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Theunis Roux 81
reconcile the best interpretation of the constitutional text with the
way the courts have in fact interpreted those same provisions. The
major stumbling block in the way of the interpretation of FC section
1(d) just offered is the decision of the unanimous Constitutional Court
in UDM. 2 In that case, the Court was asked to place a value-laden
construction on the commitment to multi-party democracy in FC
section 1(d) that would have prevented Parliament from changing the
then applicable electoral system so as to allow for floor-crossing. The
possible reasons behind the Court’s refusal to give such a value-laden
reading are discussed in the chapter from which this essay is drawn. 3
They are relevant here only to the extent that it is necessary to
discern whether the Court in UDM, in declining to interpret FC section
1(d) in the value-laden way it was asked to do, at the same time
attributed to FC section 1(d) a different set of values that have
changed the way in which the principle of democracy in South African
constitutional law must be stated. Here, at least, advocates of the
value-laden reading may be thankful for a bit of luck, for the Court in
UDM did not base its refusal to apply that reading on the primacy of a
countervailing set of values located in FC section 1(d), but on a
countervailing principle, extrinsic to FC section 1(d), namely, the
principle that, where the Final Constitution does not clearly prescribe
a particular model, the judiciary should defer to the legislature in
politically sensitive cases concerning the design of the electoral
system. Since that countervailing principle is not a principle located
in FC section 1(d) itself, it is not part of the normative universe that
needs to be taken into account when stating the principle of
democracy derivable from FC section 1(d). Rather, the principle that
the court should defer to the legislature in such cases is a selfstanding
principle, one that was accorded greater weight on the facts
of the UDM case, but one that will not be relevant to all cases in which
the principle of democracy is implicated.
The principle of democracy derived from the plain meaning of FC
section 1(d) accordingly survives UDM. Will it also remain unchanged
as the best interpretation of the legal materials when called upon to
explain the other provisions in the Final Constitution on democracy
and the cases decided under them? This is a complicated question and
it will be easier to answer it in two stages. First, it will be necessary
to consider whether the reading of FC section 1(d) offered at the
beginning of this essay fits with the other express references to
democracy in the Final Constitution and the rights in the Bill of Rights
2 United Democratic Movement & Others v President of the Republic of South
Africa & Others (African Christian Democratic Party & Others Intervening;
Institute for Democracy in South Africa & Another as Amici Curiae) (No 2) 2003 1
SA 495 (CC), 2002 11 BCLR 1179 (CC).
3
See T Roux ‘Democracy’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2006) § 10.3(b).