of particular
groups. The achievement of such a society in the context of our deeply
3 For a discussion on the relationship between equality and socio-economic rights
see B Goldblatt & S Liebenberg ‘Achieving substantive equality in South Africa:
The relationship between equality and socio-economic rights’ (2007) 23 South
African Journal on Human Rights 335.

234 Chapter 14
inegalitarian past will not be easy, but that that is the goal of the
Constitution should not be forgotten or overlooked. 4
The idea of dignity as meaning equal moral worth — the right to be
treated with equal concern and respect — derives from the Kantian
notion of the equal moral worth of all human beings. 5 Here dignity is
closely related to ideas of equality. Amaryta Sen admits that a
common feature of being egalitarian ‘in some significant way relates
to the need to have equal concern, at some level, for all persons
involved’. 6 However, equal concern is not necessarily related to our
conception of substantive equality. ‘Equal concern and respect’ based
on ‘equal moral worth’ is a fairly abstract concept that requires
greater content in order for persons and institutions to determine
when a failure to equally recognise people’s moral worth contravenes
the equality right.
In both South African and Canadian jurisprudence, the use of
‘dignity’ in equality jurisprudence has been criticised for its
indeterminism 7 and for its potential to narrow the right. 8 The narrow
definition of dignity in Harksen v Lane 9 — which turned on the way the
applicant felt about the impugned law (did she feel less worthy of
respect?) — generated concerns that the use of dignity might reinforce
an individualised and abstract conception of equality divorced from
actual social and economic disadvantage and the systemic nature of
inequality. We would suggest that additional content be given to the
value of equality in order to address structural disadvantage and
inequalities. 10 That said many other legal scholars have argued that
dignity can, and should, be interpreted differently to deal with
systemic inequality. 11
4 President of the Republic of South Africa & Another v Hugo 1997 4 SA 1 (CC),
1997 6 BCLR 708 (CC) para 41.
5 For an account of how Kant’s variations on the categorical imperative that inform
both our dignity and our equality jurisprudence, see S Woolman ‘Dignity’ in
S Woolman et al (eds) Constitutional Law of South Africa (2nd Edition, OS,
2006) § 36.2.
6 A Sen Inequality re-examined (2007).
7
Dennis Davis has argued that the indeterminate meaning of dignity meant that it
was inappropriate as the dominant conceptual tool for interpreting the equality
right. ‘Equality: The majesty of Legoland jurisprudence’ (1999) 15 South African
Law Journal 398. See also D Davis Democracy and deliberation (1999) 69–95. For a
critique of Davis’ position, see Woolman (n 5 above) §36.6
8 See Albertyn & Goldblatt (n 1 above).
9
Harksen v Lane NO 1998 1 SA 300 (CC), 1997 11 BCLR 1489 (CC).
10 Albertyn & Goldblatt (n 1 above).
11 S Cowen ‘Can dignity guide our equality jurisprudence?’ (2001) 17 South African
Journal on Human Rights 34; S Liebenberg ‘The value of human dignity in
interpreting socio-economic rights’ (2005) 21 South African Journal on Human
Rights 1 (in relation to socio-economic rights); S Liebenberg ‘The interpretation
of socio-economic rights’ in Woolman et al (n 5 above) Chapter 33; Woolman (n 5
above) § 36.3.

Cathi Albertyn & Beth Goldblatt 235
The latter view has been partly borne out by the Court’s recent
development of the concept of dignity to include a more systemic
understanding of individual and group-based material inequalities. 12
This development has been explicit in relation to socio-economic
rights, where the Court has linked dignity (together with freedom and
equality) to the achievement of basic needs. 13 In Khosa v Minister of
Social Development, 14 the equality analysis was bolstered by the
concurrent presence of the right to adequate social assistance. Here
the Khosa Court found the exclusion of permanent residents from
social assistance to be ‘intentional, statutorily sanctioned unequal
treatment’ that affected the material and social well-being of the
applicants. The Court noted that ‘decisions about the allocation of
public benefits represent the extent to which poor people are treated
as equal members of society’. Where they are excluded from such
benefits, the applicants were forced into ‘relationships of
dependency upon families, friends and community’, ‘relegated to the
margins of society’ and ‘cast in the role of supplicants’. 15 In Khosa,
the exacerbation of material disadvantage, even destitution,
reflected an absence of equal concern and respect. This absence was
not merely a concern of the state, but of society as a whole.
However, the Constitutional Court has connected the value of
dignity and the commitment to equal concern and respect to the idea
of group-based material disadvantage in only a small number of
cases. 16 It has, however, found an absence of ‘equal concern and
respect’ and a denial of self-worth in relation to laws that result in
12
This approach was, arguably, implicit in cases such as National Coalition for Gay
and Lesbian Equality & Another v Minister of Justice & Others 1999 1 SA 6 (CC),
1998 12 BCLR 1517 (CC) para 24 and Hoffmann v South African Airways 2001 1 SA
1 (CC), 2000 11 BCLR 1211 (CC) para 38. However there have also been notable
exceptions to this trend, see Jordan & Others v The State (Sex Workers Education
and Advocacy Task Force & Others as Amici Curiae) 2002 6 SA 642 (CC), 2002 11
BCLR 1117 (CC).
13 Government of the Republic of South Africa & Others v Grootboom & Others 2001
1 SA 46 (CC), 2000 11 BCLR 1169 (CC) para 23: ‘There can be no doubt that human
dignity, freedom and equality, the foundational values of our society, are denied
those who have not food, clothing and shelter’. At para 44, the Court states: ‘A
society must seek to ensure that the basic necessities of life are provided to all if
it is to be a society based on human dignity, freedom and equality’. See also A
Chaskalson ‘The third Bram Fischer lecture: Human dignity as a foundational
value of our constitutional order’ (2000) 16 South African Journal on Human
Rights 193 203.
14 2004 6 SA 505 (CC), 2004 6 BCLR 569 (CC).
15 n 14 above, paras 74, 76, 77.
16
See C Albertyn & B Goldblatt ‘Equality’ in Woolman et al (n 5 above) 35-10—35-
12, available at www.westlaw.com.

236 Chapter 14
social exclusion, 17 the perpetuation of harmful stereotypes, 18 and
political vulnerability. 19
In the end, the value of dignity — manifest in the notion of equal
moral worth and the requirement that all persons be treated with
equal concern and respect — is a malleable concept. It easily
embraces ideas of status or recognition that are implicated in the
majority of equality (unfair discrimination) cases. Here the value of
dignity evinces a constitutional concern with the equal moral worth
of persons and groups, with their inclusion and participation within
society as equals, without stereotyping, prejudice and isolation. The
relationship of the value of dignity to ideas of material disadvantage
is apparent, although, as we noted above, thus far limited in its
application to concrete cases. In equality cases, this conception of
dignity has only been employed where the underlying inequality is
supported by a violation of a socio-economic right. 20 The cases
demonstrate that while dignity is capable of supporting a substantive
understanding of equality that explores and seeks to remedy systemic
inequalities and disadvantage, other uses of dignity, often combined
with legal formalism, prevent a substantive understanding of
equality. 21
Rather trenchant criticisms of dignity — and its relationship to
equality — have been made with regard to Canadian jurisprudence.
Canadian scholars have shown that the courts’ reliance on dignity
focuses on whether a person or group has been treated with ‘equal
concern and respect’, and fails to test whether particular goals of
substantive equality have been achieved. 22
17 Bhe & Others v Magistrate, Khayelitsha & Others; Shibi v Sithole & Others;
SAHRC & Another v President v President of the RSA & Another 2005 1 SA 580
(CC), 2005 1 BCLR 1 (CC) in relation to the customary rule of primogeniture. See
further Albertyn & Goldblatt (n 16 above) 35-10—35-12.
18 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 2
SA 1 (CC), 2000 1 BCLR 39 (CC) paras 45–53.
19 Larbi-Odam & Others v Member of the Executive Council for Education (North-
West Province) & Another 1998 1 SA 745 (CC), 1997 12 BCLR 1655 (CC) in respect
of access to economic opportunities (teaching posts).
20 For a discussion of this idea of dignity in relation to socio-economic rights, see S
Liebenberg ‘The value of human dignity’ (n 11 above). For a discussion of the
relationship between equality and socio-economic rights, see S Fredman
‘Providing equality: Substantive equality and the positive duty to provide’ (2005)
21 South African Journal on Human Rights 163; Goldblatt & Liebenberg (n 3
above).
21 See C Albertyn ‘Substantive equality and transformation in South Africa’ (2007) 23
South African Journal on Human Rights 253; Woolman (n 5 above) § 36.4
22
See, eg, C Sheppard ‘Inclusive equality and new forms of social governance’
(2004) 24 Supreme Court Law Review (2d) 45; S Moreau ‘The wrongs of unequal
treatment’ (2004) 54 University of Toronto Law Journal 291; J Fudge ‘Substantive
equality, the Supreme Court of Canada and the limits to redistribution’ (2007) 23
South African Journal on Human Rights 235.

Cathi Albertyn & Beth Goldblatt 237
2.2.2 Equality
The Constitutional Court has recently begun to engage more fully with
the value of equality, especially in cases concerning FC section 9(2)
and the positive aspects of the equality right. In these cases, the court
has developed its understanding of equality’s role in remedying
historical disadvantage and material inequalities. In Brink v Kitshoff
NO when O’Regan J wrote that the equality clause in the Interim
Constitution was adopted
[in the] recognition that discrimination against people who are members
of disfavoured groups can lead to patterns of group disadvantage and
harm. Such discrimination is unfair: it builds and entrenches inequality
amongst different groups in our society. ... The need to prohibit such
patterns of discrimination and remedy their results are the primary
purposes of section 8. 23
Although dignity became more central to the equality jurisprudence
after Brink, the Constitutional Court has regularly emphasised the
remedial and restitutionary aspects of substantive equality 24 and
linked equality to the enjoyment of all rights and freedoms. 25 The
value of substantive equality, so understood, encompasses a notion of
redistributive justice, 26 and suggests that the right to be free from
unfair discrimination must be understood against our legacy of deep
social inequality. 27 However, with the exception of City Council of
Pretoria v Walker, 28 the Court has not had to address equality claims
that necessarily and directly related to material disadvantage or
economic redistribution until the cases of Bannatyne v Bannatyne; 29
Khosa v Minister of Social Development; 30 and Minister of Finance v
Van Heerden. 31 In Khosa, a case dealing with a claim of unfair
discrimination in the allocation of social grants, the Court deployed
dignity as the driving force in its development of the connection
between poverty and self-worth. In Van Heerden, the Court linked the
achievement of equality with the achievement of a society based on
‘social justice’. However, this objective could only be realised if there
was a ‘positive commitment progressively to eradicate socially
constructed barriers to equality’ and to root out systematic or
23 1996 4 SA 197 (CC), 1996 6 BCLR 752 (CC) para 42.
24 City Council of Pretoria v Walker 1998 2 SA 363 (CC), 1998 3 BCLR 257 (CC) paras
45–48; NCGLE v Minister of Justice (n 12 above) paras 60–62.
25 FC sec 9(2).
26 The recognition that the value of equality encompasses an idea of material
equality and economic redistribution has also been expressed by former Chief
Justice Chaskalson. Chaskalson (n 13 above).
27 See, eg, Brink v Kitshoff (n 23 above) and Prinsloo v Van der Linde & Another
1997 3 SA 1012 (CC), 1997 6 BCLR 759 (CC).
28 n 24 above.
29 2003 2 SA 363 (CC), 2003 2 BCLR 111 (CC).
30
n 14 above.
31 2004 6 SA 121 (CC), 2004 11 BCLR 1125 (CC) para 31.

238 Chapter 14
institutionalised under-privilege’. 32 This commitment required remedial
or restitutionary equality. 33 Although the Van Heerden Court does
not use the term ‘redistribution’, its interpretation of the value of
equality clearly envisages a degree of economic redistribution and the
removal of material disparities.
2.2.3 Values, purpose and the parameters of the equality right
Read across a series of cases, and in the context of our history, the
purpose of the equality right can be seen to promote a society where
each person is accorded equal moral worth, and in which systemic
inequality and disadvantage are eradicated and substantive equality
is actively promoted. The value of dignity continues to play the
central role in relation to unfair discrimination and its meaning has
(sometimes) been broadened to include issues of group disadvantage
and material well-being. The value of equality is more dominant in
the Court’s interpretation of the positive aspects of the right under
FC section 9(2). In relation to both unfair discrimination and positive
measures, the Court’s embrace of the redistributive aspects of
equality has been supported by the presence of underlying rights in
the Final Constitution (the right to social assistance in Khosa) or in
legislation (the Maintenance Act in Bannatyne and the Political Office
Bearers Pension Fund in Van Heerden).
However, a redistributive function does not always fit
comfortably with the institutional role of courts and with the
distinction the courts seek to draw between issues of social policy and
issues of law. 34 It is perhaps for this reason that the Constitutional
Court initially turned to the more comfortable terrain of dignity to
define and to guide the application of the equality right. However, it
is through giving substantive meaning to the values of dignity and
equality that the Court has begun to develop an equality
jurisprudence that is flexible in its response to different kinds of
claims, and that is able to address questions of individual moral worth
and group-based social and economic disadvantage.
3 Evaluation of unfair discrimination jurisprudence
The early cases of unfair discrimination involved the gradual
development of the jurisprudence and led to the crystallisation of a
comprehensive test for unfair discrimination in Harksen. 35
32 n 31 above, para 31.
33
n 31 above, para 30 and paras 73-74 (Mokgoro J).
34 See, eg, NCGLE v Minister of Justice (n 12 above) para 123 (Sachs J expressed
concerns in his minority judgement in relation to ‘over-intrusive judicial
intervention in matters of broad social policy’.)
35 n 9 above.

Cathi Albertyn & Beth Goldblatt 239
The Harksen test was initially followed in quite a formulaic
manner by the Court (Larbi-Odam, 36 Walker, 37 NCGLE v Minister of
Justice). 38 Later, the Court stopped restating the test and began to
take a more sophisticated and integrated approach towards unfair
discrimination determinations (Hoffman, 39 Moseneke, 40 Bhe, 41
Zondi 42 ). The increasing number of FC section 9(3) cases has thrown
up a number of interesting issues. For the purpose of this discussion,
we will look only at some of these issues: first, issues of proof of
discrimination in the first step of the FC section 9(3) test; second, the
use of the listed grounds and the development of new grounds; third,
the application of the contextual approach; and, finally, the use of
fairness.
3.1 Proving discrimination in the first step of the Harksen
test
In South African constitutional jurisprudence, there has been little
dispute over the issue of discrimination: whether there is
differentiation, or whether the differentiation is based on a
prohibited ground. In discrimination law more widely understood (in
both labour law in South Africa and in discrimination claims in other
jurisdictions) these issues have been strongly contested. Although
most claims have concerned overt legislative and executive
distinctions, or clear cases of indirect discrimination on largely
undisputed grounds, the Constitutional Court has confronted a couple
of cases in which these issues have been contested. These cases
provide some clues as to how disputes about discrimination, including
the nature of the causal relationship between the distinction and the
ground, may be addressed.
In Jordan v The State the fact of the legislative distinction was
disputed. Did the provision that criminalised sex work differentiate
between sex worker and client? It was argued by the state that it did
not but rather that it criminalised both sex worker and client. 43 The
majority accepted that there may be a distinction, but found against
the complainant on the relationship of the distinction to the ground.
The minority judgment addressed the criteria for the proper
36
n 19 above.
37 n 24 above.
38 n 12 above.
39
n 12 above.
40 Moseneke & Others v Master of the High Court 2001 2 SA 18 (CC), 2001 2 BCLR
103 (CC).
41
n 17 above.
42 Zondi v MEC for Traditional and Local Government Affairs & Others 2005 3 SA 589
(CC), 2005 4 BCLR 347 (CC).
43
Jordan (n 12 above) paras 8 and 40 (Jordan was decided under sec 8(1) of the
Interim Constitution.)

240 Chapter 14
interpretation of the provision. Their starting point was to ‘consider
whether there is a constitutionally compatible interpretation of the
section’ that the provision is ‘reasonably capable of bearing’. 44
The majority took a more staid approach. It looked at what had
been generally accepted in our law; the natural reading of the
section; and the context of the enactment of the provision. 45 In
finding that the provision did differentiate between sex worker and
client, the Court also sought to avoid a broadening of the definition
of the crime (so as to include the client in its ambit), a task that
ordinarily fell to the legislature and not the Court. The Court
concluded that it would be contrary to constitutional values, including
the principle of legality, to accept the extended definition. 46
In National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs, 47 the state contended that the exclusion of gay and
lesbian partners from benefits was not discrimination based on sexual
orientation but on the fact that these partners were ‘non-spouses’. In
response to this line of argument, the Court said that the question of
whether there has been differentiation on a specified or unspecified
ground has to be determined objectively 48 and contextually, and with
the experience of those affected by it in mind. 49 In this case the
enquiry was a substantive one that went beyond the form of the
disputed law to determine its impact on the complainants. This closer
inspection involves an interrogation of the assumptions and stereotypes
about ‘spouse’ and ‘family’ that underpinned the respondent’s
challenge, as well as how these affected gay and lesbian people.
Before this case, the stage of proving discrimination was a relatively
mechanical one in the Court. This case suggests that the stage of
proving discrimination could yet become a far more substantive
enquiry than has, thus far, been the case.
In contrast, Jordan v The State demonstrates the difference
between a mechanical and more substantial approach to
understanding the relationship between differentiation/discrimination
and the stated ground. Unlike the enquiry in National Coalition
for Gay and Lesbian Equality v Minister of Home Affairs, the Jordan
majority fails to interrogate the relationship between the
differentiation in section 20(1)(aA) and ‘gender’ and finds no
discrimination on the basis of gender. 50 The more substantial and
detailed enquiry of the minority, which is more faithful to the
44 Jordan (n 12 above) para 40.
45 Jordan (n 12 above) paras 41–44.
46
Jordan (n 12 above) para 45–46.
47 NCGLE v Minister of Home Affairs (n 18 above).
48 Harksen (n 9 above) para 48.
49
See NCGLE v Minister of Home Affairs (n 18 above) para 35.
50 Jordan (n 12 above) paras 8-14.

Cathi Albertyn & Beth Goldblatt 241
approach adopted in National Coalition for Gay and Lesbian Equality
arrives at the opposite conclusion. 51
It is likely that these issues will be more contested in the future
as more complicated claims of intersectional or indirect
discrimination are brought to the Court, or where direct
discrimination is alleged against state functionaries or private
individuals, whose behaviour is often covert and less susceptible to
easy proof. 52 It will be interesting to see whether the Court adopts a
substantive or a mechanical test to these issues.
3.2 Grounds of discrimination
Most of the cases that have come to the Constitutional Court have
been decided on the basis of a small number of listed grounds: race,
colour and ethnic origin (Walker, 53 Moseneke, 54 Mabaso 55 and
Zondi 56 ); sex and gender (Brink, 57 Fraser 58 (also marital status),
Hugo, 59 Jordan, 60 Bhe, 61 Volks, 62 Masiya 63 ) and sexual orientation
and marital status (NCGLE v Justice, 64 NCGLE v Home Affairs, 65
Satchwell, 66 Du Toit, 67 J, 68 Fourie, 69 Gory 70 and Harksen 71 ). Equality
challenges have also been raised in three citizenship cases (Larbi-
51 Jordan (n 12 above) paras 59-65.
52
Much of this will not occur under the Constitution, but is more likely to be tested
under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000.
53
n 24 above.
54 n 40 above.
55 Mabaso v Law Society of the Northern Provinces & Another 2005 2 SA 117 (CC),
2005 2 BCLR 129 (CC).
56 n 42 above.
57
n 23 above.
58 Fraser v Children’s Court, Pretoria North & Others 1997 2 SA 218 (CC), 1997 (2)
BCLR 153 (CC).
59
n 4 above.
60 n 12 above.
61 n 17 above.
62
Volks NO v Robinson & Others 2005 5 BCLR 446 (CC).
63 Masiya v Director of Public Prosecutions, Pretoria & Another 2007 5 SA 30 (CC),
2007 8 BCLR 827 (CC).
64
n 12 above.
65 n 18 above.
66 Satchwell v President of the RSA & Another 2002 6 SA 1 (CC), 2002 9 BCLR 986
(CC) and Satchwell v President of RSA & Others 2003 4 SA 266 (CC), 2004 1 BCLR 1
(CC).
67 Du Toit & Another v Minister for Welfare and Population Development & Others
2003 2 SA 198 (CC), 2002 10 BCLR 1006 (CC).
68 J & Another v Director-General, Department of Home Affairs & Others 2003 5 SA
621 (CC), 2003 5 BCLR 463 (CC).
69
Minister of Home Affairs & Another v Fourie & Another; Lesbian and Gay Equality
Project & Others v Minister of Home Affairs 2006 1 SA 524 (CC), 2006 3 BCLR 355
(CC).
70
Gory v Kolver NO & Others (Starke & Others intervening) 2007 4 SA 97 (CC).
71 n 9 above. O’Regan J in her minority judgment relied only on marital status.

242 Chapter 14
Odam, 72 Khosa, 73 and Union of Refugee Women 74 ), two religion and
culture disputes (Daniels 75 and Pillay 76 ) and one matter that turned
on HIV status (Hoffmann 77 ).
One would expect in post-Apartheid South Africa, that race discrimination
challenges would abound. The challenges based on
gender and sexual orientation reflect, to some extent, the role of two
key social movements — the women’s movement and the gay and
lesbian equality campaign. Each have used the courts actively in their
struggles. We will look briefly at each of the three categories.
3.2.1 Race
The history of our country makes this ascriptive characteristic a likely
source for constitutional challenges — and one would have predicted
an even greater numbers of cases. Some of these cases arose because
the legislature, although intending to remove apartheid laws and
racist legislation, had not been able to manage this quickly enough.
Mabaso, for example, found there to be unfair discrimination on the
basis of the unlisted ground of those persons still subject to former
‘homeland’ legislation. 78 Zondi found there to be unfair
discrimination on the basis of landlessness as well as race. 79 Walker
famously found there to be indirect race discrimination in the
application of usage charges for predominantly white homeowners
and a lower, flat rate in a former black area of Pretoria: However, the
Court still held that, under the given conditions, such discrimination
was not unfair. 80 The cases reflect a sensitive historical and
contextual approach by the Court. As the number of problematic legal
remnants of apartheid dwindle, fewer anti-apartheid cases are likely
to reach the courts. At the same time, affirmative action cases under
FC section 9(2) may well increase. It is also likely that a number of
race discrimination cases will be brought under the Promotion of
Equality and Prevention of Unfair Discrimination Act (PEPUDA). 81
PEPUDA covers a broad array of inequality issues in the private domain
and offers a range of remedies that outstrip those remedies commonly
offered under the common law or the Constitution.
72
n 19 above.
73 n 14 above.
74 Union of Refugee Women v The Director: The Private Security Regulatory
Authority 2007 4 SA 395 (CC).
75 Daniels v Campbell NO & Others 2004 5 SA 331 (CC), 2004 7 BCLR 735 (CC).
76 MEC for Education: KwaZulu-Natal & Others v Pillay 2008 2 BCLR 99 (CC).
77
n 12 above.
78 n 55 above.
79 n 42 above.
80
n 24 above.
81 Act 4 of 2000.

Cathi Albertyn & Beth Goldblatt 243
3.2.2 Sexual orientation
These cases reflect the importance of the inclusion of this ground of
discrimination, itself a product of the struggle by gay and lesbian
activists in the constitution-writing process. 82 They also reflect the
success of a systematic litigation strategy, carefully formulated as
part of a broader campaign for gay and lesbian rights. 83 The strategy
began with challenges to the criminal law (NCGLE v Minister of
Justice) 84 and moved to challenges to the status of gay and lesbian
relationships (NCGLE v Home Affairs). 85 Satchwell, 86 Du Toit 87 and
J, 88 although brought by individuals rather than the movement, fitted
well into the strategy of affording same-sex relationships the benefits
afforded to heterosexual spouses. Fourie, 89 which required the state
to legislate for same sex marriage, was the culmination of a careful
building block approach that has placed South African law on the same
advanced footing as a handful of other countries in the world. 90
These cases were relatively straightforward formal equality
decisions because the impugned legislative discrimination was so
overtly unfair. It is clear that the gay and lesbian movement was
correct to challenge these laws through litigation rather than through
attempting to convince the state to alter discriminatory legislation.
Despite favourable statements from government, little has been done
in the last 13 years to rewrite these laws. In fact the Court, in J &
Another v D-G, Home Affairs, called for ‘[c]omprehensive legislation
regularising relationships between gay and lesbian persons’. 91
Goldstone J said:
It is unsatisfactory for the courts to grant piecemeal relief to members
of the gay and lesbian community as and when aspects of their
relationships are found to be prejudiced by unconstitutional legislation.
The executive and legislature are therefore obliged to deal
comprehensively and timeously with existing unfair discrimination
against gays and lesbians. 92
82
See Stychin ‘Constituting sexuality: The struggle for sexual orientation in the
South African Bill of Rights’ (1996) 23(4) Journal of Law and Society 455-483; S
Croucher ‘South Africa’s democratisation and the politics of gay liberation’ (2002)
28(2) Journal of Southern African Studies 315-330; R Louw ‘A decade of gay and
lesbian equality litigation’ in M du Plessis & S Pete (eds) Constitutional
Democracy in South Africa 1994-2004 (2004) 65-79.
83
Louw (n 82 above).
84 n 12 above.
85 n 18 above.
86
n 66 above.
87 n 67 above.
88 n 68 above.
89
n 69 above.
90 B Goldblatt ‘Case note: Same-Sex marriage in South Africa — The Constitutional
Court’s judgment’ (2006) 14 Feminist Legal Studies 261; M Judge et al (eds) To
have and to hold: The making of same-sex marriage in South Africa.
91 n 69 above, para 23.

244 Chapter 14
Following Fourie, Parliament passed the Civil Union Act 17 of 2006 and
created the option of a civil partnership or marriage for same-sex
couples.
The sexual orientation series of cases can be described as
inclusive, rather than transformatory, since they allow gays and
lesbians into the protected social institution of marriage without
challenging its position within the broader concerns of family law. 93
However, that inclusion does not preclude future transformation and
may in fact ‘assist in setting democratic norms that may eventually
shift the social norms’. 94
3.2.3 Sex/gender
These cases have been less systematically the product of a conscious
litigation strategy by the women’s movement, although women’s
organisations have been a party to all but one of them (Hugo). 95 The
first case, Brink, 96 concerned provisions affecting a life insurance
policy, and was thus not of great assistance to the majority of women
in South Africa. Fraser 97 and Hugo, both brought by men, resulted in
important substantive equality decisions that looked carefully at the
context of women’s lives and the reasons why the law should take
account of the unequal roles that men and women fulfil in relation to
children in our society. (Fraser, it should be noted, was decided on
the basis of marital status, not sex/gender discrimination. Similarly,
the minority judgment of O’Regan J in Harksen contains important
discussion of the gender issues in South African society while finding
that discrimination was based on marital status.) The Court has
incorporated critical concerns of feminist theory into its jurisprudence.
In its discussion of the public/private divide, it recognises
that the ‘private’ domain is often the site of efforts to silence
92 As above. Similar remarks were made in Satchwell (n 66 above) paras 28-31; Du
Toit (n 67 above) para 36; and Gory (n 70 above) para 65.
93 C Albertyn ‘Defending and securing rights through law: Feminism, law and the
courts in South Africa’ Politikon 32(2) 217 233. But see Woolman (n 5 above) §
36.6 (Contends that the sexual orientation cases — when viewed against the
background of state and social resistance to the recognition of sexual orientation
equality — have been a challenge to the dominant heterosexual view of sexuality
and forced the other branches of government and society to view such
relationships differently.)
94 C Albertyn (n 93 above) 233. See also P de Vos ‘The “inevitability” of same-sex
marriage in South Africa’s post-apartheid state’ (2007) South African Journal on
Human Rights 23 432.
95 n 4 above.
96
n 27 above.
97 n 58 above.

Cathi Albertyn & Beth Goldblatt 245
women’s claims in the home and other spheres of life, (Baloyi); 98 and
it acknowledges a sexual division of labour that burdens women with
child care and household responsibilities (Hugo). 99
Jordan, 100 Bhe 101 and Volks 102 were all claims supported by the
organised women’s movement in an effort to challenge legislative
restrictions on different groups of women. 103 Bhe found the
customary law rule of primogeniture to be unfair discrimination on
the basis of gender. The minority decision considered whether there
was discrimination based on age and birth but found that this was
justifiable while the discrimination based on gender could not be
justified. In both decisions, while it was relatively easy to reach this
conclusion on the basis of a formal equality reading of the law, the
case delved into the subtleties of history and context in reaching its
finding. The willingness of the Court to ‘interrogate the private
sphere’ and determine the issue rather than defer to the legislature
are positive developments. As one of the authors has noted
elsewhere:
Most significantly, the judgment has both normative value in setting the
terms of the relationship between custom and gender equality, and
practical value in extending inheritance rights to all women married in
customary law. 104
While Bhe was able to take account of context and history in
addressing the plight of women under customary inheritance laws,
there was a disappointing failure by the majority of the Court in
Jordan and Volks to understand the situation of and to assist
disadvantaged women. Ultimately, a deferential approach flowed
from the assessment that the legislature was seen as ‘knowing what
it was doing’ (Jordan) or ‘needing to improve the situation’ (Volks).
In Jordan, the majority failed to heed the Court’s own
jurisprudence by not looking into the private sphere of sexuality — it
ignored the context of this form of sex and thereby reinforced harmful
stereotypes. 105 In Volks (discussed further below) the majority again
resorted to a formal equality approach grounded in a conservative
majority. 106
98 S v Baloyi 2000 1 BCLR 86 (CC), 2000 2 SA 425 (CC).
99 Albertyn (n 94 above) 225-6.
100
n 12 above.
101 n 17 above.
102 n 62 above.
103
In addition, the Women’s Legal Centre was an amicus in Moseneke (n 40 above). It
raised issues of discrimination particular to African widows.
104 Albertyn (n 93 above) 231.
105
Albertyn (n 93 above) 228-9.
106 Albertyn (n 93 above) 229-30.

246 Chapter 14
These decisions point to the possibility that despite the stated
recognition of feminist theories, many of the judges are not able to
apply these in practice or to confront their discomfort with the
implications of this approach. Gender issues seem to test many ideas
around prejudice and stereotyping that seem less complex when seen
through the prism of race. Interestingly, neither of the two women
judges on the Court placed themselves with the majority in Volks and
Jordan. 107
3.3 Unlisted/new grounds of discrimination
FC section 9(3) prohibits unfair discrimination on a list of grounds but
also says ‘including’ before listing these grounds. This term clearly
indicates that the list of grounds is not closed and that other grounds
are possible. The Constitutional Court has acknowledged a range of
unlisted grounds: citizenship, HIV status and marital status (which was
not included in the list of grounds in the Interim Constitution).
3.3.1 Citizenship
The ground of citizenship has been given particular attention in three
Constitutional Court cases. Non-citizens are a classic vulnerable group
who face xenophobia and violence in the battle for scarce resources
in our country. This situation is likely to worsen as the number of
immigrants increase and the desperation of those South Africans
waiting for services grows. The equality right becomes a critical
mechanism for this group to assert its entitlement to the promise of
(most rights in) the Constitution. Both Larbi-Odam 108 and Khosa 109
are positive examples of the Court’s support for non-citizens. In Larbi-
Odam, the Court recognised the ground of citizenship as an additional
ground of unfair discrimination. In Khosa, the majority went quite far
in affirming the rights of the permanent resident applicants. It is
important to note, however, as does Lucy Williams, that courts must
take care not to reinforce hierarchies of entitlement within the group
of non-citizens ie: permanent residents, legal immigrants, refugees
and illegal immigrants, in a way that deepens the vulnerability of the
worst off. 110 In Union of Refugee Women 111 a case that turned on the
rights of refugees to work as security guards, the majority of the
Constitutional Court was less welcoming of this excluded group. 112
107
Jagwanth (n 1 above) and Jagwanth & Murray (n 1 above).
108 n 19 above.
109 n 14 above.
110
L Williams ‘Issues and challenges in addressing poverty and legal rights: A
comparative United States/South Africa analysis’ (2005) 21 South African Journal
on Human Rights 436 468.
111
n 74 above.
112 This case is discussed in more detail in 3.4 below.

