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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
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