Download this publication - PULP

8 Chapter 1
illusory. 13 The Constitutional Court can, if it wishes to do so, decide
that virtually any case possesses a constitutional dimension subject to
its jurisdiction. 14 In a short but fascinating section, Michelman
suggests that, at least with regard to development of the common
law, the division of jurisdiction between the Constitutional Court and
the Supreme Court of Appeal can be reconceived as part of the debate
between HLA Hart and Ronald Dworkin. If, like Hart, we believe that
there are ‘open spaces’ in the law then it makes sense to leave the
detail of the common law to the specialists on the Supreme Court of
Appeal. On the other hand, if we follow Dworkin’s lead and believe
that can be but one right answer, then the Constitutional Court ought
to have the final say on all matters raising constitutional issues. In his
final section, Michelman explains how the South African jurisdictional
debate fits within the broader international, comparative constitutional
conversations about how constitutional jurisdiction should
best be divided between domestic courts. He intimates that South
Africa might not be ill served by a twin-peak system in which two
courts share the final say on constitutional questions.
Justice Kate O’Regan responds quite forcefully to several of
Professor Michelman’s conclusions. Firstly, she takes issue with
Michelman’s definition of constitutional law as the law that simply
structures all government action. She argues that the South African
Constitution has a substantially broader and deeper influence: it
merely ‘restates the legal basis for all law in a normative manner, and
so has a substantive effect on ... legal reasoning and the common
law.’ Secondly, Justice O’Regan rejects the notion that the Constitution
could give rise to multiple parallel legal systems where
constitutional law and common-law causes of action exist side-byside.
She stresses that the Constitution creates a unitary legal system
which encompasses common law, statutory law and customary law
and ‘subjects them all to the discipline of compliance with
constitutional norms and values.’ The Court’s acceptance of the
proposition that this single legal system encompasses multiple forms
of law does not, O’Regan J opines, commit us to legal pluralism. The
Constitution remains the law from which all other law derives its
13 Pharmaceutical Manufacturers Association of SA & Another: In re Ex parte
President of the Republic of South Africa & Others 2000 2 SA 674 (CC), 2000 3
BCLR 241 (CC); Fedsure Life Assurance Ltd & Others v Greater Johannesburg
Transitional Metropolitan Council & Others 1999 1 SA 374 (CC), 1998 12 BCLR
1458 (CC); President of the Republic of South Africa & Another v Modderklip
Boerdery (Pty) Ltd (Agri SA & Others, Amici Curiae) 2005 5 SA 3 (CC), 2005 8 BCLR
786 (CC).
14 See F Michelman ‘The Rule of Law, Legality and the Supremacy of the
Constitution’ in S Woolman et al (eds) Constitutional Law of South Africa (2nd
Edition, OS, 2005) Chapter 11 (CD track 3). But for a functionalist view of
constitutional jurisdiction that does not conclude that all matters are potentially
constitutional matters, see S Seedorf ‘Constitutional Jurisdiction’ in S Woolman
et al (eds) Constitutional Law of South Africa (2nd Edition, OS, 2008) Chapter 4.