Download this publication - PULP

Stu Woolman & Henk Botha 151
consistent, gloss on the text. Shared constitutional interpretation
married to a rather open-ended or provisional understanding of the
content of the basic law means that the Constitutional Court’s
limitations analysis might be best understood in terms of norm-setting
behaviour that provides guidance to other state actors and interested
parties without foreclosing the possibility of other effective
safeguards for rights or other useful methods for their realisation.
Shared constitutional interpretation within experimentalist framework
ought to reveal ‘best practices’ with respect to the realisation
of constitutional objectives and should offer us regular opportunities
to rethink the meaning — and the constraints — of our basic law. 5
In the pages that follow, we assess the ability of the Constitutional
Court to delineate clearly rights analysis and limitations analysis, to
‘balance’ rights, to distinguish the core of a right from its penumbra,
and to construct a framework for limitations analysis that both (a)
enables the parties before the court to make arguments that fully
ventilate the issues raised and (b) reinforces our democratic lawmaking
processes so that they take adequate account of the
constitutional imperative to create ‘an open and democratic society’
based upon the democratic values of ‘human dignity, equality and
freedom’. After a critical appraisal of the Court’s efforts in this
regard, we offer our own thick(er) conception of what limitations
analysis ought to look like. We offer this thicker conception not
because we think that it is, in the abstract, to be preferred. We
proffer the thicker conception because we think that the Court’s
current approach to rights interpretation and limitations analysis
lacks analytical rigour.
That thicker conception begins with an appropriate standard of
review for limitations analysis. This standard of review takes the form
of, what we called above, a doctrine of shared constitutional
interpretation. This doctrine mediates between the doctrine of
constitutional supremacy (a doctrine that does not shy away from the
necessity of judicial law-making) and the doctrine of separation of
powers (a doctrine that often justifies the ‘need’ for judicial
deference). That said, the courts must still articulate a general
normative framework that gives the standard of review real purchase
5
See S Woolman The selfless constitution: Experimentation and flourishing as the
foundations of South Africa’s basic law (forthcoming 2008); M Dorf & B Friedman
‘Shared constitutional interpretation’ (2000) Supreme Court Review 61; National
Education Health and Allied Workers Union v University of Cape Town & Others
2003 3 SA 1 (CC), 2003 2 BCLR 154 (CC) para 14 (‘Where the Legislature enacts
legislation in the effort to meet its constitutional obligations, and does so within
constitutional limits, courts must give full effect to the legislative purpose.
Moreover, the proper interpretation of such legislation will ensure the protection,
promotion and fulfilment of constitutional rights and as such will be a
constitutional matter. In this way, the courts and the Legislature act in
partnership to give life to constitutional rights.’)