Cathi Albertyn & Beth Goldblatt 247
3.3.2 The Poor
Interestingly, one of the most marginal groups in our society, the
poor, have not approached courts with equality cases requiring
positive state action to meet their basic needs. The majority of unfair
discrimination cases have been brought by middle class applicants.
(Although some of the cases have argued for improved benefits that
would assist the poor within that disadvantaged group (Jordan 113 and
Volks).) 114 As discussed above, 115 Khosa 116 concerned the rights of
non-citizens living in poverty to state support. But thus far, no-one
has come to court to argue that they are unfairly treated by virtue of
their membership of a disadvantaged group of poor people. PEPUDA
includes socio-economic status as a ground to be considered for
inclusion in the list of prohibited grounds of discrimination. One would
hope that the next decade will witness cases brought by or on behalf
of people who have been left behind during the sustained period of
growth over the past decade. 117 Our equality right seems capable of
assisting them if the Court’s jurisprudence is properly applied.
3.3.3 Intersectionality
Other jurisdictions have struggled with the development of a method
for dealing with claims based on a range of different grounds.
Crenshaw has explained the problems of an unsophisticated approach
by what she terms ‘intersectionality’ and shows how disadvantage
suffered by a black woman constitutes a separate category of
discrimination that is greater than, and different from, the individual
claims of race or gender discrimination made on behalf of white
women or black men. 118 A contextual approach requires that
different layers of disadvantage be unpacked and addressed in their
full complexity. Our Constitutional Court has not properly dealt with
this issue (NCGLE v Home Affairs 119 and Moseneke). 120 Still, it has
managed to assist groups where a number of possible grounds exist.
The Court has correctly adopted the expansive view that as long as
113 n 12 above.
114 n 62 above.
115
See 2.1.1 above.
116 n 14 above.
117 See S Liebenberg & B Goldblatt ‘The interrelationship between equality and
socio-economic rights under South Africa’s transformative constitution’ (2007) 23
South African Journal on Human Rights 335. for a discussion of poverty/class as a
ground of unfair discrimination.
118
K Crenshaw ‘Demarginalising the intersection of race and sex: A black feminist
critique of antidiscrimination doctrine, feminist theory and antiracist politics’
(1989) University of Chicago Legal Forum 139. See also N Iyer ‘Categorical
denials: Equality rights and the shaping of social identity’ (1993) 19 Queen’s Law
Journal 179.
119 n 18 above, para 40. Sachs J gave more detailed attention to the issue in his
separate concurring judgment, paras 112-113.
120 n 40 above, para 30.

248 Chapter 14
one can succeed on one ground, the existence of other possible
grounds for unfair discrimination do not have to be proved. No case
has yet raised the type of intersectional issues that might lead a court
astray. However, it seems probable that the Constitutional Court will
follow its own contextual approach to equality and thereby avoid
unjust outcomes.
3.4 The application of the contextual approach
Most cases that have reached the Constitutional Court have resulted
in a finding of unfair discrimination in favour of the complainant. The
Court has repeatedly protected the rights of marginal groups such as
gays and lesbians, and at times, the rights of poverty-stricken noncitizens
in a number of thoroughly contextual enquiries. Notable
exceptions where the (male and white) complainants were largely
unsuccessful include Hugo 121 and Walker. 122 These two cases,
brought in terms of the Interim Constitution, concerned positive
measures that might well have been challenged in terms of FC section
9(2) following Van Heerden. 123 Other unsuccessful claims were
brought in Harksen, 124 Jordan, 125 Volks 126 and Union of Refugee
Women. 127 The first three concerned claims on the ground of gender
discrimination (Harksen and Volks also raised issues of marital status
discrimination). In all three cases, the Constitutional Court was
divided. The dissents reflected the views of the same judges (O’Regan
J and Sachs J in all three cases and Mokgoro J in Volks and Harksen —
she did not sit in Jordan). This division in the Court seems to reflect
a significant difference in the application of the FC section 9(3) test:
The majority adopted a formal approach rather than a substantive
approach in all three decisions.
In Union of Refugee Women, which concerned the right of
refugees to work as security guards, the majority (6 judges), while
taking care to look at the context of refugees’ lives, found that
discrimination against them (as opposed to permanent residents and
citizens) was not unfair. Again, Mokgoro and O’Regan JJ in a minority
judgment (4 judges) differed, finding that refugees had been unfairly
discriminated against in relation to permanent residents. Their
reading of the impugned legislation was that it contained an unstated
stereotype that refugees are less trustworthy than South Africans.
The minority’s consideration of the impact of the legislation on
121 n 4 above.
122 n 24 above. Walker was partially successful.
123
n 31 above.
124 n 9 above.
125 n 12 above.
126
n 62 above.
127 n 74 above.

Cathi Albertyn & Beth Goldblatt 249
refugees took account of a wider range of contextual issues than did
the majority and reflects a deeper understanding of vulnerability.
In Jordan, the majority failed to appreciate the gendered nature
of the sex work industry and chose to focus formalistically on the fact
that the male customer and the female sex worker (as well as both
male and female sex workers) were equally criminalised by the
challenged legislation. The minority (the Court was divided 6:5)
interpreted the Act to mean that sex workers faced greater sanctions
as the primary offender than did their clients as accomplices and that
since sex workers were generally women and clients men, indirect
discrimination had occurred. The minority was thus able to see this
distinction as ‘mattering’ by exploring and unpacking the perception
of sex workers as social outcasts, deviants and temptresses. 128
Volks concerned a claim by a surviving domestic partner to
maintenance in terms of the Maintenance of Surviving Spouses Act.
The majority had little sympathy for the middle class complainant —
although it acknowledged the vulnerability of a group of poor women
who find themselves in unregulated domestic partnerships. Although
there was a seeming attention to context, the judgment foundered on
its inability to look at the matter historically. The focus on the special
place of marriage blocked any willingness to shift dominant
traditional and conservative ideas about the nature of the family.
Moreover, the focus on a person’s choice to marry or not was at odds
with an understanding of constraints on women’s choices within
intimate relationships, particularly when they are already
disadvantaged and poor. 129
4 An overview of the right and its relationship with FC
section 36
The equality right in FC section 9 is quite detailed. Five provisions set
out different aspects of the right, and different ‘levels’ of equality
protection (what the US courts call scrutiny). The Constitutional Court
has argued that ‘[a] comprehensive understanding of the
Constitution’s conception of equality requires a harmonious reading
of the provisions of section 9’. 130 This reading also requires the right
to be approached holistically rather than formulaically, so that the
right, as a whole, produces an approach to achieving equality which
is ‘cumulative, interrelated and indivisible’. 131
128
Jordan (n 12 above) para 64.
129 See also Albertyn (n 93 above) 229-30; C Lind ‘Domestic Partnerships and Marital
Status Discrimination’ in Murray & O’Sullivan (n 1 above) 108-130.
130
Van Heerden (n 31 above) para 28.
131 Van Heerden (n 31 above) para 135 (Sachs J).

250 Chapter 14
4.1 FC section 9(1) (rationality)
FC section 9(1) provides constitutional protection against any
irrational or arbitrary classifications (on any basis) made by the state.
This constitutes a weak rationality constraint on the state that
renders such classifications irretrievably unconstitutional. Failure at
this stage does not require further assessment under FC section 9(3),
and cannot be saved by the higher standards of reasonableness and
proportionality found in section 36. The rationality test in FC section
9(1) — on all differentiations that do not occur on a prohibited ground
— is thus minimal and extremely deferrential to the legislature (as is
reflected in the low success rate in such cases). 132
4.2 FC section 9(2) (a defence to unfair discrimination)
FC sections 9(3) and (4) provide the main substantive protection of
the right by prohibiting unfair discrimination on an open-ended list of
grounds. However, if the discrimination complained of relates to a
positive measure to promote equality, then the respondent (usually
the state) is able raise a defence to the claim under FC section 9(2).
In terms of FC sections 9(2), the impugned action is not ‘unfair discrimination’,
but a measure ‘designed to protect or advance persons,
or categories of persons, disadvantaged by unfair discrimination’. Van
Heerden v Minister of Finance confirmed that FC section 9(2) provides
a complete defence to a claim of unfair discrimination if the following
questions are answered in the affirmative:
• Does the measure target persons or categories of persons who have
been disadvantaged by unfair discrimination?
• Is the measure designed to protect persons or categories of persons
who have been disadvantaged by unfair discrimination?
• Does the measure promote the achievement of equality? 133
Compliance with FC section 9(2) does not make positive measures
‘exempt’ from attack as unfair discrimination. It simply means that
the measures are fair. 134 In general, the Court has suggested that in
determining compliance with these conditions, courts should exercise
some restraint, leaving space for government and parliament to
address the patterns of subordination and disadvantage in our society.
132
It has been successfully employed only once, in Van der Merwe v Road Accident
Fund 2006 4 SA 230 (CC), 2006 6 BCLR 682 (CC). The Court held that legislation
rules preventing spouses married in community from claiming delictual damages
for bodily injury from their spouse violated FC s 9(1).
133 Van Heerden (n 31 above) para 37. Note that all judges agree with this test,
although Mokgoro J and Ngcobo J each come to different conclusions in applying
the test.
134 Van Heerden (n 31 above) para 140.

Cathi Albertyn & Beth Goldblatt 251
In this respect, ‘presumptive unfairness would unduly require the
judiciary to second guess the legislature and the executive concerning
the appropriate measures to overcome the effect of unfair
discrimination’. 135 The level of scrutiny of positive measures is
therefore lower than that which applies to unfair discrimination. 136 In
particular, it places less emphasis on the negative impact of the
measure (which would generally be on an advantaged group). The
heart of the enquiry is on the promotional aspects of the measure,
and the group that is to be advanced. 137
If the impugned measure is not saved under FC section 9(2) then
it can be assessed in terms of FC section 9(3). If it fails there, then it
could still (notionally) be justified under FC section 36.
4.3 FC section 9(3) (fairness) and FC section 36
FC sections 9(3) and (4) provide the main substantive protection of
the right by prohibiting unfair discrimination on an open-ended list of
grounds. As discussed above, the test for fairness sets a high standard,
with few cases passing constitutional muster.
The Constitutional Court has not maintained a clear theoretical
distinction between the enquiry into fairness in the unfair
discrimination test set out in FC section 9(3) and the enquiry into
justification in FC section 36. The lines between these two enquiries
become particularly blurred when the impugned conduct does not
arise from a law of general application and the Court is left with no
vehicle for exploring economic and administrative considerations.
In President of the RSA v Hugo, for example, the Court looked at
questions of the state’s administrative capacity and public reactions
to the release of so many prisoners within the enquiry into fairness. 138
This case concerned an exercise of presidential prerogative that was
not found to be a law of general application. 139 Economic
considerations were addressed in Hoffmann v South African Airways.
The case turned on the refusal by South African Airways (an organ of
state) 140 to employ people living with HIV as cabin attendants.
135 Van Heerden (n 31 above) para 33. See also para 152 (Sachs J).
136
Van Heerden (n 31 above) para 34.
137 Van Heerden (n 31 above) paras 78-80 (Mokgoro J).
138 n 4 above, para 46. See the criticism of the majority in the dissenting judgment of
Kriegler J (para 78).
139 Mokgoro J disagreed. She found that the prerogative was a law of general
application and that it justified the unfair discrimination. Hugo (n 4 above) paras
96-104.
140 n 12 above, para 23. SAA was an organ of state in so far as it is a business unit of
Transnet, a statutory body under the control of the state which has public powers
and performs public functions. S Woolman ‘Application’ in S Woolman et al (n 5
above).

252 Chapter 14
However, the judgment suggests that, at least in relation to alleged
unfair discrimination by the state, ‘legitimate commercial requirements’
cannot trump the ‘greater interests of society’.
Legitimate commercial requirements have been deemed an
important consideration. However, the Court has warned against
allowing stereotyping and prejudice to creep in under the guise of
commercial interests. The greater interests of society require the
recognition of the inherent dignity of every human being, and the
elimination of all forms of discrimination. Our Constitution protects
the weak, the marginalised, the socially outcast, and the victims of
prejudice and stereotyping. It is only when these groups are protected
that we, the better off, can be sure that our own rights are
protected. 141
Two conceptions of fairness are thus emerging in the equality
jurisprudence of the Constitutional Court. The first applies when the
unfair discrimination emerges from a law of general application and
retains its ‘purity’ as a moral enquiry. The second applies to other
forms of state action and to unfair discrimination in the private sphere
and seeks to balance moral concerns with more prudential concerns
within the meaning of fairness. 142
4.4 Can unfairness ever be justified?
If discrimination is found to be unfair, the question of justification
arises, 143 but only if it relates to a law of general application. Given
that the determination of inequality inevitably involves questions of
justifying classifications on the basis of rationality 144 or fairness, 145
the Court has not always drawn a clear line between those issues
involved in determining whether the right has been violated and those
issues involved in justifying that violation.
In theory, the enquiry into fairness is largely a moral enquiry that
measures government action against the litmus test of treating
everyone with equal concern and respect and with equal moral or
human worth. The enquiry is also concerned with remedying social
and economic disadvantage. It thus has a particular focus on the
141 Hoffmann (n 12 above) para 34. Economic considerations also formed part of the
fairness enquiry when assessing a redistributive measure in Bel Porto School
Governing Body v The Premier of the Province, Western Cape 2002 3 SA 265 (CC),
2002 9 BCLR 891 (CC) paras 65-68.
142 This idea of fairness is also found in the legislation that seeks to regulate unfair
discrimination: PEPUDA and the Employment Equity Act 55 of 1998.
143 This is the third stage of the test for unfair discrimination set out in Harksen v
Lane (n 9 above) para 38.
144
FC sec 9(1).
145 FC sec 9(3) or (4).

Cathi Albertyn & Beth Goldblatt 253
social, economic and political context in which the impugned action
occurs, and on its impact on the complainant.
FC section 36 embraces a different type of enquiry. It measures
the finding of fairness against a range of defences and justifications
offered by the state, within a balancing of rights and values. 146
Despite the failure of the Court to distinguish unfair discrimination
analysis from proportionality analysis, we believe that a relatively
clear distinction between FC section 9(3) and FC section 36 exists. In
particular, questions of resources, administrative capacity or
alternative mechanisms of achieving the same end should only enter
the Court’s enquiry under FC section 36.
In practice, the Court has yet to find an incident of unfair
discrimination in terms of FC section 9 justifiable in terms of FC
section 36. 147 Nevertheless, FC section 36 remains a critical part of
the new constitutional culture of accountability and justification. In
Khosa v Minister of Social Development, 148 the Constitutional Court
found that the denial of social assistance constituted unfair
discrimination that was not justified under FC section 36. In doing so,
it demonstrated that it would carefully scrutinise the justifications
offered by government and measure these against the nature of the
right. Two points stand out. Firstly, the significance that the Court
attached to the right: the denial of social assistance constituted a
total deprivation of ‘what may be essential to enable [the applicants]
to enjoy other rights vested in them in the Constitution’, by
implication finding the nature of the right to be foundational. 149
Secondly, the fact that the discrimination was not justified even
though it would impose an additional cost burden on the state. In
weighing up the government’s financial justifications, the Court found
that although there was no definitive evidence of the cost, the
available evidence revealed that the inclusion of the category of
persons represented by the applicants would not incur more than a
two percent increase over current costs. Given that a seventy percent
146 FC sec 36 reads as follows:
The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors, including:
(a)the nature of the right;
(b)the importance of the purpose of the limitation;
(c)the nature and extent of the limitation;
(d)the relation between the limitation and its purpose; and
(e)less restrictive means to achieve the purpose.
147
But see the minority judgment of Ngcobo J in Bhe (n 17 above).
148 n 14 above. In this case the justification enquiry was woven into the overall set of
considerations before the Court. This summary extracts what appears to have
been applicable to the finding that the unfair discrimination was not justified.
149 Khosa (n 14 above) para 77.

254 Chapter 14
increase had been budgeted over the next three years, the cost did
not justify the limitation of the right. 150
Although it is difficult to imagine a case in which unfair
discrimination would be justified, cost might well be the critical
factor when it comes to scarce government resources. Khosa suggests
that the Court will nevertheless demand, and scrutinise,
comprehensive cost justifications by the respondent. This justification
might be the only vehicle by which a court could reach the
paradoxical conclusion that a violation of equality is justified in a
‘democratic society based on ... equality’. 151
150 Khosa (n 14 above) paras 60-62. However, the Court also noted that it would not
be drawn into academic disputes over this issue, and seemed content to rehearse,
briefly, the very same arguments regarding justification as it did for unfair
discrimination.
151
For a comprehensive discussion of the relationship between FC sec 9 and FC sec
36, see S Woolman & H Botha ‘Limitations’ in Woolman et al (n 5 above) Chapter
34 (The authors strongly challenge the notion — articulated here — that any
meaningful analysis can take place under FC sec 36 once unfair discrimination has
been found in terms of FC sec 9.)

15 Reply
A cautionary note regarding substantive equality:
A reply to Cathi Albertyn & Beth Goldblatt
Karthy Govender
1 Caution with respect to expansive approaches to
equality
The equality jurisprudence has been developed incrementally — with
dignity and fairness as its central themes. In the process, a fairly
unique jurisprudence has developed around the right. Professors
Albertyn and Goldblatt (‘the authors’) correctly point out that the
initial cautious and stricter application of the Harksen 1 test has been
supplemented by a more expansive and value-laden approach
reflected in such recent decisions as Van Heerden 2 and Fourie. 3
An approach that was both cautious, but faithful to core values,
within the context of an expansive bill of rights, was to be expected.
The drafters of the Interim Constitution and the Final Constitution
were required to draft a bill of rights that protected and entrenched
all universally accepted fundamental rights and freedoms. Thus
various different visions have been fused into our Bill of Rights. The
constraining vision prevents state action which unreasonably and
1 Harksen v Lane NO 1998 1 SA 300 (CC), 1997 11 BCLR 1489 (CC).
2
Minister of Finance & Another v Van Heerden 2004 6 SA 121 (CC), 2004 11 BCLR
1125 (CC).
3 Minister of Home Affairs & Another v Fourie & Another; Lesbian and Gay Equality
Project & Others v Minister of Home Affairs 2006 1 SA 524 (CC), 2006 3 BCLR 355
(CC).
255

256 Chapter 15
unjustifiably infringes rights while the egalitarian vision compels
calculated and measured steps by the state towards the attainment
of a fairer and more compassionate society. The right to equality had
to be construed in a manner that did not intrude into and inhibit the
enforcement of socio-economic and other rights. When the process of
interpreting the Interim Constitution started, we could not be entirely
sure as to which vehicle would be best suited to achieve the object of
improving the quality of life of all persons and freeing the potential
of each person. Hence it made sense to allow each right and cluster
to which it belonged to develop incrementally and not to engage
prematurely in expansive reflection that might have retarded the
development of perhaps more relevant and directly applicable rights.
With the growth, development and interpretation of all rights, the
vista is much clearer now and thus it is now more appropriate for
expansive development of egalitarian principles.
The ‘cautious’ equality was able to yield the far reaching and
radical result of moving this society within a period of just over ten
years from a legal context in which it was a criminal offence for
consenting males to engage in sexual conduct to one where the state
is obliged to regulate gay and lesbian marriages in a materially
comparable manner to that which applies to opposite sex marriages.
Other momentous journeys in the history of constitutional law were a
lot more protracted and incremental. In the US, the validation of the
segregationist ‘separate but equal’ doctrine in Plessy v Ferguson 4 was
overturned almost 58 years later in Brown v Board of Education. 5 The
major rapid change in South Africa that affirmed gays and lesbians as
persons of equal worth took place through litigation — based on the
rights to equality and to dignity — and involved minimal legislative
inter-vention.
Constitutional space exists for individuals and organisations to
achieve far reaching, almost revolutionary, changes. While the
organised gay and lesbian community contributed to this
development, it would be unjustifiably benevolent to attribute these
profound changes in the law to an organised and carefully thought out
systematic pattern of litigation. The courts were primarily responsible
for these changes. In National Coalition for Gay and Lesbian Equality
v Minister of Justice (‘NCGLE’), 6 the Court set aside laws that
criminalised consensual sexual conduct (sodomy) between male
adults. Rather than relying on the directly applicable right to privacy,
the matter was decided primarily on the basis of equality and dignity.
The tracks laid down, ultimately led to the decision in Fourie. Our
4 Plessy v Ferguson 163 US 537 (1896).
5 Brown v Board of Education 347 US 483 (1954)
6
National Coalition for Gay and Lesbian Equality & Another v Minister of Justice &
Others 1999 1 SA 6 (CC), 1998 12 BCLR 1517 (CC).

Reply - Karthy Govender 257
equality jurisprudence, by effectively protecting the right to be
treated equally and by re-affirming the dignity of gays and lesbians
has delivered a legal regime that is amongst the most progressive in
the world. Entrenched rights thus achieved major social changes
notwithstanding an indifferent government.
2 Concerns about equality
There were concerns that the insistence on equal treatment in section
FC section 9(1) may be used to frustrate the developmental state’s
programmes aimed at the attainment of substantive social and
economic equality. FC section 9(1) had to be interpreted in a manner
that did not frustrate the realisation of substantive equality under FC
section 9(2) and did not detract from the development and growth of
FC section 9(3). The High Court in Walker appeared to adopt a
formalistic approach that could have frustrated or seriously retarded
developmental initiatives. 7 In order to avert this problem, the
Constitutional Court reaffirmed that differentiations that did not
impact on dignity were constitutionally permissible if the
categorisations were rationally related to a legitimate state
objective. This non-exacting standard of rationality afforded the
state significant latitude in advancing its developmental priorities.
This concern — about the potential dangers of a formalistic
approach to our equality jurisprudence — was articulated, in a slightly
different context, in Sachs J’s spirited dissent in Walker. He
cautioned that the undue enlargement of the concept of indirect
unfair discrimination would mean that
every tax burden, every licensing or town planning regulation ... would
be challengeable simply because it impacted disproportionately on
blacks or whites or men or women or gays or straights or able-bodied or
disabled people. 8
His main concern was that the courts would be interminably tied up
with issues that had nothing to do with the real achievement of
equality. To the extent that challenges of this nature occurred in Bel
Porto 9 and Van Heerden, 10 the courts are now able, with the solid
doctrinal foundation that has been laid, to develop and to enhance
the notion of substantive equality.
7 Walker v Stadsraad van Pretoria 1997 4 SA 189 (T), 1997 8 BCLR 416 (T).
8
City Council of Pretoria v Walker 1998 2 SA 363 (CC), 1998 3 BCLR 257 (CC) para
117.
9 Bel Porto School Governing Body v The Premier of the Province, Western Cape
2002 3 SA 265 (CC), 2002 9 BCLR 891 (CC).
10 n 2 above.

258 Chapter 15
Interestingly, Justice Sachs’ preferred response was to amend the
Harksen test and, in cases of indirect discrimination, to require a
showing of prejudice before a claim of discrimination could be
sustained. The majority view had found discrimination to occur
wherever there was differentiation, either directly or indirectly, on a
listed ground. The net effect of Justice Sachs’ proposal would have
been to place a further hurdle in the path of those seeking an answer
to the question of whether the law or conduct in question amounted
to fair or unfair discrimination. The structure of the right — as
elucidated by the majority — was found to arrive at this substantive
inquiry without the need for Sachs J’s intermediary step.
2.1 Van Heerden — a flexible approach
By way of contrast, the Court in Van Heerden dealt with challenges to
measures aimed at redressing existing inequalities by developing the
concept of substantive equality within the framework of FC section
9(2). 11 In the words of the Court, remedial and restitutionary equality
are integral to the reach of our equality protection. In other words, the
provisions of section 9(1) and section 9(2) are complimentary; both
contribute to the constitutional goal of achieving equality to ensure ‘full
and equal enjoyment of all rights.’ 12
In the USA, the ground or category of differentiation determines the
level of scrutiny to which the conduct or law is subject. These range
from a rational basis test, to an intermediate level of scrutiny and,
finally, to strict scrutiny analysis. The ground or category of
differentiation is often determinative of the outcome of the matter.
We have adopted a more nuanced approach. Categorisations that
do not impact on dignity are dealt with under the mere differentiation
standard or rationality standard of FC section 9(1). Categorisations
that allegedly impair dignity are dealt with through the Harksen test
— and FC sections 9(3) and 9(4). The assessment of remedial and
affirmative action measures are assessed through the criteria laid
down in Van Heerden and its gloss on FC section 9(2). For a
categorisation to amount to a constitutionally permissible affirmative
action measure in terms of FC section 9(2), it must target persons or
categories of persons who have been disadvantaged by unfair
discrimination, be designed to protect or advance such persons and
promote the achievement of equality.
The inherent flexibility of these criteria and the need to be
context and situation sensitive could mean that the rigour and
11
n 2 above, para 31.
12 Van Heerden (n 2 above) para 30.

Reply - Karthy Govender 259
robustness with which these criteria are applied will depend upon the
extent to which the right to dignity has been affected by the
categorisation. In all probability, a university rule which, say,
effectively restricts the number of Indian students admitted to a
medical programme 13 will be subject to closer scrutiny to determine
whether FC section 9(2) criteria are satisfied than were the
pensioners in Van Heerden. I would describe the level of scrutiny to
determine whether measures fall within FC section 9(2) as being
flexible — as opposed to being an intermediate standard between the
non-exacting requirements of FC section 9(1) and the more exacting
requirements of FC section 9(3). As pointed out in Van Heerden, if a
measure satisfies the requirements of FC section 9(2), it cannot be
viewed as a form of unfair discrimination. It would be incoherent to
have a measure sanctioned in one section of the Final Constitution
and prohibited in the next.
The ease with which the Court found the criteria satisfied in Van
Heerden had a lot to do with the facts of that particular case. The
striking feature of the facts of Van Heerden is that the differential
pension schemes did not adversely impact on dignity — hence the
looser application of FC section 9(2)’s underlying principles. Had facts
similar to the facts in Motala 14 been at issue — and there was a direct
impact of the affirmative action programme on the dignity of the
complainant — then closer scrutiny would have been warranted. As
Justice Mokgoro’s judgment suggests, all three of FC section 9(2)’s
criteria are capable of being applied more robustly. The extent to
which FC section 9(2) provides a ‘safe harbour’ will depend on the
context and the impact the measure has on the dignity of the
complainant and similarly situated persons.
As the authors correctly point out, Van Heerden not only
embraces the concept of substantive equality, but also encompasses
measures designed to redress existing inequalities and to realise more
egalitarian notions of redistributive justice. A broader notion of
substantive equality will not only enable government to defend
restitutionary measures, but could also be used to compel more
urgent action on the part of government to seek out and eradicate
systemic discrimination that perpetuates past patterns of
disadvantage. Chapter 5 of the Promotion of Equality and Prevention
of Unfair Discrimination (PEPUDA), 15 for example, imposes a duty on
the State to promote substantive equality.
13 See Motala v University of Natal 1995 3 BCLR 374 (D).
14
n 13 above.
15 Act 4 of 2000.

260 Chapter 15
2.2 Van Heerden — a positive obligation
One of the consequences of Van Heerden may be that there is now a
constitutional obligation ‘to progressively eradicate socially
constructed barriers and root out systemic or institutionalised underprivilege’.
16 If that is the case, then the core obligations and duties
of section 25 of PEPUDA are activated without the section being
brought into effect. If so, the genie is out of the bottle. No further
reason exists for bringing this provision into effect than to ensure that
the statute’s provisions for auditing, remedying and reporting are
carried out. That said, an operational section 25 of PEPUDA may
provide a better means of addressing systemic patterns of discrimination.
Clearly such a provision would directly benefit
marginalised and minority groups. The government would likely find
itself under a greater legal onus to be pro-active in respect of laws
and conduct which discriminate unfairly against such historically and
systemically disadvantaged groups.
The notion that substantive equality embraces a more egalitarian
form of redistributive justice may have important consequences —
and not just with respect to the application of FC section 9. It may
also affect the interpretation of other rights: Individual rights may be
required to yield before broader societal upliftment programmes. In
Port Elizabeth Municipality v Various Occupiers, the Court refused an
order for the eviction of unlawful occupiers of land on the basis that
the occupiers had been on the land for many years, only cursory steps
had been taken by the municipality to determine the circumstances
of the occupiers and the land was not needed for immediate use by
the owners. 17 The common-law right to property had to be
interpreted to recognise that the normal ownership rights of
possession, use and occupation had to be ‘counterposed’ with the
right not to be arbitrarily deprived of a home. FC section 26
specifically sought to balance the rights and interests of owners with
those persons in dire need of accommodation and shelter.
3 FC section 9 fairness and FC section 36 justification
Judgments of the Constitutional Court, as Albertyn and Goldblatt
note, have not been clear in distinguishing between the criteria to
establish unfairness from those required to prove justifiability as
required by FC section 36. 18 The consequence of the decision in Hugo,
16
Van Heerden (n 2 above) para 31
17 2005 1 SA 217 (CC), 2004 12 BCLR 1268 (CC).
18 The coherence of this distinction is assessed at length in S Woolman & H Botha
‘Limitations’ in S Woolman et al (eds) Constitutional Law of South Africa (2nd
Edition, OS, 2006) Chapter 34.

Reply - Karthy Govender 261
that the unfairness analysis requires an assessment of the nature of
the provision or power and the purpose sought to be achieved by it, is
that the proportionality analysis, which is the essence of the
limitation clause, is now important in deciding whether the right has
been violated. Based upon the facts of Hugo — which turned on
conduct and not law — the Court was not able to rely on the limitation
clause and hence the concept of ‘unfairness’ was expanded. Section
14 of PEPUDA, in recognition of this difficulty, has further extended
the definition of unfairness to incorporate the limitation clause
enquiry. 19
3.1 Minister of Education v Harris
In Minister of Education v Harris, a regulation increasing the school
admission age to 7 was challenged on the basis that it unfairly
discriminated on the prohibited ground of age against a learner
attending an independent school who was prepared and ready for
school at the age of 6, which was the previous age for admission. 20
The regulation sought to bring the age admission requirements of
private schools in line with that of state schools. From the perspective
of the applicant learner and the independent school that she
attended, there were no sound reasons for not allowing her to start
school when she was ready to do so. Denying her admission would,
according to expert testimony, adversely affect her. The school had
no reason, other than the departmental regulation, for refusing her
admission until she turned 7. As the unfairness enquiry focuses on the
impact of the regulation on the complainant, the Department of
Education in Harris would have had serious difficulties in
demonstrating that the discrimination was fair, even if regard is had
to the objectives of the regulations. 21
Given the circumstances of this case, the national Department of
Education was more likely to justify their regulation under the general
limitation clause than prove that it did not unfairly discriminate
against this particular learner. Having different age admission
requirements in independent and state schools would give learners
from independent schools a distinct advance and accentuate the
differences between the two systems. Thus, under the limitation
19 Whether the inclusion of justification criteria at the fairness stage is good law
was recently questioned by the Constitutional Court in MEC for Education:
KwaZulu-Natal & Others v Pillay 2008 2 BCLR 99 (CC) para 70.
20 Harris v Minister of Education 2001 8 BCLR 796 (T). The Constitutional Court
decided the case without considering the equality question. Minister of Education
v Harris 2001 4 SA 1297 (CC), 2001 11 BCLR 1157 (CC).
21 However, as Stu Woolman notes, one of the myriad problems in Harris was that
the DoE failed to provide any evidence that would justify the discrimination. See
S Woolman ‘Freedom of Association’ in S Woolman et al (eds) Constitutional Law
of South Africa (2nd Edition, OS, 2003) Chapter 44.

262 Chapter 15
clause enquiry, the shortcomings and challenges of the state school
education system which necessitated the regulation being introduced
becomes a relevant and important consideration in determining
whether the infringement of the applicant’s rights are reasonable and
justifiable.
One of the challenges that faced the Department was that
learners in public school were entering the schooling system underprepared
at the age of 6 and remaining in the system much longer as
a consequence. The state sought to utilise its resources more
effectively by raising its admission age to 7. Given the broader
objectives of narrowing inequality in educational opportunities, the
Department of Education could not reasonably adopt a rule which
would allow children from private institutions to leave school a year
earlier than state schools. 22 If there were important justifications for
the adoption of the rule in public education, then FC section 36 offers
another opportunity for the successful defence of the rule with regard
to independent schools. The State could have also relied on the need,
identified in Van Heerden, to dismantle practices that perpetuate
systemic disadvantage and promote substantive equality.
3.2 Volks v Robinson
Albertyn and Goldblatt’s critique of Volks 23 employs three lines of
argument: it resorts to formal equality, endorses a moral
conservatism and fails to understand the constraints on women’s
choices within intimate relationships. Volks, in my opinion, is a much
more difficult case than Jordan. 24 The right to choose, particularly in
the private sphere of one’s life, is often central to one’s happiness in
a society such as ours. There must be a substantial state interest to
justify the setting aside of conscious decisions made by individuals
within the private domain.
The question is whether such intervention is justified in a life
partnership, where one or both partners consciously chose not to
marry. Volks was about being able to access adequate maintenance
from the estate of a partner. Given the nature of this case, the
exclusion of vulnerable partners could amount to unfair
discrimination. However I would leave it to the legislature to
determine the criteria that would have to be established to
demonstrate vulnerability or need. If vulnerability is not established,
then there may be another adequate justification to interfere with a
22
It must be noted that the High Court found that the State had failed to provide
any compelling evidence in favour of justification of this regulation.
23 Volks NO v Robinson & Others 2005 5 BCLR 446 (CC).
24
Jordan & Others v The State (Sex Workers Education and Advocacy Task Force &
Others as Amici Curiae) 2002 6 SA 642 (CC), 2002 11 BCLR 1117 (CC).

