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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.