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Frank I Michelman 51
‘There is only one system of law,’ the Court declared. ‘It is shaped by
the Constitution which is the supreme law, and all law, including the
common law, derives its force from the Constitution and is subject to
constitutional control.’ 11 Thus, where the Final Constitution seems to
say quite plainly that there are two piles of cases — one falling under
the final authority of the Constitutional Court, the other under that
of the Supreme Court of Appeal — the Constitutional Court appears,
in Pharmaceutical Manufacturers, to have announced that all legal
matters in South Africa are potentially constitutional matters, which
whenever identified as such would apparently fall within that Court’s
purview.
I have devoted a portion of my book chapter to advancing what I
take to be the reasons and considerations underlying that stance on
the part of the Constitutional Court, or maybe one had better say the
underlying necessity of it. Very briefly, my Chapter envisions the
Court noticing two important points about judicial applications of the
principle of legality to actions of government (and the same points
would hold regarding applications of sundry clauses in the Bill of
Rights). The first is that such applications — or in other words,
questions of whether legality has been breached — can often be
questions over which competent lawyers will disagree in all good
faith. The second is that sometimes a contestable application might
have the effect of blocking or undoing actions by the government in
settings strongly infused with what we may call concerns and
sensibilities of transformation. (I mentioned Kyalami Ridge 12 and Bel
Porto 13 as examples of situations in which both features appear.) In
light of those two considerations, my Chapter suggests, the
Constitutional Court did well to conclude that its clearly assigned,
special role and responsibility in the transformative constitutional
order requires it to insist that judicial applications of the principle of
legality must finally be reviewable by it, hence must be classified as,
without exception, constitutional matters.
Quite arguably, as my Chapter has it, the practical consequence
of this classification of legality as always and ineluctably a
constitutional claim is to turn the Constitutional Court into a court of
plenary jurisdiction in all but name — if it were not that already —
apparently in the teeth of FC sections 167 and 168. If so, my Chapter
suggests, then that is a consequence that must be borne if the
Constitutional Court is to act in a way that carries out the special trust
that the Constitution and the country have reposed in it. Such, my
11
Pharmaceutical Manufacturers (n 7 above) para 44.
12 Minister of Public Works & Others v Kyalami Ridge Environmental Association &
Others (Mukhwevho Intervening) 2001 3 SA 1151 (CC), 2001 7 BCLR 652 (CC).
13
Bel Porto School Governing Body & Others v Premier, Western Cape, & Another
2002 3 SA 265 (CC), 2002 9 BCLR 891 (CC).