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Stu Woolman & Henk Botha 177
Rights that flows from a greater appreciation for the kind of
‘democratic’ society to which the Final Constitution commits us.
In United Democratic Movement v President of the Republic of
South Africa, the Constitutional Court issued a challenge of sorts to
the academic community: Tell us what ‘democracy’ means, and more
importantly, tell us how it ought to inform, in a principled manner,
our understanding of various provisions in the text of the Final
Constitution. 72 Some South African academics, and in particular,
Theunis Roux, have begun to do just that. 73 Roux pulls together the
political theory out of which our particular South African conception
of democracy arises, the textual provisions of the Final Constitution
that shape that conception, and the extant case law of our own courts
to generate a ‘principle of democracy’. 74 We will not rehearse Roux’s
arguments in support of that principle here. We will, however, draw
down on several of his arguments, especially those that serve part (2)
of his ‘principle of democracy’.
The argument that lends the greatest force to our general theory
of limitations analysis is Roux’s contention that, read together, FC
72 United Democratic Movement v President of the Republic of South Africa &
Others (African Christian Democratic Party & Others Intervening; Institute for
Democracy in South Africa & Another as Amici Curiae) (No 2) 2003 1 SA 495 (CC),
2002 11 BCLR 1179 (CC) para 25.
73
Roux (n 6 above).
74 This principle stated in its clearest form holds:
Government in South Africa must be so arranged that the people, through
the medium of political parties and regular elections, in which all adult
citizens are entitled to participate, exert sufficient control over their
elected representatives to ensure that: (a) representatives are held to
account for their actions, (b) government listens and responds to the
needs of the people, in appropriate cases directly, (c) collective decisions
are taken by majority vote after due consideration of the views of
minority parties, and (d) the reasons for all collective decisions are
publicly explained. (2) The rights necessary to maintain such a form of
government must be enshrined in a supreme-law Bill of Rights, enforced
by an independent judiciary, whose task it shall be to ensure that,
whenever the will of the majority, expressed in the form of a law of
general application, runs counter to a right in the Bill of Rights, the
resolution of that tension promotes the values of human dignity, equality
and freedom.
Roux (n 6 above) § 10.5(b) (emphasis removed). Roux offers an additional gloss on
the second part of his principle that may be worth bearing in mind:
The rights necessary to maintain such a form of government, including
the right to freedom of expression, the right to form political parties, the
right to vote, and the right to the minimum standard of welfare necessary
to participate in the democratic process, must be enshrined in a supremelaw
Bill of Rights, enforced by an independent judiciary, whose task it
shall be to ensure that, whenever the will of the majority, expressed in
the form of a law of general application, runs counter to a right in the Bill
of Rights, the resolution of that tension promotes the values of human
dignity, equality and freedom.
As above (emphasis removed).