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164 Chapter 10
Court might be understood to engage in norm-setting behaviour that
provides guidance to other state actors without foreclosing the
possibility of other effective safeguards for rights or other useful
methods for their realisation. Fourth. A commitment to shared
interpretation ratchets down the conflict between co-ordinate
branches and levels of government. Instead of an arid commitment to
separation of powers — and empty rhetorical flourishes about courts
engaging in legal interpretation not politics — courts are freed of the
burden of having to provide a theory of everything and can set about
articulating a general framework within 26 which different understandings
of the basic text can co-exist. The courts and all other
actors have more to gain from seeing how variations on a given
constitutional norm work in practice. Fifth. This experimentalist
framework ought to reveal ‘best practices’ with respect to the
realisation of constitutional objectives. These ‘best practices’ should,
in turn, offer the courts, the political branches and the citizenry
regular opportunities to re-think the meaning — and the constraints —
of our basic law. 27
Justice Ackermann, in National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs, gives expression to just the sort
of institutional comity we have in mind when he writes that:
It should also be borne in mind that whether the remedy a Court grants
is one striking down, wholly or in part; or reading into or extending the
text, its choice is not final. Legislatures are able, within constitutional
limits, to amend the remedy, whether by re-enacting equal benefits,
further extending benefits, reducing them, amending them, ‘finetuning’
them or abolishing them. 28
Shared responsibility for interpreting the Final Constitution does have
its limits. The legislature must make a good faith attempt to revisit
an issue in a new and constitutionally permissible way. Where, as in
Satchwell I and II, Parliament refuses to take seriously a previous
finding of constitutional invalidity, the courts are well within their
rights to rebuff subsequent attempts to re-enact, in modified form,
the offending statutory and regulatory framework. 29
How then does shared constitutional interpretation inform our
general approach to limitations analysis? The two-part structure of
Bill of Rights analysis contains an invitation to non-judicial actors to
26
See F Michelman ‘Constitutional supremacy and appellate jurisdiction in South
Africa’ S Woolman & M Bishop (eds) Constitutional conversations (2008) Chapter
4.
27
See Woolman (n 5 above). See also Dorf & Friedman (n 5 above).
28 2000 2 SA 1 (CC), 2000 1 BCLR 39 (CC) para 76.
29 Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC), 2002 9
BCLR 986 (CC)(‘Satchwell I’); Satchwell v President of the Republic of South
Africa 2003 4 SA 266 (CC), 2004 1 BCLR 1 (CC).