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140 Chapter 9
But it is precisely this unruly expatiation, breaking out all over the
place, that makes the chapter such a pleasure to read. It is a pleasure
of a particularly academic kind, and I mean to use that word with as
positive a charge as possible. The chapter is rich, dense, theoretically
ambitious, comprehensive in its scope and surely exhaustive in its
engagement with the literature. (I say ‘surely’ because I can’t help
thinking there might just be something in the older issues of the
Zeitschrift für Auspuffskonstruktion that has been overlooked.
Something to check up on for the third edition perhaps.) It even has
an Appendix. Yes, an Appendix for those greedy constitutional-law
wonks whose appetite for the South African application literature has
not been utterly satiated by the main text. There must surely be one
or two of them, and it is good to know that they have been catered
for. Everyone who has ever written anything on the issue is thoroughly
read, engaged with and has their innumerable errors patiently and
unflinchingly exposed and corrected. No resort to lazy footnotes (‘But
see contra ...’), this is scholarly engagement of an old-fashioned kind
that respects the views of those it contests (not least by taking the
time to read them) and that is little practiced these days. This sort of
capacious scholarship sits a little uneasily in a book at least notionally
aimed at the practitioner’s market. But if you saw the author sitting
so uneasily at a party you would think him to be the most interesting
person in the room. You might also, it has to be said, place yourself
behind the fishtank to avoid that slightly manic eye and the five-hour
argument that would surely ensue from meeting it.
2 Burdens
When we discussed what to talk about at this event Stu and I agreed
that we would focus on just one aspect of the chapter — burdens.
Burdens is of course the application issue. ‘When jurists, lawyers and
academics say they wish to talk about the application of the Bill of
Rights under the Final Constitution’, Stu contends, ‘by and large, they
have a single vexed question in mind: Upon whom do the burdens of
the Bill of Rights fall?’ 3 He is right that burdens (‘duties’, or, more
precisely still, the burdening of private actors with duties to respect
rights) is the issue over which most ink has been spilled and,
continuing the practice, over which this chapter spills most of its ink.
But is that adjective quite correct — is it really a ‘vexed’ question? —
and is he right that ‘jurists’ (meaning, I think, judges) and ‘lawyers’
are quite as vexed about it as academics have been?
The fact is that the case law on application (in the ‘burdens’
sense) under the Final Constitution really does not make much of a
3
S Woolman ‘True in theory, true in practice: Why direct application still matters’
in S Woolman & M Bishop (eds) Constitutional conversations (2008) 112.