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Stu Woolman 135
justification that FC section 36 or some other express limitations
clause in a specific substantive right might require. The persistent
refusal to give rights identifiable content — by avoiding direct
application — results in a Bill of Rights increasingly denuded of
meaning.
The over-reliance on FC section 39(2) also has the unintended
consequence of undermining the rule of law. The two-step interpretative
process engineered by the drafters of the Bill of Rights ought
to produce black letter constitutional law. Clear delineation of the
ambit of a right articulates one type of rule; similarly crisp limitations
analysis articulates another type of rule. The articulation of such
express black letter rules of law enables the citizenry and the
government to conform their behaviour to our Constitution. In a
domain for which rules are even more germane, the judicial system,
rules of black letter constitutional law ensure that lower courts and
lawyers can identify the law and thereby settle, litigate and
adjudicate, with some confidence, fundamental rights cases. The use
of FC section 39(2) may be a handy way to secure agreement amongst
11 judges regarding the appropriate outcome of a case at the same
time as they finesse (or suppress) the logic behind the outcome.
However, this strategy — while useful in cobbling together majorities
on the Constitutional Court — often leaves readers of a judgment at
an absolute loss as to how the Bill of Rights might operate in some
future matter. An approach to constitutional adjudication that makes
it difficult for lower court judges, lawyers, government officials and
citizens to discern, with some degree of certainty, how the basic law
is going to be applied, and to know, with some degree of certainty,
that the basic law is going to be applied equally, constitutes a
paradigmatic violation of the rule of law. 26
26
Judge Dennis Davis has laid this very same complaint: the absence of rule-based
content in the Constitutional Court’s Bill of Rights jurisprudence makes it difficult
for High Courts to discharge effectively their function. See D Davis ‘Democracy,
dignity and deliberation’ Conference on dignity and the jurisprudence of Laurie
Ackermann (27 July 2007, University of Cape Town). Moreover, there are signs
that the Court itself — or members of the Court — are aware of the dangers that
attach to this failure. In an interview on SA-FM, Justice O’Regan noted that the
Constitutional Court could, in its first decade of existence, have provided a
stronger, theoretically more secure foundation for its Bill of Rights jurisprudence
— a choice that would have put the current Court’s jurisprudence on more solid
footing. Interview with Justice O’Regan on SA-FM (27 July 2007).