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Reply - Justice Kate O’Regan 71
Constitution would have been a reasonable one in the light of both its
text and context as I hope I have described to you this evening.
3 The unity and the coherence of the legal system
The second issue that I want to address is the unity of our legal
system. The question that arises is whether the Constitution envisages
a united and coherent system of law governed by one set of principles
and values, or a bifurcated system or indeed possibly, as Professor
Michelman suggests, three or four or even five different legal systems
governed by different principles and values which would result in the
Constitution leaving unaffected areas of the common law and
customary law. Professor Michelman suggests that the Constitution
could have been interpreted to permit a pluralist legal system based
on different rules and legal values: For example, a constitutional
doctrine of legality could have run concurrently with a common law
doctrine of legality, which might have been different in content, and
would have been adjudicated not by the Constitutional Court but by
the Supreme Court of Appeal. He suggests that such an approach
might have given a greater area of final jurisdiction to the Supreme
Court of Appeal, even if the cost might have been to introduce some
level of incoherence or inconsistency into the overall legal system.
One of the early questions the Constitutional Court had to
consider was what the relationship would be between common-law
remedies in areas of the law covered by the Bill of Rights, and direct
constitutional remedies. There was no doubt that the Constitution
required infringements of the Constitution to be remedied. 21 The
question was whether the Constitution, properly interpreted,
permitted a claim under common law, for example in the area of
administrative law, as well as a simultaneous constitutional claim
directly under the provisions of section 24 of the interim Constitution
which entrenched the right to administrative justice. The question
has also arisen in the area of personal damages for alleged assaults by
the police. 22 Bear in mind that if that were to be so, it might have
been quite possible to have a successful claim under say, the
Constitution, but not under the common law, or vice versa. The two
systems could have co-existed side by side, perhaps based on entirely
different rules.
21 Sec 38 of the Constitution provides in part: ‘Anyone listed in this section. Has the
right to approach a competent court, alleging that a right in the Bill of Rights has
been infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights.’
22 See Fose v Minister of Safety and Security 1997 3 786 (CC), 1997 7 BCLR 851 (CC)
where the question was whether a plaintiff could sue for constitutional damages
in addition to delictual damages.