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Frank I Michelman 47
confined to ‘constitutional matters’, leaving final judicial authority in
non-constitutional cases where it had previously resided, with the
Appellate Division of the Supreme Court (later to become the
Supreme Court of Appeal). No one reading the pertinent sections of
the Interim Constitution (and later the Final Constitution) could doubt
this was a deliberate choice, one for which those who made it
presumably had reasons, and one which they expected could and
would be followed in ways having visible and mandatory effects on the
conduct of judicial business in South Africa.
3 Justification
What reasons? Some undoubtedly were thoroughly technical and nonideological,
having to do with considerations of an apt and efficient
division of labour between tribunals perceived as having somewhat
differing destinies and trajectories of specialisation and expertise.
But possibly that was not all there was to it. This next observation has
to be speculation on my part, and it touches on what may be a
contentious point, but perhaps a part of the thinking behind the
Interim Constitution’s strict division of appellate authority between
the new Constitutional Court and the old Appellate Division was to
ensure a space for the continued (or revitalised) evolution of a
positively valued, largely common-law inspired South African legal
heritage, perceived at its best and not at its worst. There is matter in
the Constitutional Court’s very first opinion, in Zuma, that points
clearly in that direction, 3 and so — as we shall see — do certain
subsequent stances of the Court. So the suggestion is, for better or for
worse, that the new Constitution’s bifurcation of appellate
jurisdiction may be understood as meant, in part, to preserve an
institutional sphere in which an extant, salvageable, South African
legal tradition could work its way back on track, in partnership with
the new Constitution — sharing the load, so to speak, not only of
developing but of recovering a redemptive jurisprudence for South
Africa.
Whether or not in part for that reason, the Interim Constitution
did plainly divide final appellate authority between the Constitutional
Court and the Appellate Division. It did so along the line of
3 S v Zuma 1995 2 SA 642 (CC), 1995 4 BCLR 401 (CC) (In Zuma’s Case, the
Constitutional Court rejected the idea that ‘all the principles of law which have
hitherto governed our courts are to be ignored.’ ‘Those principles,’ the Court
affirmed, ‘obviously contain much of lasting value.’ Specifically, the common
law’s traditional principles concerning onus placement in criminal trials —
principles that have ‘existed in this country for over 150 years’ — ‘are
fundamental to our concepts of justice and forensic fairness;’ so much so that the
Constitution’s fair-trial guarantee should be construed in a manner continuous
with those principles and reflective of them, and so a statute from 1977 that
deviated from those principles must, accordingly, be nullified.)