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Stu Woolman & Michael Bishop 13
produce the same results in all cases. While conceding the undeniable
and persuasive theoretical power of Woolman’s account, Currie still
believes he can legitimately ask whether there ‘is any reason other
than the beauty and the internal coherence of our theories to bother
with the distinction between direct application and indirect
application?’ 24
In this collection, Woolman answers Currie’s question with an
emphatic ‘Yes!’ He notes how, in a string of recent judgments, the
Constitutional Court has, once again, finessed the clear difference
between indirect application and direct application. Woolman
contends that the continuous use of indirect application empties the
substantive provisions of the Bill of Rights of their content. (Quite
often now, fundamental rights analysis is conducted under the vague
and rather flaccid banner of FC section 39(2)’s injunction to develop
or to interpret the law — statutory, common, customary — in light of
the ‘spirit, purport and objects of the Bill of Rights’.) Such a move —
employing indirect application first — does not merely denude the Bill
of Rights of its content. It creates an environment in which the Court
sits as a court of equity and fails to provide the clear and meaningful
body of precedent that must guide lower court judges crafting
opinions, lawyers drafting heads of argument, government officials
creating policy and citizens merely attempting to conform their
behaviour to the dictates of the basic law. The Court’s casual
casuistic approach does not just get application analysis back to front.
It constitutes a paradigmatic violation of the rule of law.
2.5 Limitations
The Final Constitution, like the Canadian Charter, adopts a two-stage
structure for analysis. At the first stage, a court must determine
whether the exercise of a right has been impaired by law or conduct.
At the second stage, the government or the party looking to uphold
an impugned law — but not conduct — has an opportunity to justify
that limitation if it serves ‘an open and democratic society based on
human dignity, equality and freedom’. As Professors Woolman and
Botha have written elsewhere:
The limitation clause has a four-fold purpose. First, it functions as a
reminder that the rights enshrined in the Final Constitution are not
absolute. ... Secondly, the limitation clause tells us that rights may only
be limited where and when the stated objective behind the restriction is
designed to reinforce the values that animate this constitutional
project. ... Thirdly, the test set out in the limitation clause — with a bit
of judicial amplification — allows for candid consideration of those
public goods or private interests that the challenged law sets in
24 See I Currie & J de Waal The Bill of Rights handbook 5th Ed (2005).