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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.