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48 Chapter 4
‘constitutional matters’, and indeed it did so quite emphatically. Not
only did it confine the Constitutional Court to constitutional matters
(and some accessories that I shall soon mention), it very neatly fenced
the Appellate Division out of the constitutional arena by providing
that the latter’s jurisdiction would not overlap with that of the
Constitutional Court. Plainly, then, the drafters — who could not have
meant to leave the Appellate Division with a docket forever empty —
must have been supposing that ‘constitutional matters’ does not
cover all matters. As we shall see, the events recounted in my book
chapter could have led to the result of leaving no cases for the
Supreme Court of Appeal to adjudicate, had the Final Constitution not
let down the barrier against entry by the latter court onto
constitutional terrain, subject to review by the Constitutional Court
where constitutional matters are concerned. The Final Constitution
does at the same time expressly continue to treat the Supreme Court
of Appeal as final in non-constitutional matters, thus carrying forward
the plain implication that not all matters are constitutional, making
the Constitutional Court’s jurisdiction less than plenary. Or that, at
any rate, is the official story, on what I take to be the most
straightforward reading of the constitutional texts.
Whether actual practice could ever possibly have matched that
story proves, however, to be a great deal less clear in hindsight. When
you consider the scope and the breadth of the norms of the
Constitution and Bill of Rights — extending to the achievement of
equality, the protection of human dignity and of the freedom and
security of the person, guaranteed rights of access to court, to
administrative justice, to subsistence, water, health care services,
housing, and social security; when you consider the constitutional
mandate to construe statutes with a view to promoting the spirit,
purport and objects of the Bill of Rights; when you consider the
mandate to develop the common law in a manner that will promote
the spirit, purport and objects of the Bill of Rights; when you add the
Constitutional Court’s declared (inevitable) authority to decide
questions ancillary to the decision of constitutional matters and
furthermore to decide with finality whether an appeal involves a
constitutional or ancillary matter; when you consider all of that, you
have to doubt whether there is any case in the slightest degree likely
to be brought before the Constitutional Court, that the Court, if so
minded, cannot credibly find to fall within its jurisdiction. I think, as
I say this, of Judge Carole Lewis’s remarks in her recent Oliver
Schreiner Lecture, to the effect that the distinction between
constitutional and other issues, ‘in the context of a body of law that
must necessarily be constitutionally coherent, ... is, and always was,