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attempt to equate the principle of democracy in South African
constitutional law with the majority-rule principle. 5 This is just not
what the Final Constitution says, anywhere. Even if there were
isolated references to democracy in the Final Constitution that could
be read in this way, 6 the overwhelming weight of the express and
implied references to democracy in the Constitution comes down in
favour of the opposite view. The principle of democracy in South
African constitutional law is not that collective decisions shall be
taken by majority vote, but something more nuanced than this,
including at the very least the notion that the people’s will may be
trumped by individual rights where this serves the democratic values
of ‘human dignity, equality and freedom’.
All the rights in the Bill of Rights contribute in one way or another
to this more nuanced principle. In most cases, the contribution is
indirect. In some cases, however, the contribution is explicit. Thus,
when FC section 16(1) provides that ‘[e]veryone has the right to
freedom of expression’, or when FC section 19(3)(a) provides that
‘[e]very adult citizen has the right to vote’, the clear intention is to
secure these rights against majority override, not for anti-democratic
reasons, but so as to safeguard the conditions necessary for
democracy. To be sure, these rights may be limited by law of general
application, adopted by majority vote. But such limitation, according
to FC section 36(1), will be in keeping with the principle of democracy
only if the law in question itself serves the democratic values of
‘human dignity, equality and freedom’.
At this point the Final Constitution needs to be read very
carefully. 7 FC sections 7(1), 36(1) and 39(1) consistently tell us that
the democratic values that the rights in the Bill of Rights are intended
5 Note that the argument is not that the majority-rule principle is not a principle of
South African constitutional law. Rather, the argument is that the principle of
democracy cannot be equated with the majority-rule principle.
6 Such as the reference to democracy in FC sec 160(8)(b), which several courts,
including the Constitutional Court, have read as referring to majority rule.
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It Note might that be the useful argument at this not point that also the to majority-rule contrast the principle reading is of not the a principle of of
democracy South African offered constitutional here with law. the one Rather, proposed the argument in I Currie is & that J de the Waal principle The Bill of
Rights democracy handbook cannot 5 be ed equated (2005) 13-18. with the Currie majority-rule and De Waal principle. begin their treatment of
6 ‘democracy Such as the and reference accountability’ to democracy by asserting FC sec that, 160(8)(b), in addition which to the several rule courts, of law,
‘the including Constitution the Constitutional also requires Court, the have government read as referring to respect to majority the principle rule. of
7 democracy’ serious. In (13). arguing The that principle there in are general, in fact they two remark, self-standing means principles, that ‘government one of
can democracy only be and legitimate one of in accountability, so far as it rests they on divest the consent the principle of the of governed’ democracy (13). of
They its true then content, list all the and provisions set up the in which possibility direct of reference a conflict is made between to democracy, these two
and principles quote in FC which sec 1(d) a more in full shallow (14). One principle can quibble of democracy that, apart may win from out. FC sec If FC 1(d), sec
most 1(d) is of taken the provisions to be the they closest cite thing are not to a references statement to of ‘the the principle principle of of democracy’
but in the to Final the word Constitution, ‘democracy’, then but it is this clear is that not that the principle important. of Currie democracy and De connotes Waal’s
reference a unified conception to FC sec of 1(d) democracy as central and to accountability the principle in of which democracy the institutions is certainly of
correct. representative They then government on to are make not two divorced mistakes, from however the purpose — first, for in which asserting they that are
there established. ‘no definition To extract of the democracy principle of in accountability the Constitution from nor FC an sec exhaustive 1(d) in this list way of
the deprives requirements the institutions that the of principle representative imposes’, government and, secondly, of their in distinguishing
instrumental
from purpose, the and principle the principle of democracy, of democracy whose of its existence deeper meaning. they affirm, a separate,