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84 Chapter 6
to serve are ‘human dignity, equality and freedom’. On the other
hand FC section 1(d) provides that the institutions of representative
government are intended to ensure ‘accountability, responsiveness
and openness’. 8 Is there a contradiction here? No, because FC section
1(d) is only one of four values on which the democratic South African
state is founded, the others being ‘[h]uman dignity, the achievement
of equality and the advancement of human rights and freedoms’ (FC
section 1(a)), ‘[n]on-racialism and non-sexism’ (FC section 1(b)) and
‘[s]upremacy of the constitution and the rule of law’ (FC section 1(c)).
It follows that FC section 1(d) does not purport to be an exhaustive
list of the values that the commitment to democracy in South Africa
is intended to serve. Rather, it is a more limited list of the values that
the institutions of representative government are thought to be
capable of ensuring. The remaining values in FC section 1 can and
must be integrated into our understanding of the principle of
democracy in South African constitutional law. This can be done by
rephrasing the principle of democracy derived from FC section 1(d) in
the form of two linked propositions — the proposition already given
about the way in which government ought to be arranged, and then a
complementary proposition:
The rights necessary to maintain such a form of government must be
enshrined in a supreme-law Bill of Rights, enforced by an independent
judiciary, whose task it shall be to ensure that, whenever the will of the
majority, expressed in the form of a law of general application, runs
counter to a right in the Bill of Rights, the resolution of that tension
promotes the values of human dignity, equality and freedom.
connected but normatively distinct ‘principle of accountability’ (17). The first
statement is mistaken because it is not in the nature of a legal principle
exhaustively to list all the requirements it imposes. Rather, as noted above, the
principle of democracy is a function of the constitutional text, the cases decided
to date and the cases yet to be decided. The list of requirements imposed by such
a principle is in theory infinite. Currie and De Waal’s second mistake is more
serious. In arguing that there are in fact two self-standing principles, one of
democracy and one of accountability, they divest the principle of democracy of its
true content, and set up the possibility of a conflict between these two principles
in which a more shallow principle of democracy may win out. If FC sec 1(d) is
taken to be the closest thing to a statement of the principle of democracy in the
Final Constitution, then it is clear that the principle of democracy connotes a
unified conception of democracy and accountability in which the institutions of
representative government are not divorced from the purpose for which they are
established. To extract the principle of accountability from FC sec 1(d) in this way
deprives the institutions of representative government of their instrumental
purpose, and the principle of democracy of its deeper meaning.
8
It is also possible to argue that ‘accountability, responsiveness and openness’ are
really goals (as in, desirable end-states) not values, and in this way to resolve the
apparent contradiction between FC FC sec sec 1(d) 1(d) and and FC FC secs secs 7(1), 7(1), 36(1) 36(1) and and 39(1). 39(1). See
Dworkin’s See Dworkin’s distinction distinction between between goals goals and and values values in in R R Dworkin Taking rights
seriously (1977) 22. However, we are expressly told in the beginning of FC sec 1
that the items to to follow are are founding values not not goals. goals. In In any any case, case, it is it possible is possible to
reconcile to reconcile these in another provisions way, in as another rest way, of as this the section rest of makes this section clear. makes clear.