Reply - Karthy Govender 263
conscious choice. The legislature must now determine the broader
question of how to regulate life partnerships as an institution existing
independent of marriage.
4 Conclusion
As fascinating as the development of the equality jurisprudence has
been thus far, it promises so much more. With judicial acceptance
that the notion of substantive equality embraces a more egalitarian
form of redistributive justice coupled with the developing
jurisprudence on socio-economic rights, the stage is set for greater
assertiveness on the part of the poor and marginalised to challenge
and rectify measures that continue to oppress them. The Court in Van
Heerden has signaled that the courts are an effective and viable
forum within which to exercise the rights of the poor to meaningful
participation in our democracy and to ensure effective delivery by the
developmental state.

16
THE ‘ARBITRARY
DEPRIVATION’
VORTEX:
CONSTITUTIONAL
PROPERTY LAW
AFTER FNB
Theunis Roux
1 Introduction
When I wrote the chapter in CLoSA on the constitutional property
clause, I was not yet one of the editors. Stu Woolman’s response on
receiving my chapter was to say: ‘This is not a chapter on
constitutional property. This is an extended case note on a single
decision — FNB. 1 And you don’t cite enough foreign law!’ I replied:
‘But it has to be this way, because FNB sets out the framework for all
future constitutional property cases, and in so doing renders foreign
law largely irrelevant.’ In this presentation I want to record my
reasons for that reply — to explain why I thought that the only way to
write a chapter on constitutional property law in the immediate
aftermath of FNB was to write an extended case note on that
decision, and why it is that FNB, which is itself heavily reliant on
foreign law, renders foreign law largely irrelevant to the resolution of
future constitutional property cases.
The letters ‘FNB’ stand for First National Bank — the claimant in
the first case to come to the Constitutional Court under FC section 25,
the property clause of the Final Constitution. The opening gambit in
1
First National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service & Another; First National Bank of SA Ltd t/a Wesbank v Minister
of Finance 2002 4 SA 768 (CC), 2002 7 BCLR 702 (CC). See T Roux ‘Property’ in S
Woolman et al (eds) Constitutional Law of South Africa (2nd Edition, OS, 2004)
Chapter 46, available at www.westlaw.com.
265

266 Chapter 16
Ackermann J’s judgment for a unanimous court was to assert that the
primary function of the clause is to strike ‘a proportionate balance’
between the public interest and individual property rights. 2 This is, of
course, the traditional function performed by constitutional property
clauses. The significance of the FNB decision, however, was that it
purported to decide precisely how this balance should be struck in
South Africa. Not only that, but the answer the Constitutional Court
gave was one that none of the academic commentators on FC section
25 had predicted.
2 Six points
If one disregards FNB for the moment, there are theoretically six
points in the South African constitutional property clause inquiry at
which the competing interests of the public in a just and socially
beneficial distribution of property rights, and the interests of
individuals in the protection of their acquired property rights, can be
resolved. The first point concerns the definition of constitutional
property. If the court decides that the interest that the claimant is
alleging ought to be protected is not the sort of interest that FC
section 25 was designed to protect, 3 then that interest receives no
protection, at least under the property clause, and the competition is
resolved in favour of the state. In foreign law, categorical exclusions
of this kind have played an important role in constitutional property
cases, particularly those relating to novel forms of property. 4 This
issue has also arisen in the American ‘conceptual severance’ debate.
Penn Central Transportation Co v City of New York 5 provides the best
example of the divergent outcomes that may follow from judicial
disagreement over whether or not to accept a particular interest as
constitutionally protected property. 6
2 FNB (n 1 above) para 50.
3 The phrase ‘designed to protect’ covers a number of different ways in which the
judicial determination of constitutional property may be undertaken, from a
search for the intention of the framers to a value-based inquiry into the purposes
underlying the constitutional protection of property. The latter method is more in
2
FNB keeping (n 1 with above) the para South 50. African approach to constitutional interpretation.
34
The phrase two most ‘designed oft-cited to Commonwealth protect’ covers a cases number in this of different regard are ways Government in which the of
Malaysia judicial determination v Selangor Pilot of Association constitutional [1978] property AC 337 (PC) may and be Societé undertaken, United from Docks a
v search Government for the intention of Mauritius of the (1985) framers LRC to (Const) a value-based 801 (PC). inquiry In Germany, into the the purposes extent
to underlying which a the property constitutional interest protection is regarded of property. as being The inherently latter method subject is to more social in
keeping control will with affect the South the likelihood African approach of its being to constitutional protected under interpretation.
the property clause,
4
The art 14 two of the most German oft-cited Basic Commonwealth Law. See BVerfGE cases 58 in 300 this (1981) regard (the are Nassauskiesung Government or of
Malaysia Groundwater v Selangor Case). Pilot Association [1978] AC 337 (PC) and Societé United Docks
5 v 438 Government US 104 (1978). of Mauritius (1985) LRC (Const) 801 (PC). In Germany, the extent
6 to The which term ‘conceptual a property interest severance’ is regarded was coined as by being MJ Radin inherently ‘The liberal subject conception to social
control of property: will affect Cross the currents likelihood in the of jurisprudence its being protected of takings’ under the (1988) property 88 Columbia clause,
art Law 14 Review of the 1667. German The Basic term Law. refers See to BVerfGE the possibility 58 300 (1981) that the (the court Nassauskiesung might isolate, or
Groundwater for purposes of Case). analysing the property interest at stake, just that stick in the
5 438 bundle, US 104 or topographical (1978). unit (in the case of land) or time period (in the case of

Theunis Roux 267
The second opportunity for resolving competing public and private
interests in property is provided by the court’s approach to the
concept of deprivation. A very strict approach would define out of the
ambit of constitutional concern certain types of regulation, and
thereby resolve the competition in respect of these sorts of regulation
entirely in favour of the state. 7 Conversely, a generous approach
would tend to admit into the constitutional property clause inquiry a
broader range of types of regulation, leaving it to other parts of the
inquiry to resolve the competition. In between these two extremes, a
more cautious court — one that wanted to make this stage of the
property clause inquiry do real analytic work — might approach the
matter casuistically, offering no general definition of the term
deprivation, but instead assessing on a case-by-case basis whether the
regulation at issue was the sort of regulation that should be held to
the standard imposed by FC section 25(1).
The third opportunity for resolving competing public and private
interests in property concerns the application of the test for arbitrary
deprivation in FC section 25(1). Since this was the primary focus of the
FNB decision, I am not going to say any more about it for the moment.
The fourth opportunity is provided by the distinction drawn in FC
sections 25(1) and (2) between the deprivation and expropriation of
property. Under FC section 25(1), deprivation of property must occur
in terms of law of general application, and ‘no law may permit
arbitrary deprivation of property’. Under FC section 25(2), the
expropriation of property is permitted where it occurs in terms of law
of general application, ‘for a public purpose or in the public interest’,
and just and equitable compensation is paid. Since two different
standards are prescribed, the text requires the interpreter to
distinguish between the deprivation and expropriation of property.
And, since the obligations attaching to the expropriation of property
are more onerous from the state’s perspective than those attaching
to the deprivation of property, the way in which this distinction is
drawn will affect the balance struck between the public interest and
6 The term ‘conceptual severance’ was coined by MJ Radin ‘The liberal conception
of property: Cross currents in the jurisprudence of takings’ (1988) 88 Columbia
Law Review 1667. The term refers to the possibility that the court might isolate,
for purposes of analysing the property interest at stake, just that stick in the
bundle, or topographical unit (in the case of land) or time period (in the case of
temporary restrictions on use) actually affected by the regulation. After
seemingly endorsing this approach in Hodel v Irving 481 US 704 (1987) and First
Evangelical Lutheran Church v County of Los Angeles 482 US 304 (1987), the US
Supreme Court has not since decided a case on this basis. See GS Alexander The
global debate over constitutional property: Lessons for American takings
jurisprudence (2006) 78-80.
7
See Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett & Others v
Buffalo City Municipality; Transfer Rights Action Campaign & Others v Member of
the Executive Council for Local Government and Housing, Gauteng & Others 2005
1 SA 530 (CC), 2005 2 BCLR 150 (CC).

268 Chapter 16
individual property rights. A distinction that gathered more types of
conceivable state action under the rubric of expropriation than an
alternative distinction, would put a thumb on the individual side of
the scales, and vice versa.
As with the definition of deprivation, the distinction between
deprivation and expropriation is a conceptual one that could be drawn
in a more or less categorical way. A purely categorical approach might
reserve the term ‘expropriation’ for situations where the state forced
the transfer of a (constitutionally valued) property right to itself or to
a third party. A less categorical approach might seek to develop some
or other test for determining the circumstances under which the
impact of a regulation on the property rights holder was so severe as
to require formal justification under FC section 25(2)(a) and the
payment of just and equitable compensation. 8 Either way, the rules
developed would need to resolve competing public and private
interests in property by defining a legal act, or legally ascertainable
tipping point, at which the obligations specified in FC section 25(2)
and (3) would arise.
The fifth opportunity for resolving competing public and private
interests occurs once the court has decided that this legal act has
occurred, or this tipping point has been reached, and consists in the
determination of the ‘amount’, and ‘time and manner’ of any
compensation that may be due. 9 The determination of these issues
allows for a very fine-grained solution since the court is empowered
to apportion the cost in monetary terms of the collective interest
being pursued between the public (meaning the taxpayers as a whole)
and the individual property rights holder. In this case, the South
African compensation clause, FC section 25(3), expressly enjoins the
court to determine these issues by using a multi-factor balancing test
in which the court is required to strike ‘an equitable balance between
the public interest and the interests of those affected, having regard
to all relevant circumstances’. 10
Finally, since the general limitations clause notionally applies to
the limitation of all rights in the Bill of Rights, competing public and
private interests in property could also conceivably be resolved by
leaving some work for FC section 36. On this approach, the rights
8 In its regulatory takings jurisprudence, the US Supreme Court has adopted both a
categorical approach, in terms of which an exercise of the state’s police power
that results in the permanent physical occupation of property is regarded as being
per se unconstitutional, and an ad hoc balancing approach, which applies in other
cases. The locus classicus for the permanent physical occupation rule is Loretto v
Teleprompter Manhattan CATV Corp 458 US 419 (1982). The ad hoc balancing test
was first announced in Penn Central (n 5 above).
9
FC sec 25(3).
10 As above.

Theunis Roux 269
guaranteed in FC section 25 (assuming the existence of law of general
application, which is in any case a precondition for the application of
FC section 36) would be rights against the arbitrary deprivation of
property and the uncompensated expropriation of property.
Alternatively, the expropriation of property for an impermissible
purpose, which rights could be limited if a sufficiently compelling
justification could be found under FC section 36.
These, then, were the six possible ways, before FNB, in which
competing public and private interests in property might have been
resolved. Note that the first and second stages of the inquiry allow
only a crude, all-or-nothing decision to be taken about whether or not
to protect the individual interest at stake, or to subject the state
action at issue to the discipline of the constitutional property clause.
The fourth stage, the court’s determination whether the impugned
law provides for expropriation, could either be approached
conceptually, in a manner similar to the first and second stages of the
inquiry, or it could be turned into a multi-factor balancing test by
listing a range of criteria that together determined the legal effect of
the law in question, and hence the state’s constitutional obligations.
The fifth and sixth stages are both in their nature, or by reason of the
constitutional text, multi-factor balancing tests in which the court
must eschew conceptual distinctions in favour of an overarching
assessment of the weight to be attributed to a range of criteria.
Before FNB, the academic commentaries on the South African
property clause took a broadly similar view of the way the
Constitutional Court should approach these various stages. 11 The
exception was the comprehensive commentary by AJ van der Walt,
which contained an ingenious argument about how the test for
arbitrary deprivation in FC section 25(1) and the general limitations
test in FC section 36 might be combined. 12 The first striking thing
about FNB is that it expressly rejects Van der Walt’s approach whilst
seeming in fact to endorse some of its components. 13 The other
striking thing is that the decision divides the constitutional property
clause inquiry into seven formally distinct stages, 14 corresponding —
11 See the list of academic authorities cited in FNB (n 1 above) para 57 n 79.
12 AJ van der Walt The constitutional property clause: A comparative analysis of
section 25 of the South African Constitution of 1996 (1997) 92-100.
13 The express rejection occurs in FNB (n 1 above) para 70. As we shall see,
however, in prescribing its test for arbitrary deprivation, the Court renders the
general limitations inquiry largely redundant. In addition, the test it applies for
arbitrary deprivation and the (superfluous) test it later applies under FC sec 36
are remarkably similar. The only real difference between the two approaches,
therefore, is that the Court prefers a sliding-scale standard of review at the first
stage of the constitutional inquiry, whereas Van der Walt’s approach would have
seen proportionality review applied cumulatively with the test for arbitrary
deprivation.
14 FNB (n 1 above) para 46.

270 Chapter 16
with one minor difference — to the six stages just discussed. 15 As it
turns out, however, the focus of the court’s inquiry falls on the third
stage, the test for arbitrary deprivation. Not only that, but the test it
articulates is so all-encompassing as to make the other stages, and the
foreign law that might have assisted in explicating them, redundant.
I shall leave it to AJ van der Walt to point out how the FNB Court’s
approach to the interpretation of FC section 25 might be said to
approximate his own. My concern in this presentation is with the
second issue — the way in which the court’s test for arbitrary
deprivation swallows up the other stages of the constitutional
property clause inquiry.
3 FNB
FNB involved a constitutional challenge to section 114 of the Customs
and Excise Act. 16 As it was then worded, section 114 authorised the
Commissioner of the South African Revenue Service, in order to defray
a customs debt, to detain and eventually sell property ‘in the
possession or under the control of’ the customs debtor, even where
such property belonged to a third party. FNB impugned section 114
under FC section 25(2), alleging that it provided for the
uncompensated expropriation of property. On the authority of a
passage in the chapter on property in the first edition of CLoSA, 17 the
FNB Court held that expropriations are a form of deprivation, and
consequently that the impugned provision should first be tested
against FC section 25(1). 18 Dispensing quickly with an argument that
the legal form of a property right was less important than the rightholder’s
‘commercial interest’ in it, 19 the FNB Court restricted itself
to two narrow holdings in respect of the first two stages of the
inquiry: (1) that ownership of a corporeal movable, such as the motor
vehicles at issue in this case, constituted property for purposes of FC
section 25; 20 and (2) that ‘dispossessing an owner of all rights, use and
benefit to and of corporeal movable goods, is a prime example of
deprivation in both its grammatical and contextual sense’. 21
These two holdings set the stage for the primary focus of FNB: the
elaboration of the test for arbitrary deprivation. The judgment
15
The FNB Court’s analytic framework consists of an extra stage because the
general limitations stage is mentioned twice, first in respect of deprivations of
property inconsistent with FC sec 25(1), and then in respect of expropriations of
property inconsistent with FC sec 25(2) and (3).
16 Act 91 of 1964.
17 ‘Property’ in M Chaskalson et al (eds) Constitutional Law of South Africa (1st
Edition, OS, 1996) Chapter 31.
18 FNB (n 1 above) para 57.
19 FNB (n 1 above) para 55.
20
FNB (n 1 above) para 51.
21 FNB (n 1 above) para 61.

Theunis Roux 271
proceeds in three steps at this point. First, the Court discusses — only
to dismiss as unpersuasive — the academic commentaries on the
meaning of the term ‘arbitrary’ in FC section 25(1). 22 Second, the
Court engages in an expansive comparative-law survey, ostensibly
aimed at elucidating the test for arbitrary deprivation, but
encompassing other issues as well. 23 Third, the court summarises the
principles emerging from its comparative-law survey as a prelude to
stating its test for arbitrary deprivation, which is contained in a
single, long paragraph, para 100. At first blush para 100 appears to be
a kind of bluffer’s guide to constitutional property law, encapsulating
the whole of the FNB Court’s test for arbitrary deprivation and
therefore, if the reading suggested here is correct, all that one really
needs to know about FC section 25. On closer inspection, however,
para 100 turns out to be a chimera, promising more than it delivers,
and ultimately reserving to the Court a great deal of discretion to
decide future cases as it deems fit.
Broken up into its constituent parts, this is what para 100 says:
Deprivation of property is ‘arbitrary’ as meant by s 25 when the ‘law’
referred to in s 25(1) does not provide sufficient reason for the
particular deprivation in question or is procedurally unfair. Sufficient
reason is to be established as follows.
There follow eight sub-paragraphs, each of which articulates a
different consideration to be factored into the court’s assessment of
the constitutionality of the impugned law. The first sub-paragraph
reads:
(a) It [ie sufficient reason] is to be determined by evaluating the
relationship between means employed, namely the deprivation in
question, and ends sought to be achieved, namely the purpose of the
law in question.
This sub-paragraph typifies the test for arbitrary deprivation as a
means-end relationship test, in terms of which the public interest that
the state claims to be pursuing must be assessed in relation to the
legislative scheme adopted. But more than the relationship between
legislative means and legislative ends is at issue. What is truly at stake
appears in the next three sub-paragraphs:
(b) A complexity of relationships has to be considered.
(c) In evaluating the deprivation in question, regard must be had to the
relationship between the purpose of the deprivation and the person
whose property is affected.
22
FNB (n 1 above) paras 67-70.
23 FNB (n 1 above) paras 71-98.

272 Chapter 16
(d) In addition, regard must be had to the relationship between the
purpose of the deprivation and the nature of the property as well as the
extent of the deprivation in respect of such property.
These sub-paragraphs purport to expand on the sorts of relationships
to which a court must have regard. There is a semantic slippage here,
however, because the relationships mentioned in sub-paras (c) and
(d) are not all means-end relationships as suggested by the crossreference
in sub-para (b) to the word ‘relationship’ in sub-para (a).
Thus, ‘the person whose property is affected’ and ‘the nature of the
property’ affected by the legislative scheme may be entirely
incidental to the means employed in that scheme. Along with ‘the
extent of the deprivation in respect of such property’ these factors
are better described as pertaining to the impact of the legislative
scheme, rather than the means used to implement it. That the impact
of the legislative scheme is the primary determinant of the standard
of review to be applied appears clearly from the next sub-paragraph:
(e) Generally speaking, when the property in question is ownership of
land or a corporeal movable, a more compelling purpose will have to be
established in order for the depriving law to constitute sufficient reason
for the deprivation than in the case when the property is something
different and the property right something less extensive.
Sub-paragraph (e) broaches the question of the nature of the property
right affected by the scheme, and proposes different levels of review
according to the answer to that question. This is a novel approach to
the analysis of constitutional property cases. The closest equivalent
in foreign law can be found in the German Federal Constitutional
Court’s differentiated protection of property interests according to
their social function. 24 In the Commonwealth, the nature of the
property right affected by the legislative scheme is relevant only to
the threshold question of whether the claimant’s interest amounts to
constitutional property. 25 Once this has been determined, a uniform
standard of review is generally applied. 26 According to sub-para (e),
by contrast, the nature of the property right remains relevant at the
third stage of the constitutional inquiry, and influences the level of
review.
Lest there was any doubt about this, sub-para (f) indicates that
the term ‘property right’ includes the traditional incidents of
ownership recognised at common law:
24 See Alexander (n 6 above) 103.
25
See T Allen ‘Commonwealth constitutions and the right not to be deprived of
property’ (1993) 42 International Comparative Law Quarterly 523.
26 In American regulatory takings jurisprudence, the right to exclude is privileged
through the per se permanent physical occupation rule laid down in Loretto (n 8
above), but property rights are not otherwise hierarchically ordered.

Theunis Roux 273
(f) Generally speaking, when the deprivation in question embraces all
the incidents of ownership, the purpose for the deprivation will have to
be more compelling than when the deprivation embraces only some
incidents of ownership and those incidents only partially.
In addition to specifying that the term ‘property right’ in sub-para (e)
includes the traditional incidents of ownership, sub-para (f) makes it
clear that the level of review will vary according to the number of
‘incidents of ownership’ affected, and that the total deprivation of
one or more of those incidents is not a precondition for the
application of the property clause. My reaction on first reading this
passage was Archimedean. I didn’t quite shout out ‘Eureka!’ but I
think I might well have sat up a little straighter in my chair. In the
Commonwealth jurisprudence on constitutional property, 27 the number
of incidents of ownership affected by a regulation is, like the
nature of the property right at issue, a consideration that goes to the
threshold question of whether a constitutional property interest is at
stake. By declaring this interest to be an issue relevant to the test for
arbitrary deprivation at the third stage of the inquiry, the FNB Court
strongly implies that conceptual considerations of this sort will not be
used to bar constitutional property claims at the threshold stage.
Rather, the FNB Court’s declared intention is to countenance all such
claims as constitutional property claims, and deal with the number of
incidents of ownership affected by the deprivation and the impact of
the deprivation as factors bearing on the level of review to be
applied. There could be no clearer signal than this that the Court
intends to make a clean break, both with the conceptualist approach
that has caused so many problems in other jurisdictions, and with the
pre-1994 approach of the South African courts to the Expropriation
Act. 28 Rather than hinging on single, case-deciding categorisations of
the property interest at issue or the character of the deprivation, para
100 indicates that future constitutional property cases will be decided
according to an all-things-considered assessment of the seriousness of
the deprivation and its impact on the claimant. The more drastic the
deprivation and the more extensive its impact, the greater will be the
state’s justificatory burden. As the FNB Court states in the final two
sub-paragraphs:
(g) Depending on such interplay between variable means and ends, the
nature of the property in question and the extent of its deprivation,
there may be circumstances when sufficient reason is established by, in
27
See Allen (n 25 above).
28 Act 63 of 1975. See, eg, Tongaat Group v Minister of Agriculture 1977 2 961 (A)
972D. The Constitutional Court endorsed a conceptual approach to the definition
of expropriation in Harksen v Lane NO & Others 1998 1 SA 300 (CC), 1997 11 BCLR
1489 (CC) paras 31-37, a case heard under the Interim Constitution. Although not
expressly over-ruling Harksen, the FNB Court’s test for arbitrary deprivation is
likely to make the categorical distinction drawn in that case between
expropriation and deprivation less important in future cases.

274 Chapter 16
effect, no more than a mere rational relationship between means and
ends; in others this might only be established by a proportionality
evaluation closer to that required by section 36(1) of the Constitution.
(h) Whether there is sufficient reason to warrant the deprivation is a
matter to be decided on all the relevant facts of each particular case,
always bearing in mind that the enquiry is concerned with ‘arbitrary’ in
relation to the deprivation of property under section 25.
In essence, therefore, the test for arbitrary deprivation is a meansend
test, with the state’s justificatory burden varying between
rationality and proportionality depending on the considerations
mentioned in sub-paras (b)-(f). The advantage of this approach is the
discretionary power it confers on the court to adjust the level of
review to fit the circumstances of the case. This power will enable
South African courts to show the necessary deference when reviewing
the impact on property rights of important social reform programmes,
such as land reform or black economic empowerment. In other cases,
where the state overzealously regulates property in pursuit of
questionable goals, the courts will be able to ratchet up the level of
review in order to provide adequate protection.
4 The vortex
The problem with a flexible test like the one devised in FNB, however,
is that the grounds for the application of one or the other level of
review should be ascertainable in advance. It must be clear to the
state when devising a regulatory scheme, and to persons affected by
that scheme when deciding whether or not to challenge it, what level
of review the court is likely to apply. The FNB test fails to provide this
degree of certainty. Unlike the German Federal Constitutional Court
in the Groundwater Case, 29 the Court in FNB does not tell us why
certain types of property are more constitutionally valued than
others. Indeed, there is a contradiction between the Court’s
recognition of land reform as a particularly valued purpose, which
suggests a low level of review, and the ownership of land as a
particularly valued property right, which suggests a higher level. The
FNB Court also does not tell us which incidents of ownership are more
constitutionally valued, or how to analyse cases so as to distinguish
the total deprivation of a conceptually severed stick in the bundle
from the partial deprivation of a stick not so severed. All that we
know for certain is that, after consideration of the factors in para 100,
a level of review must be chosen somewhere between mere
29 n 4 above.

Theunis Roux 275
rationality and full proportionality, and that the choice of this level
will largely determine the outcome of the case. 30
Fact-specific tests like these are good for courts but bad for rulesetting.
Cases decided under the FNB test for arbitrary deprivation
will necessarily be tied to their own circumstances, and hence have
virtually no precedential value. This outcome is bad enough. It is
made even worse by the fact that it renders all of the other stages of
the constitutional property clause inquiry largely redundant, thus
undermining the capacity of these stages to perform a rule-setting
function as well. This is a serious charge. The rest of this presentation
is devoted to substantiating it.
The Concise Oxford Dictionary (1982) defines the word ‘vortex’ as
‘a system, occupation, pursuit, etc, viewed as swallowing up or
engrossing those who approach it.’ The reading of FNB offered here
is that the test for arbitrary deprivation in para 100 is a vortex in this
sense, swallowing up the other stages of the constitutional property
clause inquiry. I have already hinted at the way in which the first
stage is swallowed up. By making the nature of the property right and
the number of sticks in the property rights bundle affected by the
deprivation an issue for consideration in the test for arbitrariness,
that test requires the court to de-emphasise the importance of these
considerations at the first stage of the constitutional inquiry. What
sense would it make, in light of sub-paras (e) and (f), for the court to
reject a challenge at the first stage of the inquiry, either because the
property interest at stake were not constitutionally protected, or
because insufficient incidents of ownership were affected? A
constitutional claimant litigating after FNB would rightly feel
aggrieved by such a decision, since the promise held out by para 100
is that these issues will not be used to exclude claims at the first and
second stages, but rather factored into the court’s overarching test
30
This point is well-illustrated by the first case to be decided under the FNB test,
Mkontwana (n 7 above). In this case — a challenge to a regulation requiring
landowners to pay outstanding municipal debts, including debts incurred by third
parties, as a precondition for formal property transfer — the two lower courts
reached opposing outcomes by choosing different levels of review. As AJ van der
Walt has pointed out, even the Constitutional Court’s reasons for adopting a low
level of review in this case are not terribly convincing. See AJ van der Walt
‘Retreating from the FNB arbitrariness test already? Mkontwana v Nelson Mandela
Metropolitan Municipality; Bissett v Buffalo City Municipality; Transfer Rights
Action Campaign v MEC for Local Government and Housing, Gauteng (CC) (2005)
122 South African Law Journal 75.

276 Chapter 16
for arbitrary deprivation. 31
The second stage of the property clause inquiry is swallowed up
both by the test for arbitrary deprivation and also by the extremely
broad definition of deprivation given in para 57 of the judgment. In
this paragraph, the FNB Court states: ‘In a certain sense any
interference with the use, enjoyment or exploitation of private
property involves some deprivation in respect of the person having
title or right to or in the property concerned’. This dictum is strictly
speaking obiter, and the Court’s actual holding on the meaning of
deprivation is, as we have seen, restricted to the facts of FNB. 32
Nevertheless, there are indications in para 100 that the Court will
allow almost any claim against a regulation affecting property past
the second stage of the inquiry, and deal with the severity of the
regulation’s impact on the claimant’s rights in its test for arbitrary
deprivation. This impression follows particularly from the reference
to ‘the extent of the deprivation’ in para 100(d) and the notion in para
100(f) that a deprivation that ‘embraces only some incidents of
ownership and those incidents only partially’ should be subject to a
lower standard of review. These phrases strongly suggest that the
second stage of the constitutional property clause inquiry will not be
used as a conceptual barrier to exclude claims involving less extensive
deprivations. Rather, as with claims where only one or two incidents
of ownership are affected, the Court’s inclination is to allow these
claims past the first two stages, and balance competing public and
private interests in property through its more flexible test for
arbitrary deprivation.
The fourth stage of the constitutional property clause inquiry,
which concerns the distinction between deprivations and
expropriations, is rendered largely redundant by the FNB Court’s
decision to treat expropriations as a ‘subset of deprivations’. 33 What
this means, as illustrated by FNB itself, is that claims which appear to
involve uncompensated expropriations, or expropriations for an
improper purpose, will be tested first against the standard set by FC
section 25(1) for the arbitrary deprivation of property. Contrary to
what some commentators have said, 34 this analytic framework is
likely to make American-style regulatory takings jurisprudence, and
all the difficulties attendant on distinguishing deprivations from
expropriations, irrelevant in South Africa. The reason for this is that
31
That this is the correct reading of para 100 is once again borne out by Mkontwana
(n 7 above). In this case, the only incident of ownership affected by the provision
was the owner’s right to sell, and yet this did not prevent the Court from applying
its test for arbitrary deprivation.
32 FNB (n 1 above) para 61.
33 FNB (n 1 above) para 57, quoting Chaskalson & Lewis (n 17 above) 31-14.
34
See K Hopkins & K Hofmeyr ‘New perspectives on property’ (2003) 120 South
African Law Journal 48 57-58.

Theunis Roux 277
the sorts of governmental regulation that are typically the subject of
such inquiries in the United States — exercises of the police power
that go ‘too far’ 35 — will in South Africa be subject first to the test for
arbitrary deprivation. A regulation that goes ‘too far’ in the American
sense (because it interferes with ‘distinct investment-backed
expectations’ or destroys all economically viable use of the property,
for example) will in South Africa likely be struck down under FC
section 25(1) as providing for the arbitrary deprivation of property.
The question whether the regulation, whilst purporting to constitute
an exercise of the state’s police power, in fact provides for the
expropriation of property, will never arise. Even an uncompensated
expropriation, which was effectively what was at issue in the FNB
case, will be treated as an arbitrary deprivation, the arbitrariness of
which will lie precisely in the legislative scheme’s failure to provide
for compensation. 36
As Du Toit, 37 handed down after FNB, illustrates, there will still
be a role for the fifth stage of the constitutional property clause
inquiry in cases where the expropriatory purpose of the law is not in
dispute and where compensation is offered. In such cases, the court
will skip directly to the fifth stage and determine whether just and
equitable compensation has been paid. Where no compensation is
provided for in the legislative scheme, however, and the stated
intention of the legislature is merely regulatory, the state will
presumably seek to defend the claim on the basis that the law merely
deprives the claimant of property. Such a defence would require the
court to apply its test for arbitrary deprivation, with all the
consequences just illustrated.
The problem with this aspect of the FNB analytic framework is
that, if the court strikes down a law that fails to provide for
compensation under FC section 25(1), the claimant will not be able to
demand compensation under FC section 25(2). As AJ van der Walt has
pointed out, however, there may be instances where it would be
desirable for the court not to invalidate the law, but to order the
payment of compensation. 38 There are two possible ways out of this
dilemma. The first would be to allow the claimant to go on to argue
that the law, in addition to providing for the arbitrary deprivation of
35
This phrase was first used in Pennsylvania Coal Co v Mahon 260 US 393 (1922).
The decision is generally agreed to have introduced the idea of regulatory takings
into American takings law.
36
The claimant in FNB would not have challenged section 114 of the Customs and
Excise Act had it provided that the state, from the proceeds of the sale in
execution of the confiscated property and other state funds if necessary, should
pay any third party with a right over that property an amount equivalent to the
market value of its right, in this case the amount owing under the motor vehicle
financing agreement.
37
Du Toit v Minister of Transport 2006 1 SA 297 (CC), 2005 11 BCLR 1053 (CC).
38 A van der Walt Constitutional property law (2005) 235-37.

278 Chapter 16
property, also provided for the expropriation of property without
payment of just and equitable compensation. Although the
Constitutional Court’s usual practice is to terminate the
constitutional inquiry as soon as a ground for constitutional invalidity
has been established, it would be in the interests of justice, and also
within the Court’s FC section 38 power to grant appropriate relief, for
the Court to allow the claimant to proceed to the expropriation stage.
The other possibility is that the Court might develop a remedial
jurisprudence for the payment of constitutional damages in respect of
violations of FC section 25(1). The door to such a remedy in
constitutional cases was left open in Fose, 39 and eventually confirmed
in Modderklip, 40 though not, at least in the Constitutional Court’s
decision, for a violation of FC section 25(1). 41 An order for the
payment of constitutional damages under FC section 25(1) would not
be equivalent to an order for the payment of just and equitable
compensation under FC section 25(3). Rather, the point of such an
order would be to make good any loss in excess of the loss the
claimant might reasonably be expected to bear under the test for
arbitrary deprivation. In this way, the payment of constitutional
damages under FC section 25(1) would approximate the equalisation
payments made for disproportional regulation in German law. 42 Since
the making of such an order would follow from a finding of violation
under FC section 25(1), the development of such a remedial
jurisprudence would not be tantamount to the acceptance of
regulatory takings. 43 A constitutional claimant who sought just and
equitable compensation would still need to meet whatever criteria
were established for a finding of expropriation under FC section 25(2).
Given the ‘algorithmic’ 44 structure of the property clause inquiry,
it is extremely unlikely that the final, general limitations, stage will
ever be reached. If reached, it is even less likely that this stage will
determine the outcome of a case. As we have seen, both laws that
provide for the deprivation of property and those that provide for the
39 Fose v Minister of Safety and Security 1997 3 SA 786 (CC), 1997 7 BCLR 851 (CC).
40 President of the Republic of South Africa & Another v Modderklip Boerdery (Pty)
Ltd (Agri SA & Others, Amici Curiae 2005 5 SA 3 (CC), 2005 8 BCLR 786 (CC).
41 Cf the Supreme Court of Appeal’s decision, which is based on a violation of FC
section 25: Modderfontein Squatters, Greater Benoni City Council v Modderklip
Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President
of the Republic of South Africa & Others v Modderklip Boerdery (Pty) Ltd (Agri SA
and Legal Resources Centre, Amici Curiae) 2004 6 SA 40 (SCA), 2004 8 BCLR 821
(SCA).
42 See the discussion in Van der Walt (n 38 above) 221-23 and Alexander (n 6 above)
120-21.
43
Cf Alexander (n 6 above) 121 (arguing that equalisation does not mean ‘that there
is something like inverse condemnation in German law’).
44 The use of the term ‘algorithm’ in this context is drawn from Iain Currie’s chapter
on the property clause in I Currie & J de Waal The Bill of Rights handbook 5 ed
(2005) 536.

