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12 Chapter 1
democratic politics itself invariably result in some degree of
instability in our conception of democracy?
2.4 Application
At the CLoSA Conference and Public Lecture Series, one of the
editors, Professor Stu Woolman, limited his address to a theoretical
critique of the Constitutional Court’s approach to direct application
and indirect application of the Bill of Rights. (The primary question
raised by application, for the uninitiated, concerns the parties that
are and are not burdened by the specific substantive rights found in
Chapter 2 of the Final Constitution.) And that remains the central
purpose of his contribution to this collection. He argues that the
Constitutional Court in Khumalo v Holomisa 22 — while acknowledging
and endorsing the possibility of horizontal application under the Final
Constitution — wilfully misread the wording of the application
provisions in FC section 8 and that its five paragraphs on the subject
are patently incoherent. Woolman meticulously roots out the textual
errors in the Khumalo Court’s approach. He then demonstrates that
even a good faith reconstruction of Khumalo cannot stand up to even
the most generous scrutiny. In place of the good faith reconstruction,
Woolman proffers a preferred reading of FC section 8 and FC section
39(2) that makes sense of the division between direct application and
indirect application of the Bill of Rights. This preferred reading —
while still imperfect — makes the best possible sense of the
Constitutional Assembly’s poorly drafted sections on direct
application.
Professor Iain Currie first notes that he had the unenviable task —
especially given the constraints of a conference paper — of responding
to Woolman’s long and theoretically ambitious contribution in
Constitutional Law of South Africa. 23 Without immediately conceding
anything regarding the merits of that contribution, Currie suggests
that such ambition reflects an ‘old-fashioned’ model of academic
discourse: And by ‘old-fashioned’, Currie simply means scholarship
that engages carefully all of the available and relevant materials —
the text, the judgments, and the work of fellow commentators. He
then offers a brief historical summary of the debate over application,
and notes how, under the Final Constitution, courts have been far less
‘vexed’ by the relationship between direct application and indirect
application than academics. Currie suggests that the reason for this
absence of engagement is that there is no practical difference
between the two forms of application: Both approaches should
22 Khumalo v Holomisa 2002 5 SA 401 (CC), 2002 8 BCLR 771 (CC).
23
See S Woolman ‘Application’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2005) Chapter 31 (CD track 5).