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108 Chapter 7
the depoliticising finality of judicial decisions. 51 I have myself
identified in the Court’s socio-economic rights jurisprudence ways in
which the Court, for example by rewarding in its judgments political
engagement and punishing undemocratic conduct, can foster the
democratic capacity of the impoverished and so counteract the
depoliticising tendencies in its work. 52
Against this background the Constitutional Court’s fixation with
one aspect of the tension between rights and democracy that I briefly
outlined above in the context of its socio-economic rights
jurisprudence does not only erode democracy because it works to
depoliticise the issues the Court engages with as described. It erodes
democracy also because it means that the Court, despite an extensive
and nuanced body of literature alerting them to the problem, 53 takes
virtually no account of the variety of other ways in which their work
potentially stands in tension to democracy and as a result also takes
no account of the myriad ways in which they can alleviate the
problem. Had Theunis engaged them on this point in his chapter, they
would have been challenged anew to address it in some way.
3 Conclusion
It remains for me to ask one more question — well, perhaps two, the
answer to the first implying the second. Why is it that Theunis fails to
engage in his chapter the two issues I outline above? In the two
preceding sections I already suggested an answer to this question —
Theunis might say simply that he was not writing a book but only one
chapter of a book. But, given the thoroughness and the academic
rigour that I know Theunis for, I don’t think such academic lassitude
is the explanation. What Theunis would probably say — if I could be so
bold as to suggest what his answer would be — is that it was simply
not his brief or his purpose to address these two questions; that his
brief and his purpose in his CLoSA chapter and consequently in this
briefer essay was, against the background of a survey of political
science literature and on the basis of a close reading of the
constitutional text and the case law, to describe — and only to
describe — the principle of democracy in South African constitutional
law. If that were indeed Theunis’ answer, it would raise for me the
second and my final question — is such a project viable, and more
importantly, is it desirable?
Why do I ask this? Three things strike me about the nature of
Theunis’ chapter here and about the corresponding section in his
51 Botha (n 28 above).
52
Brand (n 30 above) 33-36.
53 See eg Klare (n 19 above); Botha (n 28 above).