Theunis Roux 279
expropriation of property will first be tested against FC section 25(1).
Should the court find that FC section 25(1) has been infringed, either
because the deprivation did not take place ‘in terms of law of general
application’, or because the law authorising the deprivation was
arbitrary, the state could theoretically seek to justify such
infringement under FC section 36. On closer analysis, however, the
application of FC section 36 to infringements of FC section 25(1) is
beset by conceptual difficulties. 45 Deprivations that limit FC section
25(1) because they do not occur ‘in terms of law of general
application’ cannot be saved by FC section 36 because the
precondition for the application of this section is that the limitation
should have occurred ‘in terms of law of general application’. And a
law of general application that permits the arbitrary deprivation of
property, either because it is procedurally unfair or because it
provides insufficient reason for the deprivation, is hardly likely to be
‘reasonable and justifiable in an open and democratic society’, as
required by FC section 36(1).
In dealing with the question of justification in FNB, the Court
acknowledged these difficulties, but assumed in favour of the state,
without deciding, that FC section 36 was applicable to infringements
of FC section 25(1). 46 The Court then proceeded to apply a pared
down version of its FC section 36(1) limitation test to the facts, as
follows:
FNB’s ownership in the vehicles concerned is ultimately completely
extinguished by the operation of section 114 of the Act. As against this
the Commissioner gains an execution object for someone else’s debt.
But, as already indicated, there is no connection between FNB or its
vehicles and the customs debt in question. Under these circumstances
the object achieved by section 114 is grossly disproportional to the
infringement of FNB’s property rights. 47
This passage tends to confirm that FC section 36 has ‘no meaningful
application’ 48 to infringements of FC section 25(1). The issues
addressed by the Court are precisely the same as those addressed in
its test for arbitrary deprivation. 49 The fact that FNB’s ownership of
the vehicles was ‘completely extinguished’ is addressed in sub-paras
(d) and (f) of that test, which require the Court to examine ‘the
extent of the deprivation’ and whether it ‘embraces all the incidents
of ownership’. And the absence of a ‘connection between FNB or its
45
Currie & de Waal (n 44 above) 561-63.
46 FNB (n 1 above) para 110.
47 FNB (n 1 above) para 111.
48
Currie & De Waal (n 44 above) 562.
49 S Woolman & H Botha ‘Limitations’ in Woolman et al (n 1 above) Chapter 34.

280 Chapter 16
vehicles and the customs debt’ was central to the Court’s earlier
finding that ‘no sufficient reason’ existed for the deprivation. 50
In cases where the test for arbitrary deprivation approximates
rational basis review the case for the non-application of FC section 36
is incontrovertible: A law that infringes FC section 25(1) for lack of
means-end rationality will never be capable of justification under the
general limitations clause. At the other end of the scale, where the
test for arbitrary deprivation approaches the FC section 36 test for
proportionality, the application of FC section 36 can at best confirm
a conclusion already reached under FC section 25(1). FNB clearly
illustrates this result. 51
FC section 36 also applies in theory to a law of general application
that authorises the expropriation of property other than for a public
purpose or in the public interest, or which fails to provide for the
payment of just and equitable compensation. No such law is ever
likely to survive constitutional scrutiny until the final stage, and if it
does, it is unlikely to be justifiable under FC section 36. For the
reasons given earlier, a law providing for the expropriation of
property that is not aimed at achieving a public purpose or is not
otherwise in the public interest will in all likelihood fail the test for
arbitrary deprivation. In the unlikely event that it survives
constitutional scrutiny to the fifth stage, it will be struck down for
violating FC section 25(2)(a). Thereafter, the state would be faced
with the conceptually impossible task of having to justify, as being
reasonable and justifiable in an open and democratic society, a law
that ex hypothesi was enacted in pursuit of a private purpose.
Similarly, an expropriatory law that was struck down for failing to
provide for just and equitable compensation could hardly be found to
be reasonable and justifiable under FC section 36 unless the impact
of the law was so inconsequential as not to require compensation, in
which case the better finding would be that the payment of nil
compensation was just and equitable under FC section 25(2) and (3). 52
For all these reasons the test for arbitrary deprivation will have
the effect of minimising the importance of the other stages of the
50 FNB (n 1 above) para 109.
51
See also Janse van Rensburg NO v Minister van Handel en Nywerheid 1999 (2)
BCLR 204 (T) 222E. The contrary finding, in Director of Public Prosecutions: Cape
of Good Hope v Bathgate 2000 (2) SA 535 (C), that an infringement of FC sec 25(1)
was justified under FC sec 36, is explicable on the basis that the limitations
clause was applied to justify the infringement of other rights as well, meaning
that the finding in this case that the law was justified was not specific to the
finding that the law infringed FC sec 25(1). In addition, the Bathgate decision
predates that in FNB (n 1 above), and accordingly did not apply the arbitrary
deprivation test as laid down in that case.
52
Cf Currie & De Waal (n 44 above) 563 (discussing Nhlabathi & Others v Fick [2003]
2 All SA 323 (LCC), 2003 7 BCLR 806 (LCC)).

Theunis Roux 281
property clause inquiry. No doubt, the courts will still go through the
motions of considering the other stages, and it is not inconceivable
that a claim may be rejected because the interest at stake is
considered not to amount to constitutional property, 53 or because the
regulation at issue is considered to be too inconsequential as to
amount to deprivation. 54 But the focus of attention in all future cases,
with the exception of disputes purely about the quantum of
compensation, is likely to fall on the third stage. The implication of
this prediction in turn is that foreign law will have little relevance to
the resolution of future constitutional property cases. Multi-factor
balancing tests like those prescribed in para 100 of FNB are impervious
to foreign-law influence because their very purpose is to focus the
court’s attention on the facts of the particular case, rather than
principles or rules laid down in other decisions. Indeed, as argued
earlier, even South African decisions applying the test for arbitrary
deprivation will have little precedential effect, unless and until the
Constitutional Court begins to give thicker, substantive reasons for
the weight it chooses to give the various considerations in para 100. 55
53
Cf Van der Walt (n 38 above) 72.
54 See Mkontwana (n 7 above) para 32 (The Constitutional Court flirts with the
dangerous idea that ‘normal restrictions on property use or enjoyment found in
an open and democratic society’ might not amount to deprivation of property, but
in the end declares this part of the judgment to be obiter.) See also the discussion
in Van der Walt (n 38 above) 127.
55
Cf Van der Walt (n 38 above) 40-42 (giving a more positive account of the FNB
decision in this respect). As Van der Walt notes, Sachs J’s judgment in Port
Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC), 2004 12 BCLR 1268
(CC) paras 15-23 does begin to supply these thicker, substantive reasons in
explaining the relationship between FC sec 25 and FC sec 26(3) (protection
against arbitrary eviction). But the Court’s remarks in this decision are obiter
dicta as far as the property clause inquiry is concerned. Mkontwana (n 7 above)
was disappointingly silent on the purposes informing constitutional property
rights protection in South Africa, whilst the Constitutional Court’s decision in
Modderklip (n 40 above) bypassed the property rights aspect of that case,
choosing to decide the question under the right of access to courts (FC sec 34).

17 Reply
Against regulatory taking: In defense of the two-stage inquiry
A reply to Theunis Roux
Frank Michelman
1 Introduction
Informed and prompted by Theunis Roux’s crisp, clear, incisive, and
largely persuasive analysis — both in his Constitutional Law of South
Africa chapter on Property 1 and in his follow-up Conversations-piece 2
— I want to take up for further examination two structural-level
questions that seem still to vex debates over how best to construe FC
section 25.
My first question concerns the vortex effect that Roux so
luminously describes as having been set in motion by the
Constitutional Court’s exegesis of sections 25(1), (2), (3) and their
interrelations, in what I shall call ‘the doctrine according to FNB’. I
have, in general, no quarrel with Roux’s overall characterisation and
appraisal of this doctrine’s evolution to date, all of which I find
entirely persuasive and illuminating. I focus on a single dimension of
Roux’s appraisal of what he describes. He appears to be feeling some
qualm about the doctrine according to FNB, insofar as he expects it to
lead in all cases to by-passing direct application of the conditions laid
down by section 25(2) specifically for expropriations (but not for all
1 T Roux ‘Property’ in S Woolman et al (eds) Constitutional Law of South Africa
(2nd Edition, OS, 2003) Chapter 46, available at www.westlaw.com.
2
T Roux ‘The “arbitrary deprivation” vortex: Constitutional property law after
FNB’ in S Woolman & M Bishop (eds) Constitutional conversations (2008).
283

284 Chapter 17
deprivations). Roux worries that the doctrine will suppress forever
from South African constitutional law the question of developing a
doctrinal method for differentiating (in debatable cases) those stateauthored
property-value impairments that count as ‘expropriations’
from those that do not. From a US observer’s standpoint, the effect is
to deprive South Africa forever of the possible development of a body
of law paralleling that which in the US is known as the doctrine of
‘regulatory taking’ (and elsewhere is sometimes called ‘constructive
expropriation’). From among state actions that in form do no more
than regulate the use and enjoyment of an asset, such a doctrine
selects some for subjection to a compensation requirement that, by
the express terms of the constitutional text, applies only when the
state takes away property from an owner.
I agree with Roux that the doctrine according to FNB has the
effects I have just described. My view is that these effects supply no
ground, none at all, for reservation or worry. To the contrary, I
believe they leave South Africa with a reading of FC section 25 that is
normatively superior to any alternative one might envision, while
being no less textually justified. At the bottom line, my claim is that
a regulatory-taking doctrine would be a bad choice for South Africa
(not to say for any country, but that is beyond the scope of my
undertaking here). In my view, a reading of FC section 25 that
forecloses that possibility is to be preferred over one that doesn’t, all
else being equal. I postpone the justification for that normative claim
to late in my discussion. Everything else I shall have to say along the
way will be on an analytical-descriptive, not a normative-substantive
level. I thus aim to confirm and to drive home, in a somewhat
different way, much of what Roux has said, while perhaps questioning
one aspect of it. I confess to uncertainty about how far, if at all, Roux
will disagree with anything I shall have to say on this point. I do think
I am putting a somewhat different spin on the matters discussed than
is conveyed by the rhetoric, at least, of Roux’s Conversations-piece.
The second question I wish to examine is that of the relation
between FC section 25(1)’s ‘internal’ limitation clause and the
general limitation clause contained in FC section 36(1). Read strictly
according to its terms, FC section 25 grants only what has been called
a ‘truncated’ property right: 3 A right against deprivation not
authorised by a non-arbitrary law and expropriation not for a public
purpose or in the public interest, or not attended by just and
equitable compensation, with justification of violations of that
truncated right still a possibility in terms of FC section 36(1). In an
3 See AJ van der Walt Constitutional property law (2005) 62-65.

Reply - Frank Michelman 285
alternative reading proposed some years ago by AJ van der Walt, 4 FC
section 25 implicitly requires section 36(1) justification for any
limitation of a very broadly defined right to ‘acquire and hold rights
in property’ (to borrow language from IC section 28(1)), in addition to
the requirements laid down by the internal limitations contained in FC
sections 25(1) and (2). FNB has now settled the question in favor of
the truncated-property-right reading, 5 while also imbuing the nonarbitrary-law
requirement of FC section 25(1) with a sweep that
apparently diminishes the practical stakes of choice between the two
readings to near-zero. 6 A genuine puzzle remains about how to relate
the justificatory demands of FC sections 25(1) and 36(1). I shall
discuss this relationship in the second part of this comment.
2 The FNB vortex: A cause for concern?
I turn now to my first question. Roux claims — correctly, so far as I can
see — that the doctrine according to FNB will tend to suppress forever
from South African constitutional law the question of developing a
doctrinal method for differentiating (in debatable cases) those stateauthored
property-value impairments that count as ‘expropriations’
from those that do not. I read Roux further to suggest that there is
here some cause for concern or regret. It is a ‘problem’, he feels, in
the law according to FNB, that ‘if a court strikes down a law that fails
to provide for compensation under FC section 25(1), the claimant will
not be able to demand compensation under FC section 25(2).’ The
effect, Roux writes, is to make ‘redundant’ any inquiry about whether
the challenged action of the state does or does not qualify as an
‘expropriation’ in terms of FC section 25(2) — or, as he also puts the
matter, the effect is to ‘swallow up’ that seemingly textually
mandated stage of the ‘constitutional property clause inquiry’. 7
‘Problem’, ‘make redundant’, and ‘swallow up’ do not strike my ear
as flattery of the doctrine according to FNB.
As I have said, I do not doubt at all that the doctrine according to
FNB has the effects that Roux describes by those mildly opprobrious
terms. I only cannot see any cause at all for regretting these effects
of the doctrine — or indeed, as I eventually shall suggest, for failing
4
See AJ van der Walt The constitutional property clause: A comparative analysis
of section 25 of the South African Constitution of 1996 (1997) 21-28.
5 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service & Another; First National Bank of SA Ltd t/a Wesbank v Minister
of Finance 2002 4 SA 768 (CC), 2002 7 BCLR 702 (CC) para 70.
6 As nicely explained both by Roux (n 2 above) and by AJ van der Walt (n 3 above)
62-65.
7 Roux writes: ‘Since two different standards are [respectively] prescribed [by
sections 25(1) and 25(2)], the text requires the interpreter to distinguish between
the deprivation and the expropriation of property.’ Roux (n 2 above) 267. I shall
be, in effect, raising a doubt about whether that is so.

286 Chapter 17
to applaud them. Where I am going to find ground for applause, Roux
apparently can and does find cause for concern and second thought.
For the first step in presenting my view, we shall need to look
closely at exactly how, in Roux’s contemplation, the doctrine
according to FNB works out to the redundancy-producing result upon
which we are agreed. Roux chalks it up to ‘the FNB Court’s decision
(in para 57) to treat expropriations as “a subset of deprivations”’, and
to the Court’s further prescription 8 that all challenges to property
deprivations in terms of FC section 25 are to be channeled first
through inspection under FC section 25(1), with only the survivors
ever possibly to be sorted into those that are and are not
‘expropriations’ to be submitted to further inspection, under FC
section 25(2). As Roux explains:
What this means ... is that claims which appear to involve
uncompensated expropriations ... will be tested first against the
standard set by FC section 25(1) for the arbitrary deprivation of
property. [T]he sorts of governmental regulation that are typically the
subject of [constructive expropriation] inquiries in the United States –
exercises of the [regulatory] power that go ‘too far‘ – will in South Africa
be subject first to the test for arbitrary deprivation. A regulation that
[the Americans might treat as a constructive, uncompensated
expropriation] will in South Africa likely be struck down under FC section
25(1) as providing for the arbitrary deprivation of property. The
[constructive expropriation] question ... will never arise ... [A]n
uncompensated expropriation ... will be treated as an arbitrary
deprivation, the arbitrariness of which will lie precisely in the
legislative scheme’s failure to provide for compensation. 9
Just so. I think Roux moves too quickly, though, when he blames the
effect that worries him — the redundancy or swallowing-up effect —
on either the Court’s decision ‘to treat expropriations as “a subset of
deprivations”’, or its direction that FC section 25(1) inspection is
always to precede any possible FC section 25(2) inspection,
apparently regardless of how the claimant may choose to frame its
complaint. As to the first point, I think the FNB Court really had no
choice. As to the second, I think it is not the direction to channel all
cases first through FC section 25(1) that directly leads to the
circumvention of FC section 25(2) inspection that worries Roux, but
rather the idea that failure to provide compensation may be the (sole)
vice in a law that causes it to fail FC section 25(1) inspection.
To construe FC section 25(1) ‘deprivation’ and FC section 25(2)
‘expropriation’ as naming two mutually exclusive categories would be
unnatural to an extreme. Roux himself suggests, as one appropriate
8
FNB (n 5 above) para 46.
9 Roux (n 2 above) 276-77 (my emphasis).

Reply - Frank Michelman 287
way to draw the line between property-impairing acts that are and
are not ‘expropriations’ governed by the requirements of FC section
25(2), that a court can ask whether ‘the impact on the [right holder
is] so severe as to require payment of just compensation.’ But then
how can a subset of impositions that are so specially severe as to
merit subjection to the special requirements of FC section 25(2) be
treated as exempt from a requirement (the one set forth in FC section
25(1)) to which all less severe limitations (‘deprivations’) are
subjected? ‘This imposition is so severe that the requirement of
authorisation by a nonarbitrary law, which is applicable to all less
severe impositions, should be deemed inapplicable to it’? Who would
credit a court that said that, when a way lies textually open to avoid
saying it?
Treating expropriations as a subset of deprivations is thus, in my
view, unavoidable. Granted, the result may be duplication of the FC
section 25(2) requirements by the FC section 25(1) requirement. If so,
then that is a kind of mild misfortune. But the misfortune is owing to
the drafters, not to the Constitutional Court, and I agree with the
apparent judgment of the Court that the duplication is a lesser
misfortune here than would be the anomaly of an exemption for the
most severe impositions on property from a non-arbitrariness
requirement that applies to those that are less severe. 10
The next point to see is that it is not, actually, the subsumption
of expropriations under the broader heading of deprivations, or the
direction (which seems plausible enough) to submit all deprivations to
FC section 25(1) inspection, that causes the effects that worry Roux.
It is rather the expectation created by the Court that (quoting again
from Roux) ‘an uncompensated expropriation ... will be treated as an
arbitrary deprivation, the arbitrariness of which will lie precisely in
the legislative scheme’s failure to provide for compensation.’ Roux, I
think justifiably, treats this as a clear implication from the doctrine
according to FNB, and does so approvingly. 11 I am happy to follow
suit. Of course, we can imagine the Court holding oppositely. The FNB
Court could have held that FC section 25(1) inspection always comes
first. It could have also stated that ‘arbitrary’ in FC section 25(1)
refers only to the justifiability of the state’s end and the tightness of
fit (rationality, necessity) of its means, so that a deprivationauthorising
law is not ‘arbitrary’ in terms of FC section 25(1) if its only
alleged vice or deficiency is the distributional injustice of failing to
10 Of course there is no anomaly (but also no consequence that matters), if the
‘public purpose or public interest’ requirement in sec 25(2)(a) has a scope of
application that is known from the start to rule out all the laws that would be
ruled out by the non-arbitrary requirement of sec 25(1). As long as it is
conceivable that the latter may rule out one single law that the former does not,
the anomaly is there.
11 See Roux (n 1 above) 19-20.

288 Chapter 17
make provision for due compensation to owners for their losses. Had
the FNB Court so held, or were it in future to do so, the redundancy
and the circumvention effects that bother Roux would disappear
(although some other untoward consequences might then arise). 12
The necessity for the Court to propound some way of drawing the line
between those deprivations that are and are not also expropriations
would then be back on the table. A dénouement devoutly to be
wished? I say no; decidedly no. And my chief reason is that such a
construction of FC section 25 opens the door to the rise in South
African constitutional jurisprudence of a doctrine of ‘constructive
expropriation’ or ‘regulatory taking’ that it is better off without.
But that is jumping too far ahead in my story. Let us back up, and
proceed more slowly.
Roux observes that a line separating the state’s acts of
‘deprivation’ from its acts of ‘expropriation’ (or separating those
deprivations that are also expropriations from those that are not) can
be placed so that a greater or lesser fraction of the cases will be
classed as expropriations. The line can also, as Roux further notes, be
drawn either categorically or contextually. Thus, Roux lists as one
plausible line-drawing test that of whether ‘the impact on the [right
holder is] so severe as to require payment of just compensation’. That
would be a maximally contextual test. It also is a test that could end
up treating far fewer cases as expropriations than some categorical
tests would do: say, an ‘American’ test treating every instance of
physical invasion by force of the state, no matter how paltry, as an
expropriation for which compensation is constitutionally required. 13
The choice of a line-drawing method or test thus would seem to
be an important question. Why so? Because, Roux explains, ‘the
obligations attaching to the expropriation [compare US ‘taking’] of
property are more onerous from the state’s perspective than those
attaching to the deprivation [compare US ‘mere regulation’] of
property.’ The choice of a line-drawing method thus will ‘affect the
balance struck between the public interest and individual property
rights.’ A line-drawing method that is comparatively expansionary on
the expropriation side ‘put[s] a thumb on the individual side of the
scales, and vice versa.’ 14
At first look, this thinking seems obviously correct. We start with
the set of all possible courses of action by the state that are
authorised by non-arbitrary laws. Any course of action in this set may
or may not be classed as a deprivation of property and/or as an
12 As above.
13
See Loretto v Teleprompter Manhattan Cable TV Corp 458 US 419 (1982).
14 Roux (n 2 above) 267-68.

Reply - Frank Michelman 289
expropriation of property. If a course of action in the set is classed
(only) as a deprivation of property, but not as an expropriation, the
course is one that the state is free to pursue without any further
obligation. If the course is classed (also) as an expropriation, the state
may proceed only on the further condition of payment of
compensation. A payment condition is obviously more onerous to the
state than no condition. The converse holds if we look at the situation
from the standpoint of property owners. What owner in her right mind
would not wish a larger, as opposed to a smaller, fraction of the cases
to be classed as expropriations? If it’s an expropriation, I collect a just
and equitable compensation by force of FC sections 25(2)(b)/(3); if
it’s not, I don’t.
But of course all of this reasoning presupposes that it won’t be
held — as, according to Roux, it has been or will be held — that all
deprivations, if unaccompanied by compensation sufficient to qualify
as just and equitable in the circumstances (noting that this amount
may often be R0), are, for just that cause, unconstitutional by the
non-arbitrary-law test of FC section 25(1). If that truly is to be the
shape of the doctrine, then, as Roux has observed, 15 owners can have
no reason to care about whether any instance of a deprivation is
further classed as an expropriation — unless (which I assume we all
hope and suppose will never be the case, and which FC section 25 as
written seems to oppose) owners also can hope that an
‘expropriation’ finding will somehow garner for them a compensation
that is greater than justice and equity require.
That is how the matters will look to owners. How will they look to
the state? Roux says that ‘the [constitutionally imposed] obligations
attaching to the expropriation of property are more onerous from the
state’s perspective than those attaching to the deprivation of
property.’ But again the doctrinal question arises whether a
deprivation-authorising law that fails to provide for compensation
sufficient to qualify as circumstantially just and equitable is to be
deemed ipso facto arbitrary in terms of FC section 25(1). If so, then
the state’s obligation attaching to deprivation is not less onerous than
that attaching to expropriation; rather, the two obligations are the
same: Pay or desist. 16 But this is exactly the result that Roux contends
(and I cheerfully agree) is foretold by the vortex-inducing doctrine
announced by the Constitutional Court in FNB.
15
See Roux (n 1 above) 46-20 and 46-29 — 46-30.
16 To spell it out: The obligation attaching to all deprivations is to make sure there is
authorising law, which provides for some amount of compensation not less than
what justice and equity require in the circumstances. That is identical in practice
to the obligation attaching to expropriations.

290 Chapter 17
Can this effect possibly be avoided by envisioning a highly
formalistic, categorical test for differentiating those deprivations
that are and are not expropriations? Suppose South Africa were to
follow the US in holding that any state-authored physical intrusion on
privately held property, no matter how practically paltry or harmless,
triggers an obligation to compensate. 17 That might give owners reason
to cheer, but the cheering would not — on Roux’s reading of the
doctrine according to FNB — be directed to the form or location of any
line differentiating expropriations from mere deprivations. Take for
example the US case of Loretto. 18 With state authorisation, a cable
TV carrier strings a wire across the rooftop of Loretto’s multi-storey
apartment building in Manhattan, also attaching a few clamps to the
rooftop, the whole shebang occupying space for which no one has any
conceivable use, interfering with no conceivable activity by anyone,
and very possibly enhancing the value of the building by providing it
with access to cable TV. South Africa, we are now imagining, will
follow the US and treat this as a case of an imposition on property
triggering a duty to pay just and equitable compensation in terms of
FC sections 25(2)(b)/(3). How much might that be? Suppose it is any
positive sum, no matter how small. On Roux’s understanding of the
implications of the FNB opinion, the state’s failure to offer this sum
through its authorising law will render that law arbitrary in terms of
FC section 25(1), so the resulting invasion of privately owned space
becomes an unconstitutional deprivation of property. The case is
decided without ever reaching any question about how, if at all, to
differentiate between deprivations that are and are not expropriations.
Indeed, the FNB doctrine’s effect of suppressing that
inquiry is seemingly a cause of concern on the part of Roux.
The sum of what we have said so far is this: If the constitutional
law of South Africa is in fact as reported and projected by Roux, then
(a) neither an owner nor the state has reason to care about how or
where any line differentiating mere deprivations from expropriations
might be drawn (which is just what Roux says), and, in consequence,
(b) Roux’s statements about how the choice among line-drawing
methods affects the onerousness of the state’s obligations and the
public-interest/private-interest balance are incorrect for South
Africa. Those statements can possibly be correct — can possibly bite
— only insofar as the vortex effect foreseen by Roux will not, in fact,
be so all-embracing as Roux anticipates. It seems Roux must choose
between withdrawing the statements and revising in some way his
characterisation and projection of the doctrine according FNB.
17
See Loretto (n 13 above).
18 As above.

Reply - Frank Michelman 291
I suggest that Roux should choose withdrawal of the statements.
Of course, what I really am driving at is that Roux should forbear from
any intimation that the doctrine according to FNB is in any degree
problematic or regrettable, in the specific respect that the doctrine
idles for all time in South Africa the question of how and where to
differentiate between (mere) deprivations and expropriations, and
thus (as one might be tempted to add) deprives South Africa of for all
time of the possibility of developing a regulatory-taking doctrine.
I wish to be clear. There can be no doubting the importance of the
issue of when, if ever, the state will be required to compensate
owners for property-value impairment occasioned by regulatory, as
opposed to acquisitive, activity. Any responsible jurisprudence of
constitutional property must in due course address and resolve that
issue. The question before us, though, is whether resolution
necessarily must take the shape — or whether anything is lost if it does
not take the shape — of a doctrine based on differentiation between
categories of state-authored impositions on property, along the lines
of ‘deprivation’/‘expropriation’ or ‘regulation’/‘taking’; the alternative
being, as we have seen, to subject all impairments of property
value, including all of those occasioned by regulation, to a
requirement or provision for compensation in an amount sufficient to
satisfy justice and equity, allowing that in many (or let us say most)
cases of regulation that amount will be nil.
We need to consider more closely what might be at stake, and for
whom, in the choice about whether or not to introduce the idea of a
constructive expropriation — of an expropriation by regulation or
regulatory taking — into the constitutional jurisprudence of South
Africa. We have seen already that rejection of such an idea need not
— and in post-FNB South Africa it evidently will not (given the doctrine
according to FNB according to Roux) — leave owners exposed to what
courts may find to be unjust distributions of the real costs of socially
desired or beneficial government operations, or strip the courts of an
important means of ‘balanc[ing]’ the ‘individual’s interests in the use
and enjoyment of property’ with ‘the state’s interest in acquiring
it.’ 19 Or rather, to speak with utmost care, we could say this depends
on exactly how we are going to define the idea of a regulatory-taking
doctrine. Suppose the law in South Africa to be as follows: By force of
FC section 25(1), any law authorising any sort of deprivation of
property by the state, including but not limited to regulatory
deprivations, must provide for due compensation to the deprived
owner. I want to stress once more that the doctrine may allow that
for ‘small’ regulatory deprivations — defined, say, as those not
exceeding the magnitude of what owners must reasonably expect to
19 Roux (n 1 above) 46-19.

