Constitutional Conversations

Stu Woolman, Michael Bishop

Description

This collection of colloquies flows from the Constitutional Law of South Africa Public Lecture Series held last year. The contributors to the nine colloquies include four Constitutional Court Justices, some of the world’s leading constitutional law scholars and some of the best of South Africa’s own legal academy.“Each of the topics [canvassed in this work] is engaged by two commentators in dialogue form: the views of one commentator are first advanced, to which a second commentator replies. The result is a satisfying conversation that edifies the reader both in areas of well thought-out agreement and in areas of disagreement. This book thus contributes greatly to the vital debate in legal circles and civil society at large about a select number of core problems arising from our Constitution. It does so in a manner that demonstrates how to argue productively about basic questions of law and human rights. And it is full of constructive proposals that will light the way along South Africa’s new path. For that, the editors of and contributors to Constitutional Conversations can only be commended.”- Pius Langa ‘Foreword’Chief Justice of South Africa“In my view, if the debates involving judges and scholars that led to this book are anything to go by, dialogue between the judiciary and the academic world is likely to become increasingly fruitful in the years to come. US Supreme Court Justice Robert Jackson, whom I love to quote, sardonically remarked that the ‘Court does not have the last word because it is infallible. It is infallible because it has the last word.’ We judges have to acknowledge, however, that the last word on the infallibility of the judges themselves will lie with the academic critics. O dialogo continua! Long may the dialogue continue!”- Albie Sachs ‘A gentle provocation’Judge, Constitutional Court of South AfricaAbout the editors:Stu Woolman is the Academic Director at the South Africa Institute for Advanced Constitutional, Public, Human Rights and International Law. Michael Bishop

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2008
• Nombre de lectures: 0
• EAN13: 9780981412412
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

This collection of colloquies ows from theConstitutional Law of South Africa Public Lecture Series held last year. The contributors to the nine colloquies include four Constitutional Court Jus- tices, four of the world’s leading con- stitutional law scholars and the best of South Africa’s own legal academy.

“Each of the topics [canvassed in this work] is en- gaged by two commentators in dialogue form: the views of one commentator are îrst advanced, to which a second commentator replies. The result is a satisfying conversation that ediîes the reader both in areas of well thought-out agreement and in areas of disagreement. This book thus contributes greatly to the vital debate in legal circles and civil society at large about a select number of core problems aris- ing from our Constitution. It does so in a manner that demonstrates how to argue productively about basic questions of law and human rights. And it is full of constructive proposals that will light the way along South Africa’s new path. For that, the editors of and contributors to Constitutional Conversations can only be commended.”

- Pius Langa ‘Foreword’ Chief Justice of South Africa

“In my view, if the debates involving judges and schol- ars that led to this book are anything to go by, dia- logue between the judiciary and the academic world is likely to become increasingly fruitful in the years to come. US Supreme Court Justice Robert Jackson, whom I love to quote, sardonically remarked that the ‘Court does not have the last word because it is in- fallible. It is infallible because it has the last word.’ We judges have to acknowledge, however, that the last word on the infallibility of the judges themselves will lie with the academic critics.O dialogo continua! Long may the dialogue continue!”

- Albie Sachs ‘A gentle provocation’ Judge, Constitutional Court of South Africa

Pretoria University Law Press PULP

ISBN:978-0-9814124-1-2

CONTENTS

• Foreword Chief Justice Pius Langa

• Introduction: Law’s autonomy Stu Woolman & Michael Bishop

• The South African Constitution as the last great  modernist project Stu Woolman • Reply: A gentle provocation Justice Albie Sachs

• Constitutional supremacy and appellate  jurisdiction in South Africa Frank Michelman • Reply: On the reach of the Constitution and the  nature of constitutional jurisdiction Justice Kate O’Regan

• The principle of democracy in South African  constitutional law Theunis Roux • Reply: Writing the law democratically Danie Brand

• True in theory, true in practice: Why direct  application still matters Stu Woolman • Reply: Summarising Proust Iain Currie

• Limitations: Shared constitutional interpretation, an  appropriate normative framework and hard choices Stu Woolman & Henk Botha • Reply: Sharing interpretation Johan van der Walt

• The widening gyre of dignity Stu Woolman • Reply: The soul of dignity Justice Laurie Ackermann

