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CONSTITUTIONAL
SUPREMACY AND
APPELLATE JURISDICTION
IN SOUTH AFRICA
Frank I Michelman
1 Introduction
At the core of Chapter 11 of Constitutional Law of South Africa, on
‘The rule of law, legality, and the supremacy of the Constitution’, 1
lies an outlander’s account (mine) of a process of incorporation, into
post-transition South African constitutional law, of what historically
had been known as a common-law doctrine of legality. I have cast the
tale largely, but not wholly, as one of a technical doctrinal
development, and of course it is one that has arisen out of a wholly
South African set of local historical and institutional circumstances. I
expect there is no other country in the world where the relevant legal
texts, history, and institutional setting could throw up a similar
cluster of interpretive issues and related stakes, more or less
consequential as you may consider the stakes to be.
It would be fair to ask what interest this technical — and locallooking
— material might hold for me or any scholar outside South
Africa. Later on I shall offer a response to that question, coming from
the standpoint of a participant in worldwide academic study of
comparative constitutionalism, and hinging on the fact (as it appears
to me) that the process of migrating the legality doctrine from
1 F Michelman ‘Rule of law, legality and the supremacy of the constitution’ in S
Woolman et al (eds) Constitutional Law of South Africa (2nd Edition, OS, 2005)
Chapter 11, available at www.westlaw.com.
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