292 Chapter 17
bear without compensation in a market/regulatory society such as
South Africa — the amount of just and equitable compensation will be
nil.
This body of law does not provide any occasion for a judge or other
official ever to be called upon to differentiate deprivations that are
also expropriations from those that are not (unless, to repeat, we
have some wish to compensate owners in ‘expropriation’ cases in
excess of what justice requires). However, it also does not leave
owners exposed to unjust distribution of regulatory burdens owing to
failure to compensate. In recognition of this latter effect of
protecting property owners against excessive, uncompensated
regulation, we might choose to call this body of law a ‘regulatory
taking’ doctrine. Shall we, or shall we not? You choose, Reader.
Should you choose ‘we shall’, then it will follow, at least for you, that
South Africa has already chosen in favor of a regulatory-taking
doctrine (it is not still an open question), because the body of law I
have just described is precisely the one Roux says, and I agree, is
prefigured by the opinion of the Constitutional Court in FNB.
Will you, then, choose ‘no, that body of law is not a regulatorytaking
doctrine’? What body of law would deserve that name, then? It
must be a body that deviates from the doctrine according to FNB.
There would seem to be two possibilities to consider. Here is the first,
presented in the form of a scenario of propositions:
(a) If some course of action by the state is classed as an ‘expropriation’
in terms of FC sections 25(2)(b)/(3), it is thereby excluded from the
class of ‘deprivations’ in terms of FC section 25(1). In other words,
‘expropriation’ and ‘deprivation’ are mutually exclusive categories in
terms of section 25.
(b) Regarding deprivations, a deprivation-authorising law is ‘arbitrary’
in terms of FC section 25(1), hence the deprivation is unconstitutional, if
the law fails to make provision for due compensation to owners for their
losses.
(c) Regarding expropriations, they are, by force of FC sections 25(2)(b)/
(3), unconstitutional unless accompanied by just and equitable
compensation.
(d) The measure of due compensation for a deprivation, in terms of the
non-arbitrary requirement in FC section 25(1), differs from the measure
of just and equitable compensation for an expropriation, in terms of the
compensation requirement in FC sections 25(2)(b)/(3).
(e) For typical impairments-by-regulation of property rights or values,
the measure of due compensation in terms of FC section 25(1) is more
suitable than the different measure of just and equitable compensation
in terms of FC sections 25(2)(b)/(3). But for a subset of exceptionally
severe (or whatever) impairments-by-regulation, the opposite is true.
(f) But it follows from (a), (b), and (c) that an impairment-byregulation
can trigger the constitutional requirement of a just and

Reply - Frank Michelman 293
equitable compensation in terms of FC section 25(b)(2)/(3) only if
classed as an expropriation, and thus — given (a) — not a deprivation.
(g) Therefore, some method or test will be required for sorting out the
full set of cases of impairment-by-regulation into those that fall
respectively into the ‘deprivation’ and ‘expropriation’ subsets. That test
or method is what we mean by speaking of a regulatory-taking doctrine.
Do we draw from this propositional scenario any normatively
compelling or urgent sense of need for a regulatory-taking doctrine? I
cannot see how. In the first place, this scenario starts out from a
premise — ‘(a)’ — that I have already contended is not sustainable.
But the further point I now wish to make is that the whole thing pivots
also on premise (d). If (d) is rejected, then (e) is false — since the two
tests then are identical, neither can be more or less suitable than the
other for a given context — and (g), therefore, is also false. But it
would appear to be impossible to come up with a reason why (d)
should be accepted, because to accept (d) would be to say that due
compensation for a deprivation will at least sometimes be something
other than a just and equitable compensation for that deprivation,
which would be to make hash of our language. I conclude that it is not
a serious objection against the doctrine according to FNB that it fails
to sustain any need for a regulatory-taking doctrine by the foregoing
propositional scenario.
So now consider another:
(p) A deprivation-authorising law is not ‘arbitrary’ in terms of FC
section 25(1), if its only alleged vice or deficiency is failure to make
provision for due compensation to owners for their losses.
(q) Still, some impairments-by-regulation of property rights or values —
by no means all of them — are so severe (or whatever) that the
Constitution must be read to obligate the state to pay just and equitable
compensation in these cases.
(r) Given (p), the only clauses in FC section 25 that will have the
desired effect are sections 25(2)(b)/(3).
(s) But by the terms of FC sections 25(2)(b)/(3), those clauses come
into play only where an ‘expropriation’ occurs.
(t) It follows from the combination of (q), (r), and (s) that the
Constitution must be read to classify as ‘expropriations’ some subset of
the full set of impairments-by-regulation of property rights or values.
(u) Some method or test, therefore, will be required for picking out the
cases of impairment-by-regulation that fall into the ‘expropriation’
subset. That test or method is what we mean by speaking of a
regulatory-taking doctrine.
We have already seen, following Roux, that the law according to FNB
negates premise (p), thus enabling constitutional-legal protection of
owners against unjust distribution of regulatory burdens without any
need to differentiate a subset of ‘expropriations’ out of the full set of
‘deprivations’. South African constitutional law thus fails to occasion

294 Chapter 17
or sustain a regulatory-taking doctrine under our second propositional
scenario. Is this in any degree a regrettable result? We cannot call it
so, except insofar as we stand ready to pronounce the negation of (p)
in some degree regrettable. But what might be regrettable about that
negation?
There doesn’t seem to be anything normatively wrong with it.
Rejection of (p) allows the use of the non-arbitrary-law requirement
in FC section 25(1) to protect owners against unjust distribution of the
burdens cast by regulatory schemes that presumably are designed to
benefit society as a whole. That cannot be thought objectionable. But
how about a more formalistic objection: By reading FC section 25(1)
in that manner you render idle, or a dead letter, the express and
somewhat elaborate provisions for compensation contained in FC
sections 25(2)(b)/(3) — in a word, a ‘vortex’ objection. Without
doubting that an objection of this kind may sometimes carry weight,
let us ask whether it can possibly be weighty in this instance.
I do not see how it can. There are times, after all — and they are
not rarities — when nothing less will satisfy the state or its need than
a complete, overt removal from the erstwhile owner of the total
Hohfeldian package of ownership entitlements, so that Mr or Ms
Erstwhile or Erstwhile Ltd ends up with literally nothing: no right to
exclude, no privilege of entry or use, no power to reallocate
entitlements, no immunity against reallocations by others. You do not
need any sort of ‘constructive’ expropriation doctrine in order to
fasten the compensation duty spelled out by FC sections 25(2)(b)/(3)
onto these cases of (so to speak) undisguised real expropriation. And
of course the set of undisguised real expropriation cases I have just
described is of major potential importance in South Africa, for it
includes (but surely is not limited to) possible instances in which the
successful prosecution of land restitution and land redistribution
would require total divestiture by the state of extant titles to land,
on terms of compensation set not by the owner but, ultimately, by a
judicial umpire applying standards in keeping with those laid down by
FC section 25(3). FC sections 25(2)(b)/(3) have very important work
to do, even in the absence from South African constitutional
jurisprudence of any notion of taking-by-regulation. By no means can
FNB, on any reading, be said to have put those sections out of
business.
But consider, then, this further objection. Rather than applying
FC section 25(1) to decide contextually, case by case, whether (to use
Roux’s formulation) ‘the impact on the [right holder is] so severe as
to require payment of just compensation’, it would be better — you
the reader might think — to have some more categorical rule in play
for sorting the full set of regulatory cases into those in which
compensation is or is not to be an issue; better, that is, from the

Reply - Frank Michelman 295
standpoint of adjudicative economy, or of enabling foresight by state
and other parties of the probably legal consequences of their actions,
or of sustaining confidence in the like treatment of like cases. You
might prefer a categorical-rule sort of doctrine here because, in this
context, anyway, you like rules better than standards. That is fine by
me. But it will not provide you with a potent line of objection to the
doctrine according to FNB. The FNB doctrine leaves all the room in the
world for the development, over time, of categorical sub-rules for
sorting cases into types for which a failure to provide for
compensation will or will not be counted arbitrary in terms of section
25(1).
The decision in FNB itself shows how. Henceforward, any total and
permanent dispossession of a corporeal asset from a nominal owner,
even if only of a security title and not a beneficial interest, is highly
constitutionally suspect if the seizure is occasioned by a default for
which the owner is not culpable. That is already a categorical subrule,
and quite a few more budding categorical sub-rules can easily be
extracted from it. Roux correctly points out that the emergence of a
fully useful stock of more-or-less ‘formulaic applications’ of the nonarbitrary
test must necessarily await decision of ‘many’ more cases. 20
He thus states what is generally and inescapably true of judicial
applications of any clause in a constitutional bill of rights. The clause
on which the US regulatory-taking doctrine is founded provides a
highly pertinent example. 21 So far as one can see from here, the subrule
developing process under FC section 25(1) will be no different in
general character from that by which courts in the US have sought
(pretty much vainly, I must add) 22 to develop robust, quasicategorical
sub-rules for sorting out those regulatory impacts that are
and are not ‘takings’, under a constitutional clause that in terms
prohibits uncompensated takings of property.
It remains to discuss one further respect in which the presence or
absence of the notion of a regulatory taking may matter to the state
and other parties. Insofar as excessively onerous regulation, under an
authorising law that fails to provide for due compensation, is
unconstitutional in South Africa in terms of the non-arbitrary-law
requirement of FC section 25(1), the obvious consequence, for the
future, of a judicial finding of violation is nullification of the
offending regulation. 23 But insofar as excessively onerous regulation
is classified as an ‘expropriation’ covered by FC section 25(2), the
20 Roux (n 1 above) 46-24.
21 See US Constitution 5th amendment: ‘... nor shall private property be taken for
public use, without just compensation’.
22 See FI Michelman ‘Takings, 1987’ (1988) 88 Columbia Law Review 1600 1625-1629.
23 The state may or may not also be held liable for constitutional damages to cover
past losses imposed by the unconstitutional regulation, but here I focus strictly on
the future.

296 Chapter 17
expropriation may seem to be executed at the first instant of
implementation of the offending regulation, thus bringing into play at
that instant an irrevocable obligation of the state to compensate for
the full value of a permanent encumbrance on the owner’s use and
enjoyment. (Compare ‘you broke it, you bought it’, uttered by an
antique shop proprietor to a clumsy shopper.) 24 If that is the view we
would take, then the presence of a regulatory-taking doctrine in
South African law would make a real difference in outcome in some
cases. 25 Would this be a normatively desirable consequence?
The consequence is surely troublesome from the standpoint of the
state. The state then finds itself exposed to the risk of very
substantial, unexpected monetary liabilities for purchases that it
never meant to make nor would deliberately have chosen to make,
had it known that its action would be treated by the law as a
purchase, as opposed to a lawful exercise of a general power to
regulate. There is, from a social-transformative standpoint, no
possible advantage to the state or to the public interest in such an
exposure. 26 A likely and, in the US, an oft-reported consequence of
24 As Roux writes (Roux (n 1 above) 46-29), under the law according to FNB:
The only situation in which a claimant might have an interest in
persuading the court that the law being challenged provides for the
expropriation of property rather than the arbitrary deprivation of
property is where it wishes the court to uphold the law and to read in a
requirement that the state pay [just and equitable] compensation. ...
Where ... the purpose of the challenge is to have the law struck down, a
24 finding that the law provides for the arbitrary deprivation of property is as
As Roux
good
writes
as (from
(Roux
the
(n
claimant’s
1 above) 46-29),
perspective)
under the
a finding
law according
that the
to
law
FNB:
provides
for The expropriation only situation and in fails which to meet a claimant the two additional might have requirements an interest set by in
s persuading 25(2). the court that the law being challenged provides for the
See also
expropriation
Roux (n 1 above)
of property
46-20.
rather than the arbitrary deprivation of
25 Relevant
property
US doctrine
is where
shows
it wishes
that
the
numerous
court to
complications
uphold the law
lie
and
down
to read
this path
in a
of
reasoning.
requirement
Suppose,
that
for
the
example,
state pay
that
[just
the
and
state
equitable]
imposes a
compensation.
temporary but
...
total
moratorium
Where ...
on
the
development
purpose of
of
the
land
challenge
in an
is
ecologically
to have the
sensitive
law struck
zone,
down,
pending
a
completion
finding
of
that
a less
the
restrictive
law provides
set of
for
permanent
the arbitrary
regulations.
deprivation
Is the
of property
result (a)
is
zero
liability
as good
to compensate,
as (from the
or (b)
claimant’s
liability to
perspective)
compensate
a
but
finding
only for
that
the
the
temporary
law
loss of
provides
use, or
for
(c) liability
expropriation
to compensate
and fails
for
to
permanent
meet the
loss
two
of use?
additional
See First
English
requirements
Church v
set
County
by s 25(2).
of Los Angeles 482 US 304 (1987); Tahoe-Sierra
See Preservation also Roux Council, (n 1 above) Inc. 46-20. v Tahoe Regional Planning Agency 535 US 302 (2002).
26 25 Relevant AJ der US Walt, doctrine whom shows Roux that cites numerous on this point, complications adduces lie instances down this in which path of a
reasoning. land-reform Suppose, program for cast example, in non-acquisitive, that the state regulatory imposes form a temporary (say, a somewhat but total
moratorium drastically pro-tenant on development revision of of land the law in an of ecologically eviction) can sensitive be saved zone, from pending judicial
completion nullification of under a less sec restrictive 25 if, but set only of permanent if, the court regulations. has the power Is the to result treat the (a) zero case
liability as one for to which compensate, it can order (b) some liability amount to compensate of compensation. but only See for AJ the van temporary der Walt
loss (n 3 of above) use, 235-36. or (c) liability From the to point compensate of view for of the permanent state and loss the of transformationminded,
Church such a regime v County seems of clearly Los Angeles less to be 482 preferred US 304 than (1987); one Tahoe-Sierra
in which the
use? See First
English
Preservation court is powerless Council, to Inc. order v Tahoe compensation, Regional Planning but simply Agency nullifies 535 US the 302 regulatory (2002).
26 program in the absence of constitutionally requisite compensation. Or perhaps a
court might also indicate in its judgment the form and amount of compensation
that could save the program if provided, along the lines of the German idea of
‘equalisation payments’ — see Van der Walt (n 3 above) 222-23 — leaving the
government to choose between its options (ie, to desist or to pay). Or a court
might even see fit to suspend its order of nullification for a time, while
government ponders its alternatives. The key requirement, in my view, is that

Reply - Frank Michelman 297
creating it is timidity on the part of regulatory officials in approaching
the outer bounds — never fully certain, with or without quasicategorical
sub-rules in the picture, given the human composition of
the judiciary — of constitutionally permitted regulation-withoutcompensation.
Officials of regulatory agencies make this perhaps
their chief complaint against regulatory-taking doctrine as it exists in
the US, and many US observers suspect it is this expected in terrorem,
state-activity-suppressing effect of a regulatory-taking doctrine — as
opposed to a concern about individualised injustice to wiped-out
landowners — that motivates the relentless push of libertarianminded,
US economic conservatives in favor such a doctrine.
These are worries that I should think progressive-minded South
Africans would take to heart. They might accordingly congratulate the
doctrine according to FNB for finding a textually respectable way to
ensure justice to owners without steering into this sort of trouble —
and also, so far as I can see, without any cost at all to the pursuit of
constitutional justice in South Africa, for property owners and for all.
3 Making sense of FC section 25(1)’s internal and external
limitations
I now wish to introduce a further reason for endorsing the feature in
the doctrine according to FNB that I have so far sought to vindicate
against certain possible worries that I have associated with Roux’s
texts. That feature is the deployment of the non-arbitrary-law
requirement in FC section 25(1) in such a way as to have it sweep in
(or, if you like, anticipate or preempt) the just-and-equitablecompensation
requirement imposed by FC section 25(2) on that subset
of property limitations that qualify as expropriations.
My further thought is prompted by Roux’s observation, in his
CLoSA chapter, that an effect of the FNB doctrine’s sweeping
construction of the FC section 25(1) requirement is to foreclose, for
property clause cases, the second stage in the established,
‘traditional two-stage inquiry’ for testing the constitutionality of laws
vis-à-vis the protections in the Bill of Rights. 27 I think this is slightly
off the mark, and fortunately so for South African constitutional law.
I proceed to explain.
government always gets to choose whether or not to desist, once a court has said
the program cannot go forward without compensation. A ‘constructive
expropriation’ or ‘regulatory taking’ doctrine on the US model jeopardises that
assurance, and so is to be avoided.
27
Roux (n 1 above) 46-3. See also Van der Walt (n 3 above) 36-37.

298 Chapter 17
According to a reading of FC section 25 once proposed by AJ van
der Walt but rejected by the Constitutional Court in FNB, 28 any law
limiting a property interest, or authorising such a limitation, would
have to pass (at least) a double inspection. First, the law would have
to meet FC section 25(1)’s ‘internal’ requirement of being nonarbitrary.
29 Second, it would have to meet FC section 36(1)’s
‘external’ requirement of being reasonable and justifiable (etc). Had
Van der Walt’s proposal been accepted, it would have raised the
following puzzle.
‘Not arbitrary’ in FC section 25(1) and ‘reasonable’ in FC section
36(1) appear to name stronger and weaker versions of the same sort
of test. 30 To say it a little differently, the two terms seem to name
different points on the same scale or axis of appraisal of a law, the
one by which we measure the acceptability of a burdensome means
by assessing its utility, as compared with less burdensome or
otherwise less noxious alternatives, in terms of the ends (and their
weights) for which the means is said to be required. Let us call this
the axis of ‘mean/ends inspection’. Let the zero point lie at the origin
of the axis, and let it represent a judgment that the law in question
is as wildly arbitrary or unreasonable, in means/ends-inspection
terms, as any law can be imagined to be: If the apparent objective
(‘end’) is within the state’s legitimate pursuit at all, there are a
thousand obviously more effective, less costly or noxious ways to get
at it.
A point near the origin represents a judgment that the law, if
arguably rational by a hair, is still quite plainly not what you would
expect of a reasonably well-informed and considerate lawmaker. A
point quite distant from the origin represents a judgment that the law
stands up well against a robust proportionality test.
Now, as between ‘not arbitrary’ (FC section 25(1)) and ‘reasonable’
(FC section 36(1)), either those two terms name the same point
on the means/ends-inspection axis, or one of them names a point that
is more distant, while the other names a point that is less distant,
from the origin. Any way you cut it, the prospects for double
inspection appear to collapse. If the two terms name the same point,
double inspection is redundant. If the FC section 25(1) test is weaker
— nearer the origin — than the FC section 36(1) test, one need never
trouble to apply the FC section 25(1) test, because the only question
that finally matters is whether the law can pass the more demanding,
28 See n 4 above and text accompanying; FNB (n 5 above) para 70.
29
I am here setting aside cases involving facial expropriations, where the internal
requirements of sec 25(2) would also come into play.
30 Inclusion in this analysis of FC sec 36(1)’s additional demand for justifiability in an
open and democratic society (etc.) would only complicate the exposition without
altering the analysis.

Reply - Frank Michelman 299
FC section 36(1) inspection, with the onus on the party supporting
constitutionality (the state). If the section 25(1) test is stronger —
further from the axis — then any law that passes muster under FC
section 25(1) is a fortiori cleared under FC section 36(1). 31 There is
no possible case in which a meaningful double inspection can occur.
The FNB court’s rejection of Van der Walt’s proposal reconfigures
our puzzle, but does not do away with it. We now have a ‘truncated’
property right. 32 FC section 25(1) gives you a right not to be deprived
of property in the absence of a non-arbitrary, authorising law, and
that’s all. 33 And even that truncated right — like all rights under the
Bill of Rights — is subject to limitation by law that meets the test of
FC section 36(1). 34 A law authorising deprivations of property, found
arbitrary in terms of FC section 25(1), may nevertheless be upheld as
constitutional if found reasonable in terms of FC section 36(1). 35 But
this, as Roux observes, appears to make no sense, or to posit what
seems a virtual impossibility: To wit, that a law can be simultaneously
arbitrary and reasonable. The prospect of a two-stage inquiry thus
appears to collapse for property clause cases.
Notice, however, that this holds true only on the assumption I
introduced above, that ‘(non)arbitrary’ and ‘reasonable’ both name
points somewhere along the same axis of appraisal of laws — the one
I have been calling the axis of means/ends inspection. If
‘(non)arbitrary’ were construed to refer to some quality in a law quite
plainly distinct from its location along that axis, then no collapse
would occur. A law that is arbitrary in that sense might nevertheless
sometimes be upheld as reasonable in terms of FC section 36(1); we
would have to look and see in each case. (To make my point here
crystal-clear, suppose for a moment that when we look up ‘arbitrary’
in the legal dictionary, we unexpectedly find that this word means
‘enacted prior to 27 April, 1994’. It would not, then, be nonsense to
offer the state the opportunity to rescue earlier-enacted (‘arbitrary’)
31 But (you may ask) what about the possible effect of onus placement? Under the
rules generally governing the two-stage inquiry, the claimant bears the onus on
the sec 25(1) test, while the state bears the onus on the sec 36(1) test. It thus
seems theoretically possible that the claimant could fail to carry the onus of
showing that the law is arbitrary in terms of sec 25(1), while the state might also
fail to carry the onus of showing that the law is reasonable in terms of sec 36(1),
even if sec 36(1)’s demand for a reasonable law is considered weaker — closer to
the origin of the mean/ends-inspection axis — than sec 25(1)’s demand for a
nonarbitrary law. (Maybe, for example, the state wholly fails to lead evidence or
offer argument on the point.) What would you say is the practical likelihood of
such a combination of judicial findings?
32
See n 3 above and accompanying text.
33 I continue to ignore cases of expropriation, for the sake of expository simplicity.
34 See FNB (n 5 above) paras 46, 59 and 110.
35
Again I set aside sec 36(1)’s additional requirement of justifiability etc., as
needlessly complicating the exposition.

300 Chapter 17
laws from constitutional perdition, by showing that they are
nevertheless reasonable and justifiable etc.)
Now let us consider the following laws:
- A law imposes unpaid-tax liability on a person who owns a security
title in goods in respect of which the tax is owed, but who is in no way
culpable for the tax-generating transaction or for the non-payment of
the tax. 36
- A law imposes penalties on landowners for utility-rate arrears, where
the services were furnished to and at the behest of unlawful occupiers,
whose occupancy and whose consumption of services the owner has
neither invited nor condoned. 37
Those two examples will ring a bell with South African constitutional
lawyers. Here is a third from the USA:
- A law requires landlords to lease at sharply curtailed, below-market
rents to tenants in conditions of special economic hardship. 38
None of these laws is notably short on means-ends rationality, or
appears close to arbitrary in that sense. Each of the laws directly and
effectively serves an obviously permissible, respectable, and weighty
goal. The first two produce revenues for a public fisc that is never in
these days large enough to permit the state to carry out adequately
all of its basic functions and commitments. The third helps ensure
that everyone is decently sheltered, including those who currently
lack the means to pay market price for even the cheapest available
housing. Yet all three laws also share, at least arguably, a certain sort
of vice.
This arguable vice lies not in any overall disproportion between
the magnitude or quality of private burdens imposed and the worth of
public benefits secured (where ‘quality’ of burden would refer to
something like ‘invades inner-core privacy’ or ‘limits free exercise of
religion’). The arguable vice in these laws lies rather in a seemingly
unequal and unfair distribution of burdens among the members of
society. All of these laws pursue undoubtedly worthy and legitimate
goals, by means that are instrumentally well attuned to those goals
and would be unobjectionable, did they not leave burdens distributed
in ways that prima facie look wrong by any fair measure of justice in
the distribution of burdens. (Why should it be the bank who makes
good the importer’s tax default in FNB, or the victim of illegal
36 See FNB (n 5 above).
37
See Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett & Others v
Buffalo City Municipality; Transfer Rights Action Campaign & Others v Member of
the Executive Council for Local Government and Housing, Gauteng & Others 2005
1 SA 530 (CC), 2005 2 BCLR 150 (CC).
38 Pennell v City of San Jose 485 US 1 (1988).

Reply - Frank Michelman 301
occupiers who is penalised for nonpayment for services she never
ordered or consumed in Mkontwana, or the class — in Pennell — of
rental-housing suppliers (as opposed to doctors, pharmacists, food
and clothing purveyors, and the taxpayers at large) that is required to
pay specially for fulfillment of the basic need of the destitute?) 39
I don’t thus mean to be anticipating a final decision of
unconstitutionality for any of the laws in question. To the contrary,
my suggestion is that the prima facie, normatively dubious
distribution of burdens that is apparent on the face of all these laws
might be a feature that renders them all ‘arbitrary’ in terms of FC
section 25(1) — thus ‘limitations’ of the truncated property right for
purposes of the first stage of the traditional two-stage inquiry — while
saving the possibility of rescuing any or all of them from
unconstitutionality by showing them, at the second stage, to be
nevertheless reasonable and justifiable in terms of section 36(1). To
illustrate: The FC 36(1) inquiry might (or might not) save our second
law though reasoning along lines such as those suggested by Justice
O’Regan in Mkontwana 40 — perhaps assisted by argument that the law
as written gives landowners socially beneficial incentives to work
harder at watching out for illegal occupation and notifying public
authorities promptly when such occupation occurs.
The suggestion, in sum, would be that a deprivation-authorising
law should be held ‘arbitrary’ in terms of FC section 25(1) if — and
only if — the law casts its burdens according to an apparently arbitrary
or unfair pattern, judging generously from the standpoint of the
complainant (as always in the two-stage inquiry), prior to any focused
justificational inquiry. Let us now consider what would be gained and
what would be lost by adopting that suggestion, in place of the
exegesis of ‘arbitrary’ now found in the law according to FNB.
39 See Scalia J’s dissent in Pennell (n 37 above) 21-22
40
n 36 above para 115:
[I]t is important to bear in mind that it would be difficult to narrow the
scope of section 118(1). Section 118(1) is a simple procedure which
requires that in all cases a registrar of deeds may not effect the transfer
of immovable property without a certificate from the municipality
confirming that all consumption charges and rates incurred in respect of
that property in the preceding two years have been paid. It is accordingly
the municipality that issues the certificate. It will not always be clear to
a municipality, from its records, who has actually consumed the services
on that property for the previous two years, nor will it be clear whether
that person is the owner or a tenant or an unlawful occupier. Limiting the
terms of the certificate to consumption charges incurred by only
particular classes of occupier may create substantial difficulties for the
efficient conveyancing of the property, as the municipality may not be in
a position to determine the class of occupier that in fact incurred the
consumption charges. This practical difficulty needs to be borne in mind
in determining the sufficiency of the reason for [the failure to except
illegal-occupier cases from the coverage if s 118(1)].

302 Chapter 17
The most obvious gain would be in putting the two-stage inquiry
unquestionably back on track in property clause cases. That counts as
a gain, other things remaining equal, if only because it redeems the
symmetry — or call it legibility — of the constitutional corpus juris of
South Africa. But of course that is not all. The doctrine of the twostage
inquiry presumably has something going for it normatively (or
else why have we got it?). Commitment to the two-stage inquiry is a
loud and clear token of the shift from a culture of authority to a
culture of justification. Protections set forth in the Bill of Rights are
to be given a generous initial scope, with the state then permitted —
but also required! — to explain persuasively to a court what good
reasons (if any) it has for limiting the rights thus generously defined.
Something of value is lost if the Constitutional Court finds itself forced
to yield on this simple precept for any clause in the Bill of Rights.
But surely, you will protest, the possible cure I have suggested for
this symbolic loss (for is it really anything more?) would be like
throwing out the baby with the bath water. ‘Remember’, you will say:
‘We are dealing here with a truncated property right. If FC section
25(1) does not mandate means/ends inspection for deprivationauthorising
laws, nothing does, because FC section 36(1) never
fastens its teeth on a law passing muster under FC section 25.’ And
that, you say, makes confinement of ‘arbitrary’ to cases of prima
facie maldistribution of burdens unacceptable.
Right you are. Such confinement would open up the very pitfall
that Van der Walt’s rejected double-inspection proposal wisely
foresaw and was meant to avoid. Once the Constitutional Court has
opted in favor the truncated-right construal of FC section 25, it
cannot also so confine the meaning of ‘arbitrary’ in FC section 25(1)
as to forgo entirely a means/ends inspection of deprivationauthorising
laws. 41 That, however, does not totally defeat my point.
As long as some laws that pass muster on the axis of means/ends
inspection will still be found to fail FC section 25(1) inspection, on the
sole ground of maldistribution of burdens (consider again my three
illustrative laws, above), the two-stage inquiry is still in business
under the Property Clause. As I read the law according to FNB, it is
receptive to this very understanding. And that, I say again, is a good
thing.
41
This assumes the Court would not wish to saddle the drafters with the design of
entirely precluding means/ends inspection for laws impinging on property but on
no other constitutionally protected interest. Van der Walt’s initial proposal
proceeded from a well-considered reluctance to impute such a design to the
drafters. Van der Walt (n 3 above).

18
SOCIO-ECONOMIC
RIGHTS: REVISITING
THE REASONABLENESS
REVIEW/MINIMUM
CORE DEBATE
Sandra Liebenberg*
1 Introduction
In its landmark decisions in Soobramoney, 1 Grootboom, 2 Treatment
Action Campaign, 3 and Khosa, 4 the Constitutional Court adopted a
model of reasonableness review for assessing whether the state has
complied with the positive duties imposed by the socio-economic
rights in FC sections 26 and 27. In doing so, it has rejected the
argument urged by the amici curiae in Grootboom and TAC that FC
sections 26 and 27 impose a minimum core obligation on the state to
ensure that everyone has access to essential basic levels of the
* I acknowledge, with appreciation, the comments on a draft version of this chapter
received from Katharine Young and Inga Winkler. This chapter is based on material
in my forthcoming book Adjudicating socio-economic rights under a
transformative constitution (2008) which is supported by a grant from the
National Research Foundation (NRF). Any opinion, findings and conclusions or
recommendations expressed in this material are those of the author and therefore
the NRF does not accept any liability in regard thereto.
1 Soobramoney v Minister of Health, KwaZulu-Natal 1998 1 SA 765 (CC), 1997 12
BCLR 1696 (CC).
2
Government of the RSA v Grootboom 2001 1 SA 46 (CC), 2000 11 BCLR 1169 (CC).
3 Minister of Health v Treatment Action Campaign 2002 5 SA 721 (CC), 2002 10
BCLR 1033 (CC).
4
Khosa v Minister of Social Development, Mahlaule v Minister of Social
Development 2004 6 SA 505 (CC), 2004 6 BCLR 569 (CC).
303

304 Chapter 18
relevant rights. 5 The furthest the Court was prepared to go was to
hold that, where the evidence in a particular case revealed that it was
appropriate, regard could be had to the content of a minimum core
obligation in evaluating the reasonableness of the state’s measures. 6
Thus a litigant could not rely directly on the non-fulfilment of a
minimum core obligation imposed by the rights in FC sections 26 and
27 to secure immediate relief. She could, at most, rely on such an
obligation to support her arguments that the measures adopted by the
state were unreasonable in the circumstances. A finding of unreasonableness
could, in general, not be used to elicit benefits for an
individual or a class of individuals.
The Court’s objections to direct reliance on a concept of minimum
core obligations were basically threefold: the difficulty of defining
the content of minimum core obligations; a concern that any
definition would not reflect the diversity of needs of differently
placed groups; and an incompatibility with the institutional roles and
competencies of the courts. 7
In this essay, I evaluate the model of reasonableness review for
positive socio-economic rights claims and compare it to an approach
based on the concept of minimum core obligations. The focus will be
on cases in which people claim access to the services and resources
referred to in FC sections 26 and 27.
Any such evaluation must take into account the critical role of
socio-economic rights in advancing the transformative commitments
and values of the Constitution. Klare describes transformative
constitutionalism as ‘a long term project of constitutional enactment,
interpretation, and enforcement committed (not in isolation, of
course, but in a historical context of conducive political
developments) to transforming a country’s political and social
institutions and power relationships in a democratic, participatory,
5 This concept is endorsed by the UN Committee on Economic, Social and Cultural
Rights (UNCESCR) which supervises states parties’ obligations under the
International Covenant on Economic, Social and Cultural Rights (1966). See, for
example, ‘General Comment 3: The nature of states parties obligations (art 2(1)
of the Covenant)’ UN doc E/1991/23 (1990) para 10; ‘General Comment 14: The
right to the highest attainable standard of health (art 12 of the Covenant)’ UN
doc E/C.12/2000/4 (2000) para 43; ‘General Comment 15: The right to water
(arts 11 & 12 of the Covenant)’ UN doc E/C. 12/2002/11 (2002) para 37.
6 See Grootboom (n 2 above) para 33; Treatment Action Campaign (n 3 above) para
34.
7
See Grootboom (n 2 above) paras 27-33; Treatment Action Campaign (n 3 above)
paras 26-39.

Sandra Liebenberg 305
and egalitarian direction.’ 8 The preamble of the Final Constitution
affirms that it was adopted so as to establish, amongst other goals, a
society based on social justice and an improvement in the quality of
life of all. When interpreting socio-economic rights, the courts are
obliged to ‘promote the values that underlie an open and democratic
society based on human dignity, equality and freedom.’ 9 The
realisation of socio-economic rights is integral to this vision of a
transformed society.
2 What does ‘reasonableness review’ mean in the context
of socio-economic rights claims?
In reviewing positive socio-economic rights claims, the central
question that the Court asks is whether the means chosen are
reasonably capable of facilitating the realisation of the socioeconomic
rights in question. 10 The Court’s approach is designed to
allow government a margin of discretion relating to the specific policy
choices adopted to give effect to socio-economic rights:
A Court considering reasonableness will not enquire whether other more
desirable or favourable measures could have been adopted, or whether
public money could have been better spent. The question would be
whether the measures that have been adopted are reasonable. It is
necessary to recognise that a wide range of possible measures could be
adopted by the state to meet its obligations. Many of these would meet
the requirement of reasonableness. Once it is shown that the measures
do so, this requirement is met. 11
8 K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South
African Journal on Human Rights 146; C Albertyn & B Goldblatt ‘Facing the
challenges of transformation: Difficulties in the development of an indigenous
jurisprudence of equality’ (1998) 14 South African Journal on Human Rights 248;
M Pieterse ‘What do we mean when we talk about transformative
constitutionalism?’ (2005) 20 South African Publiekreg/Public Law 155; S
8 Liebenberg ‘Needs, rights and transformation: Adjudicating social rights’ (2005) 1
Stellenbosch
K Klare ‘Legal
Law
culture
Review
and
1; P
transformative
Langa ‘Transformative
constitutionalism’
constitutionalism’
(1998) 14
(2006)
South
3
Stellenbosch
African Journal
Law
on
Review
Human
351.
Rights
See further
146; C
the
Albertyn
cases of
&
S
B
v Makwanyane
Goldblatt ‘Facing
1995 3
the
SA
391
challenges
(CC), 1995
of transformation:
6 BCLR 665 (CC)
Difficulties
para 262; Bato
in the
Star
development
Fishing (Pty)
of
Ltd
an
v Minister
indigenous
of
Environmental
jurisprudence of
Affairs
equality’
and
(1998)
Tourism
14
2004
South
4
African
SA 490
Journal
(CC), 2004
on Human
7 BCLR
Rights
687
248;
(CC)
paras
M Pieterse
73-74; Minister
‘What
of
do
Finance
we mean
v Van Heerden
when we
2004
talk
6 SA 121
about
(CC),
transformative
2004 11 BCLR
1125
constitutionalism?’
(CC) para 142;
(2005)
Rates Action
20 South
Group
African
v City of
Publiekreg/Public
Cape Town 2004 12
Law
BCLR
155;
1328
S
(C)
Liebenberg
para 100.
‘Needs, rights and transformation: Adjudicating social rights’ (2005) 1
9 Sec
Stellenbosch
39(1)(a). See
Law
also
Review
Soobramoney
1; P Langa
(n
‘Transformative
1 above) para 8.
constitutionalism’ (2006) 3
10 Grootboom
Stellenbosch
(n
Law
2 above)
Review
para
351.
41.
See further the cases of S v Makwanyane 1995 3 SA
11 As
391
above.
(CC), 1995
O’Regan
6 BCLR
J describes
665 (CC) para
the
262;
purpose
Bato
of
Star
the
Fishing
reasonableness
(Pty) Ltd v
standard
Minister of
as
follows
Environmental
in Rail Commuters
Affairs and
Action
Tourism
Group
2004
v
4
Transnet
SA 490 (CC),
Ltd t/a
2004
Metrorail
7 BCLR
2005
687 (CC)
2 SA
359
paras
(CC),
73-74;
2005
Minister
4 BCLR
of
301
Finance
(CC) para
v Van
87:
Heerden 2004 6 SA 121 (CC), 2004 11 BCLR
1125 (CC) para 142; Rates Action Group v City of Cape Town 2004 12 BCLR 1328
(C) para In adopting 100. this standard the Court requires the bearer of constitutional
9
Sec 39(1)(a). obligations See to also perform Soobramoney them (n in 1 a above) manner para which 8. is reasonable. This
10 Grootboom standard (n strikes 2 above) an para appropriate 41. balance between the need to ensure that

306 Chapter 18
However, in practically all the socio-economic rights cases
decided by the Constitutional Court, the effect of its decisions has
been to require government to alter its preferred policy choices and
to allocate additional resource to particular programmes. 12 This
statement can therefore be understood to signal a two-fold
awareness: (1) that the courts’ role will be to decide, in the context
of concrete cases, the appropriate margin of discretion to allow the
state to make policy and budgetary choices; and (2) the courts will
still scrutinise these choices for their compliance with the purposes
and values protected by the socio-economic rights in the Constitution.
The implication is that there is no brightline boundary between law
and policy, and that substantive evaluative choices will have to be
made regarding when and how the courts should intervene in policy
choices which impact on people’s socio-economic welfare. 13 The
challenge facing the Court in this context is the formulation of
transparent criteria to guide the making of these evaluative
choices. 14 The jurisprudence shows that the Court has gone a
substantial distance in articulating its approach to evaluating the
reasonableness of the state’s acts or omissions in the context of socioeconomic
rights claims.
Thus the Court has indicated that it will assess the reasonableness
of the state’s conduct in the light of the social, economic and
historical context, and consideration will be given to the capacity of
11 constitutional obligations are met, on the one hand, and recognition for
the fact that the bearers of those obligations should be given appropriate
leeway to determine the best way to meet the obligations in all the
circumstances.
Reasonableness review has synergies with the description of ‘obligations of
conduct’ imposed by economic, social and cultural rights according to The
Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. Thus
an obligation of conduct ‘requires action reasonably calculated to realise the
enjoyment of a particular right.’ ‘The Maastricht guidelines on violations of
economic, social and cultural rights’ (1998) 20 Human Rights Quarterly 691 para
7. The Maastricht Guidelines were adopted by a group of eminent international
law experts to elaborate on the obligations imposed by the International
Covenant on Economic Social and Cultural Rights.
12 The Court acknowledges that its decisions have budgetary implications, but
understands it as a by-product of the enforcement of constitutional rights as
opposed to any direct attempt to ‘rearrange budgets’. See Treatment Action
Campaign (n 3 above) para 38. For an insightful analysis of the Court’s approach
to decisions with implications for resource allocation, see: T Roux ‘Legitimating
transformation: Political resource allocation in the South African Constitutional
Court’ 10 (4) Democratization (2003) 92-111.
13 On the importance of substantive legal reasoning in the context of socioeconomic
rights, see S Liebenberg ‘Towards a transformative adjudication of
socio-economic rights’ 21 Speculum Juris (2007) 41. See also J Froneman ‘Legal
reasoning and legal culture: Our “vision” of law’ (2005) 1 Stellenbosch Law
Review 3.
14 As Karl Klare suggests, one of the values of substantive legal reasoning which
openly engages with the evaluative choices involved in interpretive work, is that
it improves the transparency of the legal process thereby contributing to
‘deepening democratic culture.’ Klare (n 8 above) 171.