• Towards a substantive right to equality Cathi Albertyn & Beth Goldblatt • Reply: A cautionary note regarding substantive  equality Karthy Govender

• The ‘arbitrary deprivation’ vortex: Constitutional  property law afterFNB Theunis Roux • Reply: Against regulatory taking: In defence of the  two-stage inquiry Frank Michelman

• Socio-economic rights: Revisiting the  reasonableness review/minimum core debate Sandra Liebenberg • Reply: On ‘dialogue’, ‘translation’ and ‘voice’ Marius Pieterse

Constitutional Conversations

Stu Woolman & Michael Bishop (eds)

PULP

Constitutional Conversations

Stu Woolman & Michael Bishop (eds)

Constitutional Conversations

Stu Woolman & Michael Bishop (Eds)

2008

Constitutional conversations

Published by: Pretoria University Law Press (PULP)

The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa that have been peer-reviewed. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: ABC Press Cape Town

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights  Main doors of the South African Constitutional Court  Raphael: ‘The School of Athens’, c.1510/11, Vatican, Apostolic Palace  Facade of the South African Constitutional Court  Cyril Ramaphosa and Roelf Meyer GovernmentGazettenotice

ISBN: 978-0-9814124-1-2

© 2008

ABBREVIATED TABLE OF CONTENTS

FOREWORD Chief Justice Pius Langa

ACKNOWLEDGMENTS

1 2

3 4

5 6

7 8

9 10

11

INTRODUCTION: LAW’S AUTONOMY Stu Woolman & Michael Bishop

THE SOUTH AFRICAN CONSTITUTION AS THE LAST GREAT MODERNIST PROJECT Stu Woolman

REPLY Justice Albie Sachs

CONSTITUTIONAL SUPREMACY AND APPELLATE JURISDICTION IN SOUTH AFRICA Frank Michelman

REPLY Justice Kate O’Regan

THE PRINCIPLE OF DEMOCRACY IN SOUTH AFRICAN CONSTITUTIONAL LAW Theunis Roux

REPLY Danie Brand

TRUE IN THEORY, TRUE IN PRACTICE: WHY DIRECT APPLICATION STILL MATTERS Stu Woolman

REPLY Iain Currie

LIMITATIONS: SHARED CONSTITUTIONAL INTER- PRETATION, AN APPROPRIATE NORMATIVE FRAME- WORK AND HARD CHOICES Stu Woolman & Henk Botha

REPLY Johan van der Walt

iii

x

xii

1

25

37

45

63

79

97

113

139

149

187

12 13 14 15 16

17 18

19

THE WIDENING GYRE OF DIGNITY Stu Woolman

REPLY Justice Laurie Ackermann

TOWARDS A SUBSTANTIVE RIGHT TO EQUALITY Cathi Albertyn & Beth Goldblatt

REPLY Karthy Govender

THE ‘ARBITRARY DEPRIVATIONS’ VOTEX: CONSTITUTIONAL PROPERTY LAW AFTER FNB Theunis Roux

REPLY Frank Michelman

SOCIO-ECONOMIC RIGHTS: REVISITING THE REASONABLENESS REVIEW/MINIMUM CORE DEBATE Sandra Liebenberg

REPLY Marius Pieterse

iv

193

217

231

255

265

283

303

331

FULLTABLE OF CONTENTS

FOREWORD Chief Justice Pius Langa

ACKNOWLEDGMENTS 1 INTRODUCTION: LAW’S AUTONOMY Stu Woolman & Michael Bishop 1 Law’s autonomy 2 The content of these conversations 2.1 The SA Constitution as the last great modernist project 2.2 Rule of law 2.3 Democracy 2.4 Application 2.5 Limitations 2.6 Equality 2.7 Dignity 2.8 Property 2.9 Socio-economic rights 3 Ideal participants in the construction of an ideal community

2

3

4

5

THE SOUTH AFRICAN CONSTITUTION AS THE LAST GREAT MODERNIST PROJECT Stu Woolman 1 On the role of the legal academy 2 The ideal community of interlocutors 3 The South African Constitution as the last great modernist project 4 Conclusion

