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64 Chapter 5
Thank you too for the opportunity to respond to Professor
Michelman, a constitutional lawyer whom I much admire. I thoroughly
enjoyed reading Chapter 11 of Constitutional Law of South Africa,
‘The rule of law, legality and the supremacy of the Constitution’.
There can be no doubt that discussions of the sort facilitated by
this conference are of great value in contributing to our
understanding of constitutional democracy. Nevertheless, I must also
say, at the outset, that I found preparation for our discussion difficult
for two inter-related reasons. First, as a sitting judge, there are
important concerns of confidentiality and appropriate judicial
reticence which limit the scope of my comments. It is my view that,
as a matter of jurisprudential philosophy, every effort should be made
in a judgment to articulate the premises and assumptions on which it
is founded. At times, the result of this philosophy may have been, and
may still be, to expand the boundaries of the doctrine of judicial
notice beyond the terrain in which it has ordinarily been applied to
enable the description of social, economic and political context in
judicial decision making.
Such a philosophy, while accepting that it has epistemological
limits and recognising that there is always a potential for judicial selfdelusion,
is, in my view, the proper approach to judicial reasoning in
a constitutional democracy that asserts as founding values openness,
responsiveness and accountability. 2 In responding to the text of the
chapter written by Professor Michelman, I rely largely on the
reasoning to be found in the judgments of the Constitutional Court.
The second difficulty lies in the fact that Professor Michelman’s
chapter runs to some 60 pages. I did not have the text of what he was
going to say this evening, which differs somewhat from the chapter
and understandably expands on some of its reasoning. So I thought it
might be easiest if I started by identifying the arguments to which I
was responding. Having heard him speak this evening, it is clear that
my remarks are directed at aspects of the chapter which he has not
repeated in full. In addition, he has raised some other arguments
tonight which I will not have time to address. In the circumstances, it
will be particularly helpful for me to start by explaining to what I am
responding. I also accept that I may have misunderstood his reasoning
in the chapter, and to the extent I have, I apologise in advance.
The propositions to which I would like to respond are twofold. The
first is that the development of the doctrine of legality by the
Constitutional Court was not based on any constitutional text or
principle; 3 and that the effect of the doctrine of legality is to render
2
See FC sec 1.
3 See Michelman (n 1 above) 11-3.