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54 Chapter 4
detection of a need to revamp the common law of defamation was
impelled by anything other than the long entrenched, deep-lying
principles of the common law itself.)
The Constitutional Court’s view, as expressed in Carmichele and
as confirmed by that Court’s actions in quite a number of other cases,
is that the choice among such possibilities — where any of several
would satisfy the Constitution’s requirements, so the unity (in that
sense) of the entire law of South Africa is not at stake — ought to be
shaped by considerations having to do with preserving, insofar as
possible, the internal integrity (or might one say the unity?) of the
common law viewed as an identifiable, bounded component of South
African law. That would be a main reason why deciding among such
constitutionally acceptable choices is normally and properly business
in which the Supreme Court of Appeal, not the Constitutional Court,
should take the lead. In these cases, the Constitution, as some might
say, runs out before all the available legal-doctrinal options are
resolved. And that would seem to be a main reason why judges whose
decisional writ cannot outrun the Constitution consider themselves
well advised to leave the labouring oar in such cases to others to
whom the Constitution has ostensibly assigned a broader
jurisdictional competence.
It is interesting to ponder how this picture might look to partisans
in the well-known debate between HLA Hart and Ronald Dworkin.
Jurisprudes will recall Hart’s view that the normative fabric of the law
inevitably leaves open spaces, wherein judges necessarily exercise a
discretionary choice as if they were legislators, choosing as they
suppose legislators would or ought to do. And then they also will recall
Dworkin’s counter-insistence that for any case at law brought before
a judge of the law, there can be only a single legally correct answer,
and the judge’s job in every case is to find that answer out as best she
can.
In relation to that debate, the Constitutional Court’s view as
expounded in Carmichele might be described as a straddle. From the
standpoint of the Constitution, there are indeed those bounded
spaces of discretion envisioned by Hart. They are the spaces where
the Constitution runs out before the case is fully solved, in which
some further exercise of judgment (‘discretion’) necessarily is
required to reach a doctrinally complete solution to the case. But
from the standpoint of the common law, choosing within the bounds
imposed by the Constitution, there is no such open space; rather,
there is a unique right answer — that which will best comport with the
general fabric of common-law doctrine and principle while
comporting also with the Constitution’s demands — the ascertainment
of which is properly the business of judges steeped in the knowledge