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228 Chapter 13
tinuous legal fracture with the old legal order.’ 26 The Final
Constitution established itself as a grundnorm in the very fullest
continental sense of the word. All law, whether it be common law or
statute law, depends on the Constitution and is derived from the
Constitution; it has no life apart from the Constitution. This was
expressly articulated by a unanimous Constitutional Court in the
Pharmaceutical case:
I cannot accept this contention which treats the common law as a body
of law separate and distinct from the Constitution. ... There is only one
system of law. It is shaped by the Constitution which is the supreme law,
and all law, including the common law, derives its force from the
Constitution and is subject to constitutional control. 27
It was later confirmed, also by a unanimous Court, per O’Regan J in
Bato Star:
There are not two systems of law regulating administrative action — the
common law and the Constitution — but only one system of law grounded
in the Constitution. ... The grundnorm of administrative law is now to be
found in the first place not in the doctrine of ultra vires, nor in the
doctrine of parliamentary sovereignty, nor in the common law itself, but
in the principles of our Constitution. The common law informs the
provisions of PAJA and the Constitution, and derives its force from the
latter. 28
Conflicts or tensions between positive law and non-positive law no
longer exist in South Africa and debates about them have become
arcane. It is in my view sufficient to refer to ‘dignity’ as a
constitutional categorical imperative, 29 as a right, and as a value
which, inter alia, informs other rights (such as equality and nondiscrimination)
and helps resolve tensions between rights. 30 I do not
believe that anything more was intended by O’Regan J in the passage
from Dawood quoted by Woolman. 31 I would emphasise that my
challenge to Woolman’s use of positivist language and concepts is not
simply a semantic one. The language employed by Hart has acquired
a well-settled meaning in a particular context. The danger of using
26
Ackermann ‘The legal nature of the South African constitutional revolution’
(2004) 4 New Zealand Law Review 633 645-6; H Kelsen General theory of law and
state trans A Wedberg (1945) 117; Makanete v Lekhanya [1993] LRC 13 (Les CA)
38g-39h, and the authorities cited therein.
27 Pharmaceutical Manufacturers Association of SA in re: the Ex Parte Application
of the President of the RSA & Others 2000 2 SA 674 (CC), 2000 3 BCLR 241 (CC)
para 44 (my emphasis).
28 Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism &
Others 2004 4 SA 490 (CC), 2004 7 BCLR 687 (CC) para 22.
29
Because sec 10 postulates that ‘[e]veryone has inherent dignity’ (my emphasis).
30 Such as will occur with the horizontal operation of the Bill of Rights under secs
8(2), 8(3) and 9(4) of the Constitution.
31
Dawood & Another v Minister of Home Affairs & Others 2000 3 SA 436 (CC), 2000
8 BCLR 837 (CC) para 35.