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Stu Woolman & Henk Botha 179
Third, Roux’s arguments support our contention that scales and
balancing are inapt metaphors for limitations analysis. Such
metaphors block one from drawing the conclusion to which FC section
7(1) has already alerted us: Namely, that rights stand not in
opposition to democracy, but that they are, instead, constitutive of
it. That is to say, without the rights to equality, dignity, life, belief,
expression, assembly, association, vote, political party membership,
citizenship, access to information, access to courts, and just
administrative action, we would not have a meaningful democracy.
These rights are themselves the preconditions for an ‘open and
democratic society’.
Fourth, the principle of democracy, when taken seriously, gets
read back into these rights. And by that we mean that the virtues of
belonging, deliberating and participating, identified first and
foremost with democracy, attach not just to the political realm, but
to an array of associational forms — religious, traditional, linguistic,
commercial, labour, intimate, cultural — that are part of, but not
identical to the political. So although Professor Roux does not make
this claim, we do. Indeed, it is an appreciation for these ‘democratic’
values of membership, deliberation and participation that underwrites
our defense of pluralism, marginal social groups and
‘oppositional counterpublics’. 76 And we value pluralism, and thus
marginal social groups and ‘oppositional counterpublics’, not simply
because they serve as reminders of the emancipatory potential of
robust democratic discourse, but because these groups, and others
like them, are where democracy takes place everyday for the vast
majority of us.
Finally, we agree with Professor Roux that ‘no South African
political system claiming to be democratic would be worthy of that
name unless it respected the democratic values which the Bill of
Rights affirms.’ 77 This view firmly reinforces our own views about the
relationship between courts and legislatures in a regime of ‘shared
constitutional interpretation’. In such a regime, as in the political
system contemplated by FC sections 7(1), 36(1) and 39(1), neither the
courts nor the political branches of government have a privileged
position with regard to the making and re-making of our basic law.
5.3.2 Principle of openness
The dissenting judgment of Sachs J in Prince resonates with Roux’s
understanding of democracy, and sounds themes similar to our own
76 K Thomas ‘Racial justice’ in A Sarat, G Bryant & R Kagan (eds) Looking back at
77
law’s century (2002) 78 87.
Roux (n 6 above) § 10.3(c).