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Stu Woolman 29
not really read what we write. 4 That might explain the following
scenario. The UDM Court expressly notes that no academic has
answered the question: What kind of democracy does the Final
Constitution demand? 5 Theunis Roux set himself the task of answering
— in the most sophisticated and compelling manner possible — that
very question. He succeeded. 6 And yet his efforts have gone
unnoticed — or unremarked upon by the bench. Or take New Clicks. 7
In all of New Clicks’ 850 page glory, the judgments, collectively, take
unbelievably limited stock of academic interventions that engage the
gravamen of the complaint. If there is one thing South African legal
academia can boast, it is that it possesses some first rate, world class
administrative law scholars: Cora Hoexter, Hugh Corder, Iain Currie,
Danie Brand, Jonathan Klaaren and Jacque de Ville — amongst others.
Their reward is what one might charitably describe as a footnote
dump (citing all of the texts one might care to consult without remark
or engagement in a single footnote). These cases are not aberrations.
If one takes the Constitutional Court cases of 2007 as an example,
then one confronts a paucity of references to works that I know to be
germane to the issues raised in these matters. 8
Another — alternative or supplementary — explanation is that
many Justices do not think that members of the academy ought to be
criticising the bench. That deeply embedded sense of hierarchy is an
4
Justice Sachs claims, without merit, that nothing was written about the First
Certification Judgment. However, each year, I use Matthew Chaskalson and
Dennis Davis’ trenchant analysis of the decision in order to teach my students
about the inextricable link between law and politics. See M Chaskalson & D Davis
‘Constitutionalism, the Rule of Law and the First Certification Judgment’ (1997)
13 South African Journal on Human Rights 430. While the First Certification
Judgment Court strives mightily to maintain the artificial distinction between law
and politics, Chaskalson & Davis demonstrate how a very specific view of
constitutional politics drives the refusal to certify the text.
5 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 1179 (CC).
6 T Roux ‘Democracy’ in Woolman et al (n 3 above) Chapter 10.
7
Minister of Health & Another v New Clicks South Africa (Pty) Ltd & Others 2006 2
SA 311 (CC), 2006 1 BCLR 1 (CC).
8 Of the 23 number of judgment handed down from January 2007 through October
2007: seven judgments cite no academic literature at all; three judgments cite
one academic piece; of the remaining 13 judgments, the results are variable. The
Constitutional Court hits a highwater mark in Sidumo of 19 citations. Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others 2008 2 BCLR 158 (CC).
Sidumo, however, had four discrete opinions (and the majority of citations, as
usual, came in the dissenting judgments). The remaining 12 judgments contained
a total of 84 academic citations. As Ronald Reagan noted ‘Facts are stupid
things’, and a mere summing up of totals does not tell us much about the
literature cited. Three characteristics jump out at this reader: (1) high numbers
of academic citations appear only in multiple opinion judgments; (2) many of the
authorities cited are foreign academic authorities; (3) the number of citations to
actual constitutional texts (articles or books) — as opposed to texts (articles or
books) that deal with some specialised branch of the law such as contracts,
delict, court practice or labour law — is extremely small.