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Stu Woolman & Michael Bishop 7
undoubtedly, enough good writing that anticipates the issues that
ultimately seize the Court. Moreover, the Constitutional Court in
Mhlungu avers that constitutional interpretation must takes the form
of ‘a principled judicial dialogue, in the first place between members
of this Court, then between our Court and other courts, the legal
profession, law schools, Parliament, and, indirectly, with the public
at large.’ 12 If there is enough good writing in our journals and books,
and if the Court must, by its own lights, undertake a principled
dialogue with academia, then it is reasonable to ask whether it is
possible to engage in a meaningful and principled conversation when
the Court fails to acknowledge the presence, and the contributions,
of other parties to that conversation?
2.2 Rule of law
The ‘rule of law’ functions as a fundamental principle of any
constitutional democracy. In its most basic form, it reflects, in
Thomas Jefferson’s well-turned phrase, the idea that a free people
‘should have a government of law, not men’. That is, all actors, the
governors and the governed, are bound by the same set of rules.
Legality, an earlier incarnation of the rule of law doctrine, requires
that any act which does not comply with the law and the Final
Constitution must be found invalid.
According to Professor Michelman, these two doctrines — when
married to various other constitutional injunctions — say FC section
39(2)’s requirement to interpret statutes and to develop the common
law in light of constitutional dictates — have the potential to turn
legal disputes into constitutional matters. As a result, no case — as a
matter of logic — falls beyond the jurisdiction of the Constitutional
Court. Michelman’s conclusion is striking, and controversial. On an
ordinary language reading of the text, the Constitutional Court is a
specialist court without plenary jurisdiction. Michelman’s reading
challenges this very basic assumption.
Professor Michelman examines both the causes and the
consequences of the Constitutional Court’s decision to fashion the
rule of law doctrine and the principle of legality as constitutional
doctrines rather than have them remain common-law doctrines. He
demonstrates that the decisions that articulated these principles —
Fedsure, Pharmaceutical Manufacturers, and their progeny — render
the continued separation between the jurisdiction of the
Constitutional Court and the Supreme Court of Appeal largely
12 S v Mhlungu 1995 3 SA 867 (CC), 1995 7 BCLR 793 (CC) para 129.