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Stu Woolman & Michael Bishop 11
contemplated by our basic law. 21 In so doing, the Court’s decisions
corroborate Roux’s central thesis: democracy means more, much
more, than mere majority rule.
By and large, Danie Brand concurs with Theunis Roux’s reading of
the Constitution. The gravamen of Brand’s complaint has more to do
with the style of Roux’s writing — not its elegance or its turn of
phrase, which can hardly be faulted, but the manner in which Roux
leaves out considerations about South African democracy that Brand
believes matter. First, Brand asks why Roux does not consider the
existence of a positive constitutional duty to build democratic
institutions and a concomitant duty to ensure that these institutions
operate in a manner that promotes representative, participatory and
direct democracy. Second, Brand suggests that apart from a nod in
the direction of the counter-majoritarian dilemma, Roux does not
fully engage the inevitable tension between constitutional
adjudication and various forms of democracy. Brand is particularly
concerned with the tension between constitutional adjudication and
extra-institutional, extra-formal democratic political action. He
suggests, ever so delicately, that Roux does not address these two
issues because Roux sees his project as a quasi-Dworkinian description
of legal principle. That is, the language Roux employs ‘enjoys’ the
status of an objective, empirically verifiable description of the legal
text and its consequences for the case law. Brand contends this
unstated claim to objectivity masks the normative choice that is
always present in such a description. More importantly, Brand argues,
such an implicit claim actually discourages democratic engagement
by denying any space for alternative readings.
Brand’s last charge regarding Roux’s style is, perhaps, his most
provocative claim. In short, Brand asks whether the form of our
expression bears a meaningful relation to the substance of a debate.
Does, Brand seems to ask, a healthy democracy require not only the
lively exchange of different substantive positions, but that those
positions are expressed in a particular way? A different, but related,
question is whether the denotation of ‘democracy’ is always open and
thus invariably contested? In sum, can we have democracy without an
essentialist conception of democracy, and does the hurly-burly of
21 Matatiele Municipality & Others v President of the RSA & Others (No 2) 2007 6 SA
477 (CC), 2007 1 BCLR 47 (CC); Doctors for Life International v Speaker of the
National Assembly & Others 2006 6 SA 416 (CC), 2006 12 BCLR 1399 (CC).