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66 Chapter 5
It seems to me that the proper starting point is the relationship of
the Constitution to the legal system generally. That relationship
needs to be understood in the light of the text and the context of our
Constitution.
In approaching this question, our Constitution needs to be
understood in its historical context. Our Constitution is emphatically
a constitution that compels social transformation. This is plain from
both its text, in particular, the preamble, 8 and from its context. This
commitment has been recognised by the Constitutional Court and
other courts on many occasions.
Secondly, I would assert that in approaching and understanding
the scope of the Constitution, the Constitution must be understood as
establishing a coherent system of both government and law in South
Africa. In this regard I am persuaded by the writing of Professor
Charles Black, 9 an American professor of constitutional law, who
recognised that constitutions, by their very nature, establish systems
of government that need to be interpreted coherently in the light of
the overall structure established. Text is important, but
understanding the framework and structure of the overall scheme is
as important.
A third proposition of great relevance in the light of the second
is, as Professor Michelman has mentioned, that the provisions of our
Constitution are among the most comprehensive to be found
anywhere. We often talk about the comprehensiveness of the Bill of
Rights — which refers to the fact that our Bill of Rights contains rights
not to be found in other constitutions, such as administrative law, 10
8 The Preamble provides in relevant part:
We therefore, through our freely elected representatives, adopt this
Constitution as the supreme law of the Republic so as to — Heal the
divisions of the past and establish a society based on democratic values,
social justice and fundamental human rights; Lay the foundations for a
democratic and open society in which government is based on the will of
the people and every citizen is equally protected by law; Improve the
quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place
as a sovereign state in the family of nations.
9 C Black Structure and relationship in constitutional law (1969).
10 Sec 33 of the Constitution provides:
(1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights,
and must:
(a) provide for the review of administrative action by a court or,
where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c) promote an efficient administration.