Sandra Liebenberg 307
institutions responsible for implementing the programme. 15 While
Soobramoney raised the spectre of the Court adopting a thin standard
of rationality scrutiny for socio-economic rights claims, the Court in
Grootboom and TAC proceeded to develop a more substantive set of
criteria for assessing the reasonableness of the state’s acts or
omissions. 16 Thus the Court held that a reasonable government
programme must have the following features: 17
• It must be comprehensive, coherent and coordinated; 18
• Appropriate financial and human resources must be made available
for the programme; 19
• It must be balanced and flexible 20 and make appropriate provision for
short, medium and long-term needs; 21
• It must be reasonably conceived and implemented; 22 and
• It must be transparent, and its contents must be made known
effectively to the public. 23
The element of the reasonableness test that comes closest to a
threshold requirement is that a reasonable government programme
must cater for those in urgent need:
To be reasonable, measures cannot leave out of account, the degree and
extent of the denial of the right they endeavour to realise. Those whose
needs are most urgent and whose ability to enjoy all rights is therefore
most in peril, must not be ignored by the measures aimed at achieving
realisation of the right. It may not be sufficient to meet the test of
reasonableness to show that the measures are capable of achieving a
statistical advance in the realisation of the right. Furthermore, the
Constitution requires that everyone be treated with care and concern. If
the measures, though statistically successful, fail to respond to the
needs of those most desperate, they may not pass the test. 24
This requirement of the reasonableness test is justified in terms of the
value of human dignity. Thus in Grootboom the Court held:
15 Grootboom (n 2 above) para 43.
16
See Bel Porto School Governing Body & Others v Premier, Western Cape &
Another 2002 3 SA 265 (CC), 2002 9 BCLR 891 (CC) para 46; Khosa (n 4 above) para
67.
17
The Court noted in Khosa that the factors identified in the assessment of
reasonableness were not a closed list and that ‘all relevant factors have to be
taken into account’. The Court went on to observe that ‘[w]hat is relevant may
vary from case to case depending on the particular facts and circumstances.’
Khosa (n 4 above) para 44
18 Grootboom (n 2 above) paras 39 and 40.
19
Grootboom (n 2 above) para 39.
20 Treatment Action Campaign (n 3 above) paras 68, 78, 95.
21 Grootboom (n 2 above) para 43.
22
Grootboom (n 2 above) para 40–43.
23 Treatment Action Campaign (n 3 above) para 123.
24 Grootboom (n 2 above) para 44. See A van der Walt ‘A South African reading of
Frank Michelman’s theory of social justice’ in H Botha et al (eds) Rights and
democracy in a transformative constitution (2004) 163 207.

308 Chapter 18
It is fundamental to an evaluation of the reasonableness of state action
that account be taken of the inherent dignity of human beings. ...
Section 26, read in the context of the Bill of Rights as a whole, must
mean that the respondents have a right to reasonable action by the state
in all circumstances and with particular regard to human dignity. In
short, I emphasise that human beings are required to be treated as
human beings. 25
The assessment of the reasonableness of government programmes is
influenced by two further factors derived from sections 26(2) and
27(2). The first is the concept of ‘progressive realisation’ which was
interpreted as follows in Grootboom:
The term ‘progressive realisation’ shows that it was contemplated that
the right could not be realised immediately. But the goal of the
Constitution is that the basic needs of all in our society be effectively
met and the requirement of progressive realisation means that the state
must take steps to achieve this goal. It means that accessibility should
be progressively facilitated: legal, administrative, operational and
financial hurdles should be examined and, where possible, lowered over
time. Housing must be made more accessible not only to a larger number
of people but to a wider range of people as time progresses. 26
In this context, the Court also specifically endorsed the views of the
UN Committee on Economic, Social and Cultural Rights that
any deliberately retrogressive measures ... would require the most
careful consideration and would need to be fully justified by reference
to the totality of the rights provided for in the Covenant and in the
context of the full use of the maximum available resources. 27
The second factor (which is linked to the first one) is the availability
of resources. In this regard, the Court held that
both the content of the obligation in relation to the rate at which it is
achieved as well as the reasonableness of the measures employed to
achieve the result are governed by the availability of resources. 28
25
Grootboom (n 2 above) para 83. See also A Sachs ‘The judicial enforcement of
socio-economic rights’ (2003) 56 Current Legal Problems 579 594–596; S
Liebenberg, ‘The value of human dignity in interpreting socio-economic rights’
(2005) 21 South African Journal on Human Rights 1.
26 Grootboom (n 2 above) para 45.
27 As above, citing UNCESCR General Comment 3 (n 5 above) para 9. The concept of
‘retrogressive measures’ has not yet received further elaboration from the
Constitutional Court. The major interpretative difficulty is whether retrogression
should be assessed in relation to particular individuals or groups, or in respect of
the entire population.
28 Grootboom (n 2 above) para 46.

Sandra Liebenberg 309
This last consequence flows from the Court’s understanding that
the positive duties imposed by the socio-economic rights provisions
are limited by the second subsections of both FC sections 26 and 27. 29
The model of reasonableness review is confined to the positive
duties imposed by socio-economic rights. In respect of the negative
duties, the Court has adopted a different model of review. Thus
where legislation or conduct deprives people of the existing access
which they enjoy to the relevant rights, this deprivation constitutes a
breach of the first subsection of FC sections 26 and 27. This breach is
only justifiable in terms of the stringent requirements of the general
limitations clause (FC section 36). Thus the limitation must be in
terms of a law of general application and is tested against the purpose
and proportionality requirements inherent in section 36. Negative
violations are thus subject to a much more stringent form of scrutiny
than positive violations of socio-economic rights. The principled
sustainability of the distinction between negative rights and positive
rights is somewhat dubious. And it can likewise lead to a number of
practical difficulties in characterising various kinds of claims. 30
However, as the focus of the essay is on cases involving positive claims
by people to the various services and resources referred to in sections
26 and 27, this issue will not be pursued further.
3 An alternative model of review based on ‘minimum
core’ obligations
The Court’s jurisprudence, particularly its rejection of minimum core
obligations, has attracted quite a bit of criticism. 31 Several authors
have questioned whether the Court’s jurisprudence sufficiently
defines the content of the relevant socio-economic rights, and
protects those who are experiencing a severe deprivation of minimum
29 Soobramoney (n 1 above) paras 11 and 28; Grootboom (n 2 above) para 38;
Treatment Action Campaign (n 3 above) para 39.
30
For a critique of the negative and positive duties distinction in the context of
socio-economic rights, see M Craven ‘Assessment of the progress on adjudication
of economic, social and cultural rights’ in J Squires, M Langford & B Thiele (eds)
The road to a remedy: Current issues in the litigation of economic, social and
cultural rights (2005) 27 34-36.
31 A sustained critique of the failure of the Court to adopt the notion of a minimum
core obligation has been mounted by David Bilchitz. See D Bilchitz: ‘Giving socioeconomic
rights teeth: The minimum core and its importance’ (2002) 118 South
African Law Journal 484; ‘Towards a reasonable approach to the minimum core:
Laying the foundations for future socio-economic rights jurisprudence’ (2003) 19
South African Journal on Human Rights 1; Poverty and fundamental rights: The
justification and enforcement of socio-economic rights (2007). See also: C Scott
& P Alston ‘Adjudicating constitutional priorities in a transnational context: A
comment on Soobramoney’s legacy and Grootboom’s promise’ (2000) 16 South
African Journal on Human Rights 206 244-45, 250, 252; S Liebenberg ‘South
Africa’s evolving jurisprudence on socio-economic rights: An effective tool in
challenging poverty’ (2002) 6 Law, Democracy & Development 159.

310 Chapter 18
essential levels of basic socio-economic goods and services. 32 Other
authors have pointed out that the failure to provide for people’s
urgent socio-economic need imperils their health, lives and future
socio-economic well-being, and represents a failure to respect their
inherent human dignity. 33
The major theoretical rival to the reasonableness model of review
adopted by the courts is a model which incorporates the notion of
minimum core obligations. David Bilchitz, a leading proponent of this
view, argues that the minimum core obligation protects people’s
urgent threshold interests in survival ‘as the inability to survive wipes
out all possibility for realising the sources of value in the life of a
being.’ 34 On this conception, the minimum core places an obligation
on the state to ensure that individuals ‘are not exposed to the general
conditions that threaten their survival’. 35 Individuals also have a more
maximal interest ‘in the general conditions that are necessary for the
fulfilment of a wide range of purposes’. 36 This more maximal interest
would require a standard of socio-economic provisioning which allows
them to flourish and achieve their goals. However, the meeting of
minimum core obligations should enjoy prioritised consideration in
social policy making and in the judicial enforcement of these rights
due to the urgency of the interests they protect. In other words,
without the meeting of minimum essential needs to survival, the
obligation to progressively achieve the full realisation of the rights to
a satisfactory standard of adequacy becomes meaningless. The
implications for adjudication are that a court must require
particularly weighty reasons by way of justification from the state for
a failure to fulfil core obligations. 37
A number of academic commentators have contested the view
that a model of review incorporating the notion of minimum core
obligations is better suited to the judicial review of positive socioeconomic
rights claims. 38 In many respects, these interventions
32
See, eg, M Pieterse ‘Coming to terms with judicial enforcement of socioeconomic
rights’ (2004) 20 South African Journal on Human Rights 383 410–411.
33 For an argument that human dignity requires taking account of the relative
urgency of the needs of different individuals and groups and a corresponding
urgent response, see Liebenberg (n 25 above) 15-18 and 22-23.
34 Bilchitz Poverty and fundamental rights (n 31 above) 187.
35
Bilchitz Poverty and fundamental rights (n 31 above) 188.
36 As above.
37 See Bilchitz’s endorsement of the notion of ‘weighted priority’ as opposed to
‘lexical priority’ in relation to assessing compliance with minimum core
obligations: Bilchitz Poverty and fundamental rights (n 31 above) 208–213.
38 Sachs (n 25 above); M Wesson ‘Grootboom and beyond: Reassessing the socioeconomic
rights jurisprudence of the South African Constitutional Court’ (2004)
20 South African Journal on Human Rights 284; B Porter ‘The crisis of ESC Rights
and strategies for addressing it’ in Squires, Langford & Thiele (n 30 above) 43 48–
55; MS Kende ‘The South African Constitutional Court’s embrace of socioeconomic
rights: A comparative perspective’ (2003) 6 Chapman Law Review 137.

Sandra Liebenberg 311
represent elaborations of the concerns articulated by the Court in
relation to the minimum core concept. 39
The first set of objections relates broadly to the impact of the
minimum core concept on democratic institutional functioning and
culture in South Africa. The concept of minimum core obligations
ostensibly compels the courts to transgress the boundaries of their
institutional legitimacy and competence, thus undermining the
separation of powers doctrine. The process of defining and enforcing
minimum core obligations results in the courts usurping government’s
policy-making functions. One response to this line of argument is that
the notion of bounded ‘separate spheres’ does not accord with the
relational, dialogic character of the relationship between the
different spheres of government under the South African
Constitution. 40
Of greater concern to a vision of transformative constitutionalism
that promotes institutional and social dialogue in the process of
realising socio-economic rights is the argument that the endorsement
of minimum core obligations by the judiciary will undermine
deliberative democracy. Thus Carol Steinberg argues that the
minimum core represents an ‘intrusive rule-based’ approach which is
likely to stifle institutional conversation and collaboration between
the three branches of government. 41 In contrast, she argues,
the abstract and open-ended nature of the reasonableness inquiry should
be understood as a ‘democracy-promoting’ form of minimalism in which
the court settles the case before it on narrow grounds, avoiding the
laying down of clear rules and final resolutions that will inhibit the
effective functioning of the other branches of government. 42
The kind of case-by-case evolution of standards on socio-economic
rights promoted by reasonableness review is more likely to promote
‘the kind of argumentative give-and-take, evolution, learning and
compromise’ which will produce wiser and more sustainable decisions
on socio-economic rights. 43 Her analysis is based on the understanding
that there is a legitimate diversity of views regarding the nature and
role of socio-economic rights, how different socio-economic needs
39
n 7 above and accompanying text.
40 In terms of FC sec 1(d), the South African state is founded on the values of,
amongst others, ‘accountability, responsiveness and openness.’ Chapter 3 of the
Constitution endorses ‘co-operative government’. See generally H Botha
‘Freedom and constraint in constitutional adjudication’ (2004) 20 South African
Journal on Human Rights 249 277–278.
41
C Steinberg ‘Can reasonableness protect the poor? A review of South Africa’s
socio-economic rights jurisprudence’ (2006) 123 South African Law Journal 264
274.
42
Steinberg (n 41 above) 276.
43 Steinberg (n 41 above) 272.

312 Chapter 18
should be prioritised and ranked, and the measures through which
these rights should be realised. 44 Given their limited institutional
competence, judges may get it wrong in defining the minimum
content of the rights. 45
While an institutional dialogue between the branches of
government is to be encouraged, the institutional advantages of the
legislature as an institution should not be overstated. However sound
the theoretical justifications for preferring legislative measures for
giving effect to socio-economic rights, it is premised on a certain
understanding of the ideal role and functioning of legislatures which
does not reflect the current realities both in South Africa and other
jurisdictions. Most modern legislatures are subject to the constraints
of time and resource pressures, are at a relative disadvantage to the
executive in relation to technical expertise and resources, and are,
finally subject to capture by powerful business and interest groups in
society. 46 This results in imperfect legislation which may disregard or
neglect the rights of particular groups, most frequently those who are
politically, economically and socially marginalised. 47 In addition,
many of the decisions made in relation to socio-economic rights are
policy and administrative decisions which do not enjoy the same
democratic legitimacy as legislative decisions. In making policy
decisions relating to the implementation of socio-economic rights,
the purposes and values which these rights seek to protect and to
promote may be overlooked or discounted. 48
44
Steinberg (n 41 above) 275. For a similar argument in favour of the kind of weakform
judicial review of socio-economic rights represented by the Court’s
reasonableness model, see R Dixon ‘Creating dialogue about socio-economic
rights: Strong-form versus weak-form judicial review revisited’ (2007) 5
International Journal of Constitutional Law 391 401-402. Dixon highlights the
various theoretical groundings which have been provided for the minimum core
concept in constitutional scholarship, and the different practical consequences
which these approaches have for the interpretation of socio-economic rights
claims (400–401). On ‘weak form’ judicial review, see generally: M Tushnet ‘New
forms of judicial review and the persistence of rights- and democracy-based
worries’ (2003) 38 Wake Forest Law Review 813.
45 Steinberg (n 41 above) 268.
46
For an excellent discussion of the institutional advantages and disadvantages of
the courts and legislatures in relation to socio-economic rights, see Pieterse (n 32
above) 389-399.
47
For a discussion of the ‘blind spots’ and ‘burdens of inertia’ in legislative
processes, see Dixon (n 44 above) 402-406.
48 See, eg, the High Court’s analysis of the administrative nature of the decisions of
the City of Johannesburg in relation to the introduction of pre-payment meters
and the limitation of the free basic water supply to the residents of the Phiri
Township to 25 litres per person per day (or 6 kilolitres per household per month)
in Mazibuko & Others v The City of Johannesburg & Others [2008] ZAGPHC 128
(30 April 2008) paras 63, 70, 104, 163 – 164, 181.

Sandra Liebenberg 313
A related concern from the perspective of establishing a culture
of participatory democracy 49 in South Africa is that if the courts were
to provide complete normative definition of the minimum core of
socio-economic rights it would foreclose legitimate dialogue within
the broader civil society about the conceptual and value-based
underpinnings of socio-economic rights and the best modes of
realising them in the variety of contexts in which they arise. 50 The
minimum core concept seeks to establish a normative essence for
socio-economic rights which is beyond contestation and debate. 51
This may tend to promote closure in broader deliberative and
discursive processes relating to the implementation of socioeconomic
rights.
The second critique of the minimum core concept concerns its
linkage to the standard of survival needs. Contrary to what is claimed,
the survival standard does not guarantee clarity and certainty in
defining priority claims in the context of socio-economic rights
adjudication. 52 Given the fact that threats to life can be relatively
short-term, medium-term or long-term, the survival-standard does
not provide clear guidance as to which socio-economic interventions
should be adopted or enjoy prioritised consideration in policy-making
and adjudication. Health education measures concerning the dangers
of smoking and the need for safe sex may not seem to be an urgent
priority, but may nevertheless have a significant impact in terms of
saving lives in the longer term. It is not, as some proponents of the
minimum core would seem to claim, easy to disentangle short,
medium and long-term needs.
A third critique of grounding the minimum core concept in
biological survival is that the standard is unduly reductionist in the
context of a transformative constitution which seeks to promote the
achievement of social justice. Depending on the context, it results in
either over- or under-inclusivity in the specification of core
obligations. On the one hand, people can survive on very little which
49 Danie Brand has argued that there is an overemphasis in the Court’s socioeconomic
rights jurisprudence on the institutional relations between the
different branches of government, and insufficient attention to promoting
broader discursive engagement in defining and implementing socio-economic
rights. See D Brand ‘The “politics of need interpretation” and the adjudication of
socio-economic rights claims in South Africa’ in AJ van der Walt (ed) Theories of
social and economic justice (2005) 17.
50 Dixon (n 44 above) 416–417. Dixon points out that while it may be possible ‘as an
abstract and theoretical matter’ to formulate the morally and constitutionally
correct grounding for these core obligations, it is also likely and reasonable that
South Africans, with a variety of different life experiences and perspectives, will
differ on these questions.’
51 See K Young ‘The minimum core of economic and social rights: A concept in
search of content’ (2008) 33 The Yale Journal of International Law 112 138-140.
52
See Bilchitz’s critique of the lack of clear standards and benchmarks provided by
reasonableness review: Poverty and fundamental rights (n 31 above) 161-162.

314 Chapter 18
can support a kind of minimalism in socio-economic provisioning that
is inappropriate in contexts where the state has the resources to
provide more than the bare necessities for survival. For example,
Amartya Sen points out that people ‘have been known to survive with
incredibly little nutrition’ and that so-called ‘“minimum nutrition
requirements” have an inherent arbitrariness that goes well beyond
variations between groups and regions.’ 53
On the other hand, in the context of health care rights, a survivalbased
standard supports the provision of expensive, tertiary health
care interventions. Such interventions will, under conditions of
scarcity, occur at the expense of less expensive preventative and
primary health care interventions. 54
Young argues that ‘the emphasis on minimalism behind the core
becomes suggestive, when attached to life, of a more scientific,
needs-based assessment of the commodities necessary for biological
survival.’ 55 This approach does not reflect the socially and
communally determined processes and values through which social
needs are identified and validated. 56 As Justice O’Regan observes in
S v Makwanyane:
It is not life as mere organic matter that the Constitution cherishes but
the right to human life: the right to live as a human being, to be part of
a broader community, to share in the experience of humanity. ... The
right to life is more than existence, it is a right to be treated as a human
being with dignity. 57
In finding that the City of Johannesburg’s decision to limit the
residents of Phiri Township’s free basic water supply to 25 litres of
water per person per day (or 6 kilolitres per household per month)
infringed FC section 27, Tsoka J held that this supply was inadequate
to secure the right to health and the right to lead a dignified life. 58
The court held that it was uncontested that the City of Johannesburg
had the resources to provide a free basic water supply of 50 litres per
53 A Sen Poverty and Famines (1981) 12 as discussed by Young (n 51 above) 131.
54 The ethical and practical problems associated with the survival-based standard
for determining minimum core obligations in the context of health rights, impels
Bilchitz to develop the notion of ‘the pragmatic minimum threshold’ in relation to
health rights. The pragmatic minimum core represents a conglomeration of the
principled survival-based standard together with a range of other theoretical and
practical considerations such as the resources and capacity available in a
particular society. Bilchitz Poverty and fundamental rights (n 31 above) 220–225.
55
Young (n 51 above) 131.
56 Nancy Fraser describes the way in which social needs are politically and
discursively determined. N Fraser Unruly practices: Power, discourse and gender
in contemporary social theory (1989) 144–160, 163–183. For discussions of Fraser’s
theoretical perspectives on the struggle over needs in contemporary capitalist
societies, see Brand (n 49 above) 17; Liebenberg (n 8 above) 5.
57
Makwanyane (n 8 above) paras 326–327.
58 Mazibuko (n 48 above) paras 124 and 179.

Sandra Liebenberg 315
person per day which the World Health Organisation and an
international expert recommended as being required for a healthy
and dignified lifestyle. 59 This judgment suggests that the application
of a heightened review standard should not only be confined to one
core value or interest such as biological survival. Moreover, in respect
of other socio-economic rights, such as the right to education, the
focus on mere biological survival simply does not accord with the
broader purposes and interests which such a right protects. In striving
to establish clear, fixed and judicially manageable standards for the
adjudication of socio-economic rights claims, the minimum core
approach is in danger of encouraging minimalism in social provisioning
when the context may in fact render such minimalism unnecessary
and inappropriate. 60
A fourth difficulty with the minimum core concept is related to
the Constitutional Court’s observations concerning the difficulty of
defining minimum core obligations given the diversity of needs and
circumstances in which different groups find themselves. 61 The
underlying concern is that the minimum core approach is unduly rigid,
and its application may operate to exclude or marginalise the needs
of various groups that do not fit the background norms informing the
definition of core obligations. Bilchitz responds to this concern by
arguing that the minimum core should aim to define a general
standard informed by people’s urgent survival needs. This standard,
for example, still allows for a measure of latitude and flexibility
regarding what precisely is needed to meet people’s needs in
different contexts. 62 However, he argues that the minimum core does
require ‘a rigid stance in one respect: it requires us to recognise that
it is simply unacceptable for human beings to have to live without
sufficient resources to be free from threats to their survival.’ 63 He
thus argues for a form of heightened scrutiny to be applied to claims
59 Mazibuko (n 48 above) paras 179 – 181.
60 See the similar concern expressed by Porter (n 38 above) 55.
61
Grootboom (n 2 above) paras 32–33.
62 Bilchitz Poverty and fundamental rights (n 31 above) 198. See also his response
(200-202) to Danie Brand’s argument that the minimum core may be suitable for
the international enforcement of socio-economic rights, but is not useful for the
domestic context where we must be ‘far more specific, concrete, contextsensitive
and flexible in our thinking about basic standards, core entitlements and
minimum obligations.’ D Brand ‘The minimum content of the right to food in
context: A response to Rolf Künnemann’ in D Brand & S Russell (eds) Exploring the
core content of socio-economic rights: South African and international
perspectives (2002) 99 101.
63 Bilchitz Poverty and fundamental rights (n 31 above) 208.

316 Chapter 18
which implicate minimum core obligations. 64 This two-tier approach
requires distinguishing between core needs (those that implicate
survival) and non-core needs (those that relate to fulfilling a range of
purposes and flourishing as a human being) in relation to both socioeconomic
policy-making and in adjudicating cases.
However, the difficulty, as I have previously suggested, is that
social needs are in fact interconnected and that no clear-cut
distinction exists between core and non-core needs. Nancy Fraser
describes needs these claims as ‘nested’ in that they are ‘connected
to one another in ramified chains of “in order to” relations’. 65 It is
generally possible to reach consensus on what Fraser terms, ‘thin
needs’ such as the need of people in non-tropical climates for shelter
in order to survive. However, as soon as one inquires into the detail
of what precisely is required in order to provide shelter which can be
sustained and fulfil its purposes, one encounters a diversity of views.
In relation to housing, for example, the issue of the location of
housing close to employment and livelihood opportunities is generally
not defined as part of the minimum core obligations of the state. 66
However, the location of housing is usually a crucial factor in people’s
abilities to pursue sustainable livelihood strategies which secure the
socio-economic well-being of themselves and their dependants. 67
64 Bilchitz Poverty and fundamental rights (n 31 above) 210-213 characterises this
heightened scrutiny as a form of ‘weighted priority’. It refers ‘to a reason which
has great importance to us and which can only be overridden by considerations
that are of equivalent weight’ (211). Bilchitz identifies four such weighty reasons
which can justify overriding core obligations: (1) scarcity of resources; (2)
situations where the minimal interests of some individuals can only be met by
dedicating a disproportionately vast amount of resources to them; (3) the need to
preserve some space for individuals to pursue interests beyond the minimal
interest in survival, such as ‘opportunities to realise their goals and achieve
positive experiences’; and (4) situations when the realisation of the minimum
core of a particular right would prevent the realisation of the minimum core of
64
other Bilchitz rights Poverty and liberties and fundamental (212). rights (n 31 above) 210-213 characterises this
65 Fraser heightened (n 56 scrutiny above) 163. as a form of ‘weighted priority’. It refers ‘to a reason which
66 For has great example, importance Bilchitz to argues us and that which the can general only be standard overridden that by constitutes considerations the
minimum that are of core equivalent obligation weight’ of the (211). state Bilchitz in relation identifies to four housing such weighty would be reasons that
everyone which can should justify have overriding ‘access core to obligations: accommodation (1) scarcity that involves, of resources; at least, (2)
protection situations where from the the elements minimal in interests sanitary of conditions some individuals with access can to only basic be services, met by
such dedicating as toilets a disproportionately and running water.’ vast Bilchitz amount Poverty of resources and fundamental to them; (3) rights the need (n 31 to
above) preserve 198. some space for individuals to pursue interests beyond the minimal
67 See interest City in of survival, Johannesburg such v as Rand ‘opportunities Properties to (Pty) realise Ltd & their Others goals 2007 and 6 achieve SA 417
(SCA). positive The experiences’; Supreme Court and of (4) Appeal situations ordered when the the City realisation of Johannesburg of the to minimum provide
temporary core of a particular accommodation right would to occupiers prevent who the face realisation eviction of in the terms minimum of the National core of
Building other rights Regulations and liberties and (212). Building Standards Act 103 of 1977. The Court ordered
65
that Fraser this ‘Unruly ‘temporary Practices’ accommodation (n 56 above) 163. is to consist of at least the following
66
elements: For example, a place Bilchitz where argues they may that live the secure general against standard eviction; that a structure constitutes that the is
waterproof minimum core and secure obligation against of the elements; state in relation and with to access housing to basic would sanitation, be that
water everyone and should refuse services.’ have ‘access In order to accommodation to implement the that foregoing, involves, the at City least, was
ordered protection to from determine the elements the location in sanitary of conditions the alternative with access accommodation to basic services, ‘after
consultation’ such as toilets if and requested running by water.’ any occupier Bilchitz (para Poverty 78, and Orders fundamental (c), 2.1 and rights 2.3). (n This 31
represents above) 198. an implicit acknowledgment of the significance of the location of

Sandra Liebenberg 317
Taking location into account in fulfilling core obligations will usually
require the state to purchase more expensive land closer to
employment opportunities thus increasing substantially the resource
implications of providing basic shelter. However, this detracts from
the clarity of definition and relatively low-cost implications which is
an argument in favour of the minimum core as a manageable judicial
standard for the enforcement of basic subsistence needs. On the
other hand, excluding location from the ambit of core obligations in
the sphere of housing will have the effect of deepening the
marginalisation of those for whom proximity to employment
opportunities is crucial to the sustainability of their livelihood
strategies and long term development. 68
While Bilchitz’s approach does permit a diversity of specification
by defining the minimum core as a general standard, the problem lies
precisely in this attempt to ground core/priority obligations in a single
metric. This approach does not reflect the fact that people may have
other important needs which do not meet the threshold of survival,
but which warrant prior consideration in a constitutional order
founded on the values of human dignity, equality and freedom. 69 For
example, the provision of child care facilities may not be crucial to
survival, but, given the gendered burden of care 70 and the conditions
of socio-economic deprivation in which many women live, the
provision of such facilities is crucial to their ability to participate in
67 accommodation to the fundamental interests of occupiers. In its judgment on
appeal, the Constitutional Court focused on the obligation of ‘meaningful
engagement’ between the parties in relation to the consequences of a threatened
eviction. See Occupiers of 51 Olivia Road, Berea Township and 197 Main Street,
Johannesburg v The City of Johannesburg & Others 2008 3 SA 208 (CC) paras 9 –
36. The UN Committee on Economic, Social and Cultural Rights defines the
‘location’ of housing to be one of the elements which must be taken into account
in assessing the ‘adequacy’ of housing in terms of article 11 of the International
Covenant on Economic, Social and Cultural Rights. Thus adequate housing ‘must
be in a location which allows access to employment options, health care services,
schools, child-care centres and other social facilities. ... Similarly housing should
not be built on polluted sites nor in immediate proximity to pollution sources that
threaten the right to health of the inhabitants.’ ‘General Comment 4: The right
to adequate housing (art.11(1) of the Covenant)’ UN doc E/1992/23 (1991) para
8(f).
68 The Indian Supreme Court held in Olga Tellis v Bombay Municipal Corp (1985) 3
SCC 545 that the right to a livelihood was implicated in the eviction of pavement
dwellers in the city.
69 See, eg, Rosalind Dixon’s argument that it is equally plausible to base a notion of
minimum core obligations on the rights and values of human dignity and equality
Dixon (n 44 above) 399–401. For an argument that a heightened review standard
should be applied to basic need claims informed by a dignity-based standard, see
Liebenberg (n 25 above).
70
See President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC), 1997 6
BCLR 708 (CC) para 37.

318 Chapter 18
development programmes, employment and society more generally. 71
By excluding such facilities from the ambit of ‘heightened priority’
obligations, the gendered character of social provisioning is rendered
invisible. The exclusion of such gender-specific priorities simultaneously
reinforces the marginalisation of both women’s needs and,
more generally, the needs of those men and women who undertake
the burden of reproductive work in our society. Similarly the provision
of various forms of specially adapted housing and social services to
people with disabilities may not be necessary for their survival, but is
nonetheless crucial for their ability to participate as equals in
society. 72 The case for judicial intervention becomes even more
compelling if the context reveals that the state (or a private
institution) has sufficient resources to provide such facilities.
Finally, it has been argued that a two-tiered approach 73 which
requires prioritisation of core needs is also likely to be
counterproductive in a developmental state. Murray Wesson argues
that it will encourage the diversion of state resources to temporary,
emergency-type measures from long-term, and often more efficient,
investments. 74 Because the state is faced with ‘a spectrum of
needs’, 75 Wesson contends that a more nuanced approach is
advisable: Such an approach does not prioritise one set of needs to the
absolute exclusion of others, and allows for a balance between shortterm
and long-term aims. 76 That said, such balancing risks
downplaying the undisputed importance of ensuring that immediate
socio-economic needs are met in favour of economic initiatives which
promise an improvement in overall well-being in the medium- to
longer term. As the Court noted in Grootboom, a general statistical
improvement in access to socio-economic rights may reflect an
insufficient commitment to the Final Constitution’s demand that
everyone is treated with care and concern. 77 Moreover, empirical
71
See B Goldblatt ‘Citizenship and the right to child care’ in A Gouws (ed)
(Un)thinking citizenship: Feminist debates in contemporary South Africa (2005)
117. Goldblatt argues that childcare rights can be derived from the right of
everyone to social security (sec 27(1)(c)), the right of children to social services
(sec 28(1)(c)), and the right to fair labour practices (sec 23(1)).
72 See S Liebenberg & B Goldblatt ‘The interrelationship between equality and
socio-economic rights under South Africa’s transformative constitution’ (2007) 23
South African Journal on Human Rights 335.
73 Bilchitz Poverty and fundamental rights (n 31 above) 202 argues that the ‘twotier
structure’ that he proposes ‘has the benefit of offering a clear, structured
way in which to approach the application of socio-economic rights to particular
situations.’
74
Wesson (n 38 above) 304.
75 Wesson (n 38 above) 303.
76 Wesson (n 38 above) 304. See also the similar argument by Dixon (n 44 above)
411.
77 Grootboom (n 2 above) para 44.

