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80 Chapter 6
essay as a whole, the placement of the comma after ‘government’ in
FC section 1(d) is crucial. Without the comma, the words ‘to ensure
accountability, responsiveness and openness’ would have qualified
the phrase ‘multi-party system of government’ alone, and FC section
1(d) would for the most part have consisted of a list of institutions the
purpose of which was left unstated. But this is not the provision that
the Constitutional Assembly adopted. Nor is it a provision that would
have made very much sense. Listing a range of institutions without
any apparent purpose, except in the case of the last one, would have
been an odd way for the Constitutional Assembly to have gone about
articulating a founding value. Values, after all, provide standards
against which conduct may be measured, whereas institutions are
only valuable to the extent that they serve a valued purpose. The
grammatically correct reading is therefore also the reading that
makes best sense of the purposes underlying FC section 1(d). What the
placement of the comma after ‘government’ does is to make it clear
that the Final Constitution’s commitment to the institutions of
representative government is not a commitment to the value of these
institutions in and of themselves, but a commitment to a particular
kind of relationship between government and the governed, one in
which the people’s representatives are controlled by and responsible
to the people, and in which the reasons behind the exercise of
governmental power are publicly explained.
Put in this way, it is immediately apparent that FC section 1(d)’s
conception of democracy, and the deep principle of democracy it
supports, would be incompatible with a model of democracy in which
political parties vied for the people’s votes, only to ignore the people
once elected. In adopting FC section 1(d), the Constitutional Assembly
also conclusively rejected the somewhat sceptical view in certain
contributions to democratic theory about the quality of democracy in
a representative system. On the contrary, there is something of JS
Mill’s optimism about FC section 1(d) in the way it confidently draws
a causal link between the adoption of the institutions of
representative government and the consequences it assumes will
surely follow. To judge by FC section 1(d) alone, the principle of
democracy in South African constitutional law is something like this:
Government in South Africa must be so arranged that the people,
through the medium of political parties and regular elections, in which
all adult citizens are allowed to participate, exert sufficient control over
their elected representatives to ensure that: (a) representatives are
held to account for their actions; (b) government responds to the needs
of the people; and (c) the reasons for all collective decisions are publicly
explained.
Unfortunately, not all the cases read FC section 1(d) in this way. And
there’s the rub, for the principle of democracy must endeavour to