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Stu Woolman 133
and every exercise of state power subject to constitutional review. It
does not rest on a distinction between the parties before the court
and thus does not offend the doctrine of objective unconstitutionality.
The preferred reading, unlike the good faith reconstruction
of Khumalo, does not offend the surplusage canon of
constitutional interpretation. It alone gives the phrase ‘binds the
judiciary’ meaningful content by recognising that the phrase engages
all emanations of law from the courts. The preferred reading, unlike
the good faith reconstruction of Khumalo, is not plagued by a host of
conflicting doctrinal commitments that blunt the transformative
potential of the Bill of Rights. Proper apportionment of analytical
responsibilities between FC section 8(1), FC section 8(2), FC section
8(3) and FC section 39(2) finesses the many difficulties created by a
hide-bound doctrine of stare decisis that permits little, if any,
development of the common law in light of FC section 39(2). 21
5 Conclusion
Defenders of the Court’s approach to application suggest — in
straightforward realist fashion — that the mechanism for the
21
A caveat and a codicil are in order. The caveat is that there is no unassailable
answer to the question of burdens raised by FC sec 8. Shoddy drafting left us with
a text — FC sec 8 — that generates multiple possible readings and that resists a
simple mechanical explanation because its component parts are difficult to
reconcile. That does not mean that no grounds exist for preferring one reading
over another. Indeed, the appropriate response to that standard academic trope
— ‘so what’ — is to construct an analytical framework for direct application under
FC sec 8 that coheres with the manifold doctrinal demands of indirect
application, stare decisis, the rule of law, constitutional jurisdiction, objective
unconstitutionality, textual plausibility and naturalness. This chapter constitutes
one such answer. The codicil reflects the recognition that questions of application
in terms of FC sec 8 are, at bottom, questions of interpretation. This proposition
has two dimensions: one logical, one historical. As a logical matter, we could
function perfectly well without a provision on application. Whether the
provenance of the law at issue or nature of the parties before the court have
some bearing on the disposition of a matter could well be accommodated as part
of the interpretation of a right. The presence of FC sec 8 reflects the judgment of
the drafters that our Final Constitution must speak to the application of the Bill
to the exercise of both public and private power, and that constitutional texts
have always done so (even where those texts have operated to protect existing
hierarchies of private power.) Because the drafters of the Final Constitution set
their face against the traditional immunisation of certain kinds of private dispute
from constitutional review, all legal disputes are now notionally subject to the
strictures of the Bill of Rights. As a result, the line drawing exercise that
animated the debate around the Interim Constitution’s application provisions
ought to have proved of diminished import by now. That the application debate
has not withered away cannot be explained by the logic of the text alone. The
text points towards such a withering away. The continued debate over application
reflects the extent to which the meaning of our basic law is determined by extant
historical conditions: The echo of the Interim Constitution, the limited
jurisdiction of the Constitutional Court versus the plenary jurisdiction of the
Supreme Court of Appeal and, perhaps most importantly, the felt need to chart a
careful course between the Scylla of transformation and the Charybdis of
tradition.