Sandra Liebenberg 319
evidence suggests that the direct provision of social assistance to
individuals promotes social and economic development. 78
4 Re-evaluating reasonableness review
On the other hand, ‘reasonableness review’ has been criticised for
amounting to little more than an administrative law model that does
not engage in a sufficiently substantive analysis of the content of
socio-economic rights and the obligations they impose. 79 The
vagueness and openness of the reasonableness inquiry allows courts
to avoid giving clear normative content to socio-economic rights. 80
Minimum core arguments are, most often, a direct outgrowth of this
critique of reasonableness review. 81
For other scholars, this ‘openness’ represents the major
advantage of reasonableness review. For such openness or flexibility
enables courts to attain a skilful balance between ‘displacing
democratic judgments about how to set priorities’ and abdicating any
meaningful role in the judicial enforcement of socio-economic
rights. 82 Reasonableness review allows the courts to set general
norms while simultaneously placing the burden of justification on
government to explain its priority-setting. 83
In many respects, reasonableness review provides the courts with
a flexible and context-sensitive basis for evaluating socio-economic
rights claims. It allows government the space to design and formulate
appropriate policies to meet its socio-economic rights obligations. At
the same time, it subjects government’s choices to the requirements
of reasonableness, inclusiveness and particularly the threshold
78
See, eg, Committee of Inquiry into a Comprehensive System of Social Security for
South Africa Transforming the present, protecting the future (2002) available at
www.welfare.gov.za/Documents/2002/2002.htm (accessed on 26 May 2008);
Economic Policy Research Institute The social and economic impact of South
Africa’s social security system (2004) available at www.sarpn.org.za/documents/
d0001041/Full_Report.pdf (accessed on 26 May 2008). Children’s development
and life prospects are particularly affected by a failure to ensure that their basic
socio-economic needs are met. See, eg, D Budlender & I Woolard ‘The Impact of
the South African child support and old age grants on children’s schooling and
work’ International Labour Organisation (ILO) (2006).
79 D Brand ‘The proceduralisation of South African socio-economic rights
jurisprudence, or “what are socio-economic rights for?”’ in Botha et al (n 24
above) 33.
80 Pieterse (n 32 above) 410–411. Dennis Davis points out that reasonableness review
can easily degenerate into a highly deferential standard of review. See DM Davis
‘Socio-economic rights in South Africa: The record of the Constitutional Court
after ten years’ (2004) 5 Economic and Social Rights Review 3 5; and
‘Adjudicating the socio-economic rights in the South African Constitution:
Towards “deference lite”?’ (2006) 22 South African Journal on Human Rights 301.
81 Bilchitz ‘Towards a reasonable approach’ (n 31 above) 9–10.
82 CR Sunstein ‘Social and economic rights? Lessons from South Africa’ (2001) 11(4)
Constitutional Forum 123 131.
83 As above.

320 Chapter 18
requirement that all programmes must provide short-term measures
of relief for those whose circumstances are urgent and intolerable. 84
Reasonableness review enables courts to adjust the stringency of its
review standard informed by factors such as the position of the
claimant group in society, the nature of the resource or service
claimed, 85 and the impact of the denial of access to the service or
resource in question on the claimant group. 86 The Court’s
jurisprudence suggests that the government’s justifications will be
subject to more stringent scrutiny when a disadvantaged sector of
society is deprived of access to essential services and resources. In
this regard, the Court has acknowledged the poor as a vulnerable
group in society, whose needs require special attention. 87
Thus the reasonableness inquiry takes into account a number of
considerations relevant to the claimant group, the nature of the
service or resource in question as well as the historical, economic and
social context 88 in which the claim arises. In this sense,
‘reasonableness review’ avoids closure and creates the on-going
possibility of challenging various forms of socio-economic
deprivations in the different contexts in which they arise. Such review
could facilitate the participation and the dialogical interaction
between the state and civil society in the defining of and realisation
of socio-economic rights. The Treatment Action Campaign (TAC) has
been able to use reasonableness review to win a major victory in the
provision of appropriate medical treatment to reduce the risk of the
transmission of HIV from mother to child. 89 The TAC and other civil
society organisations have been able to use this victory and the
criteria for a reasonable programme established in Grootboom as part
84 Steinberg (n 41 above) 277 argues that ‘the intense scrutiny’ of government
conduct combined with the heavy weighting of the values of human dignity and
equality in the proportionality assessment, gives the reasonableness inquiry in
socio-economic rights cases a discrete character.
85 In Soobramoney (n 1 above), a more tertiary and expensive form of medical
treatment was claimed and the Court applied a deferential standard of review
based on rationality. In contrast, in Grootboom (n 2 above), Treatment Action
Campaign (n 3 above) and Khosa (n 4 above) the review standard was stricter and
involved a more searching scrutiny of government’s justifications for denying the
applicants access to a basic level of service provision.
86 In Grootboom, Treatment Action Campaign and Khosa, the Court emphasised the
severe impact on the claimants of the deprivation in question. See, for example,
the historical context and current socio-economic circumstances of the claimants
sketched by the Court in its judgments at Grootboom (n 2 above) paras 2-11;
Treatment Action Campaign (n 3 above) 78-79; Khosa (n 4 above) paras 71, 76-77,
80-81.
87 Grootboom (n 2 above) para 36; Treatment Action Campaign (n 3 above) para 79.
88
Grootboom (n 2 above) paras 43–44 and 92.
89 See M Heywood ‘Preventing mother-to-child HIV transmission in South Africa:
Background, strategies and outcomes of the Treatment Action Campaign Case
against the Minister of Health’ (2003) 19 South African Journal on Human Rights
278.

Sandra Liebenberg 321
of broad-based strategy for achieving a general anti-retroviral roll-out
programme. 90
However, a significant disadvantage of reasonableness review is
that it does not incorporate the traditional two stage approach to
constitutional analysis. 91 Put differently, it does not begin with an
initial principled focus on the content and scope of the right and
situation of the claimants, and thereafter a consideration of possible
justifications for the infringement. 92 As a result, the Court engages
only very superficially with the content and underlying purposes and
values of the relevant rights.
5 Towards substantive reasonableness
The Court is clearly committed to the model of reasonableness
review. However, it has not excluded a role for the notion of minimum
core obligations as a factor in its evaluation of the reasonableness of
government measures. 93
This part considers how reasonableness review can be
strengthened so as to ensure that courts engage adequately with the
content of the rights and their underlying values. Such an approach
would preserve the openness and context-sensitivity of
reasonableness review that facilitates greater participation and
deliberation in interpreting the normative commitments underlying
socio-economic rights. At the same time, such an approach can assist
in ensuring that a heightened standard of review is applied in cases
involving basic needs without encountering the disadvantages
associated with the survival-based standard of minimum core
obligations. 94
90 This programme was announced by government in August 2003. See also the civil
society submission on the operational plan for the rollout of an anti-retroviral
programme entitled, ‘A people-centred ARV programme’ available at
www.tac.org.za/Documents/TreatmentPlan/FullFinalSubmissiontoARVTaskTeam.
doc (accessed 30 January 2008). See further M Heywood ‘Shaping, making and
breaking the law in the campaign for a national HIV/AIDS treatment plan’ in P
Jones & K Stokke (eds) Democratising development: The politics of socioeconomic
rights in South Africa (2005) 181.
91 For more on the relationship between internal limitations of socio-economic
rights and the general limitations clause found in FC sec 36, see S Woolman & H
Botha ‘Limitations’ in S Woolman et al (eds) Constitutional Law of South Africa
(2nd Edition, OS, 2006) Chapter 34.
92 See also Pieterse (n 32 above) 406–407.
93
n 6 above and accompanying text. In Mazibuko (n 48 above) Tsoka J interprets the
Constitutional Court judgments in Grootboom (n 2 above) and Treatment Action
Campaign (n 3 above) not as an outright rejection of the minimum core concept
as part of our law (para 131).
94 See the discussion in part 4 above.

322 Chapter 18
In Grootboom, the Court held that the comprehensive, coordinated
programme which the state is obliged to adopt to give
effect to socio-economic rights ‘must be capable of facilitating the
realisation of the right.’ 95 However, until some understanding is
developed (even if it is provisional) of the content of the right, the
assessment of whether the measures adopted by the state are
reasonably capable of facilitating its realisation takes place in a
normative vacuum. Reasonableness review should thus be developed
in a way which incorporates a principled and substantive
interpretation of the content of socio-economic rights. Such an
interpretation should seek to elucidate the purposes and interests
which these rights protect and should promote ‘the values that
underlie an open and democratic society based on human dignity,
equality and freedom’ as required by FC section 39(1)(a).
As I observed above, the Court has not spent much interpretive
energy in developing the substantive content of the various socioeconomic
rights in FC sections 26 and 27. Grootboom offered a
promising start. The Court held that ‘access to adequate housing’
implies a recognition ‘that housing entails more than bricks and
mortar’:
It requires available land, appropriate services such as the provision of
water and the removal of sewerage and the financing of all of these,
including the building of the house itself. For a person to have access to
adequate housing all of these conditions need to be met: there must be
land, there must be services, there must be a dwelling. 96
However, in arriving at this definition the Court proffers little
engagement with the very purposes that the right to housing is meant
to protect. The Court’s main engagement with the constitutional
values, particularly human dignity, is in the context of justifying the
element of the reasonableness test which requires that short-term
measures of relief must be provided for those in desperate need. 97
These values do not play any significant role in developing the
substantive content of the rights protected in FC sections 26 and 27.
In Treatment Action Campaign, the Court provides even less
insight into the scope and content of the right of access to health care
services. 98 The Court’s primary aim is to demonstrate that
government’s inflexible stance regarding the confining of Nevirapine
to the nine research sites could not be justified in the light of the
policy, capacity and resource arguments raised by the state itself.
The Court does not explain why the provision of essential drugs and
95 Grootboom (n 2 above) para 41
96 Grootboom (n 2 above) para 35.
97
Grootboom (n 2 above) para 44.
98 Treatment Action Campaign (n 3 above).

Sandra Liebenberg 323
attendant services to reduce the risk of HIV-transmission should form
an integral part of health care services in the South African context. 99
For example, access by women to Nevirapine in the public health
sector to reduce the risk of mother-to-child transmission of HIV could
be regarded as an integral component of the right to reproductive
health care. Such treatment advances the constitutional values of
human dignity and equality — particularly in the context of the
gendered burden of child care. In the South African context, the
burden of caring for an HIV-positive baby will fall disproportionately
on poor, black women.
Similarly in Khosa, while the Court emphasises the significance of
the values of human dignity and equality in evaluating the
reasonableness of the exclusion of permanent residents from the
impugned social assistance legislation, it does not engage with the
content or scope of the social security and assistance rights in FC
section 27(1)(c). 100 Until some understanding is developed (even if it
is provisional) of the content of the right, it is impossible to assess
whether the measures adopted by the state are reasonably capable of
facilitating its realisation. 101
Neither does the Court engage in any detail with how the rights
have been interpreted in relevant international human rights law or
in other jurisdictions as required in section 39(1)(b) and (c) of the
Constitution. There is an increasing volume of international and
comparative jurisprudence that the courts can consider in developing
the interpretation of socio-economic rights. For example, the
European Committee on Social Rights, which supervises the
obligations of state parties to the European Social Charter, 102 has
developed a sophisticated understanding of the housing rights in the
99 It is noteworthy in this regard that the UN Committee on Economic, Social and
Cultural Rights regards the provision of ‘essential drugs, as from time to time
defined under the WHO Action Programme on Essential Drugs’ as part of the core
obligations imposed by the right to the highest attainable standard of health in
article 12 of the ICESCR. General Comment 14 (n 5 above) para 43(d). As the
Court noted in Treatment Action Campaign (n 3 above), Nevirapine was
recommended ‘without qualification’ for the purpose of the reduction of motherto-child
transmission of HIV (para 60). The Committee also regards the taking of
measures ‘to prevent, treat and control epidemic and endemic diseases’ to be an
obligation of ‘comparable priority’ (para 44(c)). On the right to health in
international law, see generally BCA Toebes The right to health as a human rights
in international law (1999).
100 The Court deals briefly with the ambit of the right of access to social security in
terms of section 27(1)(c) in Khosa (n 4 above) at paras 46-47.
101
As noted by the Court in Grootboom (n 2 above) para 41, the programme which
the state is obliged to adopt to give effect to socio-economic rights ‘must be
capable of facilitating the realisation of the right.’ On this point, see K McLean
‘Housing’ in Woolman et al (n 92 above) Chapter 55.
102 Housing rights are protected in article 16 of the European Social Charter, 1961
and articles 16 and 31 of the European Social Charter (Revised), 1996. A system of
collective complaints was instituted through the Additional Protocol to the
European Social Charter Providing for a System of Collective Complaints, 1995.

324 Chapter 18
Charter. Thus in the complaint of European Roma Rights Centre v
Greece, the Committee held:
The right to housing permits the exercise of many other rights — both
civil and political as well as economic, social and cultural. It is also of
central importance to the family. The Committee recalls its previous
case law to the effect that in order to satisfy Article 16 states must
promote the provision of an adequate supply of housing for families,
take the needs of families into account in housing policies and ensure
that existing housing be of an adequate standard and include essential
services (such as heating and electricity). The Committee has stated
that adequate housing refers not only to a dwelling which must not be
sub-standard and must have essential amenities, but also to a dwelling
of suitable size considering the composition of the family in residence.
Furthermore the obligation to promote and provide housing extends to
security from unlawful eviction. 103
The purpose of considering international and comparative law sources
is not so that they can be slavishly followed, but rather because they
broaden the range of options available to courts in developing the
interpretation of socio-economic rights. They also ensure that the
Court is aware of applicable international law standards, and the
practices of other open and democratic societies. As Kent Roach
observes: 104
A globalised world is one where people, including judges, engage in
multiple and ongoing conversations that cross borders. It is hopefully a
world characterised by a sense of openness, modesty and willingness to
learn from others.
Ultimately, the South African courts remain under a duty to consider
which interpretations best advance the values and transformative
commitments of the Constitution in the current political, economic
and social context of South Africa. However, a reflective
consideration of the interpretation of socio-economic rights in other
international and comparative jurisdictions should generate new
options and possibilities in considering our own jurisprudence. This
openness to on-going self-examination and renewal is essential if
socio-economic rights are to fulfil their transformative potential
under the Constitution.
Reasonableness review should thus include a more principled and
systematic interpretation of the content of the various socioeconomic
rights, the values at stake in particular cases and the impact
103
104
European Roma Rights Centre v Greece Complaint No. 15/2003 para 24. See also
European Roma Rights Centre v Italy Complaint No. 27/2004; European Roma
Rights Centre v Bulgaria Complaint No. 31/2005.
K Roach ‘Constitutional, remedial, and international dialogue about rights: The
Canadian experience’ (2004–2005) 40 Texas International Law Journal 537 538.

Sandra Liebenberg 325
of the denial of access to these rights on the complainant group. A
consideration of impact would require close attention to the
historical, social, economic and political context in which groups
experience a denial of access to socio-economic rights. The courts
should first engage with the content of the rights and the context and
implications of the alleged violation, and avoid moving too quickly to
a consideration of the state’s justificatory arguments. This approach
will help guard against reasonableness degenerating into an
unprincipled and unduly deferential standard of review.
A further dimension of reasonableness review which requires
development is the standard of justification which should be applied
in various types of socio-economic rights cases. One of the advantages
of the minimum core approach is that it imposes a high burden of
justification in contexts where people are deprived of the basic
necessities of life. This helps promote social and economic policies
which are orientated toward ensuring that people’s basic needs are
met. 105 When people’s basic needs go unmet, they live in conditions
which are inconsistent with human dignity and freedom, and are
unable to participate as equals in society. Thus in Grootboom, the
Court observed:
The right of access to adequate housing is entrenched because we value
human beings and want to ensure that they are afforded their basic
human needs. A society must seek to ensure that the basic necessities of
life are provided to all if it is to be a society based on human dignity,
equality and freedom. 106
This advantage of the minimum core approach can be incorporated
within the framework of reasonableness review by placing a heavy
burden of justification on the state in circumstances where a person
or group lacks access to a basic socio-economic service or resource
105
The Constitution prescribes that one of the basic values and principles governing
public administration in South Africa is that ‘[p]eople’s needs must be responded
to, and the public must be encouraged to participate in policy-making.’ (FC sec
195(1)(e)).
106 Grootboom (n 2 above) para 44. See also Khosa (n 4 above) para 52. In Khosa,
Mokgoro J further noted that ‘decisions about the allocation of public benefits
represent the extent to which poor people are treated as equal members of
society.’ Khosa (n 4 above) para 74 (footnotes omitted).

326 Chapter 18
corresponding to the rights in FC sections 26 and 27. 107 The Court
itself has acknowledged that there ‘may be cases where it may be
possible and appropriate to have regard to the content of a minimum
core obligation to determine whether the measures taken by the state
are reasonable.’ 108
In determining what constitutes a basic social need or the
necessities of life, the courts need not be guided by a single
overarching standard such as biological survival. Instead, it is of
critical importance that they engage in a context-sensitive
assessment of the impact of the deprivation on the particular group.
In assessing the severity of the impact, the courts should consider the
implications of the lack of access to the resource or service in
question for other intersecting rights and values such as the rights to
life, freedom and security of the person, equality and human
dignity. 109 Courts should also be alert to the ways in which the denial
of access to the particular right creates or reinforces patterns of
inequality and marginalisation in our society. 110 A failure to ensure
such basic social provisioning should only be justifiable when
resources are demonstrably inadequate, 111 or other compelling
justifications exist. The latter may include, for example, competing
urgent priorities which are justifiable in an open and democratic
society based on human dignity, equality and freedom. 112
107
In Rail Commuters (n 11 above) para 88 the Constitutional Court held that the
assessment of reasonableness should include, amongst others factors, ‘the extent
of any threat to fundamental rights should the duty not be met as well as the
intensity of any harm that may result. The more grave is the threat to
fundamental rights, the greater is the responsibility on the duty-bearer.’ This was
in the context of the duty of public companies in charge of rail transport to take
reasonable measures to ensure the safety and security of commuters. These
positive obligations were derived from reading the South African Transport
Services Act 9 of 1989 in the light of the Constitution, particularly sections 10
(human dignity), 11 (right to life) and 12 (the right to freedom and security of the
person). This illustrates how these rights, traditionally regarded as falling within
the civil and political rights camp, also impose positive duties on the state and
that the courts are prepared to adopt a similar standard of reasonableness for
assessing their compliance with these duties.
108
Grootboom (n 2 above) para 33; Treatment Action Campaign (n 3 above) para 34.
109 In Khosa (n 4 above) Mokgoro J was at pains to emphasise the implications of
socio-economic deprivation for other rights and values in the Bill of Rights. See,
eg, paras 40–45 and 49.
110 On the interrelationship between socio-economic rights, and the right and value
of equality, see Liebenberg & Goldblatt (n 72 above).
111
The UNCESCR has held that: ‘In order for a state party to be able to attribute its
failure to meet at least its minimum core obligations to a lack of available
resources it must demonstrate that every effort has been made to use all
resources that are at its disposition in an effort to satisfy, as a matter of priority,
those minimum obligations.’ General Comment 3 (n 5 above) para 10.
112 See, for example, David Bilchitz’s suggestions regarding possible grounds of
justification for the non-fulfillment of minimum core obligations. Bilchitz Poverty
and fundamental rights (n 31 above) 212–213.

Sandra Liebenberg 327
The seriousness of the impact of the deprivation in question may
warrant a strict proportionality requirement approximating the
section 36 test. Proportionality should, in the context of positive
socio-economic rights claims, also require the state to consider lesser
forms of provisioning where it is not possible to meet everyone’s basic
needs within current resource constraints. 113 A strict standard of
scrutiny was illustrated in the Khosa judgment where the fact that a
vulnerable group of complainants (non-nationals) was denied access
to a social grant with the effect that they were forced into relations
of dependence on their community triggered ‘a hard look’ review of
the state’s policy and budgetary justifications. 114
It is currently unclear whether the Court will confine its scrutiny
to the resources allocated in the budget to particular programmes or
Departments or whether it will be prepared to examine the resources
available to the state as a whole. Both a textual and purposive reading
of sections 26(2) and 27(2) suggests that a broad concept of the
state’s ‘available resources’ should be adopted. Allowing the state to
rely simply on its own budgetary allocations would defeat the purpose
of socio-economic rights by allowing the state to determine the
extent of its own obligations. Thus courts should examine the
resources available in the national budget as a whole as opposed to
focusing exclusively on existing allocations. 115 To enable the courts to
conduct this assessment, it is imperative that the state be required to
place the necessary budgetary and policy information before the
court in support of its justificatory arguments.
This approach to the review of positive socio-economic rights
claims is not premised on a dichotomous two-tier distinction between
core and non-core interests. Compliance with socio-economic rights
obligations is assessed in terms of the single evaluative criterion of
reasonableness. However, reasonableness review must incorporate
substantive factors such as the interpretation of the relevant socio-
113
On the need to ensure that reasonableness review imposes a strong burden of
justification on the state and incorporates a proportionality analysis in cases
where litigants seek access to basic needs, see Liebenberg (n 25 above) 21–29;
and (n 8 above) 31–33. The UNCESCR has emphasised that, even in times of severe
resource constraints, states are obliged to put in place ‘relatively low-cost
programmes’ to protect vulnerable members of society. General Comment 3 (n 5
above) para 12.
114 Khosa (n 4 above) paras 53–67.
115 For an argument that litigants have generally been too timid in urging judicial
review of government’s resource allocation priorities, see K Lehmann ‘In defense
of the Constitutional Court: Litigating socio-economic rights and the myth of the
minimum core’ (2006) 22 American University International Law Review 163. For
arguments in favour of a broad interpretation of the state’s ‘available resources’
to incorporate the national budget as a whole, see D Moellendorf ‘Reasoning
about resources: Soobramoney and the future of socio-economic rights claims’
(1998) 14 South African Journal on Human Rights 327; Bilchitz Poverty and
Fundamental Rights (n 31 above) 227-230.

328 Chapter 18
economic right, and a detailed, contextual assessment of the impact
of the denial of the right on the complainant group. This
interpretation and assessment should entail a consideration of both
relevant international and comparative law, as well as the
implications of the denial of access to basic socio-economic needs for
the enjoyment of other intersecting rights and constitutional values.
In cases where individuals or groups lack access to a resource or
service which has a severe impact on them, a higher standard of
justification should be imposed upon the state. Where the service in
question is of a more tertiary nature, and the evidence suggests that
ordering its provision will prejudice other basic service and
redistributive programmes, a greater margin of discretion can be
afforded to the state in its priority setting. 116 However, such
relaxation does not absolve the courts from their duty to undertake a
serious assessment of whether available resources do not in fact
warrant the provision of the more extensive socio-economic resource
or service. It should be borne in mind that the purpose of the rights in
FC sections 26 and 27 is to ensure the full realisation of the relevant
rights. Although the state is afforded a reasonable measure of latitude
to achieve this ‘progressively’, it cannot defer its obligation to ensure
the full realisation of the rights when the requisite resources exist.
6 Conclusion
The approach developed above is intended to facilitate a relational
and dialogic approach to the interpretation of socio-economic rights
whilst preserving the features of the minimum core approach that
requires heightened scrutiny of acts and omissions which result in a
denial of basic needs. As such, it resonates with an approach to rightsbased
transformation in South Africa which values participatory
democracy and public deliberation. Chief Justice Pius Langa reminds
us of the tradition of critical scholarship 117 in South Africa which
emphasises the ‘permanent ideal’ of transformation embraced by our
Constitution:
On that view, transformation is not a temporary phenomenon that ends
when we all have equal access to resources and basic services and when
lawyers and judges embrace a culture of justification. Transformation is
a permanent ideal, a way of looking at the world that creates a space in
which dialogue and contestation are truly possible, in which new ways of
116 See Soobramoney (n 1 above).
117 See, eg, H Botha ‘Metaphoric reasoning and transformative constitutionalism
(Part I)’ (2002) Tydskrif vir die Suid-Afrikaanse Reg 612; ‘Metaphoric reasoning
and transformative constitutionalism (Part II)’ (2003) Tydskrif vir die Suid-
Afrikaanse Reg 20; A van der Walt ‘Dancing with codes — protecting, developing
and deconstructing property rights in a constitutional state’ (2001) 118 South
African Law Journal 258.

Sandra Liebenberg 329
being are constantly explored and created, accepted and rejected and
in which change is unpredictable but the idea of change is constant. 118
The approach I have advocated has the further advantage of
narrowing the distinction between the way in which the courts review
the positive and negative duties imposed by socio-economic rights.
This distinction is based on the false premise that the current patterns
of those who have and of those who lack access to resources and
services are perpetuated by the state through existing rules of public
or private law.
Law and legal processes alone cannot bridge the chasm between
the realities of poverty and inequality that pervade our society and
the constitutional ideal of a new society founded on human dignity,
equality and freedom. However, when cases concerning socioeconomic
rights do come before the courts, it is important that the
jurisprudence applied to these claims facilitates the transformation
of unjust social and economic relations entrenched by current laws. A
more robust model of reasonableness review which engages seriously
with the purposes and values underlying socio-economic rights — and
the devastating impact of poverty on any individual’s life chances —
will help these rights fulfill their transformative potential.
118 Langa (n 8 above) 354.

19 Reply
On ‘dialogue’, ‘translation’ and ‘voice’:
A reply to Sandra Liebenberg
Marius Pieterse*
1 Introduction
A substantive jurisprudence on social rights ... can serve to enhance the
participatory capabilities of those living in poverty and inequality. At its
best it should constantly remind us of our constitutional commitment to
establishing a society based on social justice, and facilitate the inclusion
of marginalised voices in the debate on what is required to achieve such
a society. 1
Sandra Liebenberg used these words to conclude a recent article on
the transformative potential of socio-economic rights adjudication. In
‘Socio-economic rights: Revisiting the reasonableness review/
minimum core debate’, Liebenberg essentially builds on this
conclusion. She evaluates the manner and extent to which the two
most often-discussed approaches to socio-economic rights
adjudication in South Africa (the ‘reasonableness approach’ followed
by the Constitutional Court and the ‘minimum core approach’ often
contended for by is critics) facilitate and contribute to discussions
over the meaning of socio-economic rights. Given that these
discussions, in turn, contribute to overarching deliberations over what
is required to achieve a society based on social justice, Liebenberg’s
* I am grateful to Michael Bishop and Sandra Liebenberg for their critical
engagement with a previous draft of this reply.
1
S Liebenberg ‘Needs, rights and transformation: Adjudicating social rights’ (2006)
17 Stellenbosch Law Review 5 36.
331

332 Chapter 19
evaluation doubles as an assessment of the transformative potential
of the two approaches.
In conducting the evaluation, Liebenberg joins other scholars in
endorsing a ‘relational and dialogic approach’ to socio-economic
rights-interpretation and, ultimately, to transformation. 2 This approach
views neither rights nor transformation as concepts that are
fixed in content or capable of universal or lasting definition. Instead,
it embraces the reality of reasonable disagreement over the
(continuously shifting) aims of a socially just society and over the
means through which these aims are to be achieved. It attempts to
broaden the democratic base of institutional processes (such as
judicial review) through which rights are given meaning, by
simultaneously conceiving of such processes as invitations and
contributions to ongoing dialogues over such meaning, which are, in
turn, viewed as constitutive strands in an overarching deliberation on
the meaning of social justice, transformation and the common good. 3
Whereas theories on constitutional dialogue extend beyond
questions of judicial review and rights-interpretation, my focus in this
reply to Liebenberg is limited to the manner in which transformation
is conceived and advanced by a dialogic approach to the
interpretation of socio-economic rights. In particular, I am interested
in the manner in which a dialogic approach facilitates the ‘translation’
of socio-economic rights from conceptually abstract principles into
more concrete, claimable entitlements. 4 I regard such ‘translation’ as
being necessary to offset the potentially counter-transformative use
of human rights to deflate and ultimately defeat claims by individuals
and social movements for egalitarian redistribution, basic service
provision or the satisfaction of individual needs. 5 I therefore view the
calls by Liebenberg and others for a dialogic approach to socio-
2 See, in particular, R Dixon ‘Creating dialogue about socio-economic rights: Strongform
v weak-form judicial review revisited’ (2007) 5 International Journal of
Constitutional Law 391; C Steinberg ‘Can reasonableness protect the poor? A
review of South Africa’s socio-economic rights jurisprudence’ (2006) 123 South
African Law Journal 264 272-73.
3
S Liebenberg ‘Socio-economic rights: Revisiting the reasonableness review/
minimum core debate’ in S Woolman & M Bishop (eds) Constitutional
conversations (2008) text accompanying n 37-44, 50, 99-101. See also Dixon (n 2
above) text accompanying n 53-55. For a cogent exposition and evaluation of the
various strands of ‘dialogic theory’ and associated approaches to constitutional
interpretation, see C Bateup ‘The dialogic promise: Assessing the normative
potential of theories of constitutional dialogue’ (2006) 71 Brooklyn Law Review
1109.
4 On the notion of ‘translation’ in this context, see D Brand ‘Introduction to socioeconomic
rights in the South African Constitution’ in D Brand & CH Heyns (eds)
Socio-economic rights in South Africa 1 ed (2005) 1 12-18.
5 See M Pieterse ‘Eating socio-economic rights: The usefulness of rights talk in
alleviating social hardship revisited’ (2007) 29 Human Rights Quarterly 796 820-
821.

Reply - Marius Pieterse 333
economic rights interpretation as indicating a preference for multiactor
dialogue as the means of such translation.
This reply proceeds to consider, as Liebenberg has done, the
manner in which the ‘minimum core’ and ‘reasonableness’
approaches to the interpretation of socio-economic rights
respectively structure and contribute to societal dialogue over the
meaning of these rights. As will become apparent, I agree with
Liebenberg on the appropriateness of dialogue as the means of
translation, the shortcomings of a minimum core approach from a
dialogic perspective and the need for the reasonableness approach to
be grounded more firmly in an understanding of the content of the
rights it seeks to vindicate. However, I am somewhat more
sentimental over the loss of the language of entitlement that was
inherent in minimum core arguments rejected by the Constitutional
Court and less optimistic over the potential of the reasonableness
approach to foster the kind of open and responsive dialogue over the
meaning of socio-economic rights that both Liebenberg and myself
would like to see. In particular, I express concern over the manner in
which the current formulation of the reasonableness approach
appears to divert the bulk of the dialogue over the meaning of socioeconomic
rights to the political process, to silence the voices of
certain vital participants to the dialogue and to restrict the judicial
role in the overarching societal discussion over the means and ends of
transformation.
I hope that this expression of my concerns serves to strengthen
Liebenberg’s call for a more substantive judicial approach to
reasonableness, that builds on, or at least incorporates, a ‘more
principled and systematic interpretation of the content of the various
socio-economic rights, the values at stake in particular cases and the
impact of the denial of access to these rights on the complainant
group’. 6 I also hope to emphasise the need for such an approach to be
open and responsive to claims of individual entitlement.
2 Translation through dialogue: Mapping the field and the
players 7
In order for a dialogic approach to constitutional interpretation both
to ease separation of powers tensions inherent in judicial review and
to enhance participatory democracy, it is important to conceive
broadly of both the entities that are permitted to contribute to
dialogue over constitutional meaning and the venues where such
6 Liebenberg (n 3 above) 324.
7
In this section I reiterate and elaborate on points raised in Pieterse (n 5 above)
819-822.

