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Stu Woolman 115
My subsequent approach to application under the Final
Constitution warrants a few prefatory remarks. The treatment of
‘burdens’ begins with the Constitutional Court’s articulation of the
black letter law on application in Khumalo v Holomisa. 2 As we shall
see, the Khumalo Court does not explain in any detail what the
various parts of FC section 8 mean or how they are designed to work.
This lack of transparency requires me to offer a good faith
reconstruction of the application doctrine articulated by the Khumalo
Court. This good faith reconstruction cannot be the last word on the
application doctrine under the Final Constitution. Although the good
faith reconstruction fleshes out the Khumalo Court’s conclusions in a
manner that coheres with the judgment’s various textual and
jurisprudential premises, even a reconstructed Khumalo is
unsatisfactory and, ultimately, unredeemable.
This chapter engages the good faith reconstruction in a number of
different ways. It sets out six primary doctrinal objections to the
Khumalo Court’s statement of the law. These six objections are
grounded, to varying degrees, in conflicting statements by the
Constitutional Court — as well as courts of more general jurisdiction
— about what each of the subsections in FC section 8 and FC section
39 should be understood to mean. This chapter offers a very brief
account of a second body of black letter law: namely, what the courts
have said the discrete subsections — FC sections 8(1), 8(2), 8(3) and
39(2) — denote. (For lawyers, jurists and academics who wish to know
in detail what the all of our courts have said about FC sections 8(1),
8(2), 8(3) and 39(2), the Constitutional Law of South Africa chapter
on ‘Application’ upon which I draw here offers a fairly exhaustive
account.) 3 This black letter law governs subjects as diverse as the
meaning of the term ‘all law’, the binding of the judiciary, the
legislature, the executive and organs of state, how the common law
is to be developed and transformed, the creation of new remedies
under the Bill of Rights, as well as such doctrines as reading down,
shared constitutional interpretation, stare decisis and objective
normative value systems.
In an ideal world, the general framework articulated in Khumalo
would be internally (logically) consistent and would be externally
consistent with (map directly on to) the courts’ express understanding
of what the specific sections in FC section 8 and FC section 39 signify
and the manifold doctrines they generate. In other words, Khumalo
would provide the edifice, and other cases that had a bearing on our
understanding of application would slot neatly into its structure. As
we shall see, the dissonance created by the disjunction between the
2 Khumalo v Holomisa 2002 5 SA 401 (CC), 2002 8 BCLR 771 (CC).
3
S Woolman ‘Application’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2005) Chapter 31, available at www.westlaw.com.