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52 Chapter 4
Chapter surmises, has been the Court’s judgment, or its instinct, in
deciding as it did in Fedsure and Pharmaceutical Manufacturers — a
judgment and an instinct which I must say strike me as defensible at
the very least.
In saying so, I hope I shall not be understood as suggesting, either
as my own belief or that of the Court, that a firm commitment to the
rule of law must or may ever take second place to the teleology of
social transformation in South Africa. That, most decidedly and
emphatically, is not my view, and I see no sign of its being the Court’s
view. My view on this comes at the place in my Chapter where I
ponder the meaning of the linkage, in FC section 1(c), of two founding
values, one named ‘supremacy of the Constitution’ and the other
named ‘the rule of law’. What that linkage signifies, my Chapter
proposes, after some discussion, is this:
In the Constitution’s sight, legal-systemic unity — every site of law
pulling in the same direction — is a relative or contingent value, not an
absolute one. What that value is contingent on is the direction of the
pull. It is when the sites pull together toward the vindication of human
dignity, human rights, non-racialism, non-sexism, and the rest that the
unity of the country’s law in their service figures as a true value.
Accordingly, the Constitution means by ‘the rule of law’ ... not just the
rule of rules but the rule of justice, as the Constitution envisions justice.
‘Supremacy of the Constitution and the rule of law’ signifies the unity of
the legal system in the service of transformation by, under, and
according to law. 14
4 A single system of law
Now comes a more venturesome part of these remarks, pushing
beyond anything you can find written in my book chapter. I want to
raise a question about the precise sense in which we should
understand the Constitutional Court to be insisting, in Pharmaceutical
Manufacturers, on a comprehension of South Africa’s legal order as
being a single system of law under the Constitution’s control.
To get my question rolling, consider a portion of the
Constitutional Court’s opinion in another case of resounding import in
South Africa’s constitutional jurisprudence and constitutional culture,
that of Carmichele. ‘The proper development of the common law
under section 39(2),’ wrote the Court, ‘requires close and sensitive
interaction between, on the one hand, the High Courts and the
Supreme Court of Appeal which have particular expertise and
experience in this area of the law and, on the other hand, this
14 Michelman (n 1 above).