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Frank I Michelman 49
an illusion.’ 4 And yet the Constitutional Court, taking seriously that
the Constitution plainly purports to make its jurisdiction less than
plenary, tried to give effect to that intention. The Court, from time
to time, refused to involve itself further in a case, giving as its reason
a discovery that the case raised no matter of constitutional import.
Two prominent examples are Boesak 5 and Metcash Trading. 6 In both
those decisions, the leading idea is that the constitutional order does
not tremble every time some court in the legal system commits an
error in applying the law to the facts, or perhaps even in construing
the law. No system is or could be proof against garden-variety judicial
mistakes, and correction of such mistakes does not, in itself (when no
other constitutional commitment is at stake), come within the domain
of a court confined to constitutional matters.
But now suppose a day arrives when the Constitutional Court
construes the Constitution to contain (to all intents and purposes) a
clause — virtually a part of the Bill of Rights — reading ‘everyone has
the right to legality.’ Of course such a day did come, in
Pharmaceutical Manufacturers. 7 And what, then, can be left of the
idea that the Constitutional Court’s jurisdiction is less than plenary,
so that some cases fall beyond its power to decide? What conceivable
application for Constitutional Court review does not contain a claim
that some state official — assuming we include judges among state
officials — has acted contrary to law or without legal authorisation?
And where now is the gap between the Constitutional Court’s
authority in constitutional matters and a totally plenary jurisdiction?
My Chapter argues that a gap may still remain. The argument is,
however, a delicate one at best, and the gap it leaves will rarely if
ever be one that the Constitutional Court will be compelled to
recognise as covering the case before it, should it see fit to adjudicate
the case.
A question thus comes naturally to mind about what
considerations might have prompted the Constitutional Court to
enunciate a doctrine — the existence of which amounts to a
subjective constitutional right to legality — that seems to run so hard
against the Constitution’s evident design to make the Constitutional
Court’s judicial competence less than plenary. Direct and explicit
textual compulsion cannot have been one of them, or so my Chapter
contends. The inclusion in Final Constitution section 1(c) of the ‘the
4
See C Lewis ‘Reaching the pinnacle: Principles, policies and people for a single
apex court in South Africa’ (2005) 21 South African Journal on Human Rights 509
512.
5
S v Boesak 2001 1 SA 912 (CC), 2001 1 BCLR 36 (CC).
6 Van der Walt v Metcash Trading Ltd 2002 4 SA 317 (CC), 2002 5 BCLR 454 (CC).
7 Pharmaceutical Manufacturers Association of South Africa & Another: In re Ex
Parte President of the Republic of South Africa & Others 2000 2 SA 674 (CC), 2000
3 BCLR 241 (CC).