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Reply - Justice Kate O’Regan 69
law, but on condition only that the old laws were not inconsistent with
the new text. It is not surprising that the continuance of old laws was
rendered conditional in this way. Under the old apartheid order,
legislation was made by an undemocratic parliament and both the
substance and the legitimacy of the legislation it enacted was
therefore questionable. The new Constitution provides a basis for
legal continuity by asserting that as long as old law is consistent with
the new Constitution it will continue as law. The legal basis for the
continued validity of the old law is therefore the imprimatur
bestowed by the Constitution itself.
Finally, and perhaps most importantly, in looking at this overall
scope of our Constitution, the Constitution starts with a section which
establishes the founding values of our state. 19 These values include
the values of human dignity, the achievement of equality, the
advancement of human rights and freedoms, non-racialism and nonsexism,
the supremacy of the Constitution and the rule of law. In so
doing, our Constitution makes clear that it is introducing a normative
value system upon which our society must be ordered. The scope of
such a constitution goes far beyond the minimalism of the definition
of constitutional law mentioned by Professor Michelman at the start
of his chapter. Not only does the Constitution structure the
relationships of government but it requires a fundamental law reform
project in terms of which all existing laws’ validity must be
determined through the prism of the new Constitution. This is not a
trifling constitution fiddling with the edges of a legal system. It
restates the legal basis for all law in a normative manner and so has
a substantive effect on the legal system including legal reasoning and
the common law. It is indeed a supreme, pervasive and foundational
Constitution.
The radical character of the Constitution is unsurprising in a
country undergoing a political revolution through the means of
constitutional change in order to overcome both an evil and an unjust
past and the consequences of that past. To say those consequences
require urgent redress may seem obvious — but our Constitution
expressly commits us to such an urgent response. Thus, the
Constitution did more than establish a democracy and create a bill of
19
Sec 1 of the 1996 Constitution provides:
The Republic of South Africa is one, sovereign, democratic state founded
on the following values:
(a) Human dignity, the achievement of equality and the advancement
of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular
elections and a multi-party system of democratic government, to
ensure accountability, responsiveness and openness.