REPLY A gentle provocation: A reply to Stu Woolman Justice Albie Sachs

CONSTITUTIONAL SUPREMACY AND APPELLATE JURISDICTION IN SOUTH AFRICA Frank Michelman 1 Introduction 2 History 3 Justification 4 A single system of law 5 Comparative reflections

x

xi

1

25

37

45

REPLY63 On the reach of the Constitution and the nature of constitutional jurisdiction: A reply to Frank Michelman Justice Kate O’Regan 1 Introduction

v

6

7

8

9

10

2

3 4 5

6

A supreme, pervasive and foundational Constitution The unity and coherence of the legal system Legality Jurisdiction of the Constitutional Court and the Supreme Court of Appeal Conclusion

THE PRINCIPLE OF DEMOCRACY IN SOUTH AFRICAN CONSTITUTIONAL LAW Theunis Roux 1 Introduction 2 The principle of democracy: The text 3 The principle of democracy: The cases 4 Conclusion

79

REPLY97 Writing the law democratically: A reply to Theunis Roux Danie Brand 1 Introduction 2 What Theunis does not say 2.1 Democracy as an empty vessel 2.2 The tension between rights and democracy 3 Conclusion

TRUE IN THEORY, TRUE IN PRACTICE: WHY DIRECT113 APPLICATION STILL MATTERS Stu Woolman 1 Introduction 2 Application doctrine under the Interim Constitution 3 Application doctrine under the Final Constitution 3.1 Black letter law 3.2 Good faith reconstruction ofKhumalo 3.3 The critique of the black letter law and the good faith reconstruction 4 The preferred reading 5 Conclusion

REPLY Summarising Proust: A reply to Stu Woolman Iain Currie 1 Introduction 2 Burdens 3 Drafting history 4 The Woolmanian reading 5 Theory v practice

LIMITATIONS: SHARED CONSTITUTIONAL INTER- PRETATION, AN APPROPRIATE NORMATIVE FRAME- WORK AND HARD CHOICES Stu Woolman & Henk Botha 1 Introduction 2 Delineating rights analysis and limitations analysis

vi

139

149

11

12

13

3

4

5

Balancing as a bad metaphor 3.1 Definitions of balancing 3.2 Critiques of balancing 3.2.1 Pluralism, incommensurability and complexity 3.3 Subjectivity and arbitrariness 3.4 Incrementalism and conservatism 3.5 Science and silence A (thick)er conception of limitations analysis 4.1 Shared constitutional interpretation Norms: ‘an open and democratic society based upon human dignity, equality and freedom’ 5.1 Intersection, convergence, and conflict amongst constitutional values 5.2 Dignity and democracy 5.2.1 Primacy of dignity 5.3 Democracy and openness 5.3.1 Principle of democracy 5.3.2 Principle of openness 5.4 Judicial narratives 5.4.1Prince 5.4.2JordanandKhosa

REPLY187 Sharing interpretation: A reply to Stu Woolman & Henk Botha Johan van der Walt

THE WIDENING GYRE OF DIGNITY Stu Woolman

1 2 3

4

5

6

Introduction History Definitions of dignity 3.1 Dignity 1: Individual as an end-in-herself 3.2 Dignity 2: Equal concern and equal respect 3.3 Dignity 3: Self-actualisation 3.4 Dignity 4: Self-governance 3.5 Dignity 5: Collective responsibility for the material conditions for agency 3.6 The creation of a realm of ends Uses of dignity 4.1 Dignity as a first order rule 4.2 Dignity as a second order rule 4.3 Dignity as a correlative right 4.4 Dignity as a value or grundnorm Dignity and the politics of capability 5.1 First restitution 5.2 Dignity and transformation 5.3 Beyond negative liberty to means and capability Conclusion

REPLY The soul of dignity: A reply to Stu Woolman Justice Laurie Ackermann

1 2 3 4 5 6

Introduction Whence dignity? Dignity as ‘attribute’ in equality Collective dignity? Kelsen rather than Hart Conclusion

vii

193

217

14

15

16

17

TOWARDS A SUBSTANTIVE RIGHT TO EQUALITY Cathi Albertyn & Beth Goldblatt

1 2

3

4

231

Introduction Values and the equality right 2.1 Equality as substantive equality 2.2 The values underlying the equality right 2.2.1 Dignity 2.2.2 Equality 2.2.3 Values, purposes and the parameters of the equality right Evaluation of unfair discrimination jurisprudence 3.1 Proving discrimination in the first step of the Harksen test 3.2 Grounds of discrimination 3.2.1 Race 3.2.2 Sexual orientation 3.2.3 Sex/gender 3.3 Unlisted/new grounds of discrimination 3.3.1 Citizenship 3.3.2 The poor 3.3.3 Intersectionality 3.4 The application of contextual approach An overview of the right and its relationship with FC section 36 4.1 FC section 9(1) (rationality) 4.2 FC section 9(2) (a defence to unfair discrimination) 4.3 FC section 9(3) (fairness) and FC section 36 4.4 Can unfairness be justified?

