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Stu Woolman & Michael Bishop 9
force. Thirdly, O’Regan J contends that the principle of legality, as
currently conceived, could never have operated as a common-law
principle under this dispensation. It is, rather, a unique and necessary
by-product of our constitutional democracy. She also demurs from
Michelman’s contention that the rule of doctrine turns the
Constitutional Court’s specialist jurisdiction into plenary jurisdiction.
With respect to this simmering jurisdictional dispute between the
Constitutional Court and the Supreme Court of Appeal, Justice
O’Regan declines to offer any definitive resolution. She does,
however, make two important points about the nature of
‘constitutional matters’: (a) the Final Constitution operates — in some
form — in all the courts and tribunals of South Africa; and (b) the
distinction between constitutional matters and non-constitutional
matters cannot be drawn on the basis of a hard-and-fast distinction
between fact and law.
As many readers are aware, the difficulties in defining the Court’s
jurisdiction and the sustained criticism of that division are part of
what lie behind the proposed (but currently shelved) constitutional
amendment that would make the Constitutional Court an apex court
with plenary jurisdiction. Michelman and O’Regan’s contributions
thus give rise to two questions on the future of that proposal: Has the
‘textually’ limited specialist jurisdiction of the Court contributed
some degree of confusion about its role in entrenching the basic law?
Would the currently moribund amendment put an end to that
confusion?
2.3 Democracy
In UDM, 15 the Constitutional Court — in a poke at the legal academy
and in the service of a strategy designed to finesse its obligation to
state clearly the form of democracy to which the Final Constitution
commits us — noted that no academic commentary had yet provided
a meaningful account of the form of democracy to which the Final
Constitution commits South Africa. Into that breach, Professor
Theunis Roux quite consciously stepped. 16 His monograph in
Constitutional Law of South Africa — and his ruminations in these
pages — provide an answer to the Court’s strategic non-denial denial
15 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 1213 (CC) para 25.
16
See T Roux ‘Democracy’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2006) Chapter 10 (CD track 4).