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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.