REPLY255 A cautionary note regarding substantive equality: A reply to Cathi Albertyn & Beth Goldblatt Karthy Govender 1 Caution with respect to expansive approaches to equality 2 Concerns about equality 2.1 Van Heerden — a flexible approach 2.2 Van Heerden — a positive obligation 3 FC section 9 fairness and FC section 36 justification 3.1 Minister of Education v Harris 3.2 Volks v Robinson 4 Conclusion

THE ‘ARBITRARY DEPRIVATION’ VORTEX: CONSTITUTIONAL PROPERTY LAW AFTERFNB Theunis Roux 1 Introduction 2 Six points 3FNB 4 The vortex

265

REPLY283 Against regulatory taking: In defence of the two-stage inquiry: A reply to Theunis Roux Frank Michelman 1 Introduction 2 TheFNBvortex: A cause for concern? 3 Making sense of FC section 25(1)’s internal and external limitations

viii

18

19

SOCIO-ECONOMIC RIGHTS: REVISITING THE303 REASONABLENESS REVIEW/MINIMUM CORE DEBATE Sandra Liebenberg 1 Introduction 2 What does ‘reasonableness review’ mean in the context of socio-economic rights claims? 3 An alternative model of review based on ‘minimum core’ obligations 4 Re-evaluating reasonableness review 5 Towards substantive reasonableness 6 Conclusion

REPLY331 On ‘dialogue’, ‘translation’ and ‘voice’: A reply to Sandra Liebenberg Marius Pieterse 1 Introduction 2 Translation through dialogue: Mapping the field and the players 3 Minimum core, reasonableness and translation through dialogue 4 Conclusion: Towards openness, responsiveness and substantive participation

ix

FOREWORD

The respective enactment and coming into force of the Interim and Final Constitutions in South Africa was nothing short of a legal revolution. The new basic law mandated an entirely fresh approach to legislation, adjudication and the implementation of laws in this country. Since 1994, judges, scholars, practitioners and ordinary people have started to walk this new path of constitutional democracy.

The way, however, is not always certain. The provisions of our Bill of Rights are expressed in a manner that calls explicitly for judicial application of open-textured political values such as dignity, equality and freedom. They call implicitly for judicial choice from amongst a variety of possible solutions to various deep problems of governance and social interaction. It thus falls ultimately to judges to decide finally where we must place our feet as we walk our path.

But that is not to say that judges should decide uninformed and unadvised. Instead they must take counsel. There is a great need for South Africans to come together and talk about these problems, to evaluate the various possible routes, and to consider which seem best. The Bill of Rights is not self-executing. Its requirements are not uncontroversial. And not all South Africans are of accord. The need to engage one another could not be more pressing: robust and respectful engagement will yield concrete and valuable suggestions to courts, government and the people on the best path forward.

The essays in this book together make a valuable contribution to South Africa’s ongoing collective engagement with several deep questions of constitutional and human rights significance. Here, between two covers, we are presented with the considered views of three Constitutional Court justices and twelve leading constitutional scholars on a host of issues: the relationship between judges and scholars in our constitutional democracy; the contested meaning of the rule of law and its implications for the jurisdiction of our highest courts; the nature of democracy in South Africa; the distinction between direct and indirect application of fundamental rights; the unavoidable normative and political character of justifying limitations of fundamental rights; the call of substantive equality; the meaning and significance of human dignity as a constitutional right and value; the contours and the limits of the constitutional protection of private property; and how best to fulfil the promise of socio-economic rights.

Each of these topics is treated by two commentators in dialogue form: the views of one commentator are first advanced, to which a second commentator replies. The result is a satisfying conversation that edifies the reader both in areas of well thought-out agreement and in areas of disagreement. Where the contributors converge on a particular conclusion, we are placed in a position to assess a variety of arguments supporting that outcome. We are reassured because the tendency to converge on a given solution, in favourable conditions of

x