Download this publication - PULP

6 Chapter 1
stuck in a perpetual ‘present’: a constitutional groundhogs’ day. 9
There are two further obstacles to the realisation of our ‘ideal
community’. 10 Firstly, the courts, particularly the Constitutional
Court, do not seem to take academic commentary — the life-blood of
the ideal community — particularly seriously, to the extent that they
acknowledge it at all. While the Justices of our Constitutional Court
are unusually, and admirably, involved in public discourse, their
judgments do not reflect extended or even peripheral engagement
with academia. Secondly, although significant disagreement exists
within academia about the nature of the academy’s role and the
nature of the Court’s role, Woolman believes that a primary
responsibility of both academics and the Court is to ‘model rational
political discourse’. 11 It is hard to know how the Court can discharge
this responsibility if it consistently issues under-theorised judgments
and fails, where possible, to engage differences of view (often
expressed by members of the academy) regarding the meaning of
various provisions of the basic law.
Justice Sachs suggests that his aside in a collegial chat at
Columbia was not meant as a rebuke, but a ‘gentle provocation’. He
then recalls how, leading up to the enactment of the Interim
Constitution, academics were far ahead of judges in anticipating the
structure and the content of the Constitution and the changes it could
be expected to bring about. Many apartheid-era judges resented the
imposition of such radical change and attempted to carve out a
separate space for non-constitutional common law.
According to Justice Sachs, he, and many of his colleagues, found
great aid in academic writings before and after the drafting of the
Interim Constitution. But he then notes that after the Court produced
some ground-breaking judgments that would ‘la[y] the foundations of
[the] new constitutional jurisprudence’ the academic response to
these judgments was ‘virtually ... zero.’ He contends that while
certain issues such as direct application, equality and socio-economic
rights generated intense academic debate, many other cases arrived
and departed without comment.
The South African legal academic community might well wish to
ask this question: Is there a dearth of first-rate academic writing in
South Africa? The answer might well be yes. (The reasons for that
answer are rather complex and beyond the scope of this
introduction.) But that cannot be the whole story. There is,
9 S Woolman ‘The amazing, vanishing Bill of Rights’ (2007) 124 South African Law
Journal 762.
10 On the relationship between an ideal community and an open community, see
Lourens du Plessis ‘Interpretation’ in S Woolman et al (eds) Constitutional Law of
South Africa (2nd Edition, OS, 2008) Chapter 32.
11 J Rawls Political liberalism (1993).