334 Chapter 19
dialogue is allowed to occur. It has therefore been argued that
dialogue over constitutional meaning should be conceived as taking
place simultaneously between the judiciary and the democratic
branches of state as partners in the endeavour of constitutional
interpretation, between these entities and the broader constitutional
community (including other governmental agencies and civil society)
as well as between these entities and the citizenry at large. 8 Such
dialogue should further be understood to occur simultaneously in
various arenas — at the polling booth, during legislative and law
reform processes, in the pages of newspapers and law reviews, on the
streets and, importantly, in the courtroom.
There are unique strengths and weaknesses to the institutional or
societal positions of each of the potential contributors to the dialogue
over constitutional meaning that obviously affect their suitability as
translators of socio-economic rights from abstraction into reality. In
this section, I briefly highlight some of these strengths and
weaknesses in relation to certain of the participants in the South
African dialogue over the content of socio-economic rights.
Prime among these are the legislature and executive policymakers,
which possess the democratic mandate, the expertise and
the resources to define the scope of socio-economic entitlements and
to establish and operate structural mechanisms for their
enforcement. 9 The legislature, in particular, is well-suited to dialogic
translation, due to the deliberative nature of the legislative process
and to the fact that it is generally open to arguments advanced by
social movements. However, a drawback of legislative translation is
that it tends to cast entitlements in stone, hence limiting their scope
to the (often under-inclusive) parameters of the enactment and
foreclosing (albeit not entirely) further dialogue over their content. 10
As Rosalind Dixon shows, translation through the legislative process
may further be compromised by ‘legislative blind spots’ (arising, for
instance, where the legislature ‘fail[s] to recognise that a law could
be applied in a way that infringes rights’; ‘fail[s] to anticipate the
impact of laws on rights because they do not appreciate, adequately,
the perspective of rights claimants with very different life
experiences and viewpoints’ or fails to ‘perceive ways in which a
rights-based claim may be more fully accommodated, without undue
8 See Bateup (n 3 above) 1157-1159, 1168-1169 and 1174-1176. See also S Woolman
& H Botha ‘Limitations’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2006) Chapter 34.
9 On the necessity of such structural backing for effective translation, see LA
Williams ‘Issues and challenges in addressing poverty and legal rights: A
comparative United States/South African analysis’ (2005) 21 South African
Journal on Human Rights 436 439. On legislative and executive translation of
socio-economic rights in South Africa generally, see Brand (n 4 above) 12-16.
10 Williams (n 9 above) 455.

Reply - Marius Pieterse 335
cost to the relevant legislative objective’) as well as by legislative
‘burdens of inertia’ (relating, for instance, to the time-consuming
nature of the legislative process, lack of capacity and the partypolitical
driving forces behind legislative agendas). 11
Civil society and non-governmental institutions may contribute to
constitutional dialogue. At their best, they will engage directly
legislatures and policy makers and facilitate and structure further
debate between these institutions, social movements and the
individual beneficiaries of rights. In South Africa, particular mention
should be made of the role of the South African Human Rights
Commission (SAHRC). The SAHRC is a constitutionally created, independent
institution tasked with monitoring government compliance
with socio-economic rights as well as with conducting research,
raising awareness, initiating and contributing to judicial proceedings
and with other functions relating to the elaboration of the content of
human rights. 12
Beyond institutional players, social movements, rights-activists
and individual litigants all have a crucial role in translating socioeconomic
rights from ‘the bottom up’. In particular, individual
beneficiaries of socio-economic rights are best-placed to articulate
the needs that the rights should aim to satisfy. 13 By voicing their
needs in the form of rights-claims, beneficiaries direct the subjectmatter
of the constitutional dialogue to issues directly pertaining to
the satisfaction of these needs. However, the very poverty and
material deprivation that shape these needs often contribute to
rendering their expression inaudible to political and judicial
processes. For instance, the voices of individual victims of socioeconomic
rights violations are often muted by the victims’ inability to
11
Dixon (2 above) text accompanying n 60-62.
12 See FC sec 184 read with the Human Rights Commission Act 54 of 1994. On the
role of the SAHRC in the translation of socio-economic rights see CH Heyns ‘Taking
socio-economic rights seriously: The “domestic reporting procedure” and the role
of the South African Human Rights Commission’ (1999) 32 De Jure 195; J Klaaren
‘A second look at the South African Human Rights Commission, access to
information, and the promotion of socioeconomic rights’ (2005) 27 Human Rights
Quarterly 539; S Liebenberg ‘Violations of socio-economic rights: The role of the
South African Human Rights Commission’ in P Andrews & S Ellmann (eds) The
Post-Apartheid Constitutions: Perspectives on South Africa’s Basic Law (2001)
405; DG Newman ‘Institutional monitoring of social and economic rights: A South
African case study and a new research agenda’ (2003) 19 South African Journal on
Human Rights 189.
13 See, eg, MJ Matsuda ‘Looking to the bottom: Critical legal studies and
reparations’ (1987) 22 Harvard Civil Liberties Civil Rights Law Review 323; PJ
Williams ‘Alchemical notes: Reconstructing ideals from deconstructed rights’
(1987) 22 Harvard Civil Liberties Civil Rights Law Review 401 410-414.

336 Chapter 19
access the justice system, their lack of rights-awareness, and their
scepticism over or distrust of judicial or political processes. 14
Accordingly, the voices of the most vulnerable beneficiaries of
socio-economic rights often become audible only if expressed through
social movements. By placing pressure on political institutions and by
strategic use of the justice system, such movements can at once
implore and enable the accommodation of beneficiaries’ needs and
experiences in ‘top-down’ articulations of rights. 15 However, given
that social movements are primarily agenda-driven, and are unequally
distributed across issues and interest groups, their unmediated
prominence in processes of dialogic translation runs the risk of
distorting the terms of the dialogue, by placing undue emphasis on
particular agendas. 16
Academic scholars, in turn, contribute to the dialogue over
constitutional meaning by making researched and thoroughlytheorised
interpretations of socio-economic rights accessible to both
‘top-down’ translators such as legislatures and courts and ‘bottomup’
translation efforts by individual rights-bearers or social
movements. 17 However, scholars are as equally prone to distorted
perspectives as social movements. They are often far removed from
the ‘real’ experiences of material deprivation and institutional
translation that form the crux of the dialogue. 18
Finally and, for purposes of this reply, most importantly, is the
dual role of courts as translators of and translation venues for socioeconomic
rights. Provided that courts are accessible, the adjudication
process provides virtually the only space within which all, or most of,
the other contributory voices to the dialogue over the meaning of
socio-economic rights can simultaneously be present and heard.
Indeed, a prime advantage of the courtroom as venue for dialogic
deliberation over the meaning of socio-economic rights is that the
14 See S Gloppen ‘Social rights litigation as transformation: South African
perspectives’ in P Jones & K Stokke (eds) Democratising development: The
politics of socio-economic rights in South Africa (2005) 153 158-159.
15 See T Madlingozi ‘Post-apartheid social movements and the quest for the elusive
“new” South Africa’ (2007) 34 Journal of Law & Society 77 81, 89 and 91. On the
articulation of needs by social movements on behalf of socially vulnerable
plaintiffs in South Africa, see M Heywood ‘Preventing mother-to-child HIV
transmission in South Africa: Background, strategies and outcomes of the
Treatment Action Campaign case against the Minister of Health’ (2003) 19 South
African Journal on Human Rights 278 147.
16
Madlingozi (n 15 above) 92 and 94-95. For a related concern, see A Sachs ‘The
judicial enforcement of socio-economic rights: The Grootboom case’ in Jones &
Stokke (n 14 above) 131 149-150.
17
See S Liebenberg ‘Socio-economic rights under a transformative constitution: The
role of the academic community and NGOs’ (2007) 8(1) Economic and Social
Rights Review 3 7-8.
18
See generally T Madlingozi ‘Legal academics and progressive politics in South
Africa: Moving beyond the ivory tower’ (Nov 2006) 2 Pulp Fictions 5.

Reply - Marius Pieterse 337
individual beneficiaries of socio-economic rights are empowered to
participate on a more-or-less equal footing with more powerful
institutional players. 19
Provided that they are sufficiently legally or constitutionally
empowered to do so, judges may contribute invaluably to the
translation of socio-economic rights through their interpretation and
vindication of these rights in the concrete contexts of particular
cases. Given that socio-economic rights are fully justiciable under the
Final Constitution, that it grants courts significant interpretative
leeway and remedial flexibility and that it requires of them to take
rights’ international law meaning into account when considering their
content, there can be little doubt that South African courts are
empowered to engage in generous, purposive and thoroughly
theorised interpretation of socio-economic rights. 20 Moreover, judges
are generally regarded as being reasonably well-equipped translators.
Judges are independent and impartial, as well as trained,
experienced and skilled in the interpretation of legal provisions and
their application in concrete cases. 21 Courts are further well-placed
to correct for problems occasioned by legislative ‘blind spots’ or
‘burdens of inertia’, 22 not least because they ‘handle real cases and
thus can test more effectively the particular implications of abstract
principles and discover problems the legislature could not forecast’. 23
But there are also important reasons not to award judges a
monopoly over the translation of socio-economic rights. Most
obviously, judges lack the direct democratic legitimacy associated
with the legislative and political branches of government. They are
also generally drawn from privileged sectors of society: as a result,
they are often unfamiliar with, or insensitive to, the needs and the
experiences of society’s materially deprived sectors. Furthermore,
South African judges have been trained in a formalist and liberalindividualist
legal culture that is not favourably disposed towards the
notion of enforceable socio-economic rights. 24
19 See D Davis ‘Socio-economic rights in South Africa: The record of the
Constitutional Court after ten years’ (2004) 5(5) Economic and Social Rights
Review 3 7.
20 See, eg, FC secs 36, 38 and 39(1). For discussion of these and other ‘enabling’
provisions, see M Pieterse ‘Resuscitating socio-economic rights: Constitutional
entitlements to health care services’ (2006) 22 South African Journal on Human
Rights 473 478-479.
21 See also M Pieterse ‘Coming to terms with judicial enforcement of socio-economic
rights’ (2004) 20 South African Journal on Human Rights 383 395.
22 Dixon (n 2 above) text accompanying n 79.
23 H Spector ‘Judicial review, rights and democracy’ (2003) 22 Law & Philosophy 285
319.
24 For a discussion of these and related problems, see Pieterse (n 21 above) 390-399.

338 Chapter 19
Since court judgments carry significant authority and imply a
measure of finality, judicial interpretations of socio-economic rights
may sometimes foreclose or unduly limit dialogue over constitutional
meaning. This result is particularly unwelcome in socio-economic
rights matters: A significant number of differently situated persons
may possess diverse needs implicated by a single right. It may also be
pernicious where such finality is implied in relation to an overbroad
or unduly restrictive interpretation of a right. 25 Because of the
substantial costs associated with access to justice, it is further
possible that courts may continuously be seized by socio-economic
rights claims representing the interests of relatively privileged sectors
of society and that their translation of the rights in such cases may
reflect such interests at the expense of the concerns of the most
vulnerable.
Nevertheless, we may expect courts to remain vital venues for
dialogue over constitutional meaning, not least since the Constitution
itself foresees such a role for them. 26 Because judges are in charge of
court proceedings and of transcribing the outcome of such
proceedings in the form of judgments, their role is not only to
contribute to courtroom dialogue over constitutional meaning, but
also to direct its terms and to determine the manner in which all
participants conduct themselves. Given that their judgments have an
impact on the contours of future dialogue, even in contexts beyond
those in which they were conceived, the manner in which courts
conduct themselves in this respect is of particular significance.
It is therefore important that any judicial ‘approach’ to socioeconomic
rights adjudication neither monopolises the process of
translation through dialogue, nor foregoes participation therein. Any
such approach must further be open to dialogic contributions by as
many of the entities discussed above as possible. It should aim to
maximise the progressive potential of each individual contribution
without unduly favouring any one of them, lest it be tainted by the
shortcomings associated with exclusive translation by the favoured
entity. Finally, the approach should simultaneously remain true to the
aim of translation (turning conceptually empty background norms into
vehicles for the effective confrontation of denial of need) and enable
all parties to the dialogue to participate freely in the overarching
societal discourse on transformation.
25
See Liebenberg (n 17 above) 7.
26 See FC secs 39, 165 and 172(1).

Reply - Marius Pieterse 339
3 Minimum core, reasonableness and translation through
dialogue
As Liebenberg explains, South African scholarly debates over the
‘proper’ method of dealing with socio-economic rights claims have
predominantly boiled down to the expression of a preference for one
of two, seemingly opposed, approaches to the adjudication of the
positive duties implied by sections 26 and 27 of the Final Constitution.
On the one hand, much support has been expressed for a ‘minimum
core approach’. This approach turns on the identification and the
immediate enforcement of basic entitlements (corresponding with
human survival interests) inherent in socio-economic rights. 27
Arguments consistent with this approach (which has foundations in
international law) were raised by the amici curiae in the two most
high-profile socio-economic rights matters thus far heard by the
Constitutional Court: Government of the Republic of South Africa v
Grootboom (Grootboom) 28 and Minister of Health v Treatment Action
Campaign (TAC). 29 In both cases, the Constitutional Court rejected
these arguments. Instead it adopted a different approach, that of
‘reasonableness’. The ‘reasonableness approach’ is based on the
constitutional requirement that measures adopted in pursuit of the
progressive realisation of socio-economic rights must be reasonable
and involves the scrutiny of laws and polices aimed at giving effect to
the rights, for adherence to a number of requirements associated with
good governance. The ‘reasonableness approach’, which tends to be
criticised by proponents of a ‘minimum core approach’, 30 has also
attracted its fair share of supporters, most of whom justify their
preference for ‘reasonableness’ by referring to the shortcomings of
the ‘minimum core approach’. 31
27 For the most thorough theoretical defense of this approach in the South African
context, see D Bilchitz Poverty and fundamental rights: The justification and
enforcement of socio-economic rights (2007) 178-235.
28 2001 1 SA 46 (CC), 2000 11 BCLR 1169 (CC).
29
2002 5 SA 721 (CC), 2002 10 BCLR 1033 (CC).
30 See, eg, D Bilchitz ‘Towards a reasonable approach to the minimum core: Laying
the foundations for future socio-economic rights jurisprudence’ (2003) 19 South
African Journal on Human Rights 1. See also D Bilchitz ‘Health’ in S Woolman et
al (eds) Constitutional Law of South Africa (2nd Edition, OS, 2006) Chapter 56A.
31 See, eg, Steinberg (n 2 above); M Wesson ‘Grootboom and beyond: Reassessing
the socio-economic jurisprudence of the South African Constitutional Court’
(2004) 20 South African Journal on Human Rights 284.

340 Chapter 19
Through the years, Liebenberg has engaged critically with
features of both of these approaches. 32 In her current paper, she
evaluates both from a dialogic perspective and concludes that, while
a minimum core approach valuably captures part of the content of
socio-economic rights and ‘imposes a high burden of justification in
contexts where people are deprived of the basic necessities of life’, 33
a reasonableness approach is better suited to a society committed to
translation through dialogue. A reasonableness approach ‘avoids
closure and creates the on-going possibility of challenging various
forms of socio-economic deprivations in the different contexts in
which they arise’. 34
In relation to minimum core, Liebenberg explains how the onceoff
judicial formulation and enforcement of a comprehensive core
standard can frustrate dialogue over the content of socio-economic
rights. She shows, convincingly, that a minimum core approach may
operate to ‘stifle institutional conversation and collaboration
between the three branches of government’, may result in over- or
under-inclusive specification of obligations, may invite undue
reductionism and/or minimalism in need–definition, may ‘exclude or
marginalise the needs of various groups that do not fit the background
norms informing the definition of core obligations’ and may
oversimplify the interaction between and co-dependence of
interconnected socio-economic needs of varying levels of complexity,
urgency, and cost. 35
I agree that the adoption of a minimum core approach may
amount to the once-off, ‘top-down’ imposition of a singular,
contested, point of view that denies and precludes reasonable
disagreement over its conceptual foundations, contextual appropriateness,
feasibility and logic. 36 But, to be fair to minimum core
proponents, it need not engender such outcomes. It should be
possible for courts to engage in a far more gradual, open-ended,
context-specific and contingent process of case-by-case elaboration
of the essential minimum content of rights, in a manner that invites,
rather than forestalls, dialogue. 37
32 See, eg, S Liebenberg ‘South Africa’s evolving jurisprudence on socio-economic
rights: An effective tool in challenging poverty?’ (2002) 6 Law, Democracy &
Development 159; S Liebenberg ‘The interpretation of socio-economic rights’ in S
Woolman et al (eds) Constitutional Law of South Africa (2nd Edition, OS, 2003)
Chapter 33; S Liebenberg ‘The value of human dignity in interpreting socioeconomic
rights’ (2005) 21 South African Journal on Human Rights 1.
33 Liebenberg (n 3 above) 324.
34 Liebenberg (n 3 above) 320.
35
Liebenberg (n 3 above) 309-318. See also Dixon (n 2 above) 416-418; Steinberg (n
2 above) 274-276; Wesson (n 31 above) 303-305.
36 See Pieterse (n 20 above) 490-491 and authorities cited there.
37
Pieterse (n 20 above) 491. See further Bilchitz (n 27 above) 160; Woolman &
Botha (n 8 above ) 34-104 — 34-113.

Reply - Marius Pieterse 341
In any event, the Constitutional Court’s rejection of minimum
core arguments in Grootboom and, especially, TAC, seemed to be
motivated by more than concern about the dialogic disadvantages
that are arguably inherent to the approach. Consider, for instance,
the following statements in TAC:
It is impossible to give everyone access even to a ‘core’ service
immediately. All that is possible, and all that can be expected of the
state, is that it act reasonably to provide access to the socio-economic
rights identified in sections 26 and 27 on a progressive basis. 38
Section 27(1) of the Constitution does not give rise to a self-standing and
independent positive right enforceable irrespective of the considerations
mentioned in section 27(2). Sections 27(1) and 27(2) must be
read together as defining the scope of the positive rights that everyone
has and the corresponding obligations on the state to ‘respect, protect,
promote and fulfill’ such right. The rights conferred by sections 26(1)
and 27(1) are to have ‘access’ to the services that the state is obliged to
provide in terms of sections 26(2) and 27(2). 39
These passages suggest that the Court’s rejection of the minimum
core approach was at least partly motivated by an aversion to the
notion of individual entitlement. 40
This aversion was, in turn, also the driving force behind the
Court’s opting for the reasonableness approach. This conclusion
seems to be borne out by the fact that the approach appears to entail
little or no enforceable entitlement for the beneficiaries of socioeconomic
rights. 41 Indeed, both Liebenberg and minimum core
proponents’ main criticism of the ‘reasonableness approach’ is that it
fails to engage meaningfully with the content of the rights. 42
This ‘conceptual emptiness’ of socio-economic rights conceived in
terms of ‘reasonableness’ seems to indicate a potentially significant
drawback of the approach from a dialogic perspective. Indeed, it
38
TAC (n 29 above) para 35.
39 TAC (n 29 above) para 39. See also paras 31-32, 34 (‘the socio-economic rights of
the Constitution should not be construed as entitling everyone to demand that
the minimum core be provided to them’); 125 (‘[w]e have held that [the] policy
fails to meet constitutional standards. ... That does not mean that everyone can
immediately claim access to such treatment’). See further Grootboom (n 28
above) para 95 (‘neither section 26 nor section 28 entitles the respondents to
claim housing or shelter immediately upon demand’).
40 See also D Brand ‘The proceduralisation of South African socio-economic rights
jurisprudence, or “what are socio-economic rights for?”’ in H Botha et al (eds)
Rights and democracy in a transformative constitution (2003) 33 46; P de Vos ‘So
much to do, so little done: The right of access to anti-retroviral drugs post-
Grootboom’ (2003) 7 Law, Democracy & Development 83 89.
41 See I Currie ‘Bill of Rights jurisprudence’ (2002) Annual Survey of South African
Law 36 72; Pieterse (n 20 above) 487 and authorities cited there.
42
Liebenberg (n 3 above) 318-320. See also, eg, Bilchitz (n 30 above) 5-10; Pieterse
(n 21 above) 410-411 and authorities cited there.

342 Chapter 19
appears altogether to prevent translation through dialogue from
taking place. But this negative gloss on ‘reasonableness’ is not
entirely fair. The outcome of the TAC case — that pregnant, HIVpositive
women who could previously not access Nevirapine in the
public sector could now do so — indicates that some translation of the
right to have access to health care services has occurred. But where,
and by whom?
The answer, I think, lies in the textual positioning of the
reasonableness standard in FC sections 26(2) and 27(2). It is the
content of legislative and other measures aimed at achieving the
progressive realisation of socio-economic rights that is assessed
through an analysis of reasonableness, not the content of the rights
themselves. 43 Nor, for the most part, does the Constitutional Court
pretend to be considering anything other than the content of such
measures, in either Grootboom or TAC. What the reasonableness test
does do is to change the topic of the dialogue being held in the
courtroom. Instead of a discussion about the translation of rights, the
courtroom dialogue mainly considers the desirability of the content
and the implementation of particular measures (in both cases,
executive policies).
But that does not mean that rights-translation is not occurring.
The effect of the reasonableness approach is simply to reduce the
extent to which such translation occurs in the courtroom and instead
to relegate much of the actual translation exercise to the architects
of the measures in question. In the TAC hearing, for instance, much
was made of the fact that Nevirapine was the government’s ‘drug of
choice’ in preventing mother-to-child-transmission of HIV, in
accordance with its decision to provide a ‘comprehensive package of
care’ for such prevention. 44 In other words, it was the Department of
Health, and not the Constitutional Court, which decided whether the
right to have access to reproductive health care services should
include access to Nevirapine in the public sector. While a minimum
core approach would have required of the Court to express an opinion
on this question (or, at least, on the question of whether the right
required the existence of a plan aimed at preventing mother-to-childtransmission),
in terms of the reasonableness approach it could simply
focus on whether seemingly arbitrary restrictions on enjoyment of
access to the right, as defined elsewhere by the executive, was
permissible. Similarly, the Grootboom Court could have merely
insisted on the inclusion of vulnerable sectors of society within the
ambit of an already formulated executive plan, without itself having
43
See Bilchitz (n 27 above) 143.
44 Heywood (n 15 above) 285-90. See also TAC (n 29 above) paras 42, 45 and 65.

Reply - Marius Pieterse 343
to indicate whether the Constitution required the state to provide
housing for the poor. 45
Under the current formulation of the reasonableness approach,
the Constitutional Court is consciously limiting its involvement in the
translation of socio-economic rights. For the most part, the Court
seems content with endorsing translations by the democratic
branches while ensuring that citizens derive meaningful and equal
benefit from entitlements transpiring from such translation. While
the Court arguably remains capable of testing democratic translations
of socio-economic rights for constitutional compliance, its reluctance
to make a more substantive, independent contribution to the dialogue
over the meaning of the rights is (as Liebenberg agrees) lamentable.
The significant margin of discretion awarded by the reasonableness
approach to the democratic branches pertains not only to the form
and content of their policies but also to the extent of the immediately
enforceable entitlements inherent in socio-economic rights. Again
this approach runs many of the risks associated with the exclusive
translation of socio-economic rights by the coordinate branches.
As the highest court in constitutional matters in a legal system
that values precedent and legal certainty, the Constitutional Court’s
reluctance to engage the content of socio-economic rights more
robustly has the effect of discouraging more substantive dialogic
contributions by all other, subordinate judicial fora. In this respect,
the most progressive socio-economic rights judgments to come from
the High Courts have been in matters that have not subsequently
reached the Constitutional Court. They have either dealt with socioeconomic
rights that have not yet been considered by the
Constitutional Court or with the few spaces for entitlementorientated
jurisprudence implicitly created by its judgments. 46
More troubling, perhaps, is that while the reasonableness
approach shows some sensitivity to vulnerability and need, the
Court’s denial of enforceable entitlements inherent to socioeconomic
rights in its current application of the approach significantly
45
For a related argument, see T Roux ‘Understanding Grootboom — A response to
Cass R Sunstein’ (2002) 12(2) Constitutional Forum 41 47 and 49.
46 Consider, for instance, the manner in which the High Courts have exploited the
space for entitlement-orientated jurisprudence created by the implied finding in
Grootboom (n 28 above) para 77 that orphans or abandoned children may have
direct subsistence claims against the state in terms of FC sec 28(1)(c). See Centre
for Child Law v Minister of Home Affairs 2005 6 SA 50 (T) Centre for Child Law v
MEC for Education, Gauteng 2008 1 SA 223 (T). Consider also the progressive
remedial framework emerging from High Court judgments giving effect to diverse
elements of the right to dignified conditions of detention in terms of FC sec
35(2)(e). I have elaborated on this framework in M Pieterse ‘The potential of
socio-economic rights litigation for the achievement of social justice: Considering
the example of access to care in South African prisons’ (2006) 50 Journal of
African Law 118.

344 Chapter 19
restricts individuals in articulating their demands for needsatisfaction
as rights-claims. As a result, the beneficiaries’ voices are
dampened specifically in relation to that aspect of the socioeconomic
rights dialogue (the identification and elaboration of need)
to which they can most valuably contribute. 47 By instead shifting the
focus of the courtroom dialogue to the content of an intricate array
of policy choices in a particular sector, the Court further compounds
the evidentiary burden on prospective individual claimants. Given
that such claimants are moreover unlikely, in terms of the current
entitlement-free application of the reasonableness approach, to be
awarded immediate and tangible relief if a claim of unreasonableness
was to succeed, it will seldom be worth their while to raise their
voices in the courtroom. 48
The current formulation of the reasonableness approach may thus
be accused of largely un-inviting socio-economic rights’ individual
beneficiaries from the courtroom dialogue over the meaning of their
rights. Instead, it appears to relegate them to the political process
where, absent a powerful, well-resourced or well-connected social
movement that shares their concerns, they are likely to remain
silenced. Given that one of the prime advantages of the litigation
process as a dialogic forum is that it allows for the amplification of
voices which would ordinarily be muted in political processes, this is
unfortunate.
Liebenberg’s optimism over its openness, flexibility and
sensitivity to context notwithstanding, the reasonableness approach,
as applied in Grootboom and TAC, runs the risk of unnecessarily
stifling dialogue over the meaning of socio-economic rights in the
courtroom. Such silence may ultimately impoverish the broader
translation of socio-economic rights in South Africa.
Since institutions are themselves ‘affected and shaped’ by their
contributions to dialogues over constitutional meaning, 49 their
conduct in the course of such dialogues also reveals and/or predicts
the extent of their participation in the overarching societal dialogue
over the means and the ends of transformation. The Constitutional
Court’s deflection of dialogue — through the reasonableness approach
— restricts its role to legitimating and endorsing the transformation
efforts of the political branches: even as it holds them accountable
47
On the sidelining of need in terms of the reasonableness approach, see Bilchitz (n
27 above) 160; Brand (n 40 above) 36-37, 49 and 55.
48 See J Dugard & T Roux ‘The record of the South African Constitutional Court in
providing an institutional voice for the poor: 1995-2004’ in R Gargarella et al
(eds) Courts and social transformation in new democracies (2006) 107 113 and
118-119; Gloppen (n 14 above) 169; Liebenberg ‘Dignity’ (n 32 above) 22; Pieterse
(n 20 above) 490.
49 Bateup (n 3 above) 1159.

Reply - Marius Pieterse 345
for upholding their constitutional commitments in the course of these
efforts. 50 In particular, it appears reluctant to proclaim its own vision
of the transformative project despite the fact that it has been tasked
to uphold the Constitution ‘without fear, favour or prejudice’. 51 It
largely defers instead to an executive-driven economic policy
environment that may depart, in important respects, from such a
vision. 52
This is, perhaps, understandable. However, the record also
indicates that the Court views its accountability-enhancing function in
a very ‘business as usual’ manner. While the Court has insisted on
robust justification for non-compliance with the negative obligations
implied by socio-economic rights (which correspond largely to
‘classical’ civil rights violations), the evaluative and remedial
paradigms presented by the reasonableness approach for the
adjudication of positive socio-economic rights claims do not suggest
any meaningful departure from conceptions of the judicial role under
pre-constitutional administrative law. 53 The unfortunate result is that
the judicial contribution to the debate over transformation is no
different than it would have been in a constitutional setting where
socio-economic rights had either not been entrenched at all or had
functioned only as directive principles of state policy.
4 Conclusion: Towards openness, responsiveness and
substantive participation?
A Constitutional Court is like a parachute, it has to be open to work. If
the Court turns inward, to whom do those seeking justice reach out? 54
This reply has attempted to strengthen Liebenberg’s call for the
modification of the reasonableness approach. This modification
should embrace substantive engagement with the content of socioeconomic
rights as well as more rigorous scrutiny of justifications for
laws and policies that cause, exacerbate or fail to address
deprivations of basic socio-economic resources. 55 I have argued that
50
See T Roux ‘Legitimating transformation: Political resource allocation in the
South African Constitutional Court’ (2003) 10 Democratisation 92; DM Davis
‘Adjudicating the socio-economic rights in the South African Constitution:
Towards ‘deference lite’?’ (2006) 22 South African Journal on Human Rights 301
318.
51 FC sec 165(1).
52
See Davis (n 50 above) 315-316.
53 See D Bilchitz ‘Giving socio-economic rights teeth: The minimum core and its
importance’ (2002) 119 South African Law Journal 484 495; Currie (n 41 above)
72; CR Sunstein ‘Social and economic rights? Lessons from South Africa’ (2001) 12
Constitutional Forum 123.
54 G van Bueren ‘Alleviating poverty through the Constitutional Court’ (1999) 15
South African Journal on Human Rights 52 73.
55 Liebenberg (n 3 above) 321-327.

346 Chapter 19
the current version of the reasonableness approach runs the risk of
impoverishing the translation of socio-economic rights, first, by
restricting the terms of courtroom dialogue over their content,
secondly, by silencing voices that may meaningfully contribute to the
dialogue and, thirdly, by diverting much of the dialogue to the
political arena. Such restriction, silence and diversion may not only
deflate the possibilities of dialogue over constitutional meaning but
also unnecessarily restrict the judicial contribution to the overarching
dialogue over transformation.
Liebenberg is right to contend that the reasonableness approach
can accommodate a more direct engagement with the content of
socio-economic rights. As I have argued elsewhere, a latent notion of
entitlement may already be lurking within the reasonableness
approach. 56 But it would probably be even more useful if an approach
aimed at ascertaining compliance with socio-economic obligations
were, conceptually, to separate the deliberation over the content of
a right from the question of whether measures that aim to give effect
to the right are reasonable in light of that content. This need not
amount to a minimum core approach or to a similarly dialoguemonopolising
exercise of interpretation. On the contrary, the
context-specific, open and flexible deliberation over the content of
specific entitlements, their limits and the appropriateness of
suggested remedies for their vindication may ultimately enrich
deliberative dialogue over the translation of socio-economic rights.
As a matter of fact, there is no need for courts to adopt a single,
one-size-fits-all approach to socio-economic rights adjudication.
Indeed, the fixation of academic scholarship (including this reply) on
the strengths and the shortcomings of the reasonableness approach
should not blind us to the fact that the Constitutional Court has itself
flirted with different approaches in relation to different kinds of
allegations of non-compliance with socio-economic rights. In
Soobramoney v Minister of Health, KwaZulu Natal, it focused on the
rationality and bona fides of an executive directive which rationed
the availability of certain forms of tertiary medical care. 57 In Khosa v
Minister of Social Development; Mahlaule v Minister of Social
Development, it appeared to combine the reasonableness approach
56 Pieterse (n 20 above) 497-500.
57
1998 1 SA 765 (CC), 1997 12 BCLR 1696 (CC). For a critical discussion, see D
Moellendorf ‘Reasoning about resources: Soobramoney and the future of socioeconomic
rights claims’ (1998) 14 South African Journal on Human Rights 327; M
Pieterse ‘Health care rights, resources and rationing’ (2007) 124 South African
Law Journal 514 527-535.

Reply - Marius Pieterse 347
with an equality-analysis, where an alleged infringement of a socioeconomic
right coincided with an allegation of unfair
discrimination. 58 In Jaftha v Schoeman; Van Rooyen v Stoltz, it
adopted a more ‘traditional’ two-stage approach, including a FC
section 36 limitations analysis, in relation to the negative duties
implied by socio-economic rights. 59 Whereas the dialogic contribution
of each of these approaches is, perhaps, debatable, the institutional
flexibility implied by this experimentation is to be welcomed.
As Liebenberg has reminded us elsewhere, courts must ‘remain
open to new and innovative interpretations of socio-economic rights
that better protect the interests and values underpinning these rights’
even though ‘[t]his may entail a measure of sacrifice of the ideals of
stability and certainty’. 60 This new approach could involve the
substantive expansion of the reasonableness approach, its variation
according to the demands of different contexts or its substitution in
appropriate circumstances. Whatever approach is adopted in the
circumstances of a particular case, it should aim to translate socioeconomic
rights in a manner that responds to the needs of their
beneficiaries and in a way that maximises the transformative
potential of the courtroom as a venue for dialogue.
58 2004 6 SA 505 (CC), 2004 6 BCLR 569 (CC). For critical analysis, see Bilchitz (n 27
59
above) 166-173.
2005 2 SA 140 (CC), 2005 1 BCLR 78 (CC). See the concluding section of
Liebenberg (n 3 above) for a critical view of the continued distinction between
60
the negative and positive obligations imposed by socio-economic rights.
Liebenberg (n 17 above) 6.