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42 Chapter 3
The one spark of academic excitement was over the question of
vertical versus horizontal application of the Constitution. It was an
issue of some interest to me, because I think I was the one who put it
on the South African agenda when I returned from exile in 1990. Yet
from a practical point of view it had been rendered largely moot by
the constitutional requirements that all statutes had to be
interpreted, and the common law developed, in keeping with the
spirit of the Constitution, and the express authorisation of legislation
to deal with the effects of past discrimination. Yet here academics
went to town, picking up on what was a real and live debate between
conservative and progressive commentators positions in the USA, but
of little relevance in South Africa. 8
It was only in the Sodomy case 9 that serious academic questioning
took place on the way the courts were dealing with a central
constitutional theme, namely, equality. I disagreed with the
challenge made by Dennis Davis, and said so in my judgment, but
strongly welcomed the dialogue. At last academia seemed to be
recovering its nerve. The Grootboom case, 10 to which Stu Woolman
refers, triggered a further revival of academic contestational bravura.
Once again, while disagreeing with much of the critique levelled at
our thinking on the applicability of the minimum core approach, I
have strongly appreciated the value of the debate.
For a decade now there has been real and fruitful engagement. In
one important matter academic scholarship undoubtedly proved to be
fundamental. In FNB, 11 Andre van der Walt’s creative articulation of
the new constitutional vision of property law in the context of our
history of dispossession, became central to the Court’s jurisprudence
on property rights. Other areas where academic writing has been
especially influential include the rights of the child, remedies for
spousal abuse, homelessness, customary law as living law and a new
approach to administrative law (if Cora Hoexter received a royalty
every time she was cited, she could take early retirement!). And there
are many, many more areas directly enriched by serious and
persuasive scholarship. Indeed, my law clerks groan at the amount of
academic literature they are expected to read and later to cite.
And it should also be remembered that many ideas in scholarly
books and articles are picked up through submissions by counsel in
8
See S Woolman ‘Application’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2005) Chapter 31.
9 National Coalition for Gay and Lesbian Equality & Another v Minister of Justice &
Others 1999 1 SA 6 (CC), 1998 1 BCLR 1517 (CC).
10 Grootboom & Others v Government of the Republic of South Africa & Others 2001
1 SA 46 (CC), 2000 11 BCLR 1169 (CC).
11
First National Bank of SA Ltd t/a Wesbank v Commissioner for the South African
Revenue Services & Another 2002 4 SA 768 (CC), 2002 7 BCLR 702 (CC).