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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.