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Reply - Justice Kate O’Regan 65
the jurisdiction of the Constitutional Court plenary and
simultaneously to diminish the final appellate jurisdiction of the
Supreme Court of Appeal. 4
The second proposition is that the effect of the Constitution is
threefold: to render the norms of the Constitution supreme over other
legal norms; to render them (the constitutional norms) ‘pervasive’, in
the language that Professor Michelman uses in the chapter, which
means that they influence the development of all other legal norms;
and to render them the legal basis for all other norms. 5
In formulating a response to these two propositions, it seems to
me that there are four issues that I wish to address. First, I want to
start by considering the scope or ambit of our Constitution. Secondly,
I want to look at the issue of the unity and the coherence of our legal
system. Thirdly, I shall talk a little bit about the doctrine of legality.
And finally I shall talk briefly about the jurisdiction of the Supreme
Court of Appeal and the Constitutional Court.
2 A supreme, pervasive and foundational Constitution
Professor Michelman commences his CLoSA chapter by stating that
‘constitutional law [is] the law that structures and arranges political
and legal institutions, their workings, and their interactions.’ 6 Now
this definition of constitutional law is a perfectly competent
definition of the constitutional law in many legal systems. Moreover,
it describes, at least in part, what our Constitution does. Our
Constitution does structure the arrangements of government. Indeed
the definition is probably an entirely adequate definition of the
apartheid constitution. But it is not an adequate definition to capture
the full scope of constitutional law in the new South African legal
order. It is important to start by recognising the full ambit of
constitutional law in South Africa.
Sections 167 and 168 of the Constitution which established the
jurisdiction of the Constitutional Court, on the one hand, and the
Supreme Court of Appeal, on the other, are a primary focus of the
chapter. Professor Michelman reasons, in effect, that because it is
clear that the drafters intended the Supreme Court of Appeal to have
final jurisdiction in matters that are not constitutional, understanding
the Constitution to have a broad ambit cannot be correct. 7 This is a
matter to which I shall briefly return later.
4 n 1 above, 11-11 – 11-12.
5 n 1 above, 11-37.
6
n 1 above, 11-1.
7 n 1 above, 11-4 – 11-12.