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150 Chapter 10
judges themselves are subject to the demand for justification. They
must be able to explain why they have given the standards the
content that they have, and why they have applied them in a given
fashion. By doing so, they signal their respect for the parties before
them, provide guidance to legislators, fellow judges and prospective
litigants, and, perhaps most importantly of all, model rational
political discourse through participation in an ongoing debate about
the meaning of constitutional norms. 3
These initial observations suggest that Bill of Rights litigation,
rightly conceived, reflects an ongoing dialogue about the meaning of
fundamental rights and the cogency of the justifications offered for
their limitation. 4 From this perspective, the courts’ exercise of
powers of judicial review is best understood as part of a shared
project of constitutional interpretation. This project requires that the
courts, through thoroughly reasoned engagement with the
constitutional text, produce a normative framework of sufficient
density to guide other political actors, organs of state and social
agents. At the same time, a doctrine of shared constitutional
interpretation encourages other actors to place their own gloss on
constitutional norms and to experiment with different policy options
consistent with the basic law.
Put slightly differently, powers of judicial review are best
understood not as part of a battle for ascendancy between courts and
legislatures (though they may turn into that) nor a means of
frustrating the will of the political majority, but rather as a
commitment of our basic law to shared constitutional interpretation.
This commitment to shared constitutional interpretation supplants
the traditional notion of judicial supremacy with respect to
constitutional interpretation — all branches of government have a
relatively equal stake in giving our basic law content. While courts
retain the power to determine the content of any given provision, a
commitment to shared constitutional interpretation means that a
court ought to limit consciously the reach of its holding regarding the
meaning of a given provision and to invite the political branches of
government, organs of state, civil society associations and individual
citizens to come up with their own alternative, but ultimately
3
See S v Steyn 2001 1 SA 1146 (CC), 2001 1 BCLR 52 (CC) (Previous findings of the
Constitutional Court do not absolve legislatures from the duty to deliberate about
the constitutionality of bills before them, or to justify limitations of fundamental
rights.)
4 See S v Mhlungu 1995 3 SA 867 (CC), 1995 7 BCLR 793 (CC) para 129
(Constitutional interpretation takes the form of ‘a principled judicial dialogue, in
the first place between members of this Court, then between our Court and other
courts, the legal profession, law schools, Parliament, and, indirectly, with the
public at large’.) See also H Botha ‘Rights, limitations, and the (im)possibility of
self-government’ in H Botha, A van der Walt & J van der Walt (eds) Rights and
democracy in a transformative constitution (2